United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST
DENNIS L. BECK, Magistrate Judge.
Plaintiff Irvin Van Buren ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on August 14, 2013. This action is proceeding on an Eighth Amendment failure to protect claim against Defendant Emerson. All other claims and Defendants have been dismissed.
On December 3, 2014, Defendant filed the instant motion for summary judgment based on Plaintiff's failure to exhaust his administrative remedies. Plaintiff opposed the motion on December 29, 2014. Defendant filed his reply on January 8, 2015. The motion was deemed submitted when Defendant filed his reply pursuant to Local Rule 230(l).
On January 29, 2015, Plaintiff submitted an unauthorized surreply. Defendant moved to strike the filing on February 2, 2015. However, on March 27, 2015, the Court ordered Defendant to respond to the surreply and denied Defendant's motion to strike. Defendant filed his response on April 16, 2015.
A. PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at the California Correctional Institution in Tehachapi, California. The events at issue occurred while he was housed at the California Substance Abuse Treatment Facility ("SATF") in Corcoran, California.
On October 17, 2012, because Plaintiff was on C-status, he was moved to Building 3. Defendant Emerson confiscated his personal property and donated it to the State without Plaintiff's consent.
When Plaintiff appealed Defendant Emerson's actions and claimed that Defendant Emerson "falsified the confiscation document, " Defendant Emerson became irate with Plaintiff. From that day on, Defendant Emerson targeted Plaintiff by harassing him.
In mid-November 2012, Plaintiff was attacked in the medical line by a large group of Mexican inmates. Plaintiff alleges that the inmates were coerced by Defendant Emerson, who directly instigated race riots between Mexican and African American inmates.
On November 21, 2012, Plaintiff contends that he was falsely accused by officers on D facility of a conspiracy to assault staff. Lt. Rivero removed Plaintiff from D facility and placed him in Administrative Segregation ("Ad-Seg").
On November 29, 2012, while housed in Ad-Seg, Plaintiff appeared before the ICC Committee for the conspiracy to assault staff accusation. Plaintiff was released back to D facility, Building 4, after a finding that the evidence was unsubstantiated. During the Building 4 medication line release, Defendant Emerson went to Building 4 and escorted Plaintiff back to Building 3, threatening Plaintiff that if he didn't move to Building 3, he would be placed in Ad-Seg again. When Plaintiff told Defendant Emerson that he wasn't comfortable with Inmate Moss (a Mexican South Sider Gang Member) as his cellmate due to the recent race riot in Building 3, Defendant Emerson told Plaintiff that he was still on C-status and did not have the luxury of choosing his cellmate. He then smiled at Plaintiff.
Defendant Emerson moved Plaintiff back to Building 3 and housed him with Inmate Moss.
On January 16, 2013, Plaintiff was attacked by Inmate Moss, while he was asleep on his bunk. Plaintiff suffered a broken jaw and required surgery.
After the incident, Defendant Emerson moved Inmate Moss to the lower tier in the same building. Plaintiff asked Defendant Emerson to move Plaintiff to another building because he wasn't comfortable with Inmate Moss being so close. Defendant Emerson said that they were both still on C-status and that all C-status inmate must stay in the building.
On January 23, 2013, due to a second altercation set-up by Defendant Emerson between Plaintiff and Moss, Plaintiff was placed in Ad-Seg and charged with battery on an inmate.
On January 31, 2013, while in Ad-Seg, Plaintiff and Moss appeared before the ICC committee for the two prior altercations. Plaintiff was retained in Ad-Seg, while Moss was "compensated handsomely" and immediately released from C-status, promoted to "AIA" status, assigned a job and had his privileges restored in full.
B. LEGAL STANDARD
The failure to exhaust is subject to a motion for summary judgment in which the court may look beyond the pleadings. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
Defendant bears the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and he must "prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy, " id. at 1172. If Defendant carries his burden, the burden of production shifts to 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 . This requires Plaintiff to "show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). "If the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant ...