Free Reply to Opposition - District Court of California - California

Case 3:07-cv-05088-WHA

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DAVIDS.CHANEY Chief Assistant Attorney General 3 FRANCES T. GRUNDER Senior Assistant Attorney General 4 MICHAEL W. JORGENSON Supervising Deputy Attorney General 5 EMILY L. BRINKMAN, State BarNo. 219400 Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5742 Fax: (415) 703-5843 8 Email: [email protected] Attorneys for Defendants Labans and Freeman 9 10 IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13

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LUIS MURATALLA-LUA,
Plaintiff, v.

C 07-5088 WHA

DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

Correctional Officer LABANS and Correctional Officer FREEMEN,
Defendants.

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INTRODUCTION'
.Luis Muratalla-Lua (Plaintiff) isan inmate incarcerated by the California Department of

22 Corrections and Rehabilitation (CDCR) at Pelican Bay State Prison (Pelican Bay). Plaintiff 23 alleges in his Complaint, filed October 3,2007, that two correctional officers at Pelican Bay 24 violated his Eighth Amendment right to be free from cruel and unusual punishment during an 25 escort to the law library. (CompI. at 3, Court Docket No. 1.) The Court then screened Plaintiffs 26 Complaint as required by 42 U.S.C. § 1997e of the Prison Litigation Reform Act (PLRA). 27 (Court Docket No.5.) 28 Plaintiff then filed a First Amended Complaint including the previously screened Eighth
Defs.' Reply to Pl.'s Opp'n to Defs.' Mot. Dismiss

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1 Amendment claim but also alleging that he had suffered additional constitutional violations. 2 (Amend. CompI. at 6-7; Court Docket No.7.) Plaintiff now asserts that he was subjected to 3 unequal treatment because he is Hispanic, male, and suffers from mental health issues. (Amend. 4 CompI. at 8, 9-10.) Plaintiff also claimed that his First Amendment right to access to the Court

5 was hindered. (Amend. CompI. at 9.) 6 The Court then screened the First Amended Complaint and determined that Plaintiff stated a

7 cognizable claim of Eighth Amendment violations against Defendant Labans and Freeman. 8 (Order of Service of January 17,2008 at 1:21-23; Court Docket No.8.) 9 Defendants filed a motion to dismiss for failure to exhaust administrative remedies on

10 March 21,2008. (Court Docket No. 10.) Plaintiff filed his opposition to Defendants' motion.to 11 dismiss on April 16, 2008. (Court Docket No. 16.) 12 Plaintiff has failed to show that he has exhausted his administrative remedies before filing

13 this action, and therefore, this Court should dismiss Plaintiffs First Amended Complaint. 14 15 16 17 . ARGUMENT

PLAINTIFF FAILS TO PROVIDE EVIDENCE ESTABLISHING THAT HE EXHAUSTED HIS ADMINISTRATIVE REMEDIES, AND AS SUCH, THIS COURT SHOULD DISMISS THIS ACTION.
The PLRA requires that inmates exhaust their "available" administrative remedies before

18 filing civil rights actions in federal courts. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 19 524 (2002); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Moreover, the 20 21 22 Supreme Court has held that exhaustion of available administrative remedies requires that a prisoner "properly exhaust," which means that "prisoners must complete the administrative review process in accordance with the applicable procedural rules, ... rules that are defined not

23 by the PLRA, but by the prison grievance process itself." Jones v. Bock, 127 S. Ct. 910,922 24 25 (2007) (internal citations and quotations marks omitted) (quoting Woodford v. Ngo, 126 S. Ct. 2378,2384 (2006).) Therefore, "compliance with prison grievance procedures ... is all that is

26 required by the PLRA to 'properlyexhaust.'" Id. Here, as explained in Defendants' motion to 27 28 dismiss, Plaintiff failed to exhaust his available administrative remedies before filing this action. Plaintiff claims in his opposition that the only inmate grievance relevant to his claims is
Defs.' Reply to Pl.'s Opp'n to Defs.' Mot. Dismiss
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1 grievance number PBSP-P-07-01057. (P1.'s Opp'nto Defs.' Mot. Dismiss at 3.) Plaintiff further 2 claims that even though this grievance was exhausted one day after he filed this action with the 3 federal court, this Court should disregard the exhaustion requirement. (Id. at 4.) 4 The Supreme Court and the Ninth Circuit have both held that the failure to exhaust

5 administrative grievances before filing a complaint in court requires the Court to dismiss the 6 case. Woodford, 126 S.Ct. at 2384; McKinney, 311 F.3d at 1200-01. Plaintiffs early filing of 7 this case is not a technicality that should be overlooked. To allow a plaintiff to file before 8 completing the administrative grievance process, even by one day, would render the exhaustion 9 requirement meaningless. If a court allows a plaintiff to file a complaint one day before 10 exhausting, it defeats the purpose of exhausting administrative remedies before filing a complaint 11 with the court. The Court has established a bright line rule that inmates must exhaust before 12 filing any papers in federal court. Booth v. Churner, 532 U.S. 731, 741 (2001); Vaden v. 13 Summerhill, 449 F.3d 1047, 1050-51 (9th Cir. 2006); Porter v. Nussle, 534 U.S. 516, 524-25 14 (2002); McKinney, 311 F.3d at 1199-1200. Plaintiff did not complete the .administrative 15 grievance process before he filed suit. Therefore, the Court must dismiss this complaint without 16 prejudice. 17 \\\ 18 \\\ 19 \\\ 20 \\\ 21 \\\ 22 \\\ 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28
Defs.' Reply to Pl.'s Opp'n to Defs.' Mot. Dismiss

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CONCLUSION

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This Court should dismiss Plaintiff's First Amended Complaint under Federal Rule of Civil

3 Procedure 12(b) for Plaintiff's failure to exhaust administrative remedies as required by the 4 PLRA. 5 6 7 8 9 10
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Dated: April 25, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DAVID S. CHANEY Chief Assistant Attorney General FRANCEST.GRUNDER Senior Assistant Attorney General MICHAEL W. JORGENSON Supervising Deputy Attorney General

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Defs.' Reply to Pl.'s Opp'n to Defs.' Mot. Dismiss
Muratella-Lua v. Labans, et al. e 07-5088 WHA

EMILY! L. RINKMAN Deputy ttorney General Attorneys for Defendants Labans and Freeman

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DECLARATION OF SERVICE BY U.S. MAIL
Case Name: Case No.: I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office ofthe Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service that same day in.the ordinary course ofbusiness. On April 25, 2008, I served the attached·

Muratella-Lua v. Laban, et al.
C 07-5088 WHA

DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS.
by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Luis Muratalla-Lua J-06678 Pelican Bay State Prisoni.. P. O.Box 7500 Crescent City, CA 95532-7500 . Pro Per I declare under penalty of perjury under the laws ofthe State of California the foregoing is true and correct and that this declaration was executed on April 25, 2008, at San Francisco, California.

M.Xiang 'Declarant

Signature