United States District Court, E.D. California
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. ...