FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. This action proceeds on the May 7, 2010 amended verified complaint in which plaintiff claims that defendants Stephens, Miranda and Alziebler violated his Eighth Amendment rights.
The matter is now before the court on defendants' motion for summary judgment. Defendants claim that plaintiff failed to exhaust his administrative remedies prior to filing this action; that there is no triable issue of material fact with respect to plaintiff's factual allegations; and that they are entitled to qualified immunity. Dckt. No. 78-1 at 2. For the reasons explained below, defendants' motion for summary judgment must be denied.
Plaintiff alleges that on October 15, 2006, he was placed in a cell on "suicide precaution" after he was over medicated by medical personnel after being returned from an outside hospital. Dckt. No. 46 at 1-2. He was incoherent and unresponsive. Id. at 2. Defendant Miranda was supposed to wake him every 15 minutes, which she failed to do. Id. Miranda asked defendant Stephens to "rouse" plaintiff. Id. Stephens asked Miranda if plaintiff had been given any medication and if the medication he had been given could cause harm to him and she answered yes to both questions. Id. Stephens then summoned defendant Alziebler for assistance. Id. Plaintiff was incoherent and unresponsive. Id. Plaintiff alleges that he was then assaulted and battered with pepper spray, causing great bodily injury. Id. He was then placed in a shower without being properly decontaminated and then was placed back in the same cell without it being properly decontaminated. Id. He alleges that there was no legitimate penological justification for defendants' actions. Id.
With respect to exhaustion, plaintiff alleges in his complaint that he exhausted the claims in his complaint through the prison grievance system. He admits that his internal appeal was screened out at the director's level of review as untimely after this lawsuit was filed.
Defendants previously moved to dismiss this action on the grounds that plaintiff had failed to exhaust his administrative remedies. See Dckt. No. 13. The undersigned recommended that the motion to dismiss be denied because defendants had not met their burden of proving that plaintiff's failure to exhaust was not excused. See Dckt. No. 36 at 10. Defendants filed objections to the findings and recommendations, asking that the court conduct an evidentiary hearing on the factual dispute regarding exhaustion, or in the alternative, deny defendants' motion without prejudice to renewal of the exhaustion argument in a motion for summary judgment. Dckt. No. 39 at 2. The assigned district judge adopted the undersigned's findings and recommendations and denied the motion to dismiss without prejudice to renewal in a motion for summary judgment. Dckt. No. 40. Subsequently, defendants filed the instant motion.
A. Summary Judgment Standard*fn1
As the court previously explained in addressing defendants' earlier motion to dismiss on exhaustion grounds, see Dckt. No. 36 at 4, where resolution of the exhaustion issue require the presentation of evidence outside the pleadings, the issue must be addressed under standards that apply the procedural safeguards of Rule 56, to determine whether disputed issues of material fact exist on the question, and if so, that the credibility of conflicting witnesses are resolved through live testimony and not on paper.
Here, the parties dispute whether plaintiff, in fact, exhausted his administrative remedies. Summary judgment on the matter is appropriate when if it is demonstrated that there exists "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. "When reasonable minds could differ on the material facts at issue, summary judgment is not appropriate." Nw. Motorcycle Ass'n, 18 F.3d at 1472.
Focus on where the burden of proof lies on the issue in question is crucial to summary judgment procedures. "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Indeed, summary judgment should be entered, 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. See id. at 322. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment . . . is satisfied." Id. at 323.
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
Id. (quotations omitted). The opposing party must demonstrate -- through evidence in the form of affidavits and/or admissible discovery material -- a factual dispute that is both material (i.e., it affects the outcome of the claim under the governing law) and genuine (i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party). Fed. R. Civ. P. 56(c)(1)(A); Anderson, 477 U.S. at 248-50; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, n.11 (1986). Alternatively, the opposing party may demonstrate that a material fact is genuinely disputed by "showing that the materials cited [by the moving party] do not establish the absence . . . of a genuine dispute, or that [the moving] party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B); Matsushita, 475 U.S. at 586. As noted, summary judgment should be entered 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. See Celotex Corp., 477 U.S.at 322. Thus, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
In resolving a summary judgment motion, the court examines the pleadings, the discovery and disclosure materials on file, and any affidavits filed by the parties. See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in his or her favor. Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587. Nevertheless, it is the opposing party's obligation to produce a factual predicate from which a favorable inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts...Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). This requirement is mandatory and unequivocal. Booth v. Churner, 532 U.S. 731, 741 (2001); McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) ("Congress could have written a statute making exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a precondition to suit." (citation omitted)). A prisoner seeking leave to proceed in forma pauperis in an action challenging the conditions of his confinement brings an action for purposes of 42 U.S.C. § 1997e when he submits his complaint to the court. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Therefore, a prisoner must exhaust available administrative remedies before filing any papers in federal court and is not entitled to a stay of judicial proceedings in order to exhaust. Id. at 1051; McKinney, 311 F.3d 1198.
The failure to exhaust non-judicial administrative remedies as required by § 1997e(a) is not jurisdictional. Wyatt v. Terhune, 315 F.3d 1108, 1117 n.9 (9th Cir. 2003). Nor does § 1997e(a) require a plaintiff to plead exhaustion. Id. at 1119. Rather, "§ 1997e(a) creates a defense -- defendants have the burden of raising and proving the absence of exhaustion." Id.
California prisoners may appeal "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." ...