# (PC) Tufono v. Thurmon

> District Court, E.D. California · June 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10019760

## Case

- **Court:** District Court, E.D. California
- **Decided:** June 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10019760

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 ARVELLO L. TUFONO, No. 2:20-cv-1118 KJN P
12 Plaintiff,
13 v. ORDER AND FINDINGS &
RECOMMENDATIONS
14 J. THURMON, et al.,
15 Defendants.
16
17 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
18 § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This
19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).
21 Accordingly, the request to proceed in forma pauperis is granted.
22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.
23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in
24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments
27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These
28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the
1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.
2 § 1915(b)(2).
3 As discussed below, this action must be dismissed based on plaintiff’s failure to first
4 exhaust administrative remedies prior to filing the instant action.
5 I. Screening Standards
6 The court is required to screen complaints brought by prisoners seeking relief against a
7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
8 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
9 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an
14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
17 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
18 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably
19 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at
20 1227.
21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
25 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a
26 formulaic recitation of the elements of a cause of action;” it must contain factual allegations
27 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.
28 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the
1 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
2 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal
3 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as
4 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the
5 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
6 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
7 Pursuant to the initial screening of a complaint under 28 U.S.C. § 1915A, a court may
8 dismiss an action for failure to exhaust administrative remedies. See Bennett v. King, 293 F.3d
9 1096, 1098 (9th Cir. 2002) (affirming district court’s sua sponte dismissal of prisoner’s complaint
10 because he failed to exhaust his administrative remedies). Thereafter, failure to exhaust is an
11 affirmative defense that must be raised and proved by the defendant. Wyatt v. Terhune, 315 F.3d
12 1108, 1112 (9th Cir. 2003).
13 II. Plaintiff’s Allegations
14 Plaintiff claims that on two occasions, defendant Lt. Thurmon placed plaintiff’s life in
15 danger and continues to put plaintiff’s life in danger, and violated plaintiff’s due process rights,
16 by intentionally and improperly classifying a rules violation report as sexually disordered conduct
17 rather than the mere verbal disrespect it was. As a result, plaintiff claims yellow placards were
18 placed over plaintiff’s cell windows so that everyone in plaintiff’s housing unit would believe
19 plaintiff was a sex offender, having committed indecent exposure or sexually disorderly conduct,
20 allegedly for the purpose of causing other inmates to victimize plaintiff. On April 19, 2020,
21 plaintiff alleges defendant Sgt. Cherniss generated a chrono authorizing the placement of the
22 yellow placards on plaintiff’s cell windows for 180 days. Plaintiff brought these alleged
23 violations to the attention of defendants Captain Ormand and Captain J. Ali. As a result of these
24 allegations, plaintiff claims he has suffered daily disrespect and emotional distress, and seeks
25 money damages.
26 III. Discussion
27 It is obvious from the face of the complaint that plaintiff did not exhaust his administrative
28 remedies prior to bringing this action because he concedes that he did not. (ECF No. 1 at 5.)
1 Rather, plaintiff contends that he is in need of immediate relief because his life is in danger, and
2 “that’s why [he] filed complaint before exhausting [his] administrative remedies at the highest
3 level.” (Id.)
4 Plaintiff’s claims challenging his conditions of confinement are subject to the Prison
5 Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). “The PLRA mandates that inmates
6 exhaust all available administrative remedies before filing ‘any suit challenging prison
7 conditions,’ including, but not limited to, suits under § 1983.” Albino v. Baca, 747 F.3d 1162,
8 1171 (9th Cir. 2014) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). The Supreme Court
9 has held that courts may not excuse an inmate’s failure to exhaust administrative remedies prior
10 to bringing suit under the PLRA, even to take into account “special” circumstances. Ross v.
11 Blake, 136 S. Ct. 1850 (2016).
12 An action is subject to dismissal and plaintiff may not proceed in this action if he has not
13 exhausted his administrative remedies prior to filing suit. See, e.g., Albino, 747 F.3d at 1162 (in
14 rare cases where a failure to exhaust is clear from the face of the complaint, it may be dismissed
15 for failure to state a claim); Bennett, 293 F.3d at 1098; Medina v. Sacramento Cty. Sheriff’s
16 Dep’t, 2016 WL 6038181, at *3 (E.D. Cal. Oct. 14, 2016) (“When it is clear from the face of the
17 complaint and any attached exhibits that a plaintiff did not exhaust his available administrative
18 remedies before commencing an action, the action may be dismissed on screening for failure to
19 state a claim.”) Regardless of the relief sought, a prisoner must exhaust administrative remedies
20 before filing in federal court. Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross, 136 S. Ct.
21 at 1857, 1859. In other words, exhaustion is a precondition to suit; exhaustion while the action is
22 pending is insufficient. McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002). This
23 requirement promotes the PLRA’s goal of efficiency by: “(1) ‘giv[ing] prisoners an effective
24 incentive to make full use of the prison grievance process’; (2) reducing prisoner suits as some
25 prisoners are ‘persuaded by the proceedings not to file an action in federal court’; and
26 (3) improving the quality of any remaining prisoner suits ‘because proper exhaustion often results
27 in the creation of an administrative record that is helpful to the court.’” Nunez v. Duncan, 591
28 F.3d 1217, 1226 (9th Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. at 94-95).
1 The Ninth Circuit has recognized that the PLRA does not require exhaustion when
2 circumstances render administrative remedies “effectively unavailable.” Andres v. Marshall, 867
3 F.3d 1076, 1078 (9th Cir. 2017) (citing Nunez v. Duncan, 591 F.3d at 1226). In Ross, the
4 Supreme Court agreed, holding that § 1997e(a) requires an inmate to exhaust only those
5 grievance procedures “that are capable of use to obtain some relief for the action complained of.”
6 Ross, 136 S. Ct. 1850, 1859 (2016) (citation and internal quotation marks omitted). Andres, 867
7 F.3d at 1078. However, the Supreme Court also reinforced the exhaustion requirement:
8 [T]hat language is “mandatory”: An inmate “shall” bring “no action”
(or said more conversationally, may not bring any action) absent
9 exhaustion of available administrative remedies. . . . [T]hat edict
contains one significant qualifier: the remedies must indeed be
10 “available” to the prisoner. But aside from that exception, the
PLRA’s text suggests no limits on an inmate’s obligation to exhaust
11 -- irrespective of any “special circumstances.”
12 Ross, 136 S. Ct. at 1856 (internal citations omitted).
13 Here, plaintiff’s reliance on the nature of his underlying claim is unavailing. As the
14 Supreme Court has repeatedly found, there is no exception to the exhaustion requirement; rather,
15 exhaustion is mandatory. Moreover, as a federal district court, this court is bound to follow the
16 United States Supreme Court’s holding that the exhaustion of administrative remedies may not be
17 excused, even for special circumstances. Thus, to the extent plaintiff contends his situation
18 constitutes “special” circumstances, such circumstances do not excuse his failure to exhaust
19 administrative remedies prior to filing this action.
20 Because it is clear from the face of plaintiff’s complaint that plaintiff did not exhaust his
21 administrative remedies based on his erroneous belief that he could be excused from the
22 exhaustion requirement, it would be futile to grant plaintiff leave to amend. Plaintiff must
23 administratively exhaust his claims before again bringing such claims before this court in a civil
24 rights action. The undersigned recommends dismissal of the complaint without leave to amend,
25 but dismisses the action without prejudice to plaintiff filing a new civil rights complaint once he
26 has exhausted his administrative remedies.
27 ////
28 ////
COU UV VELLOUINGIVITING RUUD OV VY

1 } IV. Conclusion
2 In accordance with the above, IT IS HEREBY ORDERED that:
3 1. Plaintiff's request for leave to proceed in forma pauperis is granted.
4 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
5 | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
6 | § 1915(b)C1). All fees shall be collected and paid in accordance with this court’s order to the
7 | Director of the California Department of Corrections and Rehabilitation filed concurrently
8 | herewith.
9 3. The Clerk of the Court is directed to assign a district judge to this case.
10 Further, IT IS RECOMMENDED that this action be dismissed without prejudice.
11 These findings and recommendations are submitted to the United States District Judge
12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after
13 | being served with these findings and recommendations, plaintiff may file written objections with
14 | the court and serve a copy on all parties. Such a document should be captioned
15 | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that
16 | failure to file objections within the specified time may waive the right to appeal the District
17 | Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991).
18 || Dated: June 10, 2020
Aectl Aharon
20 KENDALL J. NE
UNITED STATES MAGISTRATE JUDGE
21 jufortis.tte.sua
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10019760. Public record. Not legal advice.