Green v. Director/Secretary, California Department of Corrections and Rehabilitation

          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 ...