United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RE DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 62)
OBJECTIONS DUE IN THIRTY DAYS
GARY S. AUSTIN, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Pending before the Court is Defendants' motion for partial summary judgment. Plaintiff has opposed the motion.
I. Procedural History
Plaintiff, a state prisoner currently housed at the Kern County Jail, brings this civil rights action against defendants R. Harris and C. Nelson, correctional officers employed by the California Department of Corrections and Rehabilitation (CDCR) at the California Correctional Institution at Tehachapi (CCI). The events that give rise to his lawsuit occurred at CCI.
Plaintiff alleges that on April 12, 2012, at 0732 hours in the 4A Security Housing Unit (SHU), he was escorted to the shower by Defendant Harris. Plaintiff alleges that Harris "snatched him hard by the arm and stated in a low menacing voice that if you ever disrespect me again, you are going to have serious problems." (Compl. 7:3-10.) Plaintiff ignored the statement and did not speak. Plaintiff alleges that "after we both took a few more steps, the Defendant intentionally stuck one of his legs in front of the Plaintiff's legs and then the Defendant slammed the Plaintiff down on the cement floor. Plaintiff was in restraints with his hands handcuffed behind his back, so Plaintiff was unable to break the fall." (Id. 7:17-24.) Plaintiff alleges that he fell face first on to the cement. Plaintiff alleges that Harris used both hands to strike Plaintiff with his baton, using "power blows." Plaintiff begged Harris to stop. Harris responded by punching Plaintiff in the face with a closed fist. Plaintiff alleges that Defendant C/O Nelson "had a smile on his face as he stood by and watched R. Harris brutally assault the Plaintiff." (Id. 8:5-7.)
Plaintiff alleges that he continued to call for help, and Defendant Harris stated that he knew what would shut Plaintiff up. Plaintiff alleges that "as the Plaintiff screamed for help, the Defendant stuck the nozzle part of the pepper spray in the Plaintiff's mouth and continued to spray the Plaintiff inside his mouth. This continued until the pepper spray container was empty." (Id. Plaintiff by his braided hair into the section. Plaintiff alleges that at that point he vomited then lost consciousness. Plaintiff alleges that as a result, he suffered permanent damage in his right eye, blood clots in both legs, and had "extensive" dental work performed.
In an earlier order, the Court found that Plaintiff stated a colorable claim for relief against Defendant Harris for excessive force in violation of the Eighth Amendment, and against Defendant Nelson for failure to protect Plaintiff in violation of the Eighth Amendment. Defendants filed an answer. On November 19, 2014, Defendants filed a motion for partial summary judgment on the ground that Plaintiff failed to exhaust his available administrative remedies as to his failure to protect claim against Defendant Nelson. On February 9, 2015, Plaintiff filed opposition to the motion.
II. Summary Judgment
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which Defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt with respect to the proper procedural device for raising the affirmative defense of exhaustion under § 1997e(a). Albino v. Baca, 747 F.3d 1162, 1168-69 (9th Cir. 2014) (en banc). Following the decision in Albino, defendants may raise exhaustion deficiencies as an affirmative defense under § 1997e(a) in either (1) a motion to dismiss pursuant to Rule 12(b)(6) or (2) a motion for summary judgment under Rule 56. Id. If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(e). Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
Summary judgment is appropriate when it is demonstrated 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); Albino, 747 F.3d at 1169 ("If there is a genuine dispute about material facts, summary judgment will not be granted.") A party asserting that a fact cannot be disputed must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). The Court may consider other materials in the record not cited to by the parties, but is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). In judging the evidence at the summary judgment stage, the Court "must draw all reasonable inferences in the light most favorable to the nonmoving party." Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The Court must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).
In a summary judgment motion for failure to exhaust administrative remedies, the defendants have the initial burden to prove "that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Albino, 747 F.3d at 1172. If the defendants carry that burden, "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. The ultimate burden of proof remains with defendants, however. Id. "If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts." Id. at 1166.
The Court takes judicial notice of the fact that the State of California provides its prisoners and parolees the right to appeal administratively "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). The process is initiated by submitting a CDCR Form 602. Id. at § 3084.2(a).
At the time of the events giving rise to the present action, California prisoners were required to submit appeals within fifteen working days of the event being appealed, and the process was initiated by submission of the appeal to the informal level, or in some circumstances, the first formal level. Id. at §§ 3084.5, 3084.6(c) (2009). Four levels of appeal were involved, including the informal level, first formal level, second formal level, and third formal level. Id. at § 3084.5 (2009). A final decision at the third level of review satisfies the exhaustion requirement under 42 U.S.C. § 1997e(a). Id. at § 3084.5(d); see Lira v. Herrera, 427 F.3d 1164, 1166 (9th Cir. 2005). In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85 (2006); McKinney, 311 F.3d. at 1199-1201.
Defendants support their motion with the declarations of R. Briggs and M. Dailo, and exhibits attached thereto. Regarding Plaintiff's claim that Defendant Nelson failed to protect him from Defendant Harris, R. Briggs, the Acting ...