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Hash v. Lee

United States District Court, N.D. California

July 2, 2014

CHARLES LEE, et al., Defendants.


MAXINE M. CHESNEY, District Judge.

On August 4, 2008, plaintiff, a California prisoner then incarcerated at the Correctional Training Facility at Soledad[1] and proceeding pro se, initiated the above-titled civil rights action by filing a 299-page complaint naming seventy-eight defendants. The Court thereafter granted plaintiff leave to proceed in forma pauperis and dismissed the complaint with leave to amend.

Plaintiff filed a first amended complaint ("FAC") on June 29, 2009, after which the Court found plaintiff had stated cognizable claims against thirty-one defendants for: (1) deliberate indifference to plaintiff's safety, in violation of the Eighth Amendment; (2) deliberate indifference to plaintiff's serious medical needs, in violation of the Eighth Amendment; (3) excessive force, in violation of the Eighth Amendment; (4) retaliation, in violation of the First Amendment; and (5) denial of plaintiff's access to courts, in violation of the Fourteenth Amendment. According to the FAC, the events giving rise to said claims occurred during the time plaintiff was incarcerated at Salinas Valley State Prison ("SVSP") in 2004 and 2005.

As of July 8, 2011, plaintiff had not effectuated or facilitated service on thirteen of the thirty-one defendants. Of those thirteen defendants, eight were later served and five were dismissed by orders filed, respectively, on September 15, 2011 and January 10, 2012. The only claims pertaining to the twenty-six remaining defendants are First Amendment retaliation claims and Eighth Amendment claims for deliberate indifference to safety and to medical needs.

Now before the Court is defendants' motion for summary judgment, filed September 23, 2013. On May 1, 2014, following several extensions, plaintiff filed his opposition, and, on May 14, 2014, defendants filed a reply.[2] For the reasons discussed below, the motion will be granted.


I. Legal Standard

Summary judgment is proper where the pleadings, discovery, and affidavits show there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id.

A court shall grant summary judgment "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[, ]... since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." See Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Id . The burden then shifts to the nonmoving party to "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" See id. at 324 (citing Fed.R.Civ.P. 56(e) (amended 2010)).

For purposes of summary judgment, the court must view the evidence in the light most favorable to the nonmoving party; if the evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the court must assume the truth of the evidence submitted by the nonmoving party. See Leslie v. Grupo ICA , 198 F.3d 1152, 1158 (9th Cir. 1999). The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987)

In ruling on a motion for summary judgment, a district court may only consider admissible evidence. See Fed.R.Civ.P. 56(e); Orr v. Bank of America , 285 F.3d 764, 773 (9th Cir. 2002). Here, plaintiff has verified his FAC and his opposition to defendants' motion for summary judgment by signing both documents under penalty of perjury, and, for purposes of the instant order, the Court construes those documents as affidavits in opposition to defendants' motion. See Schroeder v. McDonald , 55 F.3d 454, 460 & n.10 (9th Cir. 1995) (finding complaint signed under penalty of perjury constituted admissible evidence).

II. Exhaustion of Remedies

The Prison Litigation Reform Act of 1995 ("PLRA") amended 42 U.S.C. § 1997e to provide that "[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). Although previously within the discretion of the district court, exhaustion in prisoner cases covered by § 1997e(a) is now mandatory. Porter v. Nussle , 534 U.S. 516, 524 (2002). The PLRA exhaustion requirement requires "proper exhaustion" of all available administrative remedies. Woodford v. Ngo , 548 U.S. 81, 93 (2006). Moreover, those remedies "need not meet federal standards, nor must they be plain, speedy, and effective.'" Porter , 534 U.S. at 524 (citation omitted). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id .; Booth v. Churner , 532 U.S. 731, 741 (2001). Exhaustion is a prerequisite to all inmate lawsuits pertaining to prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Porter , 534 U.S. at 532.

The exhaustion requirement of the PLRA is intended to serve a number of purposes, including providing an opportunity for corrections officials to address complaints internally, deterring frivolous lawsuits, and creating an administrative record allowing courts to evaluate the relative merits of claims. See Porter , 534 U.S. at 525. "The primary purpose of a grievance, " however, "is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin v. Arpaio , 557 F.3d 1117, 1120 (9th Cir. 2009).

In Wyatt v. Terhune , 315 F.3d 1108, 1119 (9th Cir. 2003), the Ninth Circuit held that a failure to exhaust under § 1997e(a) should be raised by a defendant as an "unenumerated Rule 12(b) motion." Here, in accordance with Wyatt, defendants filed a joint motion for summary judgment and motion to dismiss under the non-enumerated portion of Rule 12(b). Thereafter, however, in Albino v. Baca , 747 F.3d 1162 (9th Cir. 2014), the Ninth Circuit overruled Wyatt in part and held that a motion for summary judgment is the appropriate procedural device for pretrial determination as to exhaustion. Albino, at 1169. Following the decision in Albino, a defendant may raise the issue of exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. Id . As set forth in Albino, "an unenumerated motion under Rule 12(b) is not the appropriate procedural device for pretrial determination of whether administrative remedies have been exhausted." Id. at 1168.[3] The Court next turns to the administrative remedies available to California inmates.

The California Department of Corrections and Rehabilitation ("CDCR") provides its inmates and parolees the right to appeal administratively "any departmental decision, action, condition, or policy which they can demonstrate as having an adverse effect upon their welfare." 15 C.C.R. § 3084.1(a).[4] It also provides its inmates the right to file administrative appeals alleging misconduct by correctional officers. See id. § 3084.1(e). In order to exhaust available administrative remedies within said system, a prisoner must submit his complaint on CDCR Form 602 and proceed through several levels of appeal: (1) informal level grievance filed directly with any correctional staff member, (2) first formal level appeal filed with one of the institution's appeal coordinators, (3) second formal level appeal filed with the institution head or designee, and (4) third formal level appeal filed with the CDCR director or designee. Id . § 3084.5; Brodheim v. Cry , 584 F.3d 1262, 1264-65 (9th Cir. 2009); Barry v. Ratelle , 985 F.Supp. 1235, 1237 (S.D. Cal. 1997). The initial grievance must be filed within 15 working days of the action or event being protested, and inmates must seek review at each successive level within 15 working days of receiving an adverse decision at a lower level. 15 C.C.R. § 3084.6. Compliance with the above-described procedure satisfies the exhaustion requirement under § 1997e(a). Barry , 985 F.Supp. at 1237-38.

III. Plaintiff's Claims

Plaintiff asserts the following claims: (1) defendants Lt. Blackstone and Capt. Mantel acted with deliberate indifference to plaintiff's safety when they double-celled him with inmate Chris Dibble ("Dibble") in mid-2004 (FAC ¶¶105-106, 254-256); (2) defendants Officers Gantt, Rosa, Stevens, and Thacker acted with deliberate indifference to plaintiff's safety when they refused his request to have Dibble removed from his cell (FAC ¶¶ 109, 254-256) and acted with deliberate indifference to plaintiff's serious medical needs when they refused to treat injuries plaintiff sustained during a July 14, 2004 altercation with Dibble (FAC ¶¶ 109, 261); (3) defendant Dr. Pistone acted with deliberate indifference to plaintiff's serious medical needs when he refused plaintiff's request for an MRI to ascertain the cause of plaintiff's purported head and back pain (FAC ¶121); (4) defendant Officer Burke issued a rules violation report ("RVR") against plaintiff in retaliation for plaintiff's threats to file a grievance against Officer Burke (FAC ¶ 124); (5) defendant Sgt. Washington moved plaintiff to a "different" Administrative-Segregation ("Ad-Seg") building in retaliation for plaintiff's filing a grievance against him, and, on a different occasion, moved plaintiff to "an outside holding cage" for several hours in retaliation for plaintiff's threatening to file a complaint for harassment (FAC ¶¶ 141, 186-187); (6) defendant Officer Perez issued an RVR against plaintiff in retaliation for plaintiff's filing staff complaints against Officer Perez's family members who happened to also work at SVSP (FAC ¶¶ 141-144); (7) defendant Officer Mays issued an RVR against plaintiff in retaliation for plaintiff's refusal to be housed with a white inmate from C or D yard (FAC ¶¶159-160); (8) defendants Dr. Bowman and Lt. Walker were deliberately indifferent to plaintiff's serious medical needs on May 31, 2005 when, allegedly at Lt. Walker's behest, Dr. Bowman discontinued a medical authorization (also known as a "medical chrono") plaintiff previously had obtained for waist restraints, medical showers (more frequent than the normal shower every two days), thermal clothing (an extra sweat shirt), and a bunk on a lower tier (FAC ¶ ¶166-167); (9) defendant Sgt. Kessler threatened to write plaintiff up and to move plaintiff in retaliation for plaintiff's refusal to accept a cellmate from C or D yard and in retaliation for plaintiff's filing a grievance regarding living conditions (FAC ¶¶ 165, 215-216); (10) defendant Sgt. Kessler was deliberately indifferent to plaintiff's serious medical needs when he disregarded plaintiff's medical chronos allegedly entitling him to a lower bunk in a lower tier, an extra mattress, and an extra pillow (FAC ¶¶215-216); (11) defendant Institutional Classification Committee ("ICC") members Lewis, Winn, and Torrez were deliberately indifferent to plaintiff's safety by reassigning him from B to C yard in July 2005, knowing enmity existed between white inmates on B yard and white inmates on C yard, which enmity caused plaintiff's cellmate ("Sidley") to assault plaintiff later in July 2005 (FAC ¶¶180-195); (12) defendants Variz and Gomez were deliberately indifferent to plaintiff's safety when they screened out an appeal in which plaintiff claimed his life was in danger due to the C yard placement (FAC ¶¶191-192); and (13) defendants Arceo, Bowman, Delfs, Grannis, Kates, Krossa, Lee, and Wall were deliberately indifferent to plaintiff's serious medical needs when they failed to timely coordinate post-hospitalization follow-up care after plaintiff's July 2005 surgery (FAC ¶¶220-229).

A. Failure to Exhaust

Defendants argue they are entitled to summary judgment because plaintiff failed to exhaust his administrative remedies with respect to any of his claims. The Court addresses the claims in turn.

1. Mantel, Blackstone, Stevens, Rosa, Thacker, and Gantt

Defendants contend plaintiff failed to properly exhaust the claims against Mantel, Blackstone, Stevens, Rosa, Thacker, and Gantt as required by the PLRA. In support of their motion, defendants submit the declaration of Eloy Medina ("Medina"), the appeals coordinator at SVSP, who states he conducted a search for all grievances filed by plaintiff at SVSP. (Medina Decl. ¶¶1, 7.) Medina states that a search of plaintiff's grievance record shows no record of a properly submitted appeal regarding plaintiff's claims against Mantel, Blackstone, Stevens, Rosa, Thacker, and Gantt. (See id. ¶¶ 9-11, Ex. 1.) Plaintiff does not dispute that he failed to submit a grievance on said claims as required to exhaust administrative remedies, but, rather, makes three arguments asserting he was not required to do so.

a. Constructive Notice Argument

First, plaintiff argues he submitted an "Inmate Request for Interview Form GA-22" on July 10, 2004, which form, plaintiff contends, "constructively" put defendants "on notice prior to the assaults committed by plaintiff's cellmate on 7/14/04 and again on 7/17/04." (Pl.'s Opp'n. to Mot. Summ. J., Dkt. 171, ("Pl.'s Opp'n.") at 2, 4.) The Court is not persuaded. As noted above, exhaustion must be proper, i.e., an inmate must comply with prison administrative rules. See Woodford , 548 U.S. at 90-91 (holding "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules"). The PLRA's exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford , 548 U.S. at 83. It is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion. Jones v. Bock , 549 U.S. 199, 218 (2007). As discussed above, the CDCR rules require inmates to properly exhaust by first submitting a CDCR Form 602. 15 C.C.R. §§ 3084.2(a), 3084.7. It is undisputed that plaintiff did not submit the necessary 602 form. Consequently, plaintiff's filing of a request for interview does not satisfy the exhaustion requirement.

b. Access Argument

Plaintiff next argues that no remedies were "available" because he "did not have access to the necessary appeal forms during the pendency of the appeal-time limits (7/14/04 thru 7/29/04), i.e., 15 days." (Pl.'s Opp'n. at 2, 4.)[5] Plaintiff's second argument likewise is unavailing, for several reasons. First, plaintiff provides no evidentiary support for his conclusory assertion that he lacked access to appeal forms. Indeed, such assertion is contradicted by the following testimony given by plaintiff at his deposition in this action:

Q: What are all the methods by which you can obtain a 602 appeal, or should I say obtain an appeal at SVSP during the time period 2004 to 2005?
A: The most common method is to ask for one from the floor officer.
Q: What are all the ways?
A: The methods of obtaining a 602 appeal while you're on lockdown are limited, because you only come in contact with your floor officer or whoever other Officer happens to pass by.
Q: Are there other ways, other than just asking from the floor officer?
A: Yes.
Q: What are they?
A: I believe you can obtain an appeal from the law library.

(Pl.'s Dep. at 202:4-19, Grigg Decl. Ex. B.)

Plaintiff offers no evidence that a floor officer refused his request for a 602 form or that he was unable to obtain one from the prison law library. Further, the evidence submitted by defendants shows appeal forms were readily available to plaintiff during the relevant time period. (See e.g., Medina Decl. ¶24 ("[A]n inmate who wanted to obtain a 602 form would have no problem doing so"); Williamson Decl. ¶¶2-3 ("During 2004-2005, all inmates at SVSP, regardless of their classification or housing status, were entitled to obtain law library materials, by going to the prison law library and obtaining such materials themselves or by requesting such materials through a library paging process. [¶] The library materials to which inmates have had access include inmate appeal forms (also known as grievance' or 602' forms)"); Kessler Decl., ¶14 ("Grievance forms were passed out to ASU inmates on a weekly basis...."); Mantel Decl. ¶9 ("[602] forms were readily available to [plaintiff]"); Lewis Decl. ¶9 ("ASU inmates can request [602 forms] from housing officers, medical or mental health staff; [a]dditionally, the forms are included in a package of supplies delivered on a weekly basis to ASU inmates...."); see also Thacker Decl. ¶9; Mays Decl. ¶11; Perez Decl. ¶14; Torrez Decl. ¶7.) Plaintiff fails to come forward with any evidence to dispute defendants' showing.

Further, even if plaintiff had been denied access to the administrative grievance system during the fifteen working days following his July 14, 2004 altercation with Dibble, such circumstance does not excuse his failure to exhaust his administrative remedies thereafter. Indeed, CDCR regulations explicitly include an exception to the timely filing requirement if an inmate does not have the opportunity to file a grievance during the fifteen-day filing period. See Marella v. Terhune , 568 F.3d 1024, 1027 (9th Cir. 2009) (remanding to district court to consider whether plaintiff had opportunity to file grievance within fifteen days after assault, where his injuries and subsequent segregation rendered grievance form inaccessible). The appeals coordinator is only permitted to reject an untimely appeal if "[t]ime limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints." Id . (quoting Cal. Code Regs. tit. 15, §§ 3084.6(c) and 3084.3(c)(6) (emphasis in original)). Here, even if plaintiff had shown administrative remedies were not available during the fifteen-day period, plaintiff has not shown that further administrative remedies were not available to him at any time after fifteen working days had passed. Indeed, plaintiff never states he made any attempt to exhaust his administrative remedies.

In sum, although plaintiff is not required to allege he resorted to extraordinary measures in order to exhaust his administrative remedies, conclusory allegations that the administrative remedies process is inadequate are insufficient to defeat summary judgment for failure to exhaust, see White v. McGinnis , 131 F.3d 593, 595 (6th Cir. 1997), where, as here, the undisputed factual record demonstrates the inmate had the ability to properly exhaust, but failed to do so.

c. Mootness Argument

Lastly, plaintiff argues that subsequent to the altercations between plaintiff and Dibble, "both inmates were placed in Administrative Segregation.... and separately housed making the issue moot." (Pl.'s Opp'n. at 2, 4.) Plaintiff submits no evidence, however, showing his grievance would have been rejected as moot; he only speculates. Further, even assuming, arguendo, that the grievance would have been screened out as moot, such circumstance does not obviate the need to exhaust. See Booth, 532 U.S. at 341 n.6 (noting PLR "is at odds with traditional doctrines of administrative exhaustion, under which a litigant need not apply to an agency that has no power to decree relief, or need not exhaust when doing so would otherwise be futile") (internal quotation, citation, and alteration omitted); see also 15 C.C.R. § 3084.1(b) ("[A] cancellation or rejection decision does not exhaust administrative remedies"); 15 C.C.R. § 3084.6(a)(3) ("[A] cancelled appeal may later be accepted if a determination is made that cancellation was made in error or new information is received which makes the appeal eligible for further review").

Moreover, plaintiff clearly does not deem the issue moot, as he has proceeded to pursue the claim in this court. As noted, the fact that the administrative procedure cannot result in the particular form of relief requested by the prisoner, such as money damages, does not excuse exhaustion, as some form of relief or responsive action may be provided. See Booth , 532 U.S. at 737, 741. Consequently, plaintiff's third argument likewise fails.

d. Conclusion: Mantel, Blackstone, Stevens, Rosa, Thacker, and Gantt

For the reasons set forth above, defendants Mantel, Blackstone, Stevens, Rosa, Thacker, and Gantt are entitled to summary judgment.

2. Dr. Pistone

Defendants have offered evidence that plaintiff never submitted a grievance relating to his claim that Dr. Pistone refused his request for an MRI. (Medina Decl. ¶13.) Plaintiff does not dispute that he never submitted an appeal relating to his claim against Dr. Pistone, but, rather, argues he was examined by Dr. Pistone on July 26, 2004 and "was unable to procure the necessary appeal form within the 15-day deadline for filing an inmate grievance." (Pl.'s Opp'n. at 5.) Plaintiff's argument fails for the reasons discussed in connection with the above-referenced six defendants. Specifically, plaintiff's conclusory allegation that he lacked access to appeals forms does not suffice to rebut defendants' abundant evidence that such forms were readily obtainable and indeed were distributed to Ad-Seg inmates weekly. Moreover, in this instance, plaintiff's allegation is directly contradicted by additional evidence in the record. The copy of plaintiff's appeal history log submitted by defendants shows plaintiff submitted a 602 form on another issue on August 12, 2004, i.e., within fifteen working days of July 26, 2004, the date on which plaintiff alleges the incident involving Dr. Pistone occurred. (See Medina Decl. Ex. 1 at 8.)[6]

Accordingly, defendant Dr. Pistone is entitled to ...

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