United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. Pending before the court is a motion for summary judgment filed on behalf of defendants Casillas and Merriweather. The motion is based on plaintiff's alleged failure to exhaust his available administrative remedies prior to filing suit as required. Plaintiff has filed an opposition to the motion.
Plaintiff is proceeding on an amended complaint against defendants Beshears, Casillas, Colosimo, and Merriweather. In his complaint, plaintiff alleges that defendant Colosimo closed a solid mechanical door on plaintiff and kept him pinned between the door and door frame for several minutes, despite plaintiff's screaming and shouting. According to plaintiff, defendant Beshears saw this incident but continued to read her newspaper instead of using her key to manually release plaintiff. Plaintiff alleges that he eventually struggled free from the door and sought medical care. (Am. Compl. at 1-2.)
The following day, plaintiff was waiting to meet with a lieutenant about the incident involving defendants Colosimo and Beshears when defendant Merriweather threw plaintiff into a stand-only cage. According to plaintiff, defendant Merriweather kept in him in the cage for an hour and a half in retaliation for plaintiff complaining about defendants Colosimo and Beshears' alleged misconduct the day before. (Am. Compl. at 2.)
Plaintiff alleges that defendant Casillas also retaliated against him. In this regard, plaintiff alleges that on September 10, 2012, he was leaving the mess hall, and defendant Casillas stopped him for a pat down. During the pat down search, defendant Casillas grabbed plaintiff's genitals and said "What are you going to do about it?" Plaintiff tried to get an explanation for the defendant's conduct, but defendant Casillas took plaintiff's informal request for interview form and crumbled it into a ball. Plaintiff further alleges that on February 11, 2013, defendant Casillas stopped plaintiff and a fellow inmate, screamed at them, handcuffed them, and man-handled them into the program office. Plaintiff was placed in a stand-only cage and remained there for the next thirty minutes. After they were released, defendant Casillas continued to verbally abuse plaintiff and kick dirt on him during an escort. (Am. Compl. at 4-6.)
At screening, the court found that plaintiff's amended complaint appeared to state a cognizable claim for relief against the defendants Colosimo, Beshears, Merriweather, and Casillas and ordered service of the complaint on them. (Doc. Nos. 17 & 19-20.) Defendants have since filed an answer, and defendants Casillas and Merriweather have filed the pending motion for summary judgment based on plaintiff's alleged failure to exhaust his available administrative remedies prior to filing suit as required. (Doc. Nos. 24 & 35.) On August 19, 2014, the court stayed discovery for defendants Casillas and Merriweather pending resolution of their motion for summary judgment. (Doc. No. 37.)
THE EXHAUSTION REQUIREMENT
By the Prison Litigation Reform Act of 1995 ("PLRA"), Congress amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). The 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 (2002).
The United States Supreme Court has ruled that exhaustion of prison administrative procedures is mandated regardless of the relief offered through such procedures. See Booth v. Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. See id. 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 v. Ngo, 548 U.S. 81, 90-93 (2006). "[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 (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.'").
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).
A court may excuse a prisoner from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively rendered unavailable to him. See Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). For example, where prison officials improperly screen out inmate grievances, they can render administrative remedies effectively unavailable. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, "the inmate cannot pursue the necessary sequence of appeals...." Id. 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 his 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 1024 (excusing an inmate's failure to exhaust because he did not have access to the necessary grievance forms to timely file his grievance).
The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative defense that defendants must plead and prove. See Jones, 549 U.S. at 216 ("[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints."); Albino, 747 F.3d at 1168. A defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(6) "[i]n the rare event" that a prisoner's failure to exhaust is clear on the face of the complaint. Albino, 747 F.3d at 1168 & 1169. More typically, defendants are required to move for summary judgment under Federal Rule of Civil Procedure 56 and produce probative evidence that proves a prisoner's failure to exhaust. See id. at 1166. Specifically, "the defendant's burden is to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Id. at 1172. If the defendant carries that burden, "the prisoner has the burden of production. That is, the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. If the ...