United States District Court, E.D. California
GLENN S. MARTINEZ CASTRO, Plaintiff,
UNNAMED DEFENDANTS, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES (ECF NO. 51) ORDER REGARDING
PLAINTIFF'S MOTION TO STAY (ECF NO. 55)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
Glenn S. Martinez Castro (“Plaintiff”) is
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. §1983. This action proceeds
on Plaintiff's Second Amended Complaint against Defendant
Correctional Officer Elias for excessive force in violation
of the Eighth Amendment. This claim arises out of an alleged
disturbance on January 25, 2013 in a holding tank at Wasco
State Prison. (ECF No. 31.)
5, 2016, Defendant Elias filed a motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56, arguing
Plaintiff has failed to exhaust his administrative remedies.
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). (ECF No. 51.) On October 5, 2016, Plaintiff
filed an opposition, (ECF No. 57), and on October 12, 2016,
Defendant filed a reply to the opposition, (ECF No.
Defendants' motion is deemed submitted. Local Rule
Statutory Exhaustion Requirement
1997e(a) of the Prison Litigation Reform Act of 1995
(“PLRA”) provides that “[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). Exhaustion is
required regardless of the relief sought by the prisoner and
regardless of the relief offered by the process, Booth v.
Churner, 532 U.S. 731, 741 (2001), and the exhaustion
requirement applies to all prisoner suits relating to prison
life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
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, 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).
failure to exhaust is an affirmative defense, and Defendant
bears the burden of raising and proving the absence of
exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007);
Albino, 747 F.3d at 1166. Defendant must
“prove that there was an available administrative
remedy, and that the prisoner did not exhaust that available
remedy.” Albino, 747 F.3d at 1172. If the
Defendant carries this burden, 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.
“If 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.
Summary of CDCR's Administrative Review Process
California Department of Corrections and Rehabilitation
(CDCR) has an administrative grievance system for prisoner
complaints. Cal. Code Regs., tit. 15 § 3084.1. The
process is initiated by submitting a CDCR Form 602 describing
the issue and the relief requested. Id. at §
3084.2(a). Three levels of review are involved-a first level
review, a second level review and a third level review.
Id. at § 3084.7. Bypassing a level of review
may result in rejection of the appeal. Id. at §
3084.6(b)(15). Under § 1997e, a prisoner has exhausted
his administrative remedies when he receives a decision at
the third level. See Barry v. Ratelle, 985 F.Supp.
1235, 1237-38 (S.D. Cal. 1997).
Summary of Plaintiff's Allegations
lawsuit concerns alleged events when he was an inmate in the
custody of the California Department of Corrections and
Rehabilitation (CDCR) at Wasco State Prison. Plaintiff
alleges, in relevant part, as follows:
January 25, 2013, Plaintiff and five other general population
(GP) inmates were sent to Receiving and Release to await bus
transfer to Calipatria State Prison. The inmates were placed
in a “regular” holding tank. At some point,
Correctional Officer Ward, a non-party, came to the cell door
and told the inmates that they were being disruptive and
loud, and that if they continued to be loud, he would place
them in the cell by the metal detector. (Second Am. Compl.,
ECF No. 31, p. 3.)
“confronted” Officer Ward, asking him if the tank
he referred to was a protective custody tank. Officer Ward
informed the inmates that they were being moved to the tank
he referred to. Plaintiff asked Officer Ward “if that
was a protective custody tank and why we were being placed in
the obvious (s.n.y.) labeled cell?” (Second Am. Compl.,
ECF No. 31, p. 3.) Officer Ward told Plaintiff that he and
the other inmates were going to be placed in the other tank
because they were being too loud.
alleges that “all general population inmates were
placed inside the (sny) holding tank by Officer Ward, with
protective custody inmates already inside which resulted in a
group disturbance between (general population) and
(protective custody) inmates.” (Id.)
Elias, along with ten other correctional officers, responded
to the disturbance. Defendant Elias instructed all of the
inmates to “get down.” Plaintiff, along with all
of the other inmates, lay face down in a
“eagle-spread” position. Plaintiff alleges that
at that point, the following occurred:
Correctional Officers then opened the holding cell door; over
(10) officers entered with hand held metal batons fully
extended, screaming at all inmates running in the holding
tank Defendant Elias stating, “this isn't B-yard,
bitches, ” (B yard is a special needs yard), while
immediately physically assaulting plaintiff and all other
(GP) inmates with their metal batons, multiple times over
plaintiff's head, torso, legs, and continuously on the
(left knee) plaintiff's left knee is still badly damaged.
Various correctional officers also assaulted plaintiff
repeated times. After the two to three minute assault from
Defendant M. Elias, and the other officers, plaintiff and all
other (GP) inmates were then handcuffed picked up, pushed and
thrown against cell bars while and the ground while being
escorted to another area. . .
(Second Am. Compl., at pp. 3-4.) (errors in original).
inmates were taken to one-man holding cages, and put in the
holding cages, two men to a cage. Plaintiff alleges that he
was “violently” shoved into the cage by Defendant
Elias. Defendant Elias and other officers began questioning
the inmates while they were in the holding cages. Plaintiff
alleges that Defendant Elias and the other officers left the
area and returned.
his return, Defendant Elias apologized, stating that
“we had no idea you all were (GP) inmates, we want to
apologize to all of you.” Defendant Elias repeatedly
apologized to the inmates and directed officers to move the
inmates to the holding cages they were originally in.
Defendant Elias and another officer, Garlo, “began to
explain to us the mistake of placing us in a (SNY) labeled
holding tank was not intentional.” (Second Am. Compl.,
at p. 4.) They also informed the inmates that they would not
receive a disciplinary charge. At that point, the buses that
were to transport the inmates to Calipatria State Prison
arrived. Plaintiff alleges that both Officer Garlo and
Defendant Elias “tried rushing Plaintiff and all other
inmates to putting on our jumpsuits and to get on the bus and
leave as soon as possible.” (Id.)
Nurse (“RN”) Johnson and RN Abella were both on
duty at receiving and release at the time. Officer Garlo
continued to direct the inmates to hurry on to the bus.
Plaintiff spoke to Officer Garlo and Defendant Elias,
“bringing to their attention we have not received
medical attention or have been checked by the RNs on
duty.” (Second Am. Compl. at p. 4-5.) After “over
an hour, ” Officer Garlo agreed to let Plaintiff and
the other inmates be seen by RNs Johnson and Abella.
Plaintiff was escorted to the RN's office. Plaintiff
explained to RN Johnson “what had occurred and how
Plaintiff received injuries and what started the
incident.” (Id. at 5.) RN Johnson began to
record Plaintiff's injuries on a medical report. RNs