United States District Court, E.D. California
KENNETH A. GRIFFIN, Plaintiff,
J. CLARK KELSO, et al., Defendants.
FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding through counsel with a civil
rights action pursuant to 42 U.S.C. § 1983. Currently
before the court is defendants' motion for summary
judgment. ECF No. 75. The motion came before the court on
January 18, 2017. ECF No. 91. Plaintiff's counsel failed
to appear at the hearing and the motion was therefore
submitted on the papers without oral argument. Id.
case is on remand from the Ninth Circuit on plaintiff's
claims against defendants Bal, Sahota, Nangalama, Masuret,
and Woods. ECF No. 50. Plaintiff's claims against these
defendants were previously dismissed for failure to exhaust
administrative remedies. ECF Nos. 37, 42. On appeal, the
Ninth Circuit found that Harvey v. Jordan, 605 F.3d
681 (9th Cir. 2010), applied and that the motion to dismiss
was granted in error because plaintiff claimed that he was
satisfied with the administrative relief he received at the
first and second levels of review. The court of appeals held
that on remand defendants could contest whether plaintiff was
actually satisfied, using the procedures set forth in
Albino v. Baca, 747 F.3d 1162, 1169-71 (9th Cir.
2014) (en banc). ECF No. 50 at 2-3.
remand, defendants filed a motion for summary judgment
arguing that plaintiff was not in fact satisfied by the
relief he received and was therefore not excused from
properly completing the grievance process. ECF No. 62.
Findings and Recommendations were issued denying the motion
for summary judgment on the ground that plaintiff was
satisfied by the relief he was purportedly granted. ECF No.
68. After defendants filed their objections, the Supreme
Court issued its opinion in Ross v. Blake, 136 S.Ct.
1850 (2016), and defendants requested and were given leave to
file supplemental objections. ECF Nos. 70, 71. Upon
consideration of defendants' supplemental objections, the
original motion for summary judgment and the Findings and
Recommendations were vacated and defendants were given an
opportunity to file another motion for summary judgment that
briefed the issues of (1) plaintiff's satisfaction; (2)
how the decision in Ross impacts the satisfaction
exception set forth in Harvey; and (3) whether
plaintiff properly exhausted the grievance process, including
whether his third-level appeal was properly rejected as
untimely. ECF No. 74. Defendants proceeded to file
the motion for summary judgment which is now before the
court. ECF No. 75.
alleges that since approximately March 2008, he has suffered
from several serious medical conditions including a
degenerative hip condition, mobility issues related to his
right knee, osteoarthritis, and asthma. ECF No. 1 at 12,
¶ 16. He also alleges that his right elbow is
“STUCK at ¶ 90° angle” as the result of
a failed surgery in 2009. Id. He requires daily
physical therapy to combat his deteriorating mobility and
constant nursing care because he is unable to complete basic
daily functions such as dressing, grooming, and cleaning
himself. Id. He alleges that defendants are aware of
his serious medical needs and have either denied or delayed
his receipt of proper treatment and housing. Id. at
4, 12-14, ¶¶ 2-6, 16-21.
Motion for Summary Judgment
their motion for summary judgment, defendants contend it is
undisputed that plaintiff's third level appeal was
untimely. ECF No. 75 at 8. They further argue that
Harvey constituted an “extra-textual”
exception to the exhaustion requirement, and was therefore
overruled by the Supreme Court's opinion in
Ross. Id. at 9-11. Finally, defendants
argue that even if Harvey is still valid, it is not
applicable in this case because plaintiff was not in fact
satisfied by the partial relief he received at the first and
second levels of review. Id. at 11-12.
opposes the motion for summary judgment on the grounds that
Harvey is still applicable and plaintiff was in fact
satisfied by the partial relief he received. ECF No. 83 at
4-7. He further argues that his third-level appeal was not
untimely and that if it was untimely, any untimeliness was
the result of misrepresentations by prison staff.
Id. at 8.
Legal Standards for Summary Judgment
judgment is appropriate when the moving party “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). Under summary judgment practice,
“[t]he moving party initially bears the burden of
proving the absence of a genuine issue of material
fact.” In re Oracle Corp. Sec. Litig., 627
F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). The moving party may
accomplish this 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), admission, interrogatory answers, or
other materials” or by showing that such materials
“do not establish the absence or presence of a genuine
dispute, or that the adverse party cannot produce admissible
evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
the non-moving party bears the burden of proof at trial, the
moving party need only prove that there is an absence of
evidence to support the non-moving party's case.”
Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 325); see also
Fed.R.Civ.P. 56(c)(1)(B). Indeed, summary judgment should be
entered, “after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.” Celotex, 477
U.S. at 322. “[A] complete failure of proof concerning
an essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Id. at 323. In such a circumstance, summary judgment
should “be granted so long as whatever is before the
district court demonstrates that the standard for the entry
of summary judgment, as set forth in Rule 56(c), is
moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). In attempting to establish the
existence of this factual dispute, the opposing party may not
rely upon the allegations or denials of its pleadings but is
required to tender evidence of specific facts in the form of
affidavits, and/or admissible discovery material, in support
of its contention that the dispute exists. See
Fed.R.Civ.P. 56(c). The opposing party must demonstrate that
the fact in contention is material, i.e., a fact “that
might affect the outcome of the suit under the governing law,
” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987), and that the dispute is genuine, i.e., “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party, ” Anderson,
447 U.S. at 248.
endeavor to establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that
“‘the claimed factual dispute be shown to require
a jury or judge to resolve the parties' differing
versions of the truth at trial.'” T.W. Elec.
Serv., 809 F.2d at 630 (quoting First Nat'l Bank
of Ariz. V. Cities Serv. Co., 391 U.S. 253, 288-89
(1968). Thus, the “purpose of summary judgment is to
pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.”
Matsushita, 475 U.S. at 587 (citation and internal
quotation marks omitted).
evaluating the evidence to determine whether there is a
genuine issue of fact, [the court] draw[s] all inferences
supported by the evidence in favor of the non-moving
party.” Walls v. Central Costa Cnty. Transit
Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation
omitted). It is the opposing party's obligation to
produce a factual predicate from which the inference may be
drawn. See Richards v. Nielsen Freight Lines, 810
F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a
genuine issue, the opposing party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita, 475 U.S. at 586
(citations omitted). “Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for
trial.'” Id. at 587 (quoting First
Nat'l Bank, 391 U.S. at 289).
Legal Standards for Exhaustion
plaintiff is a prisoner suing over the conditions of his
confinement, his claims are subject to the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA,
“[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, 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); Porter v. Nussle, 534 U.S. 516, 520
(2002) (“§ 1997e(a)'s exhaustion requirement
applies to all prisoners seeking redress for prison
circumstances or occurrences”). “[T]hat language
is ‘mandatory': An inmate ‘shall' bring
‘no action' (or said more ...