United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
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
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.
Allegations in Plaintiff's Complaint
context, the court takes the following allegations from
plaintiff's complaint. ECF No. 1.
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.
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.
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.
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.
Summary Judgment Record
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.
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.
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.
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.
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
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 ...