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Purtue v. Kearnes

United States District Court, E.D. California

March 20, 2017

MICHAEL PURTUE, Plaintiff,
v.
B. KEARNES, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES [ECF Nos. 38, 46, 51, 57, 61]

         Plaintiff Michael Purtue is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' motion for summary judgment for failure to exhaust the administrative remedies, filed December 27, 2016.

         I.

         RELEVANT HISTORY

         This 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.

         On 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.

         On February 17, 2017, and February 27, 2017, Plaintiff filed separate oppositions to Defendants' motion for summary judgment.[1] (ECF Nos. 51, 57.)

         On 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).

         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 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).

         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). 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.

         During 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.

         A 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, § 3084.2(a).[2]

         B. Summary of Allegations Underlying Plaintiff's Constitutional Claims

         On 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 property.

         On 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.

         On 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 your property.”

         On 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.”

         Plaintiff 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 “rat.”

         On March 27, 2010, during an escort for visitation, Defendant S. Rizer entered A-section as Plaintiff was passing by and Rizer stated, “rat.”

         On May 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.”

         On May 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.

         On May 14, 2010, Plaintiff wrote a family member regarding his missing property.

         On May 17, 2010, Defendant S. Rizer entered A-section to do yard release and yelled out “we'll chew you up.”

         On May 22, 2010, Defendant Rizer entered A-section and yelled out “fuck it let him lock up.”

         On June 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.”

         On June 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 ...


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