Chavez v. Milligan

Background

Joel Chavez, a California prisoner proceeding without a lawyer, brought a civil-rights action under 42 U.S.C. § 1983 against D. Milligan and other correctional officers at Pelican Bay State Prison. Chavez alleged that three officers repeatedly punched him in the face and head and hit his head against the ground while escorting him from his cell to the yard. He alleged that he was handcuffed, complying with orders, and seriously injured.

The court had previously reviewed the complaint under the prisoner-screening statute and concluded that, if the allegations were true, they could support a claim that the officers used excessive force in violation of the Eighth Amendment. The defendants then moved to dismiss under Rule 12(b)(6), which permits dismissal when a complaint does not adequately state a legal claim. They argued that Chavez had not properly exhausted the prison grievance process before filing suit, as required by the Prison Litigation Reform Act.

Exhaustion issue

The court explained that exhaustion is generally an affirmative defense that defendants must prove, usually through a motion for summary judgment. But dismissal under Rule 12(b)(6) is permitted when failure to exhaust is clear from the complaint and its attachments.

Chavez’s complaint said he had pursued his grievances through the highest level of review, and the attached records showed that his grievance was canceled as untimely at the final level. Prison regulations required him to file the grievance within 30 days of the alleged assault, by November 23, 2017. He filed it on January 28, 2018.

Chavez said he delayed because he feared retaliation from the officers. The court found that his allegations plausibly supported the conclusion that he actually feared retaliation: he alleged that the officers believed he had participated in an attack on other guards and an attempted murder, had already violently attacked him, and might retaliate again. He filed the grievance only after being transferred to another prison.

The court nevertheless found that Chavez did not satisfy the objective part of the applicable test. The complaint did not allege that the officers or another prison official threatened him in connection with filing a grievance. The court concluded that the alleged beating and existing hostility, without more, would not cause a reasonable prisoner of ordinary firmness to believe that filing a grievance would lead to sufficiently serious retaliation. The court therefore held that the allegations did not excuse Chavez’s late exhaustion.

The court did not consider additional allegations Chavez raised in his opposition brief, including that Milligan threatened to kill him if he filed a timely grievance and that officials intercepted a timely grievance. On a Rule 12(b)(6) motion, the court said it could consider only the complaint and its attachments.

The court also rejected Chavez’s argument that his grievance was subject to no filing deadline. The regulation he cited applied to sexual-assault or rape claims, not to his excessive-force claim, which was subject to the ordinary 30-day deadline.

Disposition

The court granted the defendants’ motion to dismiss because the complaint and attached records showed that Chavez had not properly exhausted his available administrative remedies. The court dismissed the case with leave to amend, allowing Chavez to allege, if he could do so in good faith, facts supporting an excuse for the failure to exhaust. The court ordered him to file an amended complaint within 28 days and stated that failure to amend as required would result in dismissal of the case in its entirety.

Chavez requested dismissal of his claim against Tubbs because his grievance did not mention Tubbs or make allegations against him. Because the parties agreed to that dismissal, the court dismissed the claim against Tubbs without prejudice to refiling after Chavez exhausted the claim.

Chavez had also filed a sur-reply without permission. The court granted the defendants’ motion to strike it, did not grant Chavez permission to file it, and denied his motion for an extension of time. Judge Jacqueline Scott Corley signed the order.