United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT BE DENIED (DOC. 29)
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
The
defendants contend the plaintiff failed to exhaust the
available administrative remedies and failed to timely file
this action in compliance with the California Tort Claims
Act. Cal. Gov’t Code § 945.6. (Doc. 29.) For the
reasons discussed below, the Court finds that, as to
Plaintiff’s claims under § 1983, Defendants have
not met their burden and their motion should be DENIED with
prejudice, but that their motion as to the state law claims,
should be GRANTED as to defendant Rasey.
DISCUSSION
A.
Legal Standards
1.
Summary Judgment Standard
Any
party may move for summary judgment, which the Court shall
grant, if the movant shows 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 v. Baca, 697 F.3d 1023, 1166 (9th Cir. 2012);
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). 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
failure to exhaust is an affirmative defense which the
defendants bear the burden of raising and proving on summary
judgment. Jones v. Bock, 549 U.S. 199, 216, 127
S.Ct. 910 (2007); Albino, 747 F.3d at 1166. The
defense must produce evidence proving the failure to exhaust
and summary judgment under Rule 56 is appropriate only if the
undisputed evidence, viewed in the light most favorable to
the plaintiff, shows he failed to exhaust. Id.
2.
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). Prisoners
are required to exhaust available administrative remedies
prior to filing suit. Jones, 549 U.S. at 211;
McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th
Cir. 2002). The exhaustion requirement applies to all suits
relating to prison life, Porter v. Nussle, 435 U.S.
516, 532; 122 S.Ct. 983 (2002), regardless of the relief both
sought by the prisoner and offered by the process, Booth
v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001).
On
summary judgment, Defendants must first prove that there was
an available administrative remedy which Plaintiff did not
exhaust prior to filing suit. Williams v. Paramo,
775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino,
747 F.3d at 1172). If Defendants carry their burden of proof,
the burden of production shifts to 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.
“Under
§ 1997e(a), the exhaustion requirement hinges on the
“availability’ of administrative remedies: An
inmate, that is, must exhaust available remedies, but need
not exhaust unavailable ones.” Ross v. Blake,
___U.S. ___, 136 S.Ct. 1850, 1858 (June 6, 2016). An inmate
is required to exhaust those, but only those, grievance
procedures that are “capable of use” to obtain
“some relief for the action complained of.”
Id. at 1858-59, citing Booth v. Churner,
532 U.S. 731, 738 (2001). However, “a prisoner need not
press on to exhaust further levels of review once he has [ ]
received all ‘available’ remedies.” See
Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
“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.”
Williams, at 1166. The action should then be
dismissed without prejudice. Jones, 549 U.S. at
223-24; Lira v. Herrrera, 427 F.3d 1164, 1175-76
(9th Cir. 2005).
3.
Summary of CDCR’s Inmate Appeals Process
The
California Department of Corrections and Rehabilitation has a
generally available administrative grievance system for
prisoners to appeal any departmental decision, action,
condition, or policy having an adverse effect on prisoners
welfare, Cal. Code Regs., tit. 15, § 3084, et
seq. Compliance with section 1997e(a) requires
California state prisoners to use that process to exhaust
their claims. Woodford v. Ngo, 548 U.S. 81, 85-86,
126 S.Ct. 2378 (2006); Sapp v. Kimbrell, 623 F.3d
813, 818 (9th Cir. 2010).
As of
2011, an inmate initiates the grievance process by submitting
a CDCR Form 602, colloquially called an inmate appeal
(“IA”), describing “the problem and action
requested.” Cal. Code Regs., tit. 15, § 3084.2(a).
An IA must be submitted within 30 calendar days of the event
or decision being appealed, first knowledge of the action or
decision being appealed, or receipt of an unsatisfactory
departmental response to an appeal filed. Tit. 15 §
3084.8(b). The inmate is limited to raising one issue or a
related set of issues in each IA in the space provided on the
form and one form attachment in which he/she shall state all
facts known on that issue. Tit. 15 § 3084.2(a)(1), (2),
(4). The inmate must list all involved staff members along
with a description of their involvement in the issue. Tit. 15
§ 3084.2(a)(3). The inmate must submit original copies
of supporting documents with the IA; if they are not
available, copies may be submitted with an explanation why
the originals are not available, but are subject to
verification at the discretion of the appeals coordinator.
Tit. 15 § 3084.2(b). With limited exceptions, an inmate
must initially submit his/her IA to the first-level. Tit. 15
§ 3084.7. If dissatisfied with the first-level response,
the inmate must submit the IA to the second-level and then to
the third, if necessary. Tit. 15 § 3084.2, .7. The
inmates must submit first and second-level appeals to the
appeals coordinator at the institution for processing. Tit.
15 § 3084.2(c). The inmate must mail the third-level
appeal to the Appeals Chief via the United States mail
service. Tit. 15 § 3084.2(d).
B.
Defendants’ Motion on Exhaustion per 42 U.S.C. §
1997e(a)[1]
Defendants
assert that Plaintiff did not exhaust available
administrative remedies on either of his claims, entitling
them to judgment. (Doc. 29.) The Court must determine if
Plaintiff filed any IAs concerning the allegations he is
proceeding on in this action; if so, whether Plaintiff
complied with CDCR’s process; and if Plaintiff did not
comply with CDCR’s process, was it because the process
had been rendered unavailable to him. Ross136 S.Ct.
at 1859; Sapp, 623 F.3d at 823. Defendants’
assert their evidence shows that Plaintiff did not exhaust
available administrative remedies on his claims under §
1983 before he filed suit. (Doc. 29.)
1.
Plaintiff’s Claims[2]
Plaintiff
is proceeding in this action on claims stated in the Second
Amended Complaint (Doc. 17) for deliberate indifference to
his serious medical need in violation of the Eighth Amendment
and retaliation in violation of the First Amendment against
C/O Rasey and Sgt. Stonestreet; and for negligence under
California law against C/O Rasey. (Doc. 19.)
Though
Defendants identify a number of IAs which Plaintiff filed,
and thereafter raise a variety of reasons why they feel each
failed to meet Plaintiff’s exhaustion obligation, only
two of Plaintiff’s IAs need be addressed -- #13-1073
and #13-1320. These IAs sufficed to meet Plaintiff’s
exhaustion obligation.
a.
Plaintiff’s ...