United States District Court, E.D. California
DAMIAN T. DOSTER, Plaintiff,
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
S. Austin UNITED STATES MAGISTRATE JUDGE
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.)
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. (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
ALLEGATIONS IN THE FIRST AMENDED COMPLAINT (FAC)
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
requests monetary damages and declaratory relief.
SUMMARY JUDGMENT BASED ON EXHAUSTION
Statutory Exhaustion Requirement
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).
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.
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).
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.
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).
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).
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)) .
California Department of Corrections and Rehabilitation
(CDCR) Administrative Grievance System
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).
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 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.
Motion for Summary Judgment for Failure to
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) 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.
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).
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.