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Cochran v. Aguirre

United States District Court, E.D. California

July 25, 2017

BILLY COY COCHRAN, Plaintiff,
v.
E. AGUIRRE, Defendant.

          FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF NOS. 52, 55, 60, 76-78, 80, 100, 101) OBJECTIONS DUE WITHIN THIRTY DAYS

         Plaintiff Billy Coy Cochran is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff consented to the United States magistrate judge jurisdiction; however, Defendant has not consented or declined. Therefore, this action was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         I.

         PROCEDURAL HISTORY

         This action is proceeding on the second amended complaint, filed January 4, 2016, against Defendant E. Aguirre (hereafter Defendant or Aguirre) for failure to protect, due process related to deprivation of his personal property, equal protection, and state law negligence claims. (ECF Nos. 23, 24.)

         Defendant filed an answer to the second amended complaint on May 10, 2016. (ECF No. 38.) On May 11, 2016, the Court issued the discovery and scheduling order. (ECF No. 40.) On August 12, 2016, the Court granted Defendant's request to extend the deadline to file a motion for failure to exhaust. (ECF No. 46.) On September 26, 2016, Defendant filed a motion for summary judgment.[1] (ECF No. 52.) Plaintiff filed an opposition to Defendant's motion for summary judgment on October 6, 2016. (ECF No. 55.) On December 14, 2016, Plaintiff was granted the opportunity to file a supplemental opposition to the motion for summary judgment. (ECF No. 71.) Plaintiff filed his supplemental opposition on January 19, 2017. (ECF Nos. 76-78.) Defendant filed a reply on January 30, 2017. (ECF No. 80.) On June 2, 2017, an order issued requiring Defendant to file a supplemental pleading in support of their motion for summary judgment. (ECF No. 98.) On June 16, 2017, Corral and Voong filed supplemental declarations. (ECF No. 100, 101.)

         II.

         LEGAL STANDARD

         A. Statutory Exhaustion Requirement

         The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such administrative remedies as are available” before commencing a suit challenging prison conditions.” 42 U.S.C. § 1997e(a); see Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850 (June 6, 2016) (“An inmate need exhaust only such administrative remedies that are ‘available.' ”). Exhaustion is mandatory unless unavailable. “The obligation to exhaust ‘available' remedies persists as long as some remedy remains ‘available.' Once that is no longer the case, then there are no ‘remedies … available, ' and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).

         This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the prisoner or the relief offered by the process, Booth, 532 U.S. at 741, and unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524).

         The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id.

         B. Summary Judgment Standard

         Any party may move for summary judgment, and the Court shall grant summary judgment if the movant 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) (quotation marks omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it 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).

         The defendant bears the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and he must “prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy, ” id. at 1172. If the defendant carries his burden, the burden of production shifts to the plaintiff “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. “If the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.” Id.

         III.

         DISCUSSION

         A. Description of CDCR's Administrative Remedy Process

         Plaintiff is a state prisoner in the custody of the California Department of Corrections and Rehabilitation (“CDCR”), and CDCR has an administrative remedy process for inmate grievances. Cal. Code Regs. tit. 15, § 3084.1 (2014). Compliance with section 1997e(a) is mandatory and state prisoners are required to exhaust CDCR's administrative remedy process prior to filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). CDCR's administrative grievance process for non-medical appeals consists of three levels of review: (1) first level formal written appeals; (2) second level appeal to the Warden or designees; and (3) third level appeal to the Office of Appeals (OOA). Inmates are required to submit appeals on a standardized form (CDCR Form 602), attach necessary supporting documentation, and submit the appeal within thirty days of the disputed event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b).

         B. Undisputed Facts

         1. Plaintiff initiated this action on July 12, 2015, when he served his initial complaint. (Compl., ECF No. 1.)

         2. Plaintiff filed the operative second amended complaint on December 29, 2015. (Second. Am. Compl., ECF No. 23.)

         3. On January 7, 2016, the Court permitted Plaintiff to proceed on his failure to protect, due process, equal protection, and state law negligence claims against Aguirre. (Screening Order, ECF No. 24.)

         4. Plaintiff's second amended complaint alleges that on or around July 5, 2014, Plaintiff told Aguirre that he needed protection from white prisoners in general population because he is transgender. (SAC 6.)

         5. Plaintiff informed Aguirre that he had been hit on the head with a large book by inmate Statos because that inmate told him that he would not live with a homosexual. (SAC 6.)

         6. Aguirre responded by moving Plaintiff from Building 3 to Building 1, but kept Plaintiff housed in general population. (SAC 6.)

         7. On October 15, 2014, Plaintiff again told Aguirre that he needed protection from white prisoners in general population because he is transgender. (SAC 6.)

         8. Plaintiff informed Aguirre that moments earlier, two unidentified white prisoners had punched and kicked him while saying “queers were not allowed in their dorm.” (SAC 6.)

         9. Aguirre moved Plaintiff to a new dorm that day, but kept Plaintiff housed in general population. (SAC 6.)

         10. On November 13, 2014, Plaintiff again informed Aguirre that he needed protection from white prisoners in general population because he is transgender, but this time Plaintiff noted that he needed medical care for a head injury. (SAC 6.)

         11. Plaintiff further informed Aguirre that the night before at around 8:30 p.m., another inmate, Sikora, hit Plaintiff on the head, knocking him unconscious. (SAC 6.)

         12. When Plaintiff regained consciousness, he could not hear in his right ear, was in excruciating pain, and inmate Sikora told him that the next time Plaintiff “acted gay” he would kill him. (SAC 6.)

         13. The next morning, Plaintiff informed Aguirre that inmate Napier told Plaintiff that because Plaintiff did not fight inmate Sikora back to prove that he was not gay, he needed to leave the yard. (SAC 6-7.)

         14. Plaintiff then advised Aguirre that his property was locked in his locker except for his canteen items under his bed, and requested that Aguirre pack all of his items. (SAC 7.)

         15. Aguirre instructed Plaintiff to go to the medical clinic. (SAC 8.)

         16. Plaintiff then spoke with Lieutenant Lopez and asked if he could be rehoused in a sensitive needs yard now that he had been injured. (SAC 8.)

         17. Lieutenant Lopez advised Plaintiff that he would be housed in segregation, but that he might get rehoused in general population. (SAC 8.)

         18. Plaintiff was placed in a holding cage and Aguirre brought Plaintiff boxes containing his property. (SAC 8.)

         19. Plaintiff signed the property inventory sheet, but did not believe that all of his property was present in the boxes. (SAC 8.)

         20. Plaintiff identified several appeals in response to discovery that he contends sufficed to exhaust his administrative remedies, including SATF-A-14-06119, SATF HC 15061322, SATF S.C. 15001939, SATF-G-16-00158, SATF-G-16-00472, SATF-G-16-01184, SATF-16-01385, SATF-G-15-05851, and an unmarked CDCR 602 dated February 1, 2015. (Samson Decl., ¶ 3, Def.'s Ex. 11, Pl.'s Resp. to Disc., p. 3.)

         C. Findings on ...


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