United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES (ECF NO. 30) FOURTEEN-DAY
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
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,
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.(ECF No. 30.) Plaintiff opposes the motion.
(ECF No. 31.) Defendant replied. (ECF No. 34.) The matter is
submitted. Local Rule 230(l).
reasons set forth below, the undersigned will recommend that
Defendant's motion be denied.
allegations may be summarized as follows.
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.
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.
result of the incident, Plaintiff was hospitalized until
October 20, 2014. Defendant Baker was terminated in November
Factual Background 
Administrative Remedy Request No. 802835
November 19, 2014, Plaintiff submitted Administrative Remedy
Request No. 802835-F1 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.)
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.)
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.)
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.
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.
Administrative Remedy Request No. 801695
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.) 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.)
Office of Internal Affairs Investigations
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.See Decl. of G. Cobb in Supp.