United States District Court, E.D. California
AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES, (ECF No. 37), AND DEFENDANTS' MOTION TO STRIKE
PLAINTIFF'S SUR-REPLIES, (ECF No. 48) FOURTEEN-DAY
BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE
Introduction and Background
Billy Coy Cochran is a state prisoner proceeding pro se and
in forma pauperis in this civil rights action filed
pursuant to 42 U.S.C. § 1983. This action proceeds on
Plaintiff's first amended complaint against Defendants
Sherman and Barba for a violation of his First Amendment
right to freedom of religion. This matter was referred to a
United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
22, 2017, Defendants filed a motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56, arguing
Plaintiff has failed to exhaust his administrative remedies.
Fed.R.Civ.P. 56(c); Albino v. Baca, 747 F.3d 1162,
1166 (9th Cir. 2014) (en banc), cert. denied, 135
S.Ct. 403 (2014). (ECF No. 37.) On June 9, 2017, Plaintiff
filed an opposition to Defendants' summary judgment
motion. (ECF No. 41.) On June 16, 2017, Defendants filed a
reply to Plaintiff's opposition. (ECF No. 42.)
24, 2017, Plaintiff filed a supplement to his opposition to
Defendants' summary judgment motion, stating that facts
developed after December 31, 2016 more conclusively proved
that he had exhausted his administrative remedies. (ECF No.
46.) On July 31, 2017, Plaintiff filed a second supplement,
asserting the same grounds as the prior supplement. (ECF No.
August 9, 2017, Defendants filed a motion to deem
Plaintiff's supplements as unauthorized sur-replies or
supplements, and to strike the supplements. (ECF No. 48.) On
August 28, 2018, Plaintiff filed an opposition to
Defendants' motion to strike. (ECF No. 49.) No reply was
motions are now deemed submitted without oral argument. Local
Defendants' Motion to Strike
Court first addresses Defendants' motion to strike
Plaintiff's two supplements to his opposition to
Defendants' summary judgment motion. Defendants argue
that the Court did not request any sur-replies in this case,
nor did Plaintiff move to amend or supplement his opposition.
Defendants further argue that Plaintiff has not presented any
good cause to allow him to file any sur-replies or
amendments, and his repeated filing of supplements wastes
judicial time and resources. Therefore, his two supplements
should be stricken.
opposes the motion to strike, and declares in support that
filed supplements to his opposition because his opposition
only addressed grievances he had filed in this matter through
the end of 2016. He had other grievances which were still
running their course, and the supplements address grievances
from 2016 through March 14, 2017. Plaintiff asserts that this
new evidence should be considered. Plaintiff also declares
that he has been diagnosed with major depression,
post-traumatic stress disorder, misophonia, and gender
dysphoria, and therefore seeks that his pleadings be
liberally construed, and the motion to strike be
Court's Local Rules provide for a motion, an opposition,
and a reply. Local Rule 230(1). Neither the Local Rules nor
the Federal Rules of Civil Procedure provide the right to
file a response to a reply. See, e.g., Wyatt v.
Zanchi, No. 1:09-cv-01242-BAM-PC, 2011 WL 5838438, at *5
(E.D. Cal. Nov. 21, 2011).
Circuit, courts are required to afford pro se litigants
additional leniency. E.g., Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di
Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011);
Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.
2010). This leniency does not extend to permitting
sur-replies as a matter of course, and the Court is not
generally inclined to permit sur-replies absent an
articulation of good cause why such leave should be granted.
case, the Court does not find it appropriate to allow
Plaintiff to amend or supplement his opposition. As
Defendants correctly argue, Plaintiff did not seek leave to
amend or supplement his opposition, and the Court did not
seek or permit additional briefing here. The supplemental
amendments were filed after Defendants filed their reply, and
thus they did not have any opportunity to address the
Plaintiff's supplemental briefing addresses hundreds of
requests, appeals, grievances, and complaints concerning
issues of accommodations, health care, custody issues,
citizen's complaints, and other issues not related to the
First Amendment freedom of religion claim at issue in this
case. Plaintiff's un-supplemented opposition comprises
800 pages, and is therefore more than sufficient for
Plaintiff to present his arguments without additional
supplementation. Thus, the Court does not find good cause to
allow the supplemental pleadings here, and will recommend
that Plaintiff's first and second supplements to his
opposition be stricken and disregarded.
Court next turns to Defendants' motion for summary
judgment for the failure to exhaust administrative remedies.
Motion for Summary Judgment
Statutory Exhaustion Requirement
1997e(a) of the Prison Litigation Reform Act of 1995
(“PLRA”) provides that “[n]o action shall
be brought with respect to prison conditions under [42 U.S.C.
§ 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is
required regardless of the relief sought by the prisoner and
regardless of the relief offered by the process, Booth v.
Churner, 532 U.S. 731, 741 (2001), and the exhaustion
requirement applies to all prisoner suits relating to prison
life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
Summary Judgment Standard
party may move for summary judgment, and the Court shall
grant summary judgment if the movant shows that 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)
(quotation marks omitted); Albino, 747 F.3d 1162,
1166 (9th Cir. 2014); Washington Mut. Inc. v. U.S.,
636 F.3d 1207, 1216 (9th Cir. 2011). Each party's
position, whether it be that a fact is disputed or
undisputed, must be supported by (1) citing to particular
parts of materials in the record, including but not limited
to depositions, documents, declarations, or discovery; or (2)
showing that the materials cited do not establish the
presence or absence of a genuine dispute or that the opposing
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1) (quotation marks omitted).
failure to exhaust is an affirmative defense, and Defendant
bears the burden of raising and proving the absence of
exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007);
Albino, 747 F.3d at 1166. Defendant must
“prove that there was an available administrative
remedy, and that the prisoner did not exhaust that available
remedy.” Albino, 747 F.3d at 1172. If the
Defendant carries this burden, the burden of production
shifts to Plaintiff “to come forward with evidence
showing that there is something in his particular case that
made the existing and generally available administrative
remedies effectively unavailable to him.” Id.
“If undisputed evidence viewed in the light most
favorable to the prisoner shows a failure to exhaust, a
defendant is entitled to summary judgment under Rule
56.” Id. at 1166. “If material facts are
disputed, summary judgment should be denied, and the district
judge rather than a jury should determine the facts.”
arriving at these findings and recommendations, the Court
carefully reviewed and considered all arguments, points and
authorities, declarations, exhibits, statements of undisputed
facts and responses thereto, if any, objections, and other
papers filed by the parties. Omission of reference to an
argument, document, paper, or objection is not to be
construed to the effect that this Court did not consider the
argument, document, paper, or objection. This Court
thoroughly reviewed and considered the evidence it deemed
admissible, material, and appropriate.
Summary of CDCR's Administrative Review Process
California Department of Corrections and Rehabilitation
(“CDCR”) has an administrative grievance system
for prisoner complaints. Cal. Code Regs., tit. 15 §
3084.1. The process is initiated by submitting a CDCR Form
602 describing the issue and the relief requested.
Id. at § 3084.2(a). Three levels of review are
involved-a first level review, a second level review and a
third level review. Id. at § 3084.7. Bypassing
a level of review may result in rejection of the appeal.
Id. at § 3084.6(b)(15). Under § 1997e, a
prisoner has exhausted his administrative remedies when he
receives a decision at the third level. See Barry v.
Ratelle, 985 F.Supp. 1235, 1237-38 (S.D. Cal. 1997).
Summary of Relevant First Amended Complaint
alleges that the events at issue occurred at the California
Substance Abuse Treatment Facility and State Prison, Corcoran
(“SATF”), while he was housed there as an inmate
in the custody of CDCR.
Plaintiff's incarceration in 2002, he experienced a
religious conversion. Plaintiff began practicing eclectic
religious beliefs based upon different faith traditions. Such
practices instilled in him the belief that he must change his
name from “Billy Coy Cochran” to “Gabriel
Christian Hunter.” (First Am. Compl., ECF No. 29, at
6.) Plaintiff's belief is based on his conviction that