United States District Court, N.D. California
IVAN V. CLEVELAND, H60545, Plaintiff(s),
DR. LAM, Defendant(s)
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Dkt. #27 & 34)
CHARLES R. BREYER, District Judge.
Plaintiff, a California state prisoner incarcerated at the Correctional Training Facility in Soledad (CTF), filed the instant pro se civil rights action under 42 U.S.C. § 1983 challenging his classification as a high-risk medical case subject to transfer to a medical facility. Plaintiff alleges that the classification is incorrect, and that Defendant Dr. Lam falsified documents to support it in an effort to have Plaintiff transferred to another facility in retaliation for Plaintiff previously having filed suit against Dr. Lam.
Per order filed on June 3, 2014, the Court found that, liberally construed, Plaintiff's allegations appear to state a cognizable § 1983 claim for retaliatory medical classification/transfer, and ordered the U.S. Marshal to serve Dr. Lam. Defendant now moves for summary judgment under Federal Rule of Civil Procedure 56 on the ground that Plaintiff failed to properly exhaust his claim before filing suit, as required by the Prison Litigation Reform Act of 1995 (PLRA). Plaintiff has filed an opposition and Defendant has filed a reply. (Plaintiff also filed an unsolicited surreply.)
MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
"The PLRA mandates that inmates exhaust all available administrative remedies before filing any suit challenging prison conditions, ' including, but not limited to, suits under § 1983." Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (citing Woodford v. Ngo, 548 U.S. 81, 85 (2006)). To the extent that the evidence in the record permits, the appropriate procedural device for pretrial determination of whether administrative remedies have been exhausted under the PLRA is a motion for summary judgment under Rule 56. Id. at 1168. The burden is on the defendant to prove that there was an available administrative remedy that the plaintiff failed to exhaust. Id. at 1172. If the defendant meets that burden, the burden shifts to the prisoner to present evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him. Id. The ultimate burden of proof remains with the defendant, however. Id.
If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. Id. at 1166. But if material facts are disputed, summary judgment should be denied and the district judge rather than a jury should determine the facts in a preliminary proceeding. Id.
The 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 once 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). All available remedies must now be exhausted; those remedies "need not meet federal standards, nor must they be plain, speedy, and effective.'" Id. (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). Similarly, exhaustion is a prerequisite to all prisoner suits about 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. PLRA's exhaustion requirement requires "proper exhaustion" of available administrative remedies. Woodford, 548 U.S. at 93. Proper exhaustion requires using all steps of an administrative process and complying with "deadlines and other critical procedural rules." Id. at 90.
The California Department of Corrections and Rehabilitation (CDCR) provides any inmate or parolee under its jurisdiction the right to 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). To initiate an appeal, the inmate or parolee must submit a CDCR Form 602 describing the issue to be appealed to the appeals coordinator's office at the institution or parole region for receipt and processing. Id. § 3084.2(a)-(c). The appeal must name "all staff member(s) involved" and "describe their involvement in the issue." Id. § 3084.2(a)(3). CDCR's appeal process consists of three formal levels of appeals: (1) first formal level appeal filed with one of the institution's appeal coordinators, (2) second formal level appeal filed with the institution head or designee, and (3) third formal level appeal filed with the CDCR director or designee. Id. §§ 3084.7, 3084.8. A prisoner exhausts the appeal process when he completes the third level of review. Id. § 3084.1(b); Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010). A "cancellation or rejection" of an appeal "does not exhaust administrative remedies." Cal. Code Regs. tit. 15, § 3084.1(b).
Defendant properly raises nonexhaustion in a Rule 56 motion for summary judgment and argues that Plaintiff failed to properly exhaust available administrative remedies as to his retaliatory medical classification/transfer claim before filing suit, as required by § 1997e(a). In support, Defendant submits evidence showing that Plaintiff submitted three relevant inmate appeals-CTF HC 14039982, CTF HC 14040027, CTF HC 14040206-of which one made it through the third level of review, but not until after Plaintiff filed this suit.
1. CTF HC 14039982
On January 6, 2014, Plaintiff submitted his first inmate appeal, CTF HC 14039982, alleging that he was being improperly considered for transfer to a medical facility based on his mis-classification as a high-risk medical case. Robinson Decl. (dkt. #28) ¶ 10, Ex. C. Plaintiff requested emergency processing, but the appeal was deemed a non-emergency appeal and, on January 22, 2014, rejected on the ground that it was filed on the wrong form. Id. Plaintiff resubmitted the appeal on the correct form but, on January 31, 2014, the appeal was rejected on the ground that it "concern[ed] an anticipated action or decision." Id. ¶¶ 10-11, Ex. D (citing Cal. Code Regs. tit. 15, § 3084.6(b)(1)). Plaintiff clarified that he only wished to appeal his high-risk medical classification and, on February 28, 2014, his appeal at the first level of review was granted as to his request to have a medical exam, but denied as to his request that Dr. Lam be interviewed and ...