ORDER OVERRULING OBJECTIONS TO REPORT AND RECOMMENDATION; ORDER GRANTING SUMMARY JUDGMENT; AND ORDER DENYING MOTION TO AMEND [DOCKET NUMBERS 80, 88.]
LARRY ALAN BURNS, District Judge.
This is a civil rights action pursuant to 28 U.S.C. § 1983 brought by Hubert Haraszewski, a prisoner in state custody. His claims concern events when he was a pretrial detainee in the San Diego County jail. Haraszewski originally brought two general claims: first, that his cell was illegally searched, and second that he was put into administrative segregation ("Ad-Seg") for punitive purposes without the required disciplinary hearing.
The first claim was dismissed for several reasons; chief among them was the fact that the officers were acting in obedience to a state judge's order. The second claim is still pending, and is the subject of a summary judgment motion. Haraszewski has also filed a motion to file a third amended complaint.
Haraszewski was accused of molesting four minors. (He has since been convicted.) While he was awaiting trial and under orders to have no contact with the victims, the parents of two of the minors contacted prosecutors to report that Haraszewski had written letters to their children. One letter is more upbeat in tone and discusses Haraszewski's memories of and fondness for the victim. ( See Mot. for Summ. J., Ex. E.) The other dwells on his deep attachment to the victim, and sense of betrayal at his victim's ending the relationship, and eventually reporting him. ( Id., Ex. L.) Both letters remind the victims he will see them soon, and attempt to shape or influence their testimony at trial. Prosecutors brought these communications to the attention of a state court judge who, on September 14, 2009, ordered Haraszewski's cell searched and all documents, photographs, and writings seized. The search was carried out that same day, and Haraszewski was moved to administrative segregation ("Ad-Seg") for nearly two weeks.
The first claim was dismissed, chiefly because officers who conducted the cell search were carrying out a court order, and as such were entitled to quasi-judicial immunity. The second claim is that officers placed him in Ad-Seg for two weeks immediately following the cell search, without giving him a disciplinary hearing as required. This is the sole remaining claim.
Defendants moved for summary judgment on the remaining claim, and the matter was referred to Magistrate Judge Peter Lewis for report and recommendation. Judge Lewis entertained Haraszewski's motions for additional discovery (Docket nos. 90, 95-99) but denied them, a ruling Haraszewski did not object to. See Fed.R.Civ.P. 72(a). Haraszewski requested, and was granted, additional time in which to file his opposition to the motion for summary judgment, but he never filed one. Judge Lewis then ordered supplemental briefing on the issue of exhaustion of administrative remedies, one of the four grounds for summary judgment Defendants raised. Haraszewski filed his supplemental brief (Docket no. 107), the only time he ever opposed summary judgment on any grounds.
Judge Lewis issued his report and recommendation (Docket no. 110) (the "R&R"). In seventeen pages of analysis and discussion, the R&R recommended granting summary judgment on the basis of non-exhaustion. Haraszewski then filed seventeen pages of objections to the R&R; Defendants filed a nine-page reply to his objections; and Haraszewski submitted an eleven-page response to their reply, which the Court accepted for filing as a sur-reply. In short, Haraszewski has had a full and complete opportunity to address the issue of exhaustion.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed.R.Civ.P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The standard for summary judgment, and a discussion of the Prison Litigation Reform Act's exhaustion requirement are set forth in the R&R, and the Court does not repeat those here. The Court does, however, note that the Supreme Court has emphasized recently and in strong terms that proper exhaustion is mandatory, and that this requires a prisoner to make proper use of all steps of the grievance process that is provided, so that jail officials can reach the merits of the issue. See Woodford v. Ngo, 548 U.S. 81, 90, 93 (2006). The R&R correctly notes that it is Defendants' burden to establish that a grievance procedure existed and that Haraszewski didn't properly exhaust it. See Wyatt v. Terhune, 315 F.3d 1108, 1112 (9th Cir. 2003). If they meet this burden, the burden shifts to Haraszewski to show that the grievance procedure was unavailable. See Albino v. Baca, 697 F.3d 1023, 1032 (9th Cir. 2012).
A prisoner need not exhaust unavailable remedies, and a remedy is unavailable if jail officials prevent an inmate from utilizing it, see Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005), or improperly screen grievances out. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). Screening of grievances is improper if the reasons are inconsistent with or unsupported by applicable regulations. Id. at 823-24. The remedies provided do not need to meet federal standards, and they need not be plain, speedy, or effective. Porter v. Nussle, 534 U.S. 516, 524 (2002).
The purposes of the exhaustion requirement include giving prison officials a fair opportunity to resolve a complaint. Woodford, 548 U.S. at 94. This means, among other things, that the grievance must "provide enough information... to allow [jail] officials to take appropriate responsive measures"). The type of exhaustion required is that which allows jail officials to resolve disputes before being haled into court. See Jones v. Bock, 549 U.S. 199, 204 (2007).
Haraszewski objects seriatim to various parts of the R&R, but hardly any of the objections have any bearing on whether he is entitled to relief. His objections, for example, claim he had an extremely convincing opposition to the motion for summary judgment that for some reason was never received, that there was no investigation at the time about whether he sent the letters, that a four-page written document submitted on a grievance form is improperly referred to as a letter rather than a grievance, and so on. Ordinarily the Court would review all these matters de novo, but objections that do not in any way affect his entitlement to relief are moot and the Court will not address those. See DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (holding federal courts lack power to decide moot questions). The Court will, however, address specific objections that do not go to moot or immaterial matters.
Haraszewski's opposition to the motion for summary judgment, and objections and sur-reply to the R&R contain many factual representations and are attested to under penalty of perjury. It bears emphasis that many of Haraszewski's attestations under penalty of perjury and pleaded facts are inconsistent and contradictory. For instance, in places, Haraszewski says he proffered written grievances while in Ad-Seg but staff refused to accept them. Elsewhere, he alleges that he kept asking staff questions and giving them notes, but it was only after he talked with Sgt. that he learned he could file a written grievance. He asks the Court to accept his sworn representations as admissible evidence. This creates two problems.
First, Haraszewski can't create a genuine issue of material fact at this point by contradicting his earlier sworn testimony. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991) (holding that party cannot create issue of material fact with an affidavit contradicting the party's own prior deposition testimony). Nevertheless, the Ninth Circuit has cautioned courts to exercise caution when applying this rule, and to apply it only when the affidavit relied on is found to be a sham. See Nelson v. City of Davis, 571 F.3d 924, 927-28 (9th Cir. 2009).
Second, submitting new evidence in objections and a sur-reply isn't a permissible way of responding to a motion for summary judgment, and has the effect of shifting the focus of the litigation. Haraszewski received a notice pursuant to Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc) and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988) warning him of this. As the procedural history suggests, shifting and arguments have characterized Haraszewski's claims thus far. This results in his claims being something of a moving target, and Defendants and Judge Lewis understandably cannot be held responsible for anticipating what new evidence Haraszewski would submit now, at the last minute. This renders Defendants' briefing and the R&R somewhat less useful ...