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Cochran v. Sherman

United States District Court, E.D. California

February 23, 2018

S. SHERMAN, et al., Defendants.



         I. Introduction and Background

         Plaintiff 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.

         On May 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.)

         On July 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. 47.)

         On 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 filed.

         These motions are now deemed submitted without oral argument. Local Rule 230(1).

         II. Defendants' Motion to Strike

         The 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.

         Plaintiff 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 denied.[1]

         This 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).

         In this 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.

         In this 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 supplements.

         Further, 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.

         The Court next turns to Defendants' motion for summary judgment for the failure to exhaust administrative remedies.

         III. Motion for Summary Judgment

         A. Legal Standards

         1. Statutory Exhaustion Requirement

         Section 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).

         2. Summary Judgment Standard

         Any 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).

         The 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.” Id.

         In 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.

         B. Discussion

         1. Summary of CDCR's Administrative Review Process

         The 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).

         2. Summary of Relevant First Amended Complaint Allegations

         Plaintiff 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.

         Upon 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 ...

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