Thompson v. Adams

          FINDINGS AND RECOMMENDATION THAT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BE DENIED (DOC. 45)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Plaintiff, DeWayne Thompson, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 and California law on May 6, 2013. This action is proceeding on two claims under the Eighth Amendment in Plaintiff’s Fourth Amended Complaint (Doc. 21) against: (1) Defendants Felix, Harmon, Pendergrass, and Cruz for failing to decontaminate Plaintiff following the application of pepper spray (“decontamination claim”); and (2) Defendant Brodie for depriving Plaintiff of outdoor exercise (“exercise claim”). (See Doc. 23, Screen F&R; Doc. 25, Screening Order.)

         On October 14, 2015, Defendants filed a motion for summary judgment based on Plaintiff’s failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a) with respect to his federal claims. Fed.R.Civ.P. 56(c)^[1]; Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 403 (2014). (Doc. 45.) Plaintiff filed his opposition to Defendants’ motion on November 3, 2015.^[2] (Doc. 48, Memo of P&A; Doc. 49, Exhs.; Doc. 50, Disp Facts.) Defendants filed a reply on November 10, 2015. (Doc. 52, Reply.) Defendants’ motion for summary judgment is deemed submitted on the record without oral argument pursuant to Local Rule 230(l).

         It is recommended that Defendants’ motion for summary judgment be DENIED as the grievance procedures were rendered effectively unavailable to Plaintiff.

         DISCUSSION

         A. Legal Standards

         1. Summary Judgment Standard

         Any party may move for summary judgment which shall be granted 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 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 a disputed or undisputed fact, 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, 549 U.S. at 216; Albino, 747 F.3d at 1166. The defense must produce evidence proving the failure to exhaust. Id. 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 his administrative remedies. 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 v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007); 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 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 (“CDCR”) 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 related set of issues, per IA in the space provided on the first page of the IA form and one attached page (which must be on the prescribed “Attachment” form) in which he/she shall state all facts known on that issue. Tit. 15 § 3084.2(a)(1), (2), (4). All involved staff members are to be listed along with a description of their involvement in the issue. Tit. 15 § 3084.2(a)(3). Originals of supporting documents are to be submitted with the IA; if they are not available, copies may be submitted with an explanation as to 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 to the third level. Tit. 15 § 3084.2, .7. First and second level appeals shall be submitted to the appeals coordinator at the institution for processing. Tit. 15 § 3084.2(c). Third level appeals must be mailed to the Appeals Chief via the United States mail service. Tit. 15 § 3084.2(d).

         D. Defendants’ Motion^[3]

         Defendants assert that Plaintiff did not exhaust available administrative remedies on either of these claims before he filed suit, entitling them to judgment. (Doc. 45.) The Court must determine if Plaintiff filed any IAs concerning these events; and if so, whether Plaintiff complied with the CDCR process; and if Plaintiff did not comply with CDCR’s process, whether it was because the process had been rendered unavailable to him. Ross v. Blake, ___U.S.___, 136 S.Ct. 1850, 1859 (2016); Sapp, 623 F.3d at 823.

         1. Plaintiff’s Decontamination Claim

         It is undisputed that Plaintiff filed IA No. CSPC-2-12-06000 (“IA 12-06000”) on the events which form the basis of his decontamination claim against Defendants Felix, Harmon, Pendergrass, and Cruz. (See Doc. 45-1, 3:12-4:20; Doc. 48, pp. 1-7.)^[4]

         a. Defendants’ Motion

         (i) IA No. ...