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Doster v. Beard

United States District Court, E.D. California

July 24, 2017

DAMIAN T. DOSTER, Plaintiff,
v.
JEFFREY A. BEARD, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN PART (ECF NO. 29.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS

          Gary S. Austin UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Damian T. Doster (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 17, 2015. (ECF No. 1.) This case now proceeds with Plaintiff's First Amended Complaint filed on March 25, 2016, against defendants Chief Deputy Warden F. Vasquez, Yard Captain P. Llamas, Sergeant Sarah Leon, and Maintenance Engineer Ric Pavich (collectively, “Defendants”), on Plaintiff's claims for adverse conditions of confinement under the Eighth Amendment and related negligence claims. (ECF No. 13.)

         On September 30, 2016, Defendants filed a motion for summary judgment for failure to exhaust administrative remedies. Fed.R.Civ.P. 56. (ECF No. 29.) On June 8, 2017, Plaintiff filed an opposition, and on June 15, 2017, Defendants filed a reply.[1] (ECF Nos. 54, 55.) The motion has been submitted upon the record without oral argument pursuant to Local Rule 230(l), and for the reasons that follow, Defendants' motion should be granted in part and denied in part.

         II. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT (FAC) [2]

         Plaintiff is presently incarcerated at Pelican Bay State Prison. The events at issue occurred at Corcoran State Prison (CSP) in Corcoran, California, when Plaintiff was incarcerated there.

         On May 18, 2015, the hot water was shut off to the housing unit and in Plaintiff's cell, number 10. Moreover, Plaintiff's cold water was shut off as well, thus depriving him of drinking water until May 20, 2015, when only the cold water was turned back on in the cell.

         The plumbing was in such disrepair that every time other inmates flushed their toilets, human bodily waste would back up into Plaintiff's toilet causing it to overflow, covering his cell floor and the tier in front of his cell with water contaminated by human bodily waste.

         Plaintiff was forced to eat, sleep, and live in other people's human bodily waste and saturated fumes for over two months. Plaintiff was also deprived of any cleaning supplies which would prevent germs and diseases.

         On Wednesday, June 3, 2015, defendants Vasquez and Leon were informed that Plaintiff's cell had no hot or warm water, cleaning supplies, nor soap. In response, defendants Vasquez and Leon told Plaintiff the hot/warm water would be back on in a week or in a few days, and to quit crying and complaining. This went on for months while Plaintiff's requests for interviews went unanswered.

         On June 6, 2015, Plaintiff sent a CDCR form 22 request for interview to defendant Llamas. Plaintiff told Llamas of the events at issue; however, defendant Llamas' response was that it is a maintenance issue and could not be corrected at her level.

         On July 1, 2015, Plaintiff resubmitted a CDCR form 22 request for interview to defendant Pavich, telling him about not having hot/warm water and sometimes no cold drinking water, since May 18, 2015. From May 18, 2015, through July 25, 2015, the hot and/or warm water was completely shut off. Sometimes the cold water would also turn off, leaving Plaintiff without drinking water for over 24 hours and forcing him to sleep in overflow from other inmates' toilets. Plaintiff also did not have cleaning supplies or soap, so he could not clean the cell or himself.

         He also contends that his underwear could not be cleaned properly without hot water. As a result, Plaintiff broke out in rashes, sores, and bumps on his legs and back. During this time, Plaintiff was in a solitary confinement and in a special handling unit, and was forced to stay in his cell for more than 95 hours at a time without exercise or fresh air.

         On June 3, 2015, defendants Vasquez and Leon were informed that Plaintiff's cell had no hot/warm water and told Plaintiff that it would be back on in a week or in a few days, and to quit crying and complaining. This went on for over one month while Plaintiff's requests for interviews went unanswered. On June 6, 2015, Plaintiff sent a request for interview to defendant Llama, who told Plaintiff that it was a maintenance issue and she could not correct it at her level.

         On July 1, 2015, Plaintiff resubmitted the request for interview to defendant Pavich. Plaintiff told him about the water issues, and his response was that he was working on the hot water loop and would have the hot water running by July 30, 2015.

         Defendants Vasquez, Llamas, Leon, and Pavich all had the authority to “red line” Plaintiff's cell, i.e., declare it unsafe for occupancy until the hot water and the plumbing were restored. Defendants' actions were deliberately indifferent and negligent.

         Defendants' actions did not advance any legitimate correctional goal. This violation of Plaintiff's rights under the Eighth Amendment resulted in physical injuries, mental and emotional pain, humiliation, and fear.

         Plaintiff requests monetary damages and declaratory relief.

         III. 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).

         “[T]o properly exhaust administrative remedies prisoners ‘must complete the administrative review process in accordance with the applicable procedural rules, ' [ ]-rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison system's requirements ‘define the boundaries of proper exhaustion.'”). An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford, 548 U.S. at 90. However, the Ninth Circuit has made clear: A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. Id.

         Moreover, the Ninth Circuit has recognized that a grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To provide adequate notice, the prisoner need only provide the level of detail required by the prison's regulations. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing Jones, 549 U.S. at 218). The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation. Id; Griffin, 557 F.3d at 1120; see also Jones, 549 U.S. at 219 (citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance process is not a summons and complaint that initiates adversarial litigation.”). Thus, in this case “[t]he California prison system's requirements define the boundaries of proper exhaustion.” Marella, 568 F.3d at 1027).

         A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively unavailable to him. See Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate's administrative grievance is improperly rejected on procedural grounds, exhaustion may be excused as “effectively unavailable.” Sapp, 623 F.3d at 823; 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); Marella, 568 F.3d 1024 (excusing an inmate's failure to exhaust because he did not have access to the necessary grievance forms to timely file his grievance). In such a case, “the inmate cannot pursue the necessary sequence of appeals.” Sapp, 623 F.3d at 823.

         A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002); see also Cal. Code Regs. tit. 15, § 3084.1(b) (explaining that a cancellation or rejection of an inmate's appeal “does not exhaust administrative remedies”). However, a prisoner need not “press on to exhaust further levels of review once he has received all ‘available' remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.” Brown, 422 F.3d at 936 (citing Booth, 532 U.S. at 736-739; see also Finley v. Skolnik, 616 Fed.Appx. 263, 264 (9th Cir. 2012 (Reversing dismissal for failure to exhaust).

         In submitting an inmate grievance, California regulations require a prisoner to “list all staff members involved” and to “describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). However, the Ninth Circuit has recently held that “a prisoner exhausts such administrative remedies as are available . . . under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.” Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); see also Franklin v. Foulk, 2017 WL 784894, at *4-5 (E.D. Cal. Mar. 1, 2017); Franklin v. Lewis, 2016 WL 4761081, at *6 (N.D. Cal. Sept. 13, 2016). Thus, a prisoner's failure to list all staff members involved in an incident in his inmate grievance, or to fully describe the involvement of staff members in the incident, will not necessarily preclude his exhaustion of administrative remedies. Reyes, 810 F.3d at 958; Franklin v. Foulk, 2017 WL 784894, at *4 (“[T]he court in Reyes found that even though the plaintiff's grievance failed to name two physicians on the prison's three-person pain committee, prison officials were put on notice of the nature of the wrong alleged in the suit-that the plaintiff was wrongfully denied pain medication.”); Franklin v. Lewis, 2016 WL 4761081, at *6 (“[T]o the extent Defendants argue that Plaintiff failed to comply with a procedural requirement by not naming Defendants in [his appeal], this deficiency is not necessarily fatal to Plaintiff's claim pursuant to Reyes”); Grigsby v. Munguia, No. 2:14-cv-0789 GAB AC P, 2016 WL 900197, at *11-12 (E.D. Cal. Mar. 9, 2016); see also Bulkin v. Ochoa, 2016 WL 1267265, at *1-2 (E.D. Cal. Mar. 31, 2016).

         Nonetheless, for administrative remedies to be exhausted by California prisoners as to defendants who were not identified in the inmate grievance, there must be a “sufficient connection” between the claim in the appeal and the unidentified defendants such that prison officials can be said to have had “notice of the alleged deprivation” and an “opportunity to resolve it.” Reyes, 810 F.3d at 959 (finding that plaintiff had satisfied PLRA exhaustion requirements as to two prison doctors despite not having identified them in his inmate appeals because there was a sufficient connection between plaintiff's appeal based on inadequate pain management, and the doctors, who served on the prison committee that had denied plaintiff medication); McClure v. Chen, No. 1:14-cv-00932-DAD-GSA-PC, 2017 WL 1148135, (E.D. Cal. March 28, 2017) (remedies exhausted even though doctors not named in appeal; prison was placed on notice)) .

         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).

         California prisoners are required to submit appeals within thirty calendar days of the event being appealed, and the process is 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. Id. at ' 3084.7. The third level of review exhausts administrative remedies. Id. at § 3084.7(d)(3). A final decision at the third level[3] of review satisfies the exhaustion requirement under 42 U.S.C. § 1997e(a). Lira v. Herrera, 427 F.3d 1164, 1166 (9th Cir. 2005). 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 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 (“Albino II”), 747 F.3d at 1168- 69. 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, 427 F.3d at 1175-76.

         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). In judging the evidence at the summary judgment stage, the court “must draw all reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros de Redondo Beach, 657 F.3d at 942. 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).

         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. Und ...


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