United States District Court, E.D. California
a state prisoner proceeding pro se, filed this civil rights
action seeking relief under 42 U.S.C. § 1983 alleging
excessive force against correctional officers for taking him
to the ground during an escort. The matter was referred to a
United States Magistrate Judge as provided by 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 302.
February 28, 2017, the magistrate judge filed findings and
recommendations, which were served on all parties and which
contained notice to all parties that any objections to the
findings and recommendations were to be filed within seven
days. (ECF No. 45.) Plaintiff has filed objections to the
findings and recommendations.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 304, this court has conducted a
de novo review of this case. Having carefully
reviewed the entire file, the court declines to adopt the
findings and recommendations and refers the matter back to
the assigned magistrate judge for further proceedings.
action is proceeding on plaintiff's third amended
complaint (TAC), which raises an Eighth Amendment excessive
force claim against defendant Burciaga based on an alleged
incident on April 28, 2015. ECF No. 45 at 2. Defendant
Burciaga has moved for summary judgment based on failure to
exhaust administrative remedies, ECF No. 29, and the
magistrate judge recommends the motion be granted, ECF No.
45. In support of the motion, defendant presents evidence
that the Appeals Coordinator at California State
Prison-Sacramento only accepted one inmate grievance from
plaintiff for review between April 28, 2015, when the
incident occurred, and October 13, 2015, when this action was
filed. See ECF No. 29-2 and evidence cited therein.
In opposition to the motion, plaintiff submitted evidence
that he had filed another inmate appeal on June 2, 2015. ECF
No. 34 at 5. Plaintiff styled the appeal as an
“Emergency Appeal”; at the top, on June 17, 2015,
someone other than plaintiff wrote: “Non-emergency, in
CTC 1 on suicide precaution.” Id. Plaintiff
contends he was granted all the relief requested at this
level of appeal and therefore was not required to pursue
administrative remedies further. ECF No. 34 at 3. The
magistrate judge finds this grievance did not
“specifically complain that excessive force was used,
nor does it seek to hold defendant Burciaga or the other
correctional officer accountable for the incident.” ECF
No. 45 at 2.
grievance appended by plaintiff to his opposition reads as
On 4/28/15 I had 18 days on a hunger strike against I.E.X and
before I went out of my cell A-3-204 at the time I reported
to Burciaga and Rickman the [sic] I wanted to speak to a
prison psych before I come out of the cell, for I was having
serious hallucinations and hearing voices and the
I=Cerriantes [illegible] was a threat to people he say after
Burciago C/O you go for your hunger strike check up, so I
went. Nurse Balbasqua RN took my vitals, weight it me, and
when I was coming back to the Bld=through 4 close dining door
something hit me on my head, and I hear somebody saying and
calling me wet back, and I knew I was been a victim of racial
discrimination, so I start kicking deffensing [sic] myself,
next thing I remember I was on front of the house with a cut
on my head 2 inches or one and I hear Sgt. Williamson say
throw him back in his cell he is one of those hungry strike
rebels with a head injury. I support to have further med
examination 2 days later I black out and I just come back
from hospital CTC Bld # 8 Seat B-213 I spent almost 3 weeks
and I just got my copy of 115 saying the I assaulted [sic] an
officer, I was the one who got assaulted a handicap.
ECF No. 34 at 5-6. Plaintiff requested the following relief:
I request further medication examination and X Rays for my
back my neck. My state appointed attorney and get copies of
medical psych report is this inmate was psychotic at the time
of the incident. I.S. U.Sgt. K. Steele and Lt. R. Sparks
Incident Report Review My 28, 2015 My attorney already have
copies of these documents.
Id. at 6.
objections, plaintiff states “when I file my complaint
against Officer Burciaga on 4/28/15 I clearly explain the one
grievance against Officer Burciaga it was addressed to
custody not medical; but custody send it to medical and I was
placed in sucidal [sic] watch every time I try to complaint
[sic] about racial mistreatment or other prison condition the
Department of Correction prison staff send me to a mental
hospital . . . When before I file my 602 J Cervantes sent a
22 form is inmate request to see Sgt. Williamson; up to this
day no response then I send another 602 to Captain Cannary
supervicing [sic] the whole yard never got no interview or
never response. . . .” ECF No. 46 at 1.
of the record shows that the 115 referred to in the inmate
appeal attached to plaintiff's opposition is appended to
plaintiff's original complaint. ECF No. 1 at 6-7. That
rules violation report is written by defendant Burciaga, and
states that as Burciaga was escorting plaintiff from a
medical examination plaintiff “became very aggressive
by yelling, screaming and kicking and moving in an aggressive
manner during the escort, in an attempt to break free of my
grasp. I utilized immediate force to overcome the resistance
and to stop the threat of CERVANTES kicking me or other Staff
members. Specifically, I maintained my grasp of
CERVANTES's upper left arm grasping the jumpsuit I spun
CERVANTES to my left causing him to lose his balance and fall
to the floor laying on his stomach. . .” Id.
at 6. Plaintiff pleaded guilty to the rules violation and
told the hearing officer that he “was most likely
defending [him]self.” Id. at 7. Plaintiff also
appended to the original complaint a screening form for
Inmate Appeal Log Number: SAC-P-15-02951, rejecting the
appeal as incomplete. Id. at 10. This is a different
appeal log number from either the grievance submitted by
defendant in support of the motion for summary judgment or
the appeal appended to plaintiff's opposition.
See ECF No. 29-2 at 2; ECF No. 45 at 5. That
grievance includes an allegation that plaintiff “was
hit by staff member, C/O Burciaga, and was forced to deffend
[sic] myself.” ECF No. 1 at 14. Also appended to the
original complaint is a mental health assessment of plaintiff
performed in connection with the rules violation report, that
includes a finding that plaintiff “was psychotic at the
time of this incident.” Id. . at 20.
foregoing shows that there have been more administrative
proceedings in connection with the April 28, 2015 incident
than were presented to the court by defendant in support of
his motion for summary judgment. In particular, defendant did
not present the court with Inmate Appeal Log Number:
SAC-P-15-02951, even though that appeal was received and
rejected during the same time frame as the other grievance
filed by defendant with his motion for summary judgment. In
addition, plaintiff contends in his objections that his
mental health hospitalizations have interfered with his
ability to pursue administrative remedies. ECF No. 46 at 1.
As the magistrate judge correctly noted, defendant is
required to plead and prove that plaintiff failed to exhaust
administrative remedies, and the exhaustion requirement may
be excused if an inmate “establishes that the existing
administrative remedies were unavailable to him.” ECF
No. 45 at 4.
de novo review of the record in this action, the
court concludes that defendant has failed to meet his burden
of proving that plaintiff failed to exhaust administrative
remedies. Further, the court concludes that, while the record
is not clear, there is at least some evidence to suggest the
exhaustion requirement might be excused in this case. ...