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Berrera v. Sivyer

United States District Court, E.D. California

August 31, 2017

ERNESTO BERRERA, Plaintiff,
v.
J. SIVYER, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought under 42 U.S.C. § 1983. Defendant Macomber seeks dismissal of the claims against him, arguing that plaintiff failed to exhaust them administratively and that the allegations do not state a viable claim for relief. Macomber also argues that he is entitled to qualified immunity.[1] For the reasons that follow, it is recommended that the motion be denied.

         I. Background

         Plaintiff filed this case on March 18, 2015, alleging that defendant Sivyer shot him with “his 40mm firearm”[2] in the eye, during a yard skirmish in which plaintiff was not involved. Plaintiff claims that Sivyer stated that this was “payback for your homies assaulting my partner.” ECF No. 1 at 6. According to plaintiff, Sivyer also told plaintiff that “we got permission from the Warden [Macomber] to shoot yall asses.” Id. Plaintiff alleges that Sivyer and other officers engaged in a pattern and practice of shooting inmates in the face and head and that Macomber was aware of and sanctioned that practice. Id. at 8-9.

         In the section of the form complaint plaintiff filled out entitled “Exhaustion of Administrative Remedies, ” plaintiff placed an “X” indicating a “Yes” response to these questions: (1) whether there was a grievance procedure available at his institution, (2) whether he had filed a grievance concerning the facts relating to the complaint, and (3) whether the grievance process was completed. Id. at 2. Plaintiff referred to his administrative appeal in the body of his complaint as well, stating, “So when Plaintiff did as they requested, they cancelled Plaintiff's 602 appeal and lied and said it was a duplicate and they the institution [sic] would not allow Plaintiff to submit his appeal (See CDC Form 695 as exhibit ‘B'). This has been done to Plaintiff on May 5, 2014 and on July 25, 2013. So Plaintiff has exhausted his institutional appeal.” Id. at 4. Plaintiff additionally appended 40 pages of documents related to his administrative appeals. Id. at 23-64. These pages concern the following appeals:

         (1) Log No. SAC-B-14-00223, filed on January 20, 2014. This appeal was the earliest filed by plaintiff concerning the shooting. Plaintiff stated the grievance as:

On 1-15-2014, CDCR personnel/prison officials at California State Prison-Sacramento shot me in the face and eye causing me severe pain, wanton pain and suffering, and loss of vision in left eye.
Here CDCR Personnels-Negligence [sic]: Maliciously and sadistically misused firearm with deadly force/use of force to cause harm . . . and failure to intervene, inadequate policy, supervision, training, control by supervisors-supervisor(s) liability/were deliberately indifferent in violation of my 8th amendment United States Constitution.
(Guards: J. Sivyer & J. Thorell)

ECF No. 1 at 25, 27. The documents attached to the complaint reveal that this grievance was screened out at the first level twice: first, on January 28, 2014 for failure to provide supporting documentation, making a general allegation but not stating facts consistent with the allegation, and failing to identify the staff members involved; second, on February 28, 2014 for failing to attach a CDC 1858 Rights and Responsibilities Statement and failing to identify the staff involved. Id. at 33, 36. When it was finally reviewed on the merits at the first level, the reviewer determined on June 17, 2014 that staff had not violated CDCR policy. Id. at 41.

         At the second level of review, the appeal was again cancelled, this time because plaintiff had not signed and dated it. Id. at 38. When it was reviewed on the merits, the reviewer again determined (on October 22, 2014) that staff had not violated CDCR policy. Id. at 23, 39.

         On February 17, 2015, over one year after it was filed, officials rejected plaintiff's appeal at the third level of review, again concluding that staff had not violated CDCR policy. Id. at 23-24.

         (2) Log No. SAC-B-14-00527. The attachments contain only one reference to this appeal, in the cancellation notice for Log No. SAC-B-14-01141. The latter appeal was canceled as duplicative of Log No. SAC-B-14-00527 (see below). ECF No. 1 at 53.

         (3) Log No. SAC-B-14-00625, filed on February 28, 2014. In this appeal, plaintiff alleged that Officer Sivyer had shot him in the left eye for no reason on January 15, 2014 and that “[i]t has been officer practice to shoot prisoners in the face and head at folsom [sic] under the warden supervision. So he is also responsible for not training his officers correctly.” ECF No. 1 at 59, 61. The appeal was cancelled on March 6, 2014 at the first level as duplicative of Log No. SAC-B-14-00527. Id. at 52.

         (4) Log No. SAC-B-14-01141, filed on April, 27, 2014. In this appeal, plaintiff explained his issue as: “I sent you my 602 complaint about being shot in the face, and I never received it back. You said you sent it to me but I never received it. Send me a copy of it please!” ECF No. 1 at 63. This appeal was cancelled as duplicative of Log Nos. SAC-B-14-00527 and SAC-B-14-00223. Id. at 53.

         (5) Log No. SAC-B-14-02022, filed on July 14, 2014. In this appeal, plaintiff stated his claim substantively the same as in Log No. SAC-B-14-00625. ECF No. 1 at 57. The appeal was cancelled at the first level as duplicative of Log No. SAC-B-14-00223. Id. at 54.

         II. The ...


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