United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
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. For the reasons that follow, it is
recommended that the motion be denied.
filed this case on March 18, 2015, alleging that defendant
Sivyer shot him with “his 40mm
firearm” 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.
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:
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
(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.
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.
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.
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
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.
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.
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.