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Morales v. Sherwood

United States District Court, E.D. California

June 20, 2016

ALEJANDRO JOSE MORALES, Plaintiff,
v.
HEZEKIAH SHERWOOD, et al., Defendants.

         FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST CLAIMS BE GRANTED AND PLAINTIFF'S CASE BE DISMISSED WITHOUT PREJUDICE OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS (ECF No. 48)

         I. INTRODUCTION

         Alejandro Morales ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action. Plaintiff filed his initial Complaint on October 1, 2013 and the current operative version of the Complaint is the Third Amended Complaint (the "TAC"), as narrowed by the Court's screening order on May 29, 2015. (ECF Nos. 1, 27, 32.) The TAC alleges three claims against Defendants Hezekiah Sherwood, Greg Coontz, and Ruben Felix ("Defendants") under 42 U.S.C. § 1983.

         On October 7, 2015, Defendants filed a motion for summary judgment under Federal Rule of Civil Procedure 56 arguing that the undisputed facts show that Plaintiff failed to exhaust his available administrative remedies with respect to the allegations in the TAC before filing the complaint in this case, which is now before this Court. (ECF No. 46.)[1]

         The Court heard argument on this motion on May 19, 2016. During that conference, the Court requested further briefing from the parties on the issue of whether any dismissal would be without prejudice. Defendants have confirmed that they seek dismissal without prejudice, and make clear that Plaintiff may refile this complaint after dismissal now that the grievance process has concluded. (ECF No. 74.)

         II. PLAINTIFF'S ALLEGATIONS

         The events alleged in the TAC occurred while Plaintiff was incarcerated at the California Correctional Institution in Tehachapi, California ("CCI"). Shortly after Plaintiff arrived in Tehachapi, on July 13, 2012, he alleges that Defendant Sherwood, a correctional officer, called out to Plaintiff: "Hey, you long hair faggot, come here." When Plaintiff complied, Sherwood pushed Plaintiff up against a wall and forced his head and face into the wall with enough force to chip Plaintiff's tooth. Plaintiff complained to Sherwood, but Sherwood told Plaintiff that "if he did not keep his mouth shut, him and his ‘boys' would fuck him up good." Plaintiff did not file a grievance at the time because he was told by other inmates that Sherwood would beat him in retaliation.

         On July 23, 2012, however, Plaintiff filed an inmate health care appeal to have his chipped tooth fixed. After Sherwood became aware of the appeal, he accused Plaintiff of "snitching on him" and slapped him in the face repeatedly. Plaintiff went outside, where he was confronted by Sherwood and Defendant Coontz. Sherwood sprayed Plaintiff in the face with pepper spray and took him to the ground. Sherwood then placed Plaintiff in handcuffs and beat Plaintiff while he was on the ground while Coontz watched. Plaintiff was then taken to a holding cell in the medical unit. Sherwood informed Coontz and Defendant Felix that Plaintiff had assaulted him, and the three beat Plaintiff again. Plaintiff alleges that he passed out and could not breathe.

         Plaintiff alleges that Sherwood then filed a Rules Violation Report ("RVR") that claimed that Plaintiff assaulted Sherwood and was pepper sprayed while Sherwood was trying to bring Plaintiff under control. Plaintiff has filed multiple appeals of the RVR.

         III. SUMMARY OF DISPUTE ON SUMMARY JUDGMENT

         The Court previously narrowed the scope of the TAC to include:

• A claim against Defendants Sherwood, Coontz, and Felix for excessive force;
• A claim against Defendant Sherwood for retaliation; and,
• A claim against Defendant Coontz for failure to protect.

(ECF Nos. 31, 32.)

         All three Defendants now move for summary judgment as to all claims, asserting that Plaintiff had not, at the time he filed his initial Complaint, exhausted his administrative remedies. In particular, Defendants contend that during the relevant time period, Plaintiff only filed two non-medical appeals. Neither of these two appeals had been accepted for review at the final level of appeals at the time Plaintiff filed his Complaint.

         Plaintiff responds that: (1) the California Code of Regulations provides that the California Department of Corrections and Rehabilitation ("CDCR") must respond to an appeal at the final level of appeals within 60 days; (2) CDCR did not respond to Plaintiffs final level appeals within the 60 day period, so the appeals were effectively denied; and (3) Plaintiff was forced into filing the Complaint before he exhausted administrative remedies because he feared that waiting any longer to file would have taken him out of the statute of limitations for his claims. Plaintiff does not dispute any of the facts set forth in Defendants' Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment.

         IV. LEGAL STANDARDS

         Summary judgment in favor of a party 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." Fed.R.Civ.P. 56(a); Albino v. Baca ("Albino II"), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) ("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). 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).

         V. UNDISPUTED FACTS RELEVANT TO THIS MOTION

         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).

         California prisoners are required to submit appeals to the first level of appeals within thirty calendar days of the event being appealed. Id. at §§ 3084.7(a), 3084.8(a). Three levels of appeal are involved. Id. at ยง 3084.7. The appeal must be adjudicated at the third ...


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