Jaimes v. Barnes

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES [ECF Nos. 35, 36]

         Plaintiff Juan Jaimes is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff declined magistrate judge jurisdiction and this matter was therefore referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. (ECF No. 7.)

         Currently before the Court are Defendants’ motions for summary judgment for Plaintiff’s failure to exhaust the administrative remedies, filed October 5, 2015, and October 22, 2015. (ECF Nos. 35, 36.)

         I.

         RELEVANT HISTORY

         This action is proceeding against Defendants Barnes, Neighbors, Finegan^[1] and Kauffman for deliberate indifference to a serious medical need in violation of the Eighth Amendment.

         On September 15, 2015, Defendants Finegan, Kauffman and Neighbors filed an answer to the first amended complaint. (ECF No. 29.) On September 21, 2015, Defendant Barnes filed an answer to the first amended complaint. (ECF No. 32.)

         On October 5, 2015, Defendants Finegan, Kauffman and Neighbors filed a motion for summary judgment for failure to exhaust the administrative remedies. (ECF No. 35.)

         On October 22, 2015, Defendant Barnes filed a motion for summary judgment for failure to exhaust the administrative remedies. (ECF No. 36.)

         After receiving several extensions of time, Plaintiff filed an opposition to Defendants’ motions on April 18, 2016. (ECF No. 48.)^[2]

         On May 3, 2016, the Court granted Defendants’ request to file a reply to Plaintiff’s opposition nunc pro tunc to April 21, 2016. (ECF Nos. 50, 52.) On May 5, 2016, The Court also granted Defendant Barnes’ request to file a reply nunc pro tunc to April 21, 2016. (ECF Nos.54, 55, 57.)

         II. DISCUSSION

         A. 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).

         As set forth above, 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.

         B. 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 v. Baca, 747 F.3d, 1162, 1166 (9th Cir. 2014). “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.

         Defendants must first prove that there was an available administrative remedy and that Plaintiff did not exhaust that available remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino, 747 F.3d at 1172) (quotation marks omitted). The burden then shifts to Plaintiff to show that something in his particular case made the existing and generally available administrative remedies effectively unavailable to him. Williams, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172) (quotation marks omitted). The ultimate burden of proof on the issue of exhaustion remains with Defendants. Id. (quotation marks omitted).

         C. Summary of CDCR’s Generally Available Inmate Appeals Process

         The California Department of Corrections and Rehabilitation (“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). The administrative remedy process is initiated by submitting a CDCR Form 602 “Inmate/Parolee Appeal” within thirty calendar days (1) of the event or decision being appealed, (2) upon first having knowledge of the action or decision being appealed, or (3) upon receiving an unsatisfactory departmental response to an appeal filed. Tit. 15, §§ 3084.2(a), 3084.8(b)(1) (quotation marks omitted). The appeal must “describe the specific issue under appeal and the relief requested, ” and the inmate “shall list all staff member(s) involved and shall describe their involvement in the issue.” Tit. 15, § 3084.2(a). Furthermore, the inmate “shall state all facts known and available to him regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal Form, and if needed, the Inmate Parolee/Appeal Form Attachment.” Tit. 15, § 3084.2(a)(4).

         D. Allegations of First Amended Complaint

         On April 6, 2012, while at KVSP Facility B-yard, between 2:00 and 2:30 p.m., Plaintiff was playing basketball and jumping for the ball, he landed and was pinned between several other inmates. Approximately a minute later, Plaintiff felt his back crack/pop/snap causing sharp throbbing and excruciating pain. Plaintiff was not able to move or stand from the waist up. Although Plaintiff summoned medical assistance, he did not receive any assistance. Plaintiff heard Defendant Neighbors and another unidentified correctional officer say, “you need to get your ass up and walk to the clinic if you want to get checked out, because I am not going to be carrying your ass, you decide.” Plaintiff explained to Defendant Neighbors that he could not get up because his back snapped. Defendant Neighbors stated that he did not care because it was not his problem. Plaintiff observed two unknown inmates who witnessed the incident, and the two inmates carried and moved Plaintiff from where he was laying on his back to the clinic. While at the yard clinic, an unknown licensed vocational nurse (LVN) took Plaintiff’s vitals and Plaintiff explained what happened. The LVN told Plaintiff that she was going to prepare the paperwork so that Plaintiff could be seen by a doctor at the Correctional Treatment Center (CTC) located within the facility. Shortly thereafter, Defendant Neighbors and an unknown officer went to Plaintiff’s location and informed Plaintiff that he would have to be placed in shackles in order to transport him to CTC. Plaintiff stated that he could not get up or move at all. Defendant Neighbors again stated that Plaintiff would not be going anywhere until he was shackled, and Plaintiff was forced into shackles by Defendant Neighbors and an unknown officer.

         Plaintiff arrived at CTC by ambulance between 3:30 and 4:00 p.m. Upon arrival, Plaintiff was placed in an observation room and approximately twenty minutes later his vital signs were taken. Plaintiff informed the nurse that he could not move any part of his upper body and was experiencing excruciating pain.

         Between approximately 7:30 and 8:00 p.m., Defendant J. Barnes examined Plaintiff. Plaintiff explained that he injured his back and could not move due to the excruciating pain. Defendant Barnes told Plaintiff he looked fine. Shortly thereafter Plaintiff was taken to the x-ray room, and during the transport Defendant Barnes stated, “you guy[s] complain about everything, even when there [is] nothing wrong, you guys get better treatment then the people out here.” After the x-rays, Plaintiff was taken back to the observation room where he stood for hours at a table. Defendant Barnes returned to the room and told Plaintiff he was fine that it was just muscle back spasms. Plaintiff was discharged back to custody officers, Defendants Finegan and Neighbors without further treatment.

         Plaintiff requested that Defendants Finegan and Neighbors get supervisor approval to cuff Plaintiff in front due to the pain in his back but his request was not accommodated. Plaintiff was escorted and placed in his cell where he laid on his back for five days, and he was forced to get from his bed and walk the stairs to shower and receive food. During the shower, there was no chair or bench to assist Plaintiff. Plaintiff had to endure this treatment from April 6, 2012, through April 17, 2012. Plaintiff informed Defendant Kauffman of the pain he experienced by having to stand and walk to receive food and shower. Defendant Kauffman and two other officers taunted Plaintiff by stating, “how does it fe[e]l to be useless and worthless, you can’t even wipe your ass.” Defendant Kauffman made no effort or attempt to call medical staff to assist Plaintiff.

         E. Statement of Undisputed Facts ^[3]

         1. Before August 1, 2008, the Appeals Office received and reviewed all inmate appeals; since then, the Health Care Appeals Office receives and reviews appeals concerning health-care issues, including all appeals alleging misconduct by correctional officers or their superiors. (Tallerico Decl. ¶ 3, ECF No. 35-8; Pacillas Decl. ¶ 3, ECF No. 35-4.)

         2. When an inmate submits an appeal that does not comply with regulations governing the appeal process, the Appeals Coordinator will reject (or “screen out”) and return the appeal with the reason for the screening, and instructions on how to correct the defect, if ...