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Williams v. Baker

United States District Court, E.D. California

February 28, 2018

SHANNON WILLIAMS, Plaintiff,
v.
OFFICER BAKER, Defendant.

          FINDINGS AND RECOMMENDATION TO DENY DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF NO. 30) FOURTEEN-DAY DEADLINE

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a federal prisoner proceeding pro se in a civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). The action proceeds against Defendant Baker on Plaintiff's Eighth Amendment excessive force claim and First Amendment retaliation claim. (ECF Nos. 1, 12, 23.)

         Before the Court is Defendant's motion for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies before filing his retaliation claim.[1](ECF No. 30.) Plaintiff opposes the motion. (ECF No. 31.) Defendant replied. (ECF No. 34.) The matter is submitted. Local Rule 230(l).

         For the reasons set forth below, the undersigned will recommend that Defendant's motion be denied.

         I. Plaintiff's Allegations

         Plaintiff's allegations may be summarized as follows.

         In 2014, Plaintiff filed grievances regarding various non-party correctional staff. At some point, Officer Baker told Plaintiff it probably was not a good idea to be filing grievances. In September 2014, Plaintiff reported this perceived threat to correctional staff Copenhaver. Copenhaver told Plaintiff to talk with correctional staff Snyder. Snyder responded that Plaintiff was paranoid. Neither Copenhaver nor Snyder investigated Plaintiff's concerns or took any action. Defendant Baker was on probation at this time.

         On October 13, 2014, an incident occurred between Plaintiff and Defendant Baker in the course of which Plaintiff agreed to submit to handcuffs. However, Baker planted Plaintiff's arm on the ground and twisted it, separating the muscle from the bone and causing Plaintiff a permanent loss of strength. Plaintiff stated, “You broke my arm, you're hurting me.” Baker responded, “That will teach you about filing grievances.” A Correctional officer Borja was present; he did not intervene, but he did report the incident to Copenhaver and Snyder.[2]

         As a result of the incident, Plaintiff was hospitalized until October 20, 2014. Defendant Baker was terminated in November 2014.

         II. Factual Background [3]

         A. Administrative Remedy Request No. 802835

         On November 19, 2014, Plaintiff submitted Administrative Remedy Request No. 802835-F1[4] to BP-9, where it was reviewed by the Warden as the first level of review. Vickers Decl. ¶ 7, Ex. 2, 3 (ECF No. 30-3 at 16, 24.) Administrative Remedy Request 802835-F1 stated:

I want action taken against Ofc. Baker &/or Borja for using excessive force. My arm muscle is tore because I dropped a piece of paper on the floor. These Ofc's should be fired. Your staff cannot assault me because I have “a piece of paper” in my hand. This was an Eighth Amendment violation. Staff is prohibited from assaulting inmates under any circumstances. Ofc. Borja retaliated against me by writing me up, for 115 destroying evidence. I cann [sic] destroy evidence by throwing it on the ground “if its a piece of paper!” I complained that I was being assaulted, and received a write-up to stop me and/or cover-up for the use of excessive force. Take action & dismiss the write-up. And turn over investigation against Ofc. Baker to federal law enforcement. There can be no debate I was assaulted & excessive force used.

(ECF No. 30-3 at 24.)

         On December 30, 2014, the Warden responded, stating that Plaintiff's allegations of staff misconduct would be reviewed, and if necessary, referred to the appropriate department for investigation. (Id. at 25.) However, because the allegations involved a personnel matter subject to the Privacy Act, no further information would be disclosed to Plaintiff. (Id.)

         On January 6, 2015, Plaintiff submitted Administrative Remedy Request No. 802835-R1 to BP-10 at the Western Regional Office, the next level of review. Vickers Decl. Ex. 2, 3 (ECF No. 30-3 at 18, 26.) In this request, Plaintiff asked for an investigation, for the officers involved to be fired, for disciplinary action to be taken, and for compensation for himself. Vickers Decl. Ex. 3 (ECF No. 30-3 at 26.) The request also stated “I received a write-up in Retaliation [sic] for complaining about my mistreatment. Of[ficer] Baker was fired for this?” (Id.) Plaintiff also stated, “I committed no prohibited act, but to cover-up misconduct I got an incident report.” On February 10, 2015, the Regional Director responded to the grievance stating that the allegations were being investigated, but that further information was protected by the Privacy Act. Plaintiff was advised that he could not receive compensation through the administrative appeal process and was informed of alternative procedures for seeking such relief. (Id. at 27.)

         Plaintiff eventually submitted Administrative Remedy Request No. 802835-A1 to the Central Office, BP-11, the final level of review. Vickers Decl. ¶ 7, Ex. 2 (ECF No. 30-3 at 20); (ECF No. 31. at 9.) The appeal was received by the Central Office on April 2, 2015, and was rejected on May 18, 2015 because Plaintiff did not provide a copy, a receipt or a verified photocopy of his original appeal. Plaintiff had fifteen days to correct this error. 28 C.F.R. § 542.17(b). Defendants contend that Plaintiff did not resubmit the appeal within fifteen days. Vickers Decl. ¶ 7, Ex. 2 (ECF No. 30-3 at 20); Supplemental Decl. of G. Cobb in Supp. Defs.' Mot. Summ. J. (ECF No. 34-3) ¶ 7.

         In his opposition, Plaintiff states, “I re-submitted a BP-11 to Washington DC in April 2015.” (ECF No. 31. at 12.) It is not clear whether this statement is intended to indicate that he did re-submit the appeal after it was rejected or merely to point out that he did, in fact, submit a BP-11 to the third and final level of review. In any event, BOP records reflect that the appeal was not rejected until May 2015. Plaintiff does not contend that he resubmitted the appeal with appropriate documentation after that date.

         B. Administrative Remedy Request No. 801695

         On November 18, 2014, Plaintiff submitted Administrative Remedy Request No. 801695, characterized by BOP as concerning “staff misconduct in corridor”, to the first level of review. See Vickers Decl. Ex. 2 (ECF No. 30-3 at 16.)[5] However, there is no further information in the record about this appeal beyond the BOP printout indicating it was closed on December 30, 2014, as “XPL.” (Id.) The reason code is unexplained, but it is the same reason code used on Appeal No. 802835-F1, which was referred for a confidential personnel inquiry. (Id.), Plaintiff states that, in January 2016, he sent a letter inquiring as to the status of this appeal (against Officer Baker), but received no response before filing this lawsuit. (ECF No. 31 at 12.)

         C. Office of Internal Affairs Investigations

         At least some of the allegations contained in Plaintiff's Administrative Remedy Request No. 802835 were referred to the Office of Internal Affairs (“OIA”) in January of 2015 and an investigation was conducted. See Decl. of G. Cobb in Supp. Defs.' Mot. Summ. J. (ECF No. 30-6) ¶ 8; Supplemental Decl. of G. Cobb in Supp. Defs.' Mot. Summ. J. (ECF No. 34-3) ¶¶ 8-9. As part of the investigation Plaintiff was interviewed by Special Investigative Services (“SIS”) Lieutenant Glen Cobb in February 2015.[6]See Decl. of G. Cobb in Supp. ...


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