United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, THAT PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT BE DENIED AND THAT
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED IN
PART AND DENIED IN PART (ECF NOS. 62, 78) OBJECTIONS DUE
WITHIN TWENTY-ONE (21) DAYS
Bullock (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed the complaint commencing this action on
December 24, 2013. (ECF No. 1).
action now proceeds with Plaintiff's Fourth Amended
Complaint for deliberate indifference to serious medical
needs in violation of the Eighth Amendment against Defendants
C. Rios and Brock Sheela, and for retaliation in violation of
the First Amendment against Defendant Sheela. (ECF Nos. 25,
27, 2017, Brock Sheela and C. Rios (“Defendants”)
filed a motion for summary judgment on the ground that
Plaintiff failed to exhaust his available administrative
remedies before filing suit. (ECF No. 62). On August 7, 2017,
Plaintiff filed an opposition to the motion for summary
judgment. (ECF No. 66). On August 15, 2017, Defendants filed
their reply. (ECF No. 67). On August 31, 2017, Plaintiff
filed a sur-reply. (ECF No. 69).
January 16, 2018, Plaintiff moved for summary judgment,
arguing that Defendants have admitted issues of material
fact. (ECF No. 78). Defendants filed an opposition to the
motion on February 6, 2018. (ECF No. 81).
motions for summary judgment are now before the Court. After
consideration of all the materials presented, as well as the
applicable law, the Court will recommend that Plaintiff's
motion for summary judgment be denied. The Court will also
recommend that Defendants' motion for summary judgment be
granted in part and denied in part, as there are genuine
disputes of material fact regarding whether Plaintiff
properly filed a grievance that prison officials failed to
process. The Court will further recommend that Defendants be
given an opportunity to request an evidentiary hearing on the
judgment is appropriate when it is demonstrated 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); Albino v. Baca (“Albino
II”), 747 F.3d 1162, 1172 (9th Cir. 2014) (en
banc) (“If there is a genuine dispute about
material facts, summary judgment will not be granted”).
A party asserting that a fact cannot be disputed must support
the assertion by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials, or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1).
moving for summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
' which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P.
56(c)). If a party moves for summary judgment on the basis
that a material fact lacks any proof, the Court must
determine whether a fair-minded fact-finder could reasonably
find for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986) (“The mere
existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the [fact-finder] could reasonably find for
the plaintiff.”). “[A] complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Celotex, 477 U.S. at 322.
the moving party meets its initial burden, the non-moving
party must ‘go beyond the pleadings and by her own
affidavits, or by ‘the depositions, answers to
interrogatories, and admissions on file, ' designate
‘specific facts showing that there is a genuine issue
for trial.''” Burch v. Regents of Univ. of
Cal., 433 F.Supp.2d 1110, 1125 (E.D. Cal. 2006)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)). “[C]onclusory allegations unsupported by
factual data” are not enough to rebut a summary
judgment motion. Taylor v. List, 880 F.2d 1040, 1045
(9th Cir. 1989), citing Angel v. Seattle-First Nat'l
Bank, 653 F.2d 1293, 1299 (9th Cir. 1981).
reviewing a summary judgment motion, the Court may consider
other materials in the record not cited to by the parties,
but is not required to do so. Fed.R.Civ.P. 56(c)(3);
Carmen v. San Francisco Unified School Dist., 237
F.3d 1026, 1031 (9th Cir. 2001). In judging the evidence at
the summary judgment stage, the Court “must draw all
reasonable inferences in the light most favorable to the
nonmoving party.” Comite de Jornaleros de Redondo
Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th
Cir. 2011). It need only draw inferences, however, where
there is “evidence in the record . . . from which a
reasonable inference . . . may be drawn”; the court
need not entertain inferences that are unsupported by fact.
Celotex, 477 U.S. at 330 n. 2 (quoting In re
Japanese Electronic Products Antitrust Litigation, 723
F.2d 238, 258 (1983)).
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).
California prison grievance system has three levels of
review; an inmate exhausts administrative remedies by
obtaining a decision at each level.” Reyes v.
Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal.
Code Regs. tit. 15, § 3084.1(b) (2011) & Harvey
v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)); see
also Cal. Code Regs. tit. 15, § 3084.7(d)(3)
(“The third level review constitutes the decision of
the Secretary of the California Department of Corrections and
Rehabilitation on an appeal, and shall be conducted by a
designated representative under the supervision of the third
level Appeals Chief or equivalent. The third level of review
exhausts administrative remedies . . . .”).
are required to exhaust the available administrative remedies
prior to filing suit. Jones v. Bock, 549 U.S. 199,
211 (2007); McKinney v. Carey, 311 F.3d 1198,
1199-1201 (9th Cir. 2002) (per curiam). “If, however, a
plaintiff files an amended complaint adding new claims based
on conduct that occurred after the filing of the initial
complaint, the plaintiff need only show that the new claims
were exhausted before tendering the amended complaint to the
clerk for filing.” Akhtar v. Mesa, 698 F.3d
1202, 1210 (9th Cir. 2012) (citing Rhodes v.
Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010).
exhaustion requirement applies to all prisoner suits relating
to prison life. Porter v. Nussle, 534 U.S. 516, 532
(2002). Exhaustion is required regardless of the relief
sought by the prisoner and regardless of the relief offered
by the process, unless “the relevant administrative
procedure lacks authority to provide any relief or to take
any action whatsoever in response to a complaint.”
Booth v. Churner, 532 U.S. 731, 736, 741 (2001);
Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016).
untimely or otherwise procedurally defective appeal will not
satisfy the exhaustion requirement. Woodford v. Ngo,
548 U.S. 81, 90-91 (2006). However, “a prisoner
exhausts ‘such administrative remedies as are
available, ' 42 U.S.C. § 1997e(a), under the PLRA
despite failing to comply with a procedural rule if prison
officials ignore [a] procedural problem and render a decision
on the merits of the grievance at each available step of the
administrative process.” Reyes, 810 F.3d at
the PLRA, a grievance ‘suffices if it alerts the prison
to the nature of the wrong for which redress is sought.'
Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir.2010)
(quoting Griffin, 557 F.3d at 1120). The grievance
‘need not include legal terminology or legal theories,
' because ‘[t]he primary purpose of a grievance is
to alert the prison to a problem and facilitate its
resolution, not to lay groundwork for litigation.'
Griffin, 557 F.3d at 1120. The grievance process is
only required to ‘alert prison officials to a problem,
not to provide personal notice to a particular official that
he may be sued.'” Reyes, 810 F.3d at 659.
discussed in Ross, there are no “special
circumstances” exceptions to the exhaustion
requirement. 136 S.Ct. at 1862. The one significant qualifier
is that “the remedies must indeed be
‘available' to the prisoner.” Id. at
1856. The Ross Court described this qualification as
[A]n administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it
operates as a simple dead end-with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. Suppose,
for example, that a prison handbook directs inmates to submit
their grievances to a particular administrative office-but in
practice that office disclaims the capacity to consider those
petitions. The procedure is not then “capable of
use” for the pertinent purpose. In Booth
's words: “[S]ome redress for a wrong is
presupposed by the statute's requirement” of an
“available” remedy; “where the relevant
administrative procedure lacks authority to provide any
relief, ” the inmate has “nothing to
exhaust.” Id., at 736, and n. 4, 121 S.Ct.
1819. So too if administrative officials have apparent
authority, but decline ever to exercise it. Once ...