The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge
Plaintiff Gregory L. Brown is a California state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 for alleged violations of his rights guaranteed by the First and Eighth Amendments of the United States Constitution and his rights under the Americans with Disabilities Act ("ADA"). On May 5, 2008, Defendants Edward Alameda, L. Alexander, T. Bainbridge, D. J. Blankenship, W. Brewer, T. Cole, D. Davey, J. Feliciano, T. Felker, A. Fiegener, G. Harrison, G. Hibbits, T. Jackson, R. S. Johnson, T. Kopec, S. Leighton, G. Lucas, J. Lynn, A. J. Malfi, A. Martin, J. Norlin, Quiggle, Linda L Rianda, D. L. Runnels, T. Surges, R. Weeks, and M. Wright filed a motion to for summary judgment (Doc. 146). The motion is presently before this Court.
At all times relevant to this action, Plaintiff was a prisoner at High Desert State Prison ("HDSP") in Susanville, California. In 2004, Plaintiff was relocated to the California Substance Abuse and Treatment Facility ("SATF") in Corcoran, California.
On December 11, 2002, Plaintiff brought this civil rights action against 32 employees of the California Department of Corrections and Rehabilitations ("CDCR") pursuant to 42 U.S.C. § 1983. With the Court's permission, Plaintiff amended his complaint on May 23, 2003 and then for a second time on December 12, 2004. The Second Amended Complaint names 48 defendants. All of the individual Defendants are being sued in their individual and official capacities.
Plaintiff alleges in the Second Amended Complaint that Defendants: (1) violated his Eighth Amendment right to be free from cruel and unusual punishment; (2) violated his First Amendment Rights by retaliating against him for filing grievances; and (3) violated his rights under the ADA.
On May 19, 2005, Magistrate Judge Kimberly J. Mueller screened the Second Amended complaint pursuant to 42 U.S.C. § 1915(A) and concluded that:
If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of the following claims against the following defendants:
1) Eight Amendment: Harrson, Lucas, Davey, Quiggle, Rohlfing, Runnels, Martin, Johnson, Felker, Malfi, Surges, Alameida, Kopec, Fleischman, Fiegner, Cole, Leighton, Brewer, Lynn, Wright, Braida, Jackson, Bainbridge, Halsath, Weeks and Alexander;
2) ADA: Martin, Johnson, Felker, Malfi, Surges, Alameida, Rianda, Runnels, Kopec, Fleischman, Fiegner and Cole; and
3) First Amendment Retaliation: Leighton, Brewer, Lynn, Wright, Felker, Blankenship, Norlin, Fleischman, Kopec, Jackson, Hibbits, Weeks, Alexander, Cole and Feliciano.
Magistrate Judge Mueller further held that: "With respect to the remainder of the defendants and claims identified in plaintiff's second amended complaint, plaintiff's second amended complaint fails to state a claim upon which relief can be granted."
Defendants filed a motion to dismiss on June 8, 2007 (Doc. 97). This Court granted the motion to dismiss Plaintiff's ADA claim against Defendants Martin, Johnson, Felker, Malfi, Surges, Alameida, Rianda, Runnels, Kopec, Fleischman, Fiegner and Cole in their individual capacities. The Court denied Defendants' motion to dismiss in all other respects.
Defendant Rohfling filed a motion for summary judgment on April 22, 2008. This Court granted defendant Rohfling's motion for summary judgment on June 18, 2008.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted in favor of a party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A party's motion for summary judgment must be granted "after adequate time for discovery and upon motion . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
"On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). "The moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Horphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). "Once the moving party meets its initial burden, however, the burden shifts to the non-moving party to set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks omitted).
Where the party resisting a motion for summary judgment is pro se, the court "must consider as evidence in his opposition to summary judgment all of [his] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [he] attested under penalty of perjury that the contents of the motions or pleadings are true and correct." See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (holding that allegations contained in a pro se plaintiff's verified pleadings must be considered as evidence for purposes of summary judgment).
In their motion for summary judgment, Defendants contend that all claims arising out of events after December 11, 2002 are barred because plaintiff filed this action before he exhausted all of his administrative remedies. The Court agrees and will dismiss any claims arising out of events after December 11, 2002 without prejudice.
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
Nonexhaustion under § 1997e(a) is an affirmative defense under the PLRA. Jones v. Bock, _ U.S._, 127 S.Ct. 910, 921 (2007). Defendants have the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). A nonexhaustion defense should be raised in an unenumerated Rule 12(b) motion. Id. "In deciding a motion to dismiss for a failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact." Id. at 1119-20. "If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice." Id. at 1120.
The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford v. Ngo, _ U.S. _, 126 S.Ct. 2378, 2382 (2006). However, a prisoner need not continue to pursue administrative remedies if "there is no further possibility that corrective action will be taken in response to [the] grievance." Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005) (internal quotation marks omitted).
The State of California provides its prisoners the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." Cal Code Regs tit 15, § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: "(1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, (4) third level appeal to the director of the California Department of Corrections." Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Id. at 1237-38.
A prisoner "may initiate litigation in federal court only after the administrative process ends and leaves his grievances unredressed." Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006). In Vaden v. Summerhill, a California state prisoner sent a complaint to the district court before he had exhausted his administrative remedies within the state prison system. Id. at 1049. He did, however, exhaust those remedies by the time the district court granted him permission to file his complaint in forma pauperis under 28 U.S.C. § 1915. Id. The district court concluded that the prisoner satisfied the PLRA's exhaustion requirement in those circumstances. Id. The Ninth Circuit reversed, stating that the PLRA requires that a prisoner exhaust administrative remedies before submitting any papers to the federal courts. Id. at 1051.
Here, Plaintiff could not have exhausted the inmate grievance process for claims arising out of events after December 11, 2002, when this action was initiated. Plaintiff contends that he satisfied the exhaustion requirement by amending his complaint. Under Federal Rule of Civil Procedure 15(c), however, the date of an amended complaint relates back to the date of the original complaint. Therefore, the operative date of Plaintiff's second amended complaint, for purposes of exhaustion, is December 11, 2002. Because Plaintiff failed to exhaust his administrative remedies as to claims thirteen through twenty-two before December 11, 2002, those claims are dismissed without prejudice. See Vaden, 449 F.3d at 1051 ("Because Vaden did not exhaust his administrative remedies prior to sending his complaint to the district court, the district court must dismiss his suit without prejudice.").
In their motion for summary judgment, Defendants Alameida and Rianda argue that they are entitled to summary judgment because the claims alleged against them are based solely upon a theory of respondeat superior. The Court agrees and grants Defendants' motion for summary judgment as to all claims alleged against Defendants Alameida and Rianda.
To state a claim under section 1983, a plaintiff must allege that: (1) the defendant acted under color of state law, and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006). "A person deprives another of a constitutional right, where that person does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made." Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir.2007) (quotations omitted). "[T]he 'requisite causal connection can be established not only by some kind of direct, personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.'" Id. (quoting Johnson at 743-44).
Under section 1983, liability may not be imposed on supervisory personnel for the actions of their employees under a theory of respondeat superior. When the named defendant holds a supervisorial position, the causal link between the defendant and the claimed constitutional violation must be specifically alleged. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.1979). Plaintiff must demonstrate that Defendants either: personally participated in the alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989)(internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989).
As to Defendant Alameida's liability, Plaintiff states in his opposition to the motion for summary judgment:
3.) Defendant Alameida did not work at HDSP. At all times relevant to this suit, Alameida was the director of CDCR. (Ex. B 2-3.) Alameida has never met, spoken to, or received any correspondence from Plaintiff, who is suing Alameida based upon his role as a supervisor. (Ex. B 4, 6-7; Ex. Y 48: 17-50: 23.) Alameida played no role in Plaintiff's activities at HDSP, including but not limited to, Plaintiff's medical care or condition, Plaintiff's ability to participate in outdoor exercise, Plaintiff's property, or Plaintiff's housing assignment. (Ex. B 5.)
Greg denies that he is suing defendant Alameida based upon his role as a supervisor. Greg is suing defendant Alameida for being deliberately indifferent to his Eighth Amendment Rights and his rights under the Americans with Disabilities Act (ADA) as set forth in ...