“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 7 meritless legal theories or whose factual contentions are clearly baseless.”
How later courts described this case
- “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 7 meritless legal theories or whose factual contentions are clearly baseless.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 ROBERT C. HOHMANN, No. 2:24-cv-3467 CSK P
12 Plaintiff,
13 v. ORDER AND FINDINGS AND
RECOMMENDATIONS
14 ROB ST.ANDRE, et al.,
15 Defendants.
16
17 I. INTRODUCTION
18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
19 to 42 U.S.C. § 1983. For the following reasons, this Court recommends dismissal of this action
20 based on failure to exhaust administrative remedies.
21 II. SCREENING STANDARDS
22 The court is required to screen complaints brought by prisoners seeking relief against a
23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
24 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally
25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an
2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
5 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.
6 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably
7 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at
8 1227.
9 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain
10 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
12 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
13 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a
14 formulaic recitation of the elements of a cause of action;” it must contain factual allegations
15 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.
16 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the
17 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
18 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal
19 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as
20 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the
21 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
22 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
23 III. BACKGROUND
24 Plaintiff filed his complaint on December 5, 2024 in the United States District Court for
25 the Northern District of California. (ECF No. 1.) On December 11, 2024, the United States
26 District Court for the Northern District of California transferred this action to this court. (ECF
27 No. 5.)
28 Named as defendants are High Desert State Prison (“HDSP”) Warden Rob St. Andre and
1 the HDSP Trust Account Office. (ECF No. 1 at 2.) Plaintiff alleges that he is a disabled veteran
2 of the United States Coast Guard. (Id.) The Department of Veteran’s Affairs recently awarded
3 plaintiff compensation for his service. (Id. at 2-3.) The Department of Treasury sent four checks
4 to HDSP in plaintiff’s name. (Id. at 3.) Defendant HDSP Trust Office is refusing to cash the
5 checks sent to plaintiff by the Department of Treasury. (Id.) The first check arrived in August
6 2024 and plaintiff has received three more checks since that time. (Id.) Plaintiff’s fiancé, who
7 has power of attorney over plaintiff’s affairs, contacted the prison to have the checks turned over
8 to her. (Id.) The prison denied this request by plaintiff’s fiancé. (Id.) Plaintiff contacted the
9 Department of Veteran’s Affairs to change the address where plaintiff’s checks are sent, but
10 plaintiff has received no response to this request. (Id.) As relief, plaintiff requests that all checks
11 addressed to him from the Department of Treasury be cashed into plaintiff’s trust account or the
12 checks be released to plaintiff’s fiancé. (Id.)
13 In his complaint, plaintiff states that there is a grievance procedure at HDSP but that
14 plaintiff did not present the facts raised in his complaint for review through the grievance
15 procedure. (Id. at 1.) Plaintiff states that he did not present his claim for review through the
16 grievance procedure because his claim “is time sensitive at this point in time. The Treasury
17 checks being withheld by the trust account office at the prison need to be cashed within 180 days
18 of being drafted.” (Id. at 2.)
19 IV. LEGAL STANDARDS REGARDING ADMINISTRATIVE EXHAUSTION
20 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that
21 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any
22 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
23 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
24 Prisoners are required to exhaust the available administrative remedies prior to filing suit. See
25 Jones v. Bock, 549 U.S. 199, 211 (2007). The exhaustion requirement applies to all prisoner suits
26 relating to prison life. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required
27 regardless of the relief sought by the prisoner and regardless of the relief offered by the process,
28 unless “the relevant administrative procedure lacks authority to provide any relief or to take any
1 action whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736 (2001); see
2 also Ross v. Blake, 578 U.S. 632, 643 (2016).
3 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong for
4 which redress is sought. The grievance need not include legal terminology or legal theories,
5 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its
6 resolution, not to lay groundwork for litigation. The grievance process is only required to alert
7 prison officials to a problem, not to provide personal notice to a particular official that he may be
8 sued.” Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (citations and internal quotation marks
9 omitted).
10 As discussed in Ross, there are no “special circumstances” exceptions to the exhaustion
11 requirement. 578 U.S. at 639. The one significant qualifier is that “the remedies must indeed be
12 ‘available’ to the prisoner.” Id. The Ross Court described this qualification as follows:
13 [A]n administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a
14 simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates. See 532 U.S., at 736, 738....
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Next, an administrative scheme might be so opaque that it becomes,
16 practically speaking, incapable of use....
17 And finally, the same is true when prison administrators thwart
inmates from taking advantage of a grievance process through
18 machination, misrepresentation, or intimidation.... As all those courts
have recognized, such interference with an inmate’s pursuit of relief
19 renders the administrative process unavailable. [Footnote omitted.]
And then, once again, § 1997e(a) poses no bar.
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21 Id. at 643-44.
22 When it is clear on the face of the complaint that a plaintiff failed to exhaust
23 administrative remedies, dismissal is proper. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.
24 2014).
25 V. ANALYSIS
26 On December 19, 2024, this Court issued an order finding that it was clear from the face
27 of the complaint that plaintiff did not exhaust available administrative remedies prior to filing this
28 action. (ECF No. 8.) This Court ordered plaintiff to show cause within thirty days why this
1 action should not be dismissed for failure to exhaust administrative remedies. (Id.)
2 On January 13, 2025, plaintiff filed a response to the order filed December 19, 2024.
3 (ECF No. 12.) Plaintiff states that he submitted multiple GA-22 forms beginning in October
4 2024 but did not receive any of these forms back. (Id. at 1.) Attached to plaintiff’s pleading are
5 two GA-22 Inmate Request for Interview forms dated November 25, 2024 and November 26,
6 2024. (Id. at 12-15.) The form dated November 25, 2024 is addressed to the Trust Account
7 Office and requests that plaintiff’s checks from the Department of Treasury be sent to plaintiff’s
8 fiancé. (Id. at 12-13.) The form dated November 26, 2024 is also addressed to the Trust Account
9 Office and requests that the funds sent to plaintiff from the Department of Treasury be released.
10 (Id. at 14-15.) Neither of the GA-22 Request for Interview forms contains a response from prison
11 officials. (Id. at 12-15.) GA-22 Inmate Request for Interview forms do not exhaust
12 administrative remedies. In California, administrative grievances must be prepared on CDCR
13 602 forms. See Cal. Code Regs. tit. 15, § 3482(c).
14 In the January 13, 2025, response, plaintiff alleges that he is 100% mentally disabled and
15 does not have the mental capacity to deal with the 602 appeal process and the subsequent
16 retaliation that comes from CDCR staff while trying to exhaust administrative remedies. (ECF
17 No. 12 at 1.) Plaintiff alleges that he is afraid of further retaliation. (Id.) Plaintiff alleges that he
18 has been retaliated against in the past for using the 602 grievance process. (Id. at 1-2.) Plaintiff
19 alleges that in the past, he lost privileges in retaliation for using the 602 grievance process. (Id.)
20 Plaintiff alleges that he did not include copies of his previous 602s because the correctional
21 officers go over everything that plaintiff puts in the envelope. (Id.) Plaintiff alleges that he is
22 worried to write his response to the December 19, 2024 order because of what might happen.
23 (Id.) Plaintiff states that he is referencing grievance nos. 463221 and 531308. (Id.) Plaintiff
24 states that if the Court will not allow this action to move forward, plaintiff will pay the $350 filing
25 fee. (Id.)
26 This Court finds that plaintiff’s claims of past retaliation for filing 602 grievances
27 undermines plaintiff’s claim that he does not have the mental capacity to deal with the 602 appeal
28 process. Turning to plaintiff’s fear of retaliation were he to file an administrative grievance, “a
1 prisoner is excused from the exhaustion requirement in circumstances where administrative
2 remedies are effectively unavailable, including circumstances in which a prisoner has reason to
3 fear retaliation for reporting an incident.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 792
4 (9th Cir. 2018) (citing McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015)). “In order for a fear
5 of retaliation to excuse the PLRA’s exhaustion requirement, the prisoner must show that (1) ‘he
6 actually believed prison officials would retaliate against him if he filed a grievance’; and (2) ‘a
7 reasonable prisoner of ordinary firmness would have believed that the prison official’s action
8 communicated a threat not to use the prison’s grievance procedure and that the threatened
9 retaliation was of sufficient severity to deter a reasonable prisoner from filing a grievance.’” Id.
10 (quoting McBride, 807 F.3d at 987).
11 Assuming that plaintiff demonstrated that he actually believes prison officials will
12 retaliate against him if he files a grievance, this Court finds that plaintiff fails to demonstrate that
13 his fear of retaliation is objectively reasonable. While plaintiff alleges that he lost privileges for
14 filing a grievance, plaintiff does not allege when this occurred or describe any of the
15 circumstances surrounding the alleged retaliation. While plaintiff identifies two grievances by
16 number for which he was allegedly retaliated against for filing, plaintiff does not describe these
17 grievances, when they were filed, or the retaliation he allegedly suffered for filing these
18 grievances. Plaintiff’s conclusory assertions of retaliation are insufficient to demonstrate that
19 prison officials rendered administrative remedies unavailable to plaintiff. See Rodriguez, 891
20 F.3d at 794 (“If the appellees in this case had alleged only general and unsubstantiated fears about
21 possible retaliation, as appellants claim, we would hold that they had not exhausted their
22 administrative remedies.”). In making this finding, this Court observes that in the complaint,
23 plaintiff excused his failure to exhaust administrative remedies on the grounds that his claim was
24 time sensitive. (ECF No. 1 at 2.) Plaintiff did not claim that fear of retaliation prevented him
25 from exhausting administrative remedies.
26 For the reasons discussed above, this Court recommends that this action be dismissed
27 because plaintiff’s failure to exhaust administrative remedies is clear from the face of plaintiff’s
28 complaint. Plaintiff is informed that even were he to pay the filing fee, this action would still be
1 || dismissed based on his failure to exhaust administrative remedies.
2 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district
3 || judge to this action; and
4 IT IS HEREBY RECOMMENDED that this action be dismissed based on plaintiff's
5 || failure to exhaust administrative remedies.
6 These findings and recommendations are submitted to the United States District Judge
7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days
8 | after being served with these findings and recommendations, plaintiff may file written objections
9 || with the court and serve a copy on all parties. Such a document should be captioned
10 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that
11 | failure to file objections within the specified time may waive the right to appeal the District
12 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (th Cir. 1991).
13
14 Dated: January 22, 2025 7 2
Chan Spo
15 CHI SOO KIM
16 UNITED STATES MAGISTRATE JUDGE
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