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Smith v. Cobb

United States District Court, S.D. California

October 23, 2017

GREGORY SMITH, Plaintiff,
v.
R. COBB; F. SHARPE; S. DAROGLOU; P. PREZ; and N. BUDUHI, Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT [ECF NO. 62]

          HON. GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for summary judgment by Defendants Cobb, Sharpe, and Beduhi.[1] (ECF No. 62.) Plaintiff filed an opposition on September 29, 2017. (ECF No. 76.) Based upon a review of the moving papers, the applicable law, and for the foregoing reasons, the Court hereby GRANTS summary judgment in favor of Beduhi, and GRANTS in part and DENIES in part summary judgment in favor of Cobb and Sharpe.

         As discussed below, however, the Court gives notice to Plaintiff that it is considering granting summary judgment as to the remainder his claims against Defendants Cobb and Sharpe, and gives Plaintiff 21 days to offer evidence that would preclude summary judgment on the ground identified by the Court below.

         I. Plaintiff's Claims

         In the operative complaint, Plaintiff-a California state prisoner-asserts claims of violation of his First Amendment right to access to courts and his Eighth Amendment right to protection against harm. (ECF No. 4.) The complaint asserts the following relevant allegations. On September 29, 2010, Plaintiff complained to Defendants Prez, Daroglou, and Beduhi about his cellmate's displaying “bizarre behavior” such as “nudeness around the cell, wanting to watch Plaintiff use the toilet, speaking of having sex with men, rape.” (Id. at 9 ¶¶ 39-40.) On September 30, 2010, at the Richard J. Donovan Correctional Facility (“Donovan CF”) Plaintiff's cellmate attacked him. (Id. at 4 ¶ 10.) Plaintiff incurred serious injuries: second degree burns from hot water being poured on him, a broken left shoulder, eye damage, stab wounds, and a fractured L3-disk. (Id.) Plaintiff returned to prison from the hospital on October 10, 2010. (Id. ¶ 11.)

         On October 29, Plaintiff submitted a Form CDC 602 (“Form 602”) appeal to Cobb asking for a permanent single-prisoner cell, damages as a result of the attack, and copies of all reports relating to the attack. (Id. at 5 ¶ 13.) On November 8, 2010, the Form 602 was “screened” and returned to Plaintiff instructing him to take the request to his “counselor” at the informal level. (Id. ¶ 14.) On November 9, 2010, Plaintiff gave the Form 602 to Sharpe for an informal-level review. (Id. ¶ 17.) On November 29, Plaintiff submitted a “GA22 Inmate Request for Interview” because he had not received a response from Sharpe. (Id. ¶ 18.) Sharpe eventually responded, and informed Plaintiff that he could find no reports relating to the attack, he could not compensate Plaintiff, and that he lacked the authority to alter Plaintiff's cell status. (Id. at 5-6 ¶ 19.) Sharpe told Plaintiff that he would return the Form 602 to the appeal level, and that Plaintiff would not be held at fault for the delay in his appeal. (Id. at 6 ¶ 20.)

         On March 8, 2011, Plaintiff made a request to Cobb about the status of his Form 602 appeal, but received no response. (Id. ¶ 21.) Plaintiff made another request on May 1, 2011, and Cobb informed Plaintiff that the appeal was not in his office. (Id. ¶ 22.) On May 23, 2011, Plaintiff sent a letter to the chief inmate appeal branch (the third level of appeal above Cobb), and sought assistance in obtaining a response to his Form 602. (Id. ¶ 23.) That request was rejected because the request bypassed the second level. (Id. ¶ 24.) Plaintiff then resubmitted his request to Cobb “to start the appeal process all over again.” (Id. at 7 ¶ 26.) Plaintiff was transferred from Donovan CF to Pleasant Valley State Prison. (Id. ¶ 29.)

         On February 10, 2012, Plaintiff filed a tort claim against A. Clark, J. Carey, E. Solis, and Defendants Daroglou and Perez in California Superior Court for “failure to protect, and property.” (Id. at 8 ¶ 32.) The court dismissed Plaintiff's action as a result of his failure to exhaust his administrative remedies. (Id. ¶ 33.) The Court of Appeal affirmed. (Id. at 8-9 ¶¶ 35-37.)

         Plaintiff claims that Defendants Cobb and Sharpe violated his right to access to courts by impeding his greivance process and preventing him from exhausting his administrative remedies, and that Defendants Beduhi, Daroglou, and Prez violated his Eighth Amendment right to protection against physical harm. Defendants Cobb, Sharpe, and Beduhi now move for summary judgment as to Plaintiff's claims against them.

         II. Legal Standard

         Summary judgment is appropriate when “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). “An issue of material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.” Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017) (quoting Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015)). “The deciding court must view the evidence, including all reasonable inferences, in favor of the non-moving party.” Id.

         In the context of this case, to obtain summary judgment, Defendants must first “either produce evidence negating an essential element of [Plaintiff's] claim . . . or show that [Plaintiff] does not have enough evidence of an essential element to carry [his]

         ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If Defendants succeed in that effort, Plaintiff “must produce evidence to support [his] claim” sufficient to demonstrate a genuine dispute of material fact. Id. at 1103. If Plaintiff “fails to produce enough evidence to create a genuine issue of material fact, [Defendants] win[] the motion for summary judgment. But if [Plaintiff] produces enough evidence to create a genuine issue of material fact, [he] defeats the motion.” Id. (citation omitted). Because Plaintiff is an inmate appearing pro se, the Court construes his filings liberally, and does not require strict compliance with the summary judgment rules. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

         III. Evidentiary Record

         The summary judgment record contains the following relevant evidence.

         A. Defendants' Evidence

         In a declaration, Cobb states that he was an Appeals Coordinator at Donovan CF at the relevant time. (ECF No. 62-5 at 2 ¶ 2.) He explains that prior to January 28, 2011, the California Department of Corrections and Rehabilitation (“CDCR”) had four levels of grievance review: (1) an informal level between the inmate and staff; (2) a first-level appeal, which is addressed by the Division Head; (3) the second-level appeal, which is addressed by the Institution Head; and (4) a third-level appeal, which is addressed by CDCR's Sacramento office. (Id. ¶ 4.) Once the third-level appeal is addressed, the administrative procedures are exhausted. (Id.) On January 28, 2011, CDCR eliminated the first, informal level. (Id. at 3 ¶ 4.)

         All Form 602s, which function as appeals from any departmental action that may have an adverse effect upon the prisoner's welfare, go to the appeals office. (Id. at 2 ¶ 3.) Beginning in 2011, all appeals were date-stamped and assigned a log number, which prevents false claims that the office has lost a request. (Id. ¶ 5.) If an appeal meets the procedural requirements of Title 15 of the California Code of Regulations, it is accepted; if it does not meet those requirements, the appeal is “screened out” and returned to the inmate with instructions on how to cure the defect. (Id.)

         Cobb searched Donovan CF's database for all appeals filed by Plaintiff. (Id. ¶ 6.) He found three appeals: (1) November 5, 2010, requesting single-cell status and damages as a result of the attack (screened-out and rejected because the appeal failed to include evidence of an attempt to resolve the problem at the informal level); (2) December 7, 2010, “regarding his property” (screened-out and rejected because it was duplicative of a previously-filed appeal; and (3) July 16, 2011, “regarding his custody and classification, during which he requested the restoration of his single-cell status” (accepted by the appeals office, but later cancelled because Plaintiff was transferred to Pleasant Valley State Prison). (Id. at 3-4 ¶ 7.) According to Cobb, Plaintiff filed no other proper appeal relating to the attack against him in 2010. (Id. at 4 ¶ 8.)

         Cobb states that he “never refused to accept or process any appeal that [Plaintiff] filed, ” and that he “screened out [Plaintiff's] appeal . . . because it was my understanding of CDCR's rules and regulations that inmate Smith had to address his housing situation with his correctional counselor at the informal level first.” (Id. at 5 ¶ 9.) If the appeal was filed properly, Cobb states, he would have accepted it. (Id.) Cobb ...


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