United States District Court, N.D. California, San Francisco Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
RICHARD SEEBORG, District Judge.
Plaintiff, a state prisoner proceeding pro se, filed this federal civil rights action under 42 U.S.C. § 1983 in which he claims that his jailors at Pelican Bay State Prison violated his First and Fourteenth Amendment rights by withholding incoming mail they deemed obscene and sexually explicit. Defendants have filed a combined motion to dismiss and for summary judgment (Docket No. 11) on several grounds, including that plaintiff failed to exhaust his administrative remedies before filing suit. Defendants have presented evidence in support of their motion, and provided plaintiff with the required warnings under Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). Plaintiff has not shown evidence precluding summary judgment. Accordingly, defendants' motion is GRANTED as to all claims against all defendants.
The following factual allegations are undisputed unless specifically noted otherwise. In October 2012, fifteen photographs, a photograph catalog and an order form from "South Beach Singles" were mailed to plaintiff, and inspected upon receipt by Pelican Bay Correctional Officer Healy, who deemed the images obscene and sexually explicit. He confiscated the items, initiated the formal process to determine what would happen to the items, and sent the appropriate form to Correctional Officer R.K. Swift, who also found the items obscene and approved Healy's formal determination. Swift formally informed plaintiff that the items had been "disapproved" and were being withheld. Plaintiff asked that the prison hold the items pending an appeal of Swift's decision. The items were then reviewed by Harlan, a correctional officer, who later interviewed plaintiff as part of the appeal process. Plaintiff alleges, and defendants dispute, that during this interview, Harlan agreed that the photos were not obscene, but he (Harlan) could not "go against the squad." Plaintiff further alleges that Harlan told him to debrief so that he could then receive the photos.
In the current action, plaintiff alleges claims against Swift, Harlan, and the warden of Pelican Bay, Greg Lewis. He asserts that they violated his First Amendment right to possess the material and his due process rights in the formal proceedings to confiscate the material.
I. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue for which the opposing party by contrast will have the burden of proof at trial the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
The court is only concerned with disputes over material facts and "factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. It is not the task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323.
II. Exhaustion of Claims Against Harlan
Defendants have presented evidence that plaintiff did not administratively exhaust his claims against Harlan before filing suit. Prisoners must properly exhaust their administrative remedies before filing suit in federal court. "No 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). Exhaustion is mandatory and is no longer left to the discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). The PLRA exhaustion requirement requires "proper exhaustion" of all available administrative remedies. Id. at 93.
The State of California provides its prisoners the right to appeal administratively "any policy, decision, action, condition, or omission by the [CDCR] or its staff that the inmate... can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." 15 CCR § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal review, submitted on a CDC 602 inmate appeal form; (2) first formal level appeal, to an institution appeals coordinator; (3) second formal level appeal, to the institution warden; and (4) third formal level appeal, to the Director of the CDCR. See id. § 3084.7; Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). An inmate's obligation to exhaust persists as long as some remedy is available; when that is no longer the case, the prisoner need not ...