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Hansen v. Nkwocha

United States District Court, E.D. California

April 25, 2017

STEVEN HANSEN, Plaintiff,
v.
P. NKWOCHA, Defendant.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT NKWOCHA'S MOTION FOR SUMMARY JUDGMENT BE GRANTED (ECF NO. 16.) OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS

          Gary S. Austin UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Steven Hansen (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 2, 2015. (ECF No. 1.) This case now proceeds with Plaintiff's First Amended Complaint filed on February 29, 2016, against sole defendant Custody Officer Philip Nkwocha (“Defendant”), on Plaintiff's retaliation claim under the First Amendment. (ECF No. 7.)

         On September 22, 2016, Defendant filed a motion for summary judgment on the grounds that: (1) Plaintiff fails to state a claim for retaliation; (2) Plaintiff failed to exhaust administrative remedies prior to filing suit; and (3) Defendant is entitled to qualified immunity. (ECF No. 16.) On December 30, 2016, Plaintiff filed an opposition.[1](ECF No. 19.) The motion has been submitted upon the record without oral argument pursuant to Local Rule 230(l), and for the reasons that follow, the court recommends that Defendant's motion be granted on the ground that Plaintiff failed to exhaust administrative remedies.

         II. SUMMARY OF ALLEGATIONS IN THE FIRST AMENDED COMPLAINT

         Plaintiff is currently incarcerated at the California Correctional Institution (CCI) in Tehachapi, California, under the custody of the California Department of Corrections and Rehabilitation (CDCR), where the events giving rise to this action allegedly occurred.

         Plaintiff alleges the following. Plaintiff is a white “MAC REP”[2]. (ECF No. 7 at 3.) While Plaintiff was conducting state authorized tournaments in his housing unit, Defendant observed him speaking to a Black prisoner. Plaintiff was called to the office where Defendant began yelling at him, saying that he had no business talking to a Black inmate because Plaintiff was white. Defendant ordered Plaintiff to return to his cell or he would “tear up [his] cell, ” while threateningly holding his can of pepper spray. (ECF No. 7 at 3.)

         Plaintiff contends that Defendant's partner, Correctional Officer Nelson, attempted to reason with Defendant. It failed however, and Nelson told Plaintiff to “give him a wake-up call . . . I give up trying to talk to him.” (ECF No. 7 at 4.)

         When Plaintiff filed his appeal, Defendant refused to process it. Then, when Defendant became aware of the appeal, he tried to intimidate Plaintiff into dropping the appeal by telling Plaintiff that the appeal “will never go anywhere because he's a correctional officer, ” that no one will believe Plaintiff because he's an inmate, and that it will only cause Plaintiff problems. (ECF No. 7 at 4.) Defendant also told Plaintiff that he would see to it that Plaintiff was removed from MAC status, “which has happened.” (ECF No. 7 at 4.)

         III. RETALIATION CLAIM - FIRST AMENDMENT VIOLATION

         On May 17, 2016, the court found that Plaintiff stated a cognizable claim for retaliation against defendant Nkwocha in the First Amended Complaint, but failed to state any other claims. (ECF No. 8.)

         Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

         An allegation of retaliation against a prisoner's First Amendment right to file a prison grievance is sufficient to support a claim under section 1983. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). The Court must “‘afford appropriate deference and flexibility' to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory.” Pratt, 65 F.3d at 807 (9th Cir. 1995) (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). The burden is on Plaintiff to demonstrate “that there were no legitimate correctional purposes motivating the actions he complains of.” Pratt, 65 F.3d at 808.

         IV. SUMMARY JUDGMENT BASED ON EXHAUSTION

         A. Legal Standards

         1. Statutory Exhaustion Requirement

         Section 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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 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, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002).

         An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006). When an inmate's administrative grievance is improperly rejected on procedural grounds, however, exhaustion may be excused as “effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224-26 (9th Cir. 2010) (warden's mistake rendered prisoner's administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third level where appeal granted at second level and no further relief was available).

         2.California Department of Corrections and Rehabilitation (CDCR) Administrative Grievance System

         The Court takes judicial notice of the fact that the State of California provides its prisoners and parolees the right to appeal administratively “any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). The process is initiated by submitting a CDCR Form 602. Id. at § 3084.2(a).

         At the time of the events giving rise to the present action, California prisoners were required to submit appeals within thirty calendar days of the event being appealed, and the process was initiated by submission of the appeal at the first level. Id. at §§ 3084.7(a), 3084.8(c). Three levels of appeal are involved, including the first level, second level, and third level.[3] Id. at § 3084.7. The third level of review exhausts administrative remedies. Id. at § 3084.7(d)(3). In submitting a grievance, an inmate is required to “list all staff members involved and shall describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). Further, the inmate must “state all facts known and available to him/her regarding the issue being appealed at the time, ” and he or she must “describe the specific issue under appeal and the relief requested.” Cal. Code Regs. tit. 15, § 3084.2(a)(4).

         In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford, 548 U.S. at 85 (2006); McKinney, 311 F.3d. at 1199-1201.

         3.Motion for Summary Judgment for Failure to Exhaust

         The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which Defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt with respect to the proper procedural device for raising the affirmative defense of exhaustion under § 1997e(a). Albino v. Baca (“Albino II”), 747 F.3d 1162, 1168-69 (9th Cir. 2014) (en banc). Following the decision in Albino II, defendants may raise exhaustion deficiencies as an affirmative defense under § 1997e(a) in either (1) a motion to dismiss pursuant to Rule 12(b)(6)[4] or (2) a motion for summary judgment under Rule 56. Id. If the court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(e). Jones, 549 U.S. at 223-24; Lira v. Herrrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

         Summary judgment is appropriate when it is demonstrated 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); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts, summary judgment will not be granted.”) A party asserting that a fact cannot be disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The court may consider other materials in the record not cited to by the parties, but is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). In judging the evidence at the summary judgment stage, the court “must draw all reasonable inferences in the light most favorable to the non moving party.” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The court must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

         In a summary judgment motion for failure to exhaust administrative remedies, the defendants have the initial burden to prove “that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that burden, “the burden shifts to the prisoner 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. The ultimate burden of proof remains with defendants, however. Id. “If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.” Id. at 1166.

         B. Defenda ...


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