United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF NO.
78]
Plaintiff
Robert Bishop is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff consented to United States magistrate judge
jurisdiction on January 26, 2011. (ECF No. 9.) Defendants
declined United States magistrate judge jurisdiction on June
25, 2015; therefore, this matter was referred to the
undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local
Rule 302.
Currently
before the Court is Defendants' motion for summary
judgment, filed September 24, 2015. (ECF No. 78.)
I.
RELEVANT
HISTORY
This
action is proceeding against Defendants Lopez, Germond,
Rodriguez, Vogel, Jones, Cano, Marshall, Cruz, Tucker,
Mauldin, Maita, and Dynsinki regarding conditions of
confinement in violation of the Eighth Amendment.
On June
23, 2015, Defendants filed an answer to the second amended
complaint. (ECF No. 51.) On June 25, 2015, the Court issued
the discovery and scheduling order. (ECF No. 52.)
On
September 24, 2015, Defendants filed a motions for summary
judgment based on Plaintiff's failure to exhaust the
available administrative remedies in compliance with 42
U.S.C. § 1997e(a). Fed.R.Civ.P. 56(c); Albino v.
Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc),
cert. denied, 135 S.Ct. 403 (2014).[1] (ECF Nos. 78.) On
June 6, 2016, Plaintiff filed an opposition to
Defendants' motion, and Defendants filed a reply on June
16, 2016. (ECF Nos. 127, 128, 132.)
On June
27, 2016, Plaintiff filed a surreply, and on July 1, 2016,
Defendants filed a motion to strike Plaintiff's surreply
as an unauthorized pleading. (ECF Nos. 133, 134.)
On
February 4, 2016, Defendants Tarnoff, Soto, Harrington,
Castro, Horton, Biter, Tyson, and Hudson filed a reply to
Plaintiff's opposition. (ECF No. 104.) On February 5,
2016, Defendant Sclafani filed a reply to Plaintiff's
opposition. (ECF No. 105.)
II.
LEGAL
STANDARD
A.
Statutory Exhaustion Requirement
The
Prison Litigation Reform Act (PLRA) of 1995, requires that
prisoners exhaust “such administrative remedies as are
available” before commencing a suit challenging prison
conditions.” 42 U.S.C. § 1997e(a); see Ross v.
Blake, __ U.S. __ 136 S.Ct. 1850 (June 6, 2016)
(“An inmate need exhaust only such administrative
remedies that are 'available.'''). Exhaustion
is mandatory unless unavailable. “The obligation to
exhaust 'available' remedies persists as long as
some remedy remains 'available.' Once that
is no longer the case, then there are no'remedies
… available, ' and the prisoner need not further
pursue the grievance.” Brown v. Valoff, 422
F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing
Booth v. Churner, 532 U.S. 731, 739 (2001)).
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, 747 F.3d at 1166. “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.
B.
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).
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.
III.
DISCUSSION
A.
Description of CDCR’s Administrative Remedy
Process
Plaintiff
is a state prisoner in the custody of the California
Department of Corrections and Rehabilitation
(“CDCR”), and 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). Inmates are required to submit appeals on a
standardized form (CDCR Form 602), attach necessary
supporting documentation, and submit the appeal within thirty
days of the disputed event. Cal. Code Regs. tit. 15,
§§ 3084.2, 3084.3(a), 3084.8(b). In 2009, the
timeline for submitting inmate appeals fifteen working days,
not thirty days. Cal. Code Regs. tit. 15, § 3084.6(c)
(2009). Inmates appeals must be submitted timely, ...