United States District Court, E.D. California
ELAINE K. VILLAREAL, Plaintiff,
COUNTY OF FRESNO, Defendant.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT (ECF NO.
12) ORDER DENYING MOTION TO STRIKE (ECF NO. 31)
County of Fresno has moved for summary judgment arguing that
it is undisputed that Plaintiff failed to exhaust all
available administrative remedies. (ECF No. 12). After
reviewing the evidence, the Court finds that there is a
dispute of fact that requires an Albino evidentiary
hearing. See Albino v. Baca, 747 F.3d 1162, 1170
(9th Cir. 2014). For the reasons discussed below and on the
record during the hearing on June 26, 2017, (ECF No. 35), the
Court sets an evidentiary hearing for September 12, 2017, at
10:00 a.m., to hear all evidence related to the issue of
whether Plaintiff's complaint should be dismissed for
failure to exhaust all available administrative remedies
prior to filing her lawsuit.
K. Villareal (“Plaintiff”) is a state prisoner
proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983. On September 17, 2015, Plaintiff filed
the complaint commencing this action. (ECF No. 1). The
complaint alleges that Plaintiff has been sentenced to 10
years for an unspecified non-violent offense. Rather than
serving her time in prison, she is confined to the Fresno
County Jail. She alleges that the jail has dangerous and
inhumane living conditions, especially for long-term
prisoners like herself. She has no kind of programming. She
has no contact visits for holding her children. She has not
been offered any kind of transition to everyday living for
when she is released. The County Jail was supposed to be used
for temporary confinement for defendants waiting for trial or
sentencing. Instead, it has become a long term facility.
states that the walls are falling apart, and some of the
pieces of metal are big enough to be used as weapons. There
is black mold around the toilets and in the showers. The
pieces of cement that come off when Plaintiff sweeps her base
boards are full of mildew, mold, and fungus that looks like
it could be asbestos. Inmates like Plaintiff who have severe
health problems like asthma, allergies, and pulmonary
problems, have difficulty breathing. There are also mites
from the walls that feed on the prisoners.
the issue of exhaustion of administrative remedies, Plaintiff
indicated in her complaint that she had filed an appeal or
grievance concerning all of the facts contained in the
complaint, but the process was not complete because “I
still have not heard anything back. I have exhausted all
avenues. I have 3 grievences [sic] with no response
yet.” (ECF No. 1, at p.2).
order dated November 8, 2016, this Court allowed
Plaintiff's action to proceed against the County of
Fresno on a claim for violation of the Eighth Amendment based
on unconstitutional conditions of confinement. (ECF No. 7)
(“This Court finds that Plaintiff states a cognizable
claim for violation of the Eighth Amendment based on
unconstitutional conditions of confinement in the Fresno
County Jail. . . . Plaintiff's allegations of poor
building conditions, lack of programming or contact visits,
insect infestations and other alleged inhumane conditions
raise a cognizable claim that should proceed past the
screening phase of the case.”).
January 31, 2017, Defendant filed a motion to dismiss on the
ground that Plaintiff failed to properly exhaust her
administrative remedies. (ECF No. 12). Plaintiff filed an
opposition (ECF No. 19) and Defendant filed a reply (ECF No.
20). The Court heard oral arguments on April 7, 2017, and
took the matter under submission. (ECF No. 25).
failure to exhaust was not clear on the face of the
complaint,  on April 11, 2017, the Court converted the
motion to dismiss into a motion for summary judgment and gave
both parties the opportunity to file additional evidence, as
well as a reply and objections to the opposing parties'
evidence. (ECF No. 26). On May 16, 2017, Defendant filed a
reply and objections to Plaintiff's additional evidence.
(ECF No. 28). On June 7, 2017, Plaintiff filed
supplemental additional evidence (“Supplemental
Additional Evidence”). (ECF No. 30). On June 9, 2017,
Defendant objected to Plaintiff's Supplemental Additional
Evidence and requested that it be stricken. (ECF No. 31).
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 (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, unless “the relevant
administrative procedure lacks authority to provide any
relief or to take any action whatsoever in response to a
complaint.” Booth v. Churner, 532 U.S. 731,
736, 741 (2001); Ross v. Blake, 136 S.Ct. 1850,
1857, 1859 (June 6, 2016). The exhaustion requirement applies
to all prisoner suits relating to prison life. Porter v.
Nussle, 534 U.S. 516, 532 (2002). An untimely or
otherwise procedurally defective appeal will not satisfy the
exhaustion requirement. Woodford v. Ngo, 548 U.S.
81, 90-91 (2006).
U.S. Supreme Court recently explained in Ross, 136
S.Ct. at 1856, regarding the PLRA's exhaustion
[T]hat language is “mandatory”: An inmate
“shall” bring “no action” (or said
more conversationally, may not bring any action) absent
exhaustion of available administrative remedies. . . .
[T]hat edict contains one significant qualifier: the remedies
must indeed be “available” to the prisoner. But
aside from that exception, the PLRA's text suggests no
limits on an inmate's obligation to exhaust-irrespective
of any “special circumstances.” Id.
(internal citations omitted). Also as discussed in
Ross, there are no “special
circumstances” exceptions to this requirement.
Id. at 1862. The one significant qualifier is that
“the remedies must indeed be ‘available' to
the prisoner.” Id. at 1856. The Ross
Court described this qualification as follows:
[A]n administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it
operates as a simple dead end-with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. Suppose,
for example, that a prison handbook directs inmates to submit
their grievances to a particular administrative office-but in
practice that office disclaims the capacity to consider those
petitions. The procedure is not then “capable of
use” for the pertinent purpose. In Booth
's words: “[S]ome redress for a wrong is
presupposed by the statute's requirement” of an
“available” remedy; “where the relevant
administrative procedure lacks authority to provide any
relief, ” the inmate has “nothing to
exhaust.” Id., at 736, and n. 4, 121 S.Ct.
1819. So too if administrative officials have apparent
authority, but decline ever to exercise it. Once again:
“[T]he modifier ‘available' requires the
possibility of some relief.” Id., at 738, 121
S.Ct. 1819. When the facts on the ground demonstrate that no
such potential exists, the inmate has no obligation to
exhaust the remedy.
Next, an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use. In this
situation, some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it. As the
Solicitor General put the point: When rules are “so
confusing that ... no reasonable prisoner can use them,
” then “they're no longer available.”
Tr. of Oral Arg. 23. That is a significantly higher bar than
CRIPA established or the Fourth Circuit suggested: The
procedures need not be sufficiently “plain” as to
preclude any reasonable mistake or debate with respect to
their meaning. See § 7(a), 94 Stat. 352; 787 F.3d, at
698-699; supra, at 1855, 1857 - 1859. When an
administrative process is susceptible of multiple reasonable
interpretations, Congress has determined that the inmate
should err on the side of exhaustion. But when a remedy is,
in Judge Carnes's phrasing, essentially
“unknowable”-so that no ordinary prisoner can
make sense of what it demands-then it is also unavailable.
See Goebert v. Lee County, 510 F.3d 1312, 1323
(C.A.11 2007); Turner v. Burnside, 541 F.3d 1077,
1084 (C.A.11 2008) (“Remedies that rational inmates
cannot be expected to use are not capable of accomplishing
their purposes and so are not available”). Accordingly,
exhaustion is not required.
And finally, the same is true when prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation. In
Woodford, we recognized that officials might devise
procedural systems (including the blind alleys and quagmires
just discussed) in order to “trip[ ] up all but the
most skillful prisoners.” 548 U.S., at 102, 126 S.Ct.
2378. And appellate courts have addressed a variety of
instances in which officials misled or threatened individual
inmates so as to prevent their use of otherwise proper
procedures. As all those courts have recognized, such
interference with an inmate's pursuit of relief renders
the administrative process unavailable. And then, once again,
§ 1997e(a) poses no bar.
Id. at 1859-60.
failure to exhaust in compliance with section 1997e(a) of the
PLRA is an affirmative defense that defendants have the
burden of raising and proving. Jones, 549 U.S. at
216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
Ninth Circuit recently provided guidance regarding the proper
procedural device for raising the affirmative defense of
exhaustion under section 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 section 1997e(a)
in either a motion to dismiss pursuant to Rule 12(b)(6) or 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 section 1997e(a). Jones,
549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164,
1175-76 (9th Cir. 2005).
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 Sch. Dist., 237 F.3d
1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo
Cnty., 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 ...