Bishop v. Harrington

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BE GRANTED [ECF NOS. 86 & 88]

         Plaintiff Robert Bishop is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff declined United States magistrate judge jurisdiction and therefore this matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

         Currently before the Court are Defendants' motions for summary judgment, filed separately on October 27, 2015.^[1]

         II. RELEVANT HISTORY

         This action is proceeding against Defendants Tarnoff, Soto, Harrington, Castro, Horton, Biter, Tyson, Hudson, and Sclafani for retaliation in violation of the First Amendment of the United States Constitution.

         On July 24, 2015, Defendants filed an answer to the second amended complaint. (ECF No. 55.) On July 27, 2015, the Court issued the discovery and scheduling order. (ECF No. 56.)

         On October 27, 2015, Defendants filed a motions for summary judgment based on Plaintiff's failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a). Fed.R.Civ.P. 56(c); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 403 (2014).^[2] (ECF Nos. 86, 88.) After Plaintiff received four extensions of time, he filed separate oppositions to Defendants' motions on January 29, 2016. (ECF Nos. 102, 103.)

         On February 4, 2016, Defendants Tarnoff, Soto, Harrington, Castro, Horton, Biter, Tyson, and Hudson filed a reply to Plaintiff's opposition. (ECF No. 104.) On February 5, 2016, Defendant Sclafani filed a reply to Plaintiff's opposition. (ECF No. 105.)

         II. LEGAL STANDARD

         A. Statutory Exhaustion Requirement

         Pursuant to the Prison Litigation Reform Act of 1995, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 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). This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524).

         The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. "In the rare event that a failure to exhaust is clear from the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6)." Albino, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id.

         B. Summary Judgment Standard

         Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows 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) (quotation marks omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         The defendants bear the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and they must "prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy, " id. at 1172. If the defendants carry their burden, the burden of production 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." Id. "If the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56." Id. at 1166. However, "[i]f material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts." Id.

         III. DISCUSSION

         A. Description of CDCR's Administrative Remedy Process

         Plaintiff is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), and CDCR has an administrative remedy process for inmate grievances. Cal. Code Regs. tit. 15, § 3084.1 (2014). Compliance with section 1997e(a) is mandatory and state prisoners are required to exhaust CDCR's administrative remedy process prior to filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). Inmates are required to submit appeals on a standardized form (CDCR Form 602), attach necessary supporting documentation, and submit the appeal within thirty days of the disputed event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). In 2009, the timeline for submitting inmate appeals fifteen working days, not thirty days. Cal. Code Regs. tit. 15, § 3084.6(c) (2009). Inmates appeals must be submitted timely, and an appeal may be rejected when the "time limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints." Cal. Code Regs. tit. 15, § 3084.3(c)(6) (2009).

         B. Summary of Allegations Underlying Plaintiff's Constitutional Claims

         Plaintiff was improperly removed from the general population in retaliation for his active role in the prisons Inmate Advisory Council ("IAC") for filing inmate grievances and staff complaints that had an adverse effect on his welfare.

         Upon removal from general population, Plaintiff was housed in the administrative segregation unit for over six months pending false allegations/charges and denied his earned privileges and program.

         Defendant Castro retaliated against Plaintiff for filing inmate appeals/grievances and staff complaints as well as for his active role in the IAC, by using her power of authority to generate a confidential memorandum which was later determined to be unreliable, vague and unsubstantiated for the sole purpose of punishing Plaintiff. Castro ordered Plaintiff be removed from the general population and placed into administrative segregation without affording Plaintiff the opportunity to present his views causing deprivation of earned privilege group and program.

         Defendants Horton and Sclafani also retaliated against Plaintiff for filing inmate appeals/grievances and staff complaints as well as for his active role in the IAC by using their power of authority to generate a false report which was later determined to be unsubstantiated and unreliable. Defendant Horton directed Defendant Sclafani to search a specific are which had previously been searched to discover a weapon that had never actually been viewed for the sole purpose of placing blame and punishing Plaintiff. Defendants Horton and Sclafani actions facilitated Defendant Castro's needs in having Plaintiff wrongfully removed from the general population into administrative segregation which deprived him from earned privilege group and program.

         On June 11, 2009, Plaintiff was issued a CDCR 114-D administrative segregation unit placement notice prepared by Defendant Castro for investigation into conspiracy to commit a battery on an inmate for the sole purpose of retaliation.

         On June 23, 2009, Defendant Hudson served as an administrative reviewer for Plaintiff's 114-D for conspiracy to commit an assault on an inmate with a deadline which, and facilitated in removing Plaintiff from his earned privilege group and program to retain Plaintiff in administrative segregation in retaliation for Plaintiff exercising his First Amendment rights.

         On June 24, 2009, Defendant Horton issued Plaintiff a Rules Violation Report (RVR), FB 09-06-054, which was approved by Defendant Castro, for the sole purpose of retaliation.

         On September 8, 2009, Defendant Tyson, as senior hearing officer (SHO), retaliated against Plaintiff for filing inmate grievances and roll in IAC conducted an unfair and biased hearing for the RVR in order to find Plaintiff guilty.

         On October 14, 2009 and October 21, 2009, Defendants Hudson and Soto reviewed the RVR findings and did not correct the unsubstantiated findings for the sole purpose of retaliation.

         On October 27, 2009, Plaintiff filed inmate appeal KVSP-O-09-01835 regarding the RVR.

         On November 5, 2009, Plaintiff was taken to committee for a SHU term assessment for the guilty RVR finding. At the SHU term assessment hearing, Defendant Harrington abused his authority by assessing Plaintiff with a two year SHU term as part of the conspiracy to retaliate against Plaintiff.

         On November 24, 2009, Defendant Tarnoff interviewed Plaintiff in regards to Appeal KVSP-O-09-01835. Plaintiff told Defendant Tarnoff that his due process rights had been violated, but Defendant Tarnoff left the interview.

         On December 17, 2009, unbeknownst to Plaintiff, Appeal KVSP-O-09-01835 was partially granted in that a modification order would be ordered for a reissue/rehear based on a due process violation.

         On December 23, 2009, Plaintiff was illegally transferred to the security housing unit at Corcoran State Prison for the ...