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Wilson v. Price

United States District Court, E.D. California

November 14, 2017

GERALD WILSON, Plaintiff,
v.
PRICE, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Gerald Wilson, is a state prisoner proceeding pro se and in forma pauperis in an action brought under 42 U.S.C. § 1983. Plaintiff asserts a claim for deliberate indifference to medical needs. Generally, he alleges that a correctional officer forced him to sleep in an upper bunk despite the fact that he has serious back problems and a documented need for a lower bunk. He also alleges that he slipped off a ladder while climbing down from the upper bunk, further injuring his back.

         Defendant De La Cruz, the above mentioned correctional officer, has moved for summary judgment. Generally, he argues that plaintiff failed to exhaust administrative remedies under the Prison Litigation Reform Act (“PLRA”) because he neither timely submitted a second-level appeal nor appealed the cancellation of his untimely second-level appeal. As discussed below, the motion should be granted and the action dismissed without prejudice.

         I. Background

         A. Factual Background

         1. Allegations in Plaintiff's Complaint

         For context, the court takes the following allegations from plaintiff's complaint. ECF No. 1.

         Plaintiff was in CDCR custody at all times relevant to his complaint. See Id. at 5-6. On September 26, 2014, he was incarcerated at Calipatria State Prison (“CAL”). He was transferred to a California State Prison, Sacramento, in connection with a civil trial in the United States District Court for the Eastern District of California. Id.; see also ECF No. 39 at 47. On the evening of September 30, 2014, while en route to CAL, he stopped at Deuel Vocational Institution (“DVI”) for a layover. ECF No. 1 at 6.

         At DVI, plaintiff received a medical screening. Id. at 7. Plaintiff informed a nurse that he had a serious back injury and was wearing a back brace. Id. He also informed the nurse that he had a lower bunk chrono. Id.

         Thereafter, plaintiff was escorted to the unit were he was to be housed for the layover. Id. He told De La Cruz that he had a lower back injury and wore a back brace and could not be assigned to an upper bunk. Id. at 7-8. De La Cruz ordered plaintiff into a cell and told him to take the issue up with his cellmate. Id. at 8. The inmate refused because the inmate had a lower bunk chrono and a cane. Id. Thus, plaintiff slept in the upper bunk, which he accessed via a ladder. Id.

         The next morning, plaintiff fell off the ladder as he was climbing down it and landed on his back. Id. Subsequently, he “had to be taken to the central clinic on a gurney.” Id.

         2. Summary Judgment Record

         The following evidence is relevant to the instant motion for summary judgment. Unless otherwise noted, the facts set forth below are not reasonably in dispute. Plaintiff was an inmate at CAL when the subsequent events took place.

         Based on the foregoing allegations, plaintiff filed an inmate appeal against De La Cruz using CDCR Form 602. ECF No. 1-2 at 5; ECF No. 33-4 ¶ 10. The appeal is dated October 4, 2014. ECF No. 1-2 at 5. It was received and accepted for review on October 14, 2014 at DVI. Id.; ECF No. 33-4 ¶ 10. D. Fenton, a correctional sergeant at DVI, interviewed plaintiff about the appeal on November 1, 2014. ECF No. 1-2 at 5; ECF No. 33-4 at 14; ECF No. 39 at 49.

         On November 20, 2014, the appeal was denied at the first level. ECF No. 1-2 at 5; ECF No. 33-4 ¶ 10; ECF No. 33-4 at 14. In the first-level response, Fenton wrote that, if plaintiff was dissatisfied with the decision, he could “appeal to the next level . . . by utilizing Section D of [his] Form 602.” ECF No. 33-4 at 14. The appeals coordinator at DVI returned the appeal to plaintiff on or about November 26, 2014. ECF No. 1-2 at 5.

         Plaintiff attempted to appeal to the second level. The appeal was received at DVI on January 5, 2015. ECF No. 1-2 at 5. The following day, it was screened out and returned to plaintiff for failing to properly complete it. ECF No. 33-4 ¶ 10; ECF No. 33-4 at 9; ECF No. 39 at 49. In the attached CDCR Form 695, the appeals coordinator stated that the appeal was incomplete. ECF No. 33-4 at 9 (citing Cal. Code Regs. tit. 15, § 3084.6(b)(13)). To rectify the problem, the appeals coordinator instructed plaintiff to “Complete Section D of [Form] 602 before 602-A.” Id. Plaintiff admits having made this “human error.” See id.; ECF No. 39 at 49.

         The parties' stories begin to diverge at this point. Plaintiff makes several contentions regarding his efforts to resubmit a corrected appeal. First, he contends that, on or around January 22, 2015, he sent to the “mail room” at CAL an envelope that was addressed to the appeals coordinator at DVI and that contained the corrected appeal. ECF No. 39 at 32, 49-50. Further, he contends that the mail room returned the envelope to him, telling him that he needed to add $0.90 in postage “for the mail to [be able to] go out [of CAL].” Id. at 7, 50. Additionally, plaintiff contends that, on January 25, 2015, he submitted another such envelope with the required postage to the mail room. Id. at 8, 50. Moreover, he contends that it was received at DVI, but that the appeals coordinator returned it without processing it “for no reason.” Id.

         The stamp on the first envelope reads: “Refused by Addressee. Postage Due. Returned to Sender.” ECF No. 33-4 at 25. Also, “90 ¢” is handwritten on the envelope. Id. Likewise, there is a similar stamp on the second envelope. Id. at 26. It is less legible than the stamp on the first envelope. Like the first stamp, it says “Returned to Sender.” Id. at 26. However, in contrast to the first stamp, it does not appear to say “Refused by Addressee.” Id. Furthermore, while both envelopes appear to have one postage stamp affixed to them, they are different. Id. at 25-26. Additionally, no money amount is written on ...


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