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Penton v. Sims

United States District Court, E.D. California

November 25, 2014

ANTHONY PENTON, Plaintiff,
v.
SIMS, Defendant

Anthony Penton, Plaintiff, Pro se, CORCORAN, CA.

For K Pool, T. Virga, Macomber, - Lieber, - Lacy, Simms, Defendants: Tyler Vance Heath, LEAD ATTORNEY, Attorney General's Office for the State of California, Sacramento, CA.

FINDINGS AND RECOMMENDATIONS

KENDAKK J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.

I. Introduction

Plaintiff is a state prisoner proceeding without counsel. Pursuant to the district court's order filed May 31, 2013, this action is proceeding solely as to plaintiff's claim in his first amended complaint that his due process rights were violated by defendant Sims because plaintiff was unable to call witnesses at the May 30, 2009 rules violation report (" RVR") hearing. (ECF No. 39.) Defendant's motion for summary judgment on the issue of exhaustion of administrative remedies is before the court. Plaintiff filed an opposition; defendant filed a reply. As set forth more fully below, the undersigned finds that defendant's motion for summary judgment on plaintiff's sole remaining claim should be granted.

II. Defendant's Motion for Summary Judgment

Defendant moves for summary judgment on the grounds that plaintiff failed to exhaust his administrative remedies prior to filing the instant action.

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (" PLRA") provides that " [n]o action shall be brought with respect to prison conditions under section 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). " [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, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).

Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), and " [p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. See Booth, 532 U.S. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. See Woodford, 548 U.S. at 90-93. " [T]o properly exhaust administrative remedies prisoners 'must complete the administrative review process in accordance with the applicable procedural rules, ' [] - rules that are defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (quoting Woodford, 548 U.S. at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (" The California prison system's requirements 'define the boundaries of proper exhaustion.'") (quoting Jones, 549 U.S. at 218).

In California, prisoners may appeal " any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). Most appeals progress through three levels of review. See id. § 3084.7. The third level of review constitutes the decision of the Secretary of the California Department of Corrections and Rehabilitation and exhausts a prisoner's administrative remedies. See id. § 3084.7(d)(3). A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

Failure to exhaust is " an affirmative defense the defendant must plead and prove." Bock, 549 U.S. at 204, 216. In Albino, the Ninth Circuit agreed with the underlying panel's decision[1] " that the burdens outlined in Hilao [v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996), ] should provide the template for the burdens here." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). A defendant need only show " that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Albino, 747 F.3d at 1172. Once the defense meets its burden, the burden shifts to the plaintiff to show that the administrative remedies were unavailable. See Albino, 697 F.3d at 1030-31.

A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively unavailable to him. See Albino, 747 F.3d at 1172-73. The PLRA requires that an inmate exhaust only those administrative remedies " as are available." 42 U.S.C. § 1997e(a). For a remedy to be available, there must be the " possibility of some relief . . . ." Booth, 532 U.S. at 738. A remedy is available to inmates when it is " capable of use; at hand." Albino, 747 F.3d at 1171, quoting Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2006). For example, where prison officials improperly screen out inmate grievances, they render administrative remedies effectively unavailable. Sapp v. Kimbrell, 623 F.3d 813, 823, 824 (9th Cir. 2010) (To demonstrate such an exception, " the inmate must establish (1) that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that prison officials screened his grievance or grievances for reasons inconsistent with or unsupported by applicable regulations."). See also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (excusing an inmate's failure to exhaust because he was precluded from exhausting administrative remedies by a warden's mistaken instruction to him that a particular unavailable document was needed for him to pursue his inmate appeal); Marella, 568 F.3d at 1024 (excusing an inmate's failure to exhaust because he did not have access to the necessary grievance forms to timely file his grievance). Plaintiff bears the burden of demonstrating that the administrative remedies were rendered unavailable to him through no fault of his own. Sapp, 623 F.3d at 822-23; Nunez, 591 F.3d at 1224; Brown, 422 F.3d at 939-40.

Where a prison system's grievance procedures do not specify the requisite level of detail for inmate appeals, Sapp, 623 F.3d at 824, a grievance satisfies the administrative exhaustion requirement if it " alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). In California, " regulations require only that an inmate 'describe the problem and the action requested.'" Sapp, 623 F.3d at 824, quoting Cal. Code Regs. tit. 15, § 3084.2(a).) " A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120.

If under the Rule 56 summary judgment standard, the court concludes that plaintiff has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice. Wyatt v. Terhune, 315 F.3d 1108, 1120, overruled on other grounds by Albino, 747 F.3d 1162.

B. Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. " The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).[2]

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.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting then-numbered Fed.R.Civ.P. 56(c)). " Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed.R.Civ.P. 56 advisory committee's notes to 2010 amendments (recognizing that " a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). 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. Celotex Corp., 477 U.S. at 322. " [A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that " the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the " purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments).

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed.R.Civ.P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the 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 586 (citation omitted).

By contemporaneous notice provided on May 15, 2014, (ECF No. 59), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) ( en banc ); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

C. Facts[3]

1. Plaintiff is an inmate in the custody of the California Department of Corrections and Rehabilitation (" CDCR").

2. At times relevant to the lawsuit, plaintiff was incarcerated at California State Prison, Sacramento (" CSP-SAC") in Represa, California.

3. Plaintiff was issued a Rules Violation Report (" RVR"), Log No. SAC-C-07-08-082 on September 5, 2007, for battery on a peace officer that occurred on July 20, 2007. (ECF. No. 5 at ¶ 24.)

4. On May 30, 2009, defendant Sims conducted the hearing for plaintiff's RVR. (ECF No. 5 at ¶ 40.)

5. Plaintiff alleges that defendant Sims denied plaintiff's requests for witnesses at the RVR hearing and stated the witnesses were no longer available. (ECF No. 5 at ¶ ¶ 40-41.)

6. At the time plaintiff was incarcerated at CSP-Sac, CSP-Sac provided an administrative exhaustion procedure for inmates that included an informal level, first formal level, and second level. (ECF No. 59-4 at ¶ ¶ 7, 9.)

7. At the Office of Appeals, formerly the Inmate Appeals Branch, there was a third formal level (Director's level). (ECF No. 59-5 at ¶ 14.)

8. To properly exhaust administrative remedies through the CSP-Sac procedure, an inmate pursued their grievance issues through all levels of the administrative exhaustion procedure, unless the inmate was excused from one of the levels under CDCR's administrative exhaustion procedures. (ECF Nos. 59-4 at ¶ ¶ 6-7; 59-5 at ¶ ¶ 7-8.)

9. Plaintiff first raised his claim that defendant Sims denied him his witnesses in his January 9, 2012 amended complaint. (ECF No. 5.)

10. Between May 29, 2009, and January 9, 2012, plaintiff did not submit any grievances through the institutional and third level alleging that the hearing officer for his RVR denied him the right to call witnesses at the RVR hearing. (ECF ...


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