United States District Court, E.D. California
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.
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.
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.
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.)
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.
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.
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.
SUMMARY OF DISPUTE ON SUMMARY JUDGMENT
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;
• A claim against Defendant Coontz for failure to
(ECF Nos. 31, 32.)
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.
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.
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).
UNDISPUTED FACTS RELEVANT TO THIS MOTION
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).
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 §
3084.7. The appeal must be adjudicated at the third ...