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Hicks v. Kernan

United States District Court, N.D. California

May 22, 2017

MICHAEL J. HICKS, B80852, Plaintiff(s),
v.
SCOTT KERNAN, et al., Defendant(s).

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON GROUNDS OF FAILURE TO PROPERLY EXHAUST BEFORE FILING SUIT (ECF No. 39)

          CHARLES R. BREYER United States District Judge

         Currently before the court for decision is defendants' motion for summary judgment under Federal Rule of Civil Procedure 56 on the grounds that plaintiff failed to properly exhaust available administrative remedies before filing suit, as required by the Prison Litigation Reform Act (PLRA). For the reasons that follow, the motion will be granted.

         STATEMENT OF THE CASE

         On February 12, 2016, while plaintiff was incarcerated at Salinas Valley State Prison (SVSP), he filed a pro se complaint under 42 U.S.C. § 1983 alleging violations of his federal rights while he was incarcerated at Mule Creek State Prison (MCSP) and at the R. J. Donovan Correctional Facility (RJD) in 2015.

         On February 19, 2016, plaintiff filed a motion for leave to file an amended complaint to add allegations of violations of his federal rights at SVSP too, and, on February 26, 2016, filed a notice of change of address informing the court that he had been transferred back to MCSP.

         On April 29, 2016, the court granted the motion to file an amended complaint and screened the First Amended Complaint (FAC) pursuant to 28 U.S.C. § 1915A. In the FAC, plaintiff alleged that prison officials at MCSP, RJD and SVSP were deliberately indifferent to his safety by failing to restrict other inmates from accessing unpublished court orders identifying him as having been convicted of a sexual crime and suffering from a sexual disorder, and subjected him to cruel and unusual punishment by housing him in their respective administrative segregation units (ASU) despite plaintiff's mental illness. The court dismissed without prejudice plaintiff's § 1983 claims for violations of the Eighth Amendment while he was housed at MCSP and RJD as improperly joined, but ordered the United States Marshal to serve in this action plaintiff's arguably cognizable claims for damages under § 1983 for violations of the Eighth Amendment at SVSP against SVSP Warden B. Muniz.

         On May 17, 2016, Plaintiff filed a motion for leave to file a second amended complaint alleging, just as he did in the FAC, that he was subjected to deliberate indifference to his safety and to cruel and unusual punishment in violation of the Eighth Amendment while he was incarcerated at SVSP in 2016, but naming new defendants SVSP Associate Warden R. Binkele, SVSP Correctional Administrator R. Parin, SVSP Correctional Counselor H. Aguilera and SVSP Appeals Coordinator V. Comeli, and voluntarily dismissing defendant SVSP Warden B. Muniz. (Plaintiff also omitted all allegations regarding occurrences/omissions at MCSP and RJD.)

         On June 1, 2016, the court granted the motion to file a second amended complaint and instructed the clerk to file plaintiff's proposed Second Amended Complaint (SAC) as the operative complaint in this case. The court also screened the SAC and found that, liberally construed, it states arguably cognizable claims for damages under § 1983 for violations of the Eighth Amendment at SVSP against SVSP Associate Warden R. Binkele, SVSP Correctional Administrator R. Parin, SVSP Correctional Counselor H. Aguilera, and SVSP Appeals Coordinator V. Comeli (later correctly identified as V. Lomeli), and ordered the United States Marshal to serve them (defendants).

         On July 11, 2016, plaintiff filed a notice of change of address informing the court that he had been transferred to California State Prison, Sacramento.

         On July 18, 2016, defendants filed a motion to dismiss the SAC under Federal Rule of Civil Procedure 12(b)(6) on the ground that it fails to state a plausible Eighth Amendment claim upon which relief may be granted. After plaintiff had an opportunity to respond and defendants to reply, the court granted the motion in part and denied it in part, concluding that this action would proceed only as to plaintiff's Eighth Amendment claim for damages that defendants “were deliberately indifferent to his safety when they approved his transfer to MCSP despite his protesting that he had numerous unlisted enemies there.” Nov. 18, 2016 Order (ECF No. 35) at 10.

         Defendants now move for summary judgment under Rule 56 on the ground that plaintiff failed to properly exhaust available administrative remedies as to his remaining claim because he did not exhaust before filing the SAC, as required by the PLRA. After being advised of what is required of him to oppose defendants' motion, plaintiff filed an opposition and defendants filed a reply.[1]

         STATEMENT OF THE FACTS

         On February 4, 2016, plaintiff appeared before SVSP's Institution Classification Committee (ICC). Plaintiff explained to the chairperson, Defendant SVSP Associate Warden R. Binkele, that the California Department of Corrections and Rehabilitation's (CDCR) “use of an unfiltered Lexis Nexis program on the inmate law computer had caused plaintiff's convictions and [sexually violent predator (SVP)] mental health . . . treatment to become common knowledge to Level IV EOP - SNY inmates.” SAC (ECF No. 16) ¶ 14. Plaintiff “asked to be referred to the Department Review Board as ‘difficult to place.'” Id.

         Binkele asked Defendant SVSP Correctional Counselor H. Aguilera “what prisons were open to plaintiff.” Id. ¶ 15. Aguilera stated that MCSP was the only Level IV EOP - SNY [prison] in which plaintiff had no documented enemy.” Id. Plaintiff claims he explained that MCSP was “where the problem first came to light in May 2015” and that he had been transferred to three different prisons during the past eight months without resolution. Id. Binkele examined plaintiff's file and referred him for transfer to MCSP. Plaintiff claims he again ...


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