United States District Court, S.D. California
James
Maxwell Green, Plaintiff, Pro Se.
D.
PARAMO, Defendant, represented by Terrence F. Sheehy,
Department of Justice.
W.
EDROZO, Defendant, represented by Terrence F. Sheehy,
Department of Justice.
R.
JOHNSON, Defendant, represented by Terrence F. Sheehy,
Department of Justice.
A.
ALANIZ, Defendant, represented by Terrence F. Sheehy,
Department of Justice.
WHITING, Defendant, represented by Terrence F. Sheehy,
Department of Justice.
DAVIS,
Defendant, represented by Terrence F. Sheehy, Department of
Justice.
J.
BEARD, Defendant, represented by Terrence F. Sheehy,
Department of Justice.
REPORT AND RECOMMENDATION REGARDING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
BERNARD G. SKOMAL, Magistrate Judge.
I.
PROCEDURAL BACKGROUND
Plaintiff
James Maxwell Green, CDCR No. F-16348, is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action filed pursuant to 42 U.S.C. § 1983.
In his Complaint, Plaintiff claims Defendants (1) violated
his right to free exercise of his Native American religion by
confiscating religious items he claims are necessary to his
religious practice and denying him "access to a sweat
lodge and/or place" in which to practice his faith; and
(2) violated his "right to be free cruel (sic) and
unusual punishment when they "intimidated [him] with
acts of violence" and subjected him to "racial
discrimination" and "harassment" by
"placing him in a cage." ( See ECF No. 1
at 3-5.)
Defendants
answered Plaintiff's Complaint on November 24, 2014. (ECF
No. 13.) On November 12, 2015, Defendants filed a Motion for
Summary Judgment pursuant to Federal Rule of Civil Procedure
56 based on Plaintiff's alleged failure to exhaust his
administrative remedies. (ECF No. 24-1.) The Court notified
Plaintiff of the requirements for opposing summary judgment,
including opposing a summary judgment brought on exhaustion
grounds, pursuant to Klingele v. Eikenberry, 849
F.2d 409 (9th Cir. 1988) and Rand v. Rowland, 154
F.3d 952 (9th Cir. 1998) (en banc). (ECF No. 25.) Plaintiff
filed his Opposition to Defendants' Motion for Summary
Judgment on February 3, 2016. (ECF No. 27.)
On
March 31, 2016, the Court ordered Defendants to provide
supplemental briefing and documentation to substantiate their
contention that Plaintiff failed to exhaust his
administrative remedies. (ECF No. 29.) The Court again
notified Plaintiff of the requirements for opposing summary
judgment, including opposing a summary judgment brought on
exhaustion grounds, pursuant to Klingele v.
Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). (ECF
No. 29.)
Defendants
filed their supplemental brief on April 20, 2016. (ECF No.
33.) Plaintiff's response to Defendants' supplemental
brief was due on April 27, 2016. (ECF No. 29.) As of the date
of this filing, Plaintiff has not filed a responsive
brief.[1]
II.
ALLEGATIONS IN PLAINTIFF'S COMPLAINT
According
to his Complaint, Plaintiff "was subjected to hate (sic)
crime, racial discrimination and denial of his religious
practice (sic) of his tribal holdings and practices" by
staff members at Richard J. Donovan Correctional Facility
("Donovan Correctional Facility"). (ECF No. 1 at
2.) Specifically, Plaintiff alleges that "he was denied
the right to access to a sweat lodge and/or place in which to
preform (sic) his ceremonial endeavors and practices, and was
subjected to a vast indulment (sic) of prejudice and ridecual
(sic)[.]" ( Id. at 1.) Plaintiff claims that
Defendants Edrozo, Alanis and Johnson "act[ed] in
concert" and took one of his items of religious
significance. ( Id. at 3-4.) He further states that
he was cuffed and placed in a cage in an attempt "to
degrade him and threaten him with harm to his person." (
Id. at 1.) He states that Defendants violated his
"right to be free cruel (sic) and unusual punishment in
the form of hate crime based upon the right to worship in any
way without being harassed by the defendants thereof." (
Id. at 4-5.)
III.
LEGAL STANDARD
i.
Statutory Exhaustion Requirement
The
Prison Litigation Reform Act ("PLRA") mandates that
"[n]o action shall be brought with respect to prison
conditions under section 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). The
exhaustion requirement serves two purposes:
First, exhaustion protects administrative agency authority.
Exhaustion gives an agency an opportunity to correct its own
mistakes with respect to the programs it administers before
it is haled into federal court, and it discourages disregard
of the agency's procedures. Second, exhaustion promotes
efficiency. Claims generally can be resolved much more
quickly and economically in proceedings before an agency than
in litigation in federal court.
Woodford v. Ngo, 548 U.S. 81, 89, 126 S.Ct. 2378,
165 L.Ed.2d 368 (2006) (internal quotation marks, alteration,
and citations omitted).
Although
"the PLRA's exhaustion requirement applies to all
inmate suits about prison life, " Porter v.
Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12
(2002), the requirement for exhaustion under the PLRA is not
absolute. Specifically, the PLRA "does not require
exhaustion when circumstances render administrative remedies
effectively unavailable.'" Sapp v.
Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (citing
Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir.
2010)).
Exhaustion
under the PLRA is an affirmative defense. Jones v.
Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798
(2007). Therefore, when a Defendant seeks summary judgment
based on a Plaintiff's failure to exhaust, the Defendant
must first prove that there was an available administrative
remedy and that the Plaintiff did not exhaust that available
remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th
Cir. 2015) (citing Albino v. Baca, 747 F.3d 1162,
1172 (9th Cir. 2014)) (quotation marks omitted). If they do,
the burden then 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." Williams, 775 F.3d at 1191.
ii.
Summary Judgment
Summary
judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Washington Mut. Ins.
v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011);
Fed.R.Civ.P. 56(a). The moving party must show the absence of
a dispute as to a material fact. Rivera v. Philip Morris,
Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). The moving
party must show that a fact cannot be disputed 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, "
that "establish the absence of a genuine dispute."
Fed.R.Civ.P. 56(c)(1)(A), (B); Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986).
The
burden then shifts to the non-moving party to show that there
is a "genuine dispute" as to a material fact, or
that the "adverse party cannot produce admissible
evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(B);
Celotex, 477 U.S. at 324. A party opposing a
properly supported motion for summary judgment "must set
forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1886).
"This burden is not a light one. [...] The non-moving
party must do more than show there is some metaphysical
doubt' as to the material facts at issue." In re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.
2010) (citation omitted).
The
court may not weigh evidence or make credibility
determinations on a motion for summary judgment.
Anderson, 477 U.S. at 249. Quite the opposite, the
inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the nonmoving party.
Id. at 255.
Plaintiff
bears the burden of proof at trial, and to prevail on summary
judgment, he must affirmatively demonstrate that no
reasonable trier of fact could find other than for him.
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007). Defendants do not bear the burden of
proof at trial and in moving for summary judgment, they need
only prove an absence of evidence to support Plaintiff's
case. In re Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 323).
IV.
PLAINTIFF'S EXHAUSTION OF ADMINISTRATIVE REQUIREMENTS
REGARDING ALLEGED VIOLATIONS OF HIS FIRST AMENDMENT RIGHTS
When a
defendant seeks summary judgment based on a plaintiff's
failure to exhaust, the defendant must first prove that there
was an available administrative remedy and that the plaintiff
did not exhaust that available remedy. Williams, 775
F.3d at 1191 (citing Albino, 747 F.3d at 1172)
(quotation marks omitted). If they do, the burden then 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." Williams, 775
F.3d at 1191.
a.
Availability of an Administrative Remedy
i.
Parties' Arguments
Defendants
assert that Plaintiff had an available administrative remedy
while incarcerated at Donovan Correctional Facility. (ECF No.
24-1 at 8-10.) In support of this argument, Defendants submit
declarations from V. Sosa, Appeals Coordinator at the Donovan
Correctional Facility in San Diego, California ("Sosa
Decl.") (ECF No. 24-5) and M. Voong, Chief of the Office
of Appeals in Sacramento, California ("Voong
Decl.") (ECF No. 24-7).
According
to these declarations, since January 28, 2011, and during the
times alleged in Plaintiff's Complaint, Title 15 of the
California Code of Regulations[2] required three formal
levels of appellate review for prisoner grievances. (
See ECF No. 24-5 ¶ 2, ECF No. 24-7 ¶ 5.) Therefore,
in order to properly exhaust his claims, a Plaintiff must,
within thirty calendar days of the decision or action being
appealed, or "upon first having knowledge of the action
or decision being appealed, " (Cal. Code Regs., tit. 15
§ 3084.8(b)) "use a CDCR Form 602 (Rev. 08/09),
Inmate/Parolee Appeal, to describe the specific issue under
appeal and the relief requested." ( Id. §
3084.2(a); see also ECF No. 24-5 ¶ 2; ECF No. 24-7
¶¶ 5-7.)
The
declarations from V. Sosa and M. Voong further state that,
"[i]f the inmate is not satisfied with the first level
response, he or she may submit the appeal for a second level
of review." (ECF No. 24-5 ¶ 2; ECF No. 24-7 ¶ 7 citing
Cal. Code Regs., tit. 15 § 3084.7(b). If the inmate is not
satisfied with the second level response, he or she can
submit their complaint to the Office of Appeals in Sacramento
for a third level review. (ECF No. 24-5 ¶ 2; ECF No. 24-7 ¶ 7
citing Cal. Code Regs., tit. 15 § 3084.7(c).) The third level
of review, "completes the exhaustion process." (ECF
No. 24-5 ¶ 2; ECF No. 24-7 ¶ 7 citing Cal. Code Regs., tit.
15 § 3084.7(d)(3).)
Plaintiff
concedes that Defendants properly outlined the inmate appeals
...