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Gomez v. Swaim

United States District Court, E.D. California

June 23, 2014

FRED GOMEZ, Plaintiff,
v.
SERGEANT SWAIM, et al., Defendants.

FINDINGS AND RECOMMENDATIONS, RECOMMENDING GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 37)

DENNIS L. BECK, Magistrate Judge.

I. Background

Plaintiff Fred Gomez ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's First Amended Complaint, filed September 6, 2012, against Defendants Becerra, DaViega, Junious, and Swaim on an Eighth Amendment claim for their alleged roles in placing Plaintiff on management cell status for twenty-two days without adequate heating. ECF No. 25.

Pending before the Court is Defendants Bacerra's, Daviega's, Swaims', and Junious'[1] Motion to Dismiss, filed October 4, 2013, pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, for Plaintiff's failure to exhaust administrative remedies.[2] ECF No. 37. Plaintiff filed an Opposition on November 1, 2013. ECF No. 40. Defendants did not submit a reply. On April 16, 2014, the Court issued an order converting Defendants' Motion to Dismiss based on exhaustion to a Motion for Summary Judgment pursuant to Albino v. Baca, No. 10-55702 , 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). The matter is submitted pursuant to Local Rule 230( l ).

II. Summary of First Amended Complaint

Plaintiff was incarcerated at North Kern State Prison ("NKSP") in Delano, California, where the events giving rise to this action occurred. Plaintiff names as Defendants sergeant Swaim, John Does 1 through 6, lieutenant G. Becerra, captain K. Daviega, and warden Maurice Junious.

Plaintiff alleges the following. On April 5, 2010, Defendant John Doe 1 and 2 denied Plaintiff his evening meal. On April 6, 2010, Defendants John Does 3 and 4 denied Plaintiff his breakfast and lunch meals. On April 6, 2010, Defendant Does 5 and 6 denied Plaintiff his dinner meal. Plaintiff complained to sergeant Swaim, who informed Plaintiff that he would not be receiving his meals as punishment for being cell-extracted.

Plaintiff was also placed under management cell status, which included denial of: mattress, linen, blankets, towel, cleaning clothing, socks, soap, toilet paper, spoon, cup, toothbrush or toothpaste, pens and pencils, paper, mail, and legal materials. Plaintiff was forced to sleep in a cold cell with temperatures beyond freezing, on a metal bunk without covering. Plaintiff was issued only one pair of boxers over twenty two days. Plaintiff suffered from hallucinations, sleep deprivation, disorientation. Defendants Swaim, Becerra, Daviega, and Junious forced the management cell status on Plaintiff.

Plaintiff contends a violation of the Eighth Amendment. Plaintiff requests as relief compensatory and punitive damages, and costs of suit.[3] On April 10, 2013, the Court found cognizable claims against Defendants Becerra, DaViega, Junious, and Swaim for an Eighth Amendment violation for their alleged roles in placing Plaintiff on management cell status for twenty-two days without adequate heating. ECF No. 25.

III. Exhaustion of Administrative Remedies

A. Legal Standard

Pursuant to the Prison Litigation Reform Act of 1995, "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).

The PLRA does not require that Plaintiff include legal theories or every fact necessary to prove each element of an eventual legal claim. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). But an inmate appeal must provide enough information to allow prison officials to take appropriate responsive measures. Id. at 1121. This ensures a grievance serves its primary purpose of notifying the prison of a problem. See Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004).

Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt, 315 F.3d at 1119. On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003), with respect to the proper procedural device for raising the issue of administrative exhaustion. Albino v. Baca, No. 10-55702, 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following the decision in Albino, Defendants may raise the issue of exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event that the failure to exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. Albino, 2014 WL 1317141, at *4 (quotation marks omitted). An unenumerated Rule ...


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