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Fordley v. Lizarraga

United States District Court, E.D. California

May 3, 2018

JOHN FREDERICK FORDLEY, Plaintiff,
v.
JOE LIZARRAGA, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to 42 U.S.C. § 1983. Defendants move for summary judgment, arguing that plaintiff failed to exhaust his available administrative remedies before filing suit. ECF No. 46. For the reasons that follow, the court must grant the motion in part and defer ruling on the remainder pending additional filings by the parties.

         I. Background

         Plaintiff, who is incarcerated at R.J. Donovan Correctional Facility, alleges Eighth Amendment claims against defendant correctional officers at Mule Creek State Prison (“MCSP”). ECF No. 1. Plaintiff claims that, on various occasions in March and May 2016 defendants assaulted him physically and sexually, gave him razor blades to encourage him to kill himself, and repeatedly interfered with his meals. Id. He seeks money damages and an order that he be transferred out of MCSP, among other injunctive relief. Id. at 15-16.

         Defendants have submitted undisputed evidence of the following facts in support of their argument that plaintiff did not exhaust his available administrative remedies:

1. On May 8, 2016, plaintiff submitted an inmate grievance (aka “602”), log no. MCSP-16-01365, alleging that: (1) defendants Garcia and Watson battered and sexually assaulted him on March 10, 2016; (2) defendants Winkfield and Garcia battered and sexually assaulted him on March 11, 2016; (3) defendants Winkfield and Garcia gave him razor blades on May 5 and 6, 2016 to encourage him to kill himself; and (4) correctional staff were refusing to provide him with meals. ECF No. 46-3, Defs.' Statement of Undisputed Facts (hereinafter “DUF”) Nos. 2-4; ECF No. 46-4, Decl. of M. Voong, ¶¶ 4-5; ECF No. 46-4 at 7-9.
2. On May 10, 2016, plaintiff was interviewed regarding grievance MCSP-16-01365. DUF No. 5; ECF No. 46-4 at 11-12.
3. On May 19, 2016, grievance MCSP-16-01365 was forwarded directly to the second level of review to be addressed as a staff complaint. DUF No. 6; ECF No. 46-4 at 7.
4. Plaintiff was again interviewed on June 7, 2016. DUF No. 7; ECF No. 46-4 at 12.
5. On June 12, 2016, plaintiff submitted another grievance, log no. MCSP-16-01704, alleging that defendant Winkfield was threatening and harassing him and interfering with his food. DUF No. 8; ECF No. 46-4 at 33-34.
6. On June 22, 2016, grievance MCSP-16-01365 was denied at the second level of review. DUF No. 9; ECF No. 46-4 at 5-6.
7. Plaintiff submitted grievance MCSP-16-01365 to the third level of review on July 6, 2016. DUF No. 10; ECF No. 46-4 at 8.
8. Plaintiff was interviewed in connection with MCSP-16-01704 on July 9, 2016. DUF No. 11; ECF No. 46-4 at 35.
9. MCSP-16-01704 was denied at the second level of review on July 15, 2016. DUF No. 12; ECF No. 46-4 at 35-36.
10. Plaintiff submitted MCSP-16-01704 to the third level of review on August 1, 2016. DUF No. 13; ECF No. 46-4 at 32.
11. Plaintiff prepared his complaint in this action on August 15, 2016, and the case was formally filed on August 22, 2016. ECF No. 1 at 1, 13.
12. The third level of review rejected plaintiff's grievance MCSP-16-01365 on September 7, 2016, because plaintiff had not included a CDCR Form 1858 Rights and Responsibilities Statement. DUF No. 15; ECF No. 46-4 at 8, 21. Plaintiff re-submitted the grievance on October 14, 2016, but it was again rejected on December 20, 2016 for the same reason. DUF Nos. 17, 18; ECF No. 46-4 at 25.
13. On October 13, 2016, plaintiff's grievance MCSP-16-01704 was also rejected for lacking a Form 1858. DUF No. 16; ECF No. 46-4 at 39. Documents filed by defendants show that plaintiff had some difficulty obtaining the Form 1858 and made at least five requests for that form between September 25, 2016 and October 6, 2016. ECF No. 46-4 at 19-23.
14. Plaintiff resubmitted MCSP-16-01365 to the third level of review with the Form 1858 on January 9, 2017. Voong Decl. ΒΆ 5. It was denied at that level on March 10, ...

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