Leos v. Rasey

          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 ...