United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST THE ADMINISTRATIVE REMEDIES [ECF Nos. 38, 46, 51, 57,
Michael Purtue is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion for summary
judgment for failure to exhaust the administrative remedies,
filed December 27, 2016.
action is proceeding against Defendants Rizer, G. Eberle, J.
Meyers, J. Emerson, R. Sanchez, J. Chavez, B. Mello, L. Lundy
and D. Magallance for deliberate indifference to his safety
in violation of the Eighth Amendment.
December 27, 2016, Defendants Lundy, Mello, Eberle, Meyers,
Emerson, Sanchez and Chavez filed a motion for summary
judgment for failure to exhaust the administrative remedies.
(ECF No. 38.) On January 27, 2016, Defendant Magallance
joined in the motion for summary judgment. (ECF No. 46.)
Defendant Rizer has not yet been served.
February 17, 2017, and February 27, 2017, Plaintiff filed
separate oppositions to Defendants' motion for summary
judgment. (ECF Nos. 51, 57.)
March 10, 2017, Defendants filed a reply to both of
Plaintiff's oppositions. (ECF No. 61.) The motion for
summary judgment is submitted for review without oral
argument. Local Rule 230(1).
Statutory Exhaustion Requirement
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)).
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).
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
Summary Judgment Standard
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 v. Baca, 747 F.3d
1162, 1166 (9th Cir. 2014); 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).
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.
Description of CDCR's Administrative Remedy
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). 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, §
3084.1, and 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
(2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th
Cir. 2010). The Title 15 regulations governing CDCR's
inmate appeals process were amended in 2011, but
Plaintiff's claims arise from events which occurred in
2010 and the relevant regulations are those which were in
effect during that time period. Therefore, the citations to
Title 15 set forth herein are those pre-amendment regulations
in effect prior to December 13, 2010.
the relevant time period, the appeals process was initiated
by submitting a CDC Form 602 describing “the problem
and action requested, ” Cal. Code Regs., tit. 15,
§ 3084.2(a) (West 2009), and appeal had to be submitted
“within 15 working days of the event or decision being
appealed, or of receiving an unacceptable lower level appeal
decision, ” tit. 15, § 3084.6(c). Up to four
levels of appeal could be involved, including an informal
level and the first formal level, second formal level, and
third formal level, which was also known as the
Director's Level. Tit. 15, § 3084.5.
prisoner complies with an institution's administrative
procedures when a grievance “alerts the prison to the
nature of the wrong for which redress is sought.”
Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.
2009). To provide adequate notice, an inmate must
“provide the level of detail required by the
prison's regulations.” Sapp, 623 F.3d at
824. The prison's regulations required that the inmate
“describe the specific issue under appeal and the
relief requested.” Cal. Code Regs., tit. 15, §
Summary of Allegations Underlying Plaintiff's
October 13, 2009, Plaintiff arrived at California
Correctional Institution (CCI). On February 1, 2010,
Plaintiff was involved in a cell fight with his cellmate and
subsequently moved and rehoused in housing unit 8. Defendant
T. Langhardt packed and inventoried Plaintiff's personal
February 19, 2010, when Defendants B. Kearnes and G. Eberle
attempted to re-issue Plaintiff his property, Plaintiff
noticed some of his property was missing and refused to sign
the inmate property inventory CDC 1083 form and Defendant
Kearnes therefore refused to give Plaintiff his property.
February 21, 2010, Plaintiff spoke to Defendant B. Mello
regarding his missing property and Defendant Mello stated,
“I am working a double today and later today I would
[sic] call over to a building and have them get the rest of
March 2, 2010, Plaintiff was re-issued his property by
Defendants Kearnes and Eberle and Plaintiff noticed a large
portion of his property missing. Plaintiff informed Kearnes
of his missing property who stated, “602 it.”
contends that Defendants deliberately took his trial
transcripts and circulated them to inmates in order to spread
the rumor that Plaintiff was a “snitch” and
March 27, 2010, during an escort for visitation, Defendant S.
Rizer entered A-section as Plaintiff was passing by and Rizer
6, 2010, Plaintiff wrote a letter of complaint to Warden F.
Gonzalez regarding the intentional taking of his personal
property and transcripts-which officers circulated around to
inmates and referred to Plaintiff as a “rat.”
8, 2010, Defendant Rizer said something to an inmate on the
bottom tier who later that afternoon started talking to
another inmate over the tier and yelled out “he went in
that house and killed those people and told
everything.” Defendant Rizer conspired with inmates by
giving them information from Plaintiff's transcripts.
14, 2010, Plaintiff wrote a family member regarding his
17, 2010, Defendant S. Rizer entered A-section to do yard
release and yelled out “we'll chew you up.”
22, 2010, Defendant Rizer entered A-section and yelled out
“fuck it let him lock up.”
1, 2010, during institutional count Defendant Eberle stopped
at Plaintiff's cell and stated “Hey Purtue the
sergeant who heard your appeal should have granted it he
messed up and the word around is that you are going to win it
at the second level so appeal it trust me.”
14, 2010, Defendant Eberle passed some papers to inmates in
his housing section, and Plaintiff heard an inmate yell
“I got those legal papers.” Defendant circulated