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McCowan v. Hedricks

United States District Court, N.D. California, San Francisco Division

June 16, 2016

VINCENT PRICE MCCOWAN Plaintiff,
v.
B. HEDRICKS, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          RICHARD SEEBORG United States District Judge.

         INTRODUCTION

         In this 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 claims.

         BACKGROUND

         The 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.

         Plaintiff 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. ¶ 14.)

         The 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.)

         The 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.)

         Plaintiff 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.)

         DISCUSSION

         I. Standard of Review

         Summary 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.

         The 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.

         The 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 ...


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