United States District Court, E.D. California
ANDREW R. LOPEZ, Plaintiff,
MATHEW CATE, et al., Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING (1) PLAINTIFF'S MOTION TO STRIKE AND FOR SANCTIONS BE DENIED, (2) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN PART, (3) A LIMITED-ISSUE EVIDENTIARY HEARING BE SET, AND (4) PLAINTIFF'S MOTION FOR COUNSEL AT THE EVIDENTIARY HEARING BE DENIED (Docs. 105, 109, and 119)
SHEILA K. OBERTO, Magistrate Judge.
Findings and Recommendations on Defendants' Motion
I. Procedural History
Plaintiff Andrew R. Lopez ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California law on September 10, 2010. This action is proceeding on Plaintiff's amended complaint, filed on March 23, 2012, against Defendants Garcia, Zamora, Espinosa, Jackson, Drew, Olmedo, Munoz, Fields, White, Rousseau, Martinez, Beer, Gray, Beard, and Gipson ("Defendants") for violating Plaintiff's rights under federal and state law. Plaintiff's claims arise out of his past conditions of confinement at California State Prison-Corcoran ("CSP-Corcoran") in Corcoran, California, where he remains incarcerated. The action is proceeding as one for money damages, with the limited exception of an official capacity claim against Secretary Beard and Warden Gipson relating to the possible expungement of documents from Plaintiff's central file, which is tethered to Plaintiff's First Amendment retaliation claim. (Doc. 31, Screening Findings and Recommendations, 20:2-4; Doc. 34, Screening Order, 3:16-18.)
On May 21, 2014, Defendants filed a motion for summary judgment based on Plaintiff's failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a) with respect to his federal claims, Fed.R.Civ.P. 56(c); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 403 (2014), and his failure to timely file suit in compliance with the Government Claims Act with respect to his state law claims, Cal. Gov't Code § 945.6. (Doc. 105.) Plaintiff filed a motion to strike on June 12, 2014, and an opposition to Defendants' motion on July 3, 2014. (Docs. 109, 118.) Defendants filed an opposition to Plaintiff's motion to strike on June 23, 2014, and Plaintiff filed a reply on July 7, 2014. (Docs. 112, 119.) Defendants filed a reply to Plaintiff's opposition to their motion for summary judgment on July 23, 2014, and the motions for summary judgment and to strike have been submitted on the record without oral argument pursuant to Local Rule 230( l ). (Doc. 132.)
A. Plaintiff's Motion to Strike
Plaintiff moves to strike Defendants' motion for summary judgment on the ground that it represents an unfair tactical advantage over him and prejudices him in light of his pro se status. The Court recommends the motion be denied for lack of merit.
Defendants are entitled to file a motion seeking resolution in their favor based on Plaintiff's failure to exhaust; it is appropriate to bring such a motion early in the proceedings before the commencement of discovery; and following the decision in Albino, Defendants were required to re-file their motion as one for summary judgment rather than for dismissal under unenumerated Rule 12(b). Albino, 747 F.3d at 1168-71. The fact that the Albino decision was issued after Plaintiff opposed Defendants' motion to dismiss, which Plaintiff argues allowed them to benefit unfairly in moving for summary judgment because they knew what his opposition arguments were, was not within Defendants' control and is immaterial. Defendants are entitled to move for summary judgment for failure to exhaust, and Plaintiff's motion to strike the motion on grounds of unfairness and prejudice is frivolous. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827 (1989).
Plaintiff's argument that the Court should strike Defendants' citations to district court cases involving pro se prisoners is also meritless. Defendants complied with Local Rule 133(i)(3)(ii) by serving Plaintiff with copies of the district court opinions they cited from Westlaw and nothing further was required. Plaintiff's attempt to analogize the prohibition against pro se litigants representing anyone other than themselves with the use of authority based on cases involving pro se litigants is unpersuasive. Civil rights cases filed by pro se prisoners are subject to publication in the Federal Supplement just like any other case, and the fact that some decisions are published on Westlaw or Lexis instead of the Federal Supplement does not render them inappropriate for citation. See e.g., Grenning v. Klemme, 34 F.Supp.3d 1144 (E.D.Wash. 2014) (district court's ruling in section 1983 action filed by pro se prisoner published in Federal Reporter); Nelson v. Biter, 33 F.Supp.3d 1173 (C.D.Cal. 2014) (same in habeas case filed by pro se prisoner). Local Rule 133(i)(3)(ii), with which Defendants complied, remedies any arguable prejudice to pro se litigants arising from their inability to obtain copies of the opinions.
The crux of Plaintiff's argument is his disagreement with the district court decisions cited by Defendants, and he contends that because the prisoners proceeding pro se were taken advantage of by the defendants and/or the district courts, those decisions should not be subject to citation. However, the fact that a litigant or a court disagrees with other court decisions or another litigant's arguments presents no legitimate ground for striking the case citations. In any given case, both sides make their best arguments and it is for the assigned judge to determine whether the authority cited is persuasive. Defendants' reliance on four district court decisions available on Westlaw to support their argument presents no deviation from standard legal practice and provides no basis for striking the authority.
Accordingly, the Court recommends Plaintiff's motion to strike be denied. The Court further recommends that Plaintiff's motion for sanctions, set forth in his reply, be denied on the ground that Plaintiff makes no showing sufficient to support an award of sanctions. See e.g., Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 393, 110 S.Ct. 2447 (1990) (Rule 11); Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455 (1980) (inherent authority); Braunstein v. Arizona Dept. of Transp., 683 F.3d 1177, 1189 (9th Cir. 2012) (28 U.S.C. § 1927); Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001) (inherent authority); United Nat. Ins. Co. v. R&R Latex Corp., 242 F.3d 1102, 1115-16 (9th Cir. 2001) (Rule 11).
B. Defendants' Motion for Summary Judgment on Federal Claims
1. Legal Standard
a. Statutory Exhaustion Requirement
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). This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983 (2002) (quotation marks omitted), regardless of the relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007) (citing Porter, 534 U.S. at 524).
The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. "In the rare event that a failure to exhaust is clear from the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6)." Albino, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id.
Defendants must first prove that there was an available administrative remedy and that Plaintiff did not exhaust that available remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino, 747 F.3d at 1172) (quotation marks omitted). The burden then shifts to Plaintiff to show that something in his particular case made the existing and generally available administrative remedies effectively unavailable to him. Williams, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172) (quotation marks omitted). The ultimate burden of proof on the issue of exhaustion remains with Defendants. Id. (quotation marks omitted).
b. Summary Judgment Standard
Any party may move for summary judgment, and 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) (quotation marks omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
As set forth above, the defendants bear the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and they must "prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy, " id. at 1172. If the defendants carry their burden, the burden of production shifts to the plaintiff "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 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. However, "[i]f material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts." Id.
2. Summary of CDCR's Generally Available Inmate Appeals Process
The California Department of Corrections and Rehabilitation ("CDCR") has a generally available administrative grievance system for prisoners to appeal any departmental decision, action, condition, or policy having an adverse effect on prisoners' welfare, Cal. Code Regs., tit. 15, § 3084.1, and compliance with section 1997e(a) requires California state prisoners to use that process to exhaust their claims, Woodford v. Ngo, 548 U.S. 81, 85-86, 126 S.Ct. 2378 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). The Title 15 regulations governing CDCR's inmate appeals process were amended in 2011, but Plaintiff's claims arise from events which occurred during 2008 and 2009 and the relevant regulations are those which were in effect during that time period. Therefore, the citations to Title 15 set forth herein are those pre-amendment regulations in effect prior to December 13, 2010.
During the relevant time period, the appeals process was initiated by submitting a CDC Form 602 describing "the problem and action requested, " Cal. Code Regs., tit. 15, § 3084.2(a) (West 2009), and appeal had to be submitted "within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision, " tit. 15, § 3084.6(c). Up to four levels of appeal could be involved, including an informal level and the first formal level, second formal level, and third formal level, which was also known as the Director's Level. Tit. 15, § 3084.5. However, contrary to Defendants' argument, inmates are not necessarily required to pursue their appeals through the third and final level of appeal for courts to find exhaustion occurred. Harvey v. Jorda n, 605 F.3d 681, 685 (9th Cir. 2010); Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). "An inmate has no obligation to appeal from a grant of relief, or a partial grant of relief that satisfies him, in order to exhaust his administrative remedies." Harvey, 605 F.3d at 685. "Nor is it the prisoner's responsibility to ensure that prison officials actually provide the relief that they have promised." Harvey, 605 F.3d at 685. As a result, the exhaustion inquiry is fact-specific and requires consideration of the appeal and the responses thereto. Harvey, 605 F.3d at 685; Brown, 422 F.3d at 935; see also Hash v. Lee, No. C 08-3729 MMC (PR), 2014 WL 2986486, at *12 (N.D.Cal. Jul. 2, 2014).
3. Plaintiff's Claims Represented to be Unexhausted, 
Plaintiff is proceeding on the following federal claims: retaliation in violation of the First Amendment, excessive force in violation of the Eighth Amendment, and placement in a pepper spray contaminated cell and the denial of adequate clothing, linens, and exercise, in violation of the Eighth Amendment. Defendants do not move for judgment on all of Plaintiff's claims, but they identify ten allegations or events they argue were not exhausted, entitling them to judgment. (Doc. 105-1, Motion, 9:14-10:2.) The Court must determine if Plaintiff filed any appeals concerning these events; if so, whether the appeals sufficed; and if not, why not. Williams, 775 F.3d at 1191-92. To the extent there are disputed issues of fact precluding a determination on the current record, Defendants' motion shall be denied and an evidentiary hearing will be set. Cortinas v. Gipson, No. 1:13-cv-01229-AWI-SAB (PC), 2015 WL 648228, at *1 (E.D.Cal. Feb. 13, 2015) (citing Albino, 747 F.3d at 1169-71).
a. State Court Decision Regarding Habeas Petition
As an initial matter, the Court addresses Plaintiff's argument regarding the decision rendered by the Kings County Superior Court, as it is a thread woven throughout Plaintiff's arguments in the multiple opposition briefs considered by the Court. Plaintiff filed a petition for writ of habeas corpus in Kings County Superior Court; and on June 18, 2009, the superior court found that Plaintiff stated a prima facie case that CSP-Corcoran was not processing his appeals in accordance with statutes, regulations and policies, and it ordered the Attorney General to show cause why Plaintiff was not entitled to appropriate relief. (Doc. 21, Amend. Comp., Ex. A.) On March 26, 2010, following an evidentiary hearing, the superior court issued an order granting in part and denying in part Plaintiff's petition. (Doc. 105-2, Req. for Jud. Not., Ex. A.) The superior court determined that CSP-Corcoran complied with applicable statutes, regulations and DOM provisions as to some of Plaintiff's inmate appeals but failed to comply as to other appeals, resulting in an order requiring CSP-Corcoran to process five inmate appeals. (Id. )
However, the superior court's order is of no assistance to Plaintiff in this case, despite his arguments to the contrary. The appeals at issue in Plaintiff's habeas petition predated the events in this action and therefore, the determination that some appeals were not processed does not impact the events and inmate appeals at issue in this action. See Gonzales v. California Department of Corrections and Rehabilitation, 739 F.3d 1226, 1232-33 (9th Cir. 2014) (discussing claim and issue preclusive effect of state habeas decisions). Furthermore, the superior court did not make any broader findings of fact regarding CSP-Corcoran's appeals process, precluding any argument that the decision supports a finding in this case that utilization of the process was "obviously futile'" or that CSP-Corcoran lacked an effectively available appeals process. Williams, 775 F.3d at 1191 (quoting Albino, 747 F.3d at ...