United States District Court, N.D. California, San Francisco Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
RICHARD SEEBORG United States District Judge.
federal civil rights action brought under 42 U.S.C. §
1983, plaintiff, a state prisoner proceeding pro se, claims
that several Salinas Valley State Prison correctional
officers (defendants M. Barroso, J. Hopark, J. Huff, M.
Johnson, and J. Marquez) used excessive force against him in
violation of the Eighth Amendment. Defendants move for
summary judgment on grounds that plaintiff failed to exhaust
his administrative remedies. (Docket No. 35.) They have
provided plaintiff with the required warnings under Rand
v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en
banc). (Docket No. 40.) For the reasons stated herein, the
motion is GRANTED in favor of all defendants as to all
following factual allegations are undisputed. On June 29,
2013, plaintiff and another inmate punched each other while
in the exercise yard at Salinas Valley. (Am. Compl. at 5.)
Correctional Officer Heard, after having seen the fight,
ordered all inmates to lie on the ground. (Defs.' Mot.
for Summ. J. ("MSJ") at 2.) When plaintiff failed
to do so, Officer Barroso sprayed him with O.C. (oleoresin
capsicum), while other officers sprayed the other inmate.
(Id. at 2-3.) The two inmates were removed from the
scene to be decontaminated. (Id. at 3.) Plaintiff
was offered the chance to decontaminate in a sink, which he
refused to use. (Id.) Plaintiff alleges that the
correctional officers violated his constitutional rights when
they (1) used excessive force against him and (2) failed to
give him a proper way (such as a shower) to decontaminate.
submitted three prison grievances regarding the June 29th
incident. (Id., Medina Decl. ¶ 13.) The first
(SVSP-13-00394) was rejected by the prison at the first level
of review because the grievance lacked supporting detail and
documents. (Id., Medina Decl. Ex. A.) The rejection
notice informed plaintiff that he could resubmit a corrected
grievance by a certain time. (Id.) Plaintiff never
resubmitted this grievance. (Id., Medina Decl.
second (SVSP-13-04369) was cancelled at the first level of
review because it was not submitted within 30 days of the
incident, as required by prison regulations. (Id.,
Medina Decl., Ex. B.) The cancellation notice informed
plaintiff that he could challenge the cancellation by
submitting a separate grievance. He also was informed that he
could not, however, submit a corrected version of the
cancelled grievance. (Id.) It appears plaintiff
never challenged the cancellation. (MSJ at 4.)
third (SVSP-14-00828) was rejected at the first level of
review because it was not on the proper 602 grievance form
(plaintiff instead used an ordinary piece of paper), raised
unrelated complaints, and duplicated complaints raised in
other grievances. (Id., Medina Decl., Ex. C.)
Plaintiff never submitted a corrected version of this
grievance. (Id., Medina Decl. ¶ 16.)
does not dispute that he did not exhaust his grievances.
Rather, he says that administrative remedies are inadequate
and that appeals are always denied or rejected. (Pl.'s
Opp. to MSJ at 2-3.)
Standard of Review
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.
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.
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 ...