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Griffin v. Kelso

United States District Court, E.D. California

July 11, 2017

KENNETH A. GRIFFIN, Plaintiff,
v.
J. CLARK KELSO, et al., Defendants.

          FINDINGS & RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. Procedural History

         This 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.

         On 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.[1] ECF No. 74. Defendants proceeded to file the motion for summary judgment which is now before the court. ECF No. 75.

         II. Plaintiff's Allegations

         Plaintiff 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.

         III. Motion for Summary Judgment

         A. Defendants' Motion

         In 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.

         B. Plaintiff's Response

         Plaintiff 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.

         IV. Legal Standards for Summary Judgment

         Summary 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).

         “Where 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 satisfied.” Id.

         If the 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.

         In the 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).

         “In 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).

         V. Legal Standards for Exhaustion

         Because 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 ...


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