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Blair v. CDCR

United States District Court, E.D. California

May 25, 2018

PERRY C. BLAIR, Plaintiff,
v.
CDCR, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST THE ADMINISTRATIVE REMEDIES [ECF NO. 84]

         Plaintiff Perry C. Blair is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' exhaustion-related motion for summary judgment, filed February 22, 2018.

         I.

         RELEVANT HISTORY

         This action is proceeding against Defendants Johnson, Ybarra, Alva, Chan, O'Daniels, Franco, Sanchez, Esqueda, Santa and Joe Doe (Assistant Warden) for deliberate indifference, against Defendants Santos, Esqueda, and Ybarra for a due process violation, and against Defendant Johnson for retaliation.

         On August 30, 2017, Defendants filed an answer to the complaint. On September 1, 2017, the Court issued the discovery and scheduling order.

         As previously stated, on February 22, 2018, Defendants filed an exhaustion-related motion for summary judgment. Plaintiff filed an opposition on April 2, 2018, and Defendants filed a reply on April 9, 2018.

         II.

         LEGAL STANDARD

         A. Statutory Exhaustion Requirement

         The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such administrative remedies as are available” before commencing a suit challenging prison conditions.” 42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __136 S.Ct. 1850 (June 6, 2016) (“An inmate need exhaust only such administrative remedies that are ‘available.'”). Exhaustion is mandatory unless unavailable. “The obligation to exhaust ‘available' remedies persists as long as some remedy remains ‘available.' Once that is no longer the case, then there are no ‘remedies … available, ' and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).

         This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524).

         The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. “In the rare event that a failure to exhaust is clear from the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. Id.

         B. 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 at 1166; 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 Court may consider other materials in the record not cited to by the parties, although it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         The defendants bear the burden of proof in moving for summary judgment for failure to exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy, ” id. at 1172. If the defendants carry their burden, the burden of production shifts to the 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 the 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. However, “[i]f material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.” Id.

         III.

         DISCUSSION

         A. Description of CDCR's Administrative Remedy Process

         Plaintiff is a state prisoner in the custody of the California Department of Corrections and Rehabilitation (“CDCR”), and CDCR has an administrative remedy process for inmate grievances. Cal. Code Regs. tit. 15, § 3084.1 (2014). Compliance with section 1997e(a) is mandatory and state prisoners are required to exhaust CDCR's administrative remedy process prior to filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). CDCR's administrative grievance process for non-medical appeals consists of three levels of review: (1) first level formal written appeals; (2) second level appeal to the Warden or designees; and (3) third level appeal to the Office of Appeals (OOA). Inmates are required to submit appeals on a standardized form (CDCR Form 602), attach necessary supporting documentation, and submit the appeal within thirty days of the disputed event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). The California Code of Regulations also requires the following:

The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee shall include the staff member's last name, first initial, title or position, if known, and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question.

Cal. Code Regs. tit. 15, § 3084.2(a)(3).

         B. Summary of Allegations Underlying Plaintiff's Constitutional Claims

         Sometime around January 2011, Plaintiff was escorted from the administrative segregation and assigned to share a cell with inmate Rousie. Plaintiff and Rousie were not compatible cellmates based on their rival gang affiliations.

         Thereafter Plaintiff was locked in a three by two-foot shower from 8:00 a.m. to 6:00 p.m. and both Plaintiff and Rousie were threatened with confiscation of their personal property, placement in segregation, and issuance of a rules violation report. Based on the nature of the threats, Plaintiff and inmate Rousie agreed to be housed as cellmates, and Plaintiff believed Rousie would be placed in a different cell within one day.

         On March 26, 2013, an inmate manufactured weapon was discovered inside the cell. As a result, Plaintiff and inmate Rousie were transferred to administrative segregation and eventually to the security housing unit at California Substance Abuse and Treatment Facility at Corcoran State Prison (SATF).

         Sometime around December 2012, inmate Trotter was released from the hole and was reassigned to a dwelling which was occupied by Plaintiff. Plaintiff informed the initiating officer that he and inmate Trotter were not compatible cellmates because they were from rival gangs. The initiating officer threatened both inmates with threats of confiscation of their personal property, rules violations, and placement in the hole for delaying a peace officer in their duties and refusing a housing assignment. In fear of the consequences both inmates decided to comply with the officer's demands on reliance that inmate Trotter would be relocated the following morning. However, six months thereafter, Plaintiff was still housed with inmate Trotter.

         On May 14, 2013, Plaintiff was informed that marijuana was found in his cell on February 5, 2013, by officer Garza. Officer Garza issued a rules violation report to Plaintiff and inmate Trotter.

         On June 7, 2013, officer M. Lefler conducted a search of Plaintiff and inmate Trotter's cell and an inmate manufactured weapon was discovered in the toilet drain. Plaintiff was at the door and tried to flush it down the toilet. Inmate Trotter denied knowledge of the weapon and Plaintiff admitted it belonged to him. Plaintiff stated that he intended to use it to defend himself against inmate Trotter. As a result of the incident, inmate Trotter and Plaintiff were separated.

         While awaiting the administrative hearing, officer John Doe initiated a cell compaction with inmate Baker who is rival gang member. Both inmates informed the initiating officer of their rival gang status and the officer responded “if ya'll refuse to signed [sic] the chrono and be cellies your['e] going to forfeit 90 days, lo[se] 10 days of yard, 90 days of dayroom, 90 days of telephone, 90 days of canteen, 90 days of personal property and extension of your SHU-terms.” With the reprisal in mind, the inmates decided to accept the living arrangements.

         After a week after being placed in administrative segregation, inmate Trotter sent his investigative employee officer Garza to interview Plaintiff with regard to the possession of his weapon charge. Plaintiff informed Garza that “the weapon belonged to the Plaintiff and it was to be used on her client in the event that inmate Trotter tried to attack him, and that the weapon was never taken to yard.”

         On August 8, 2013, Lieutenant J. Johnson conducted the hearing on the rules violation report for possession of a controlled substance. Plaintiff presented evidence that the contraband belonged to Plaintiff because it was discovered on the upper locker that was assigned to him. Plaintiff stated that he “didn't know anything about the drugs until 5-1-2013, when I was served with the notice of the 115 R.V.R. for drugs found on 2-5-2013. As far as I'm concerned the correctional officer could of planted it and C.O. Ibbs logic of it belong [sic] to me due to my bunk assignment that is discredited by your C.O. Welsh testimony.”

         Lieutenant Johnson opted to call C.O. Ibbs by way of a phone conference to ask “when you discovered the controlled substance in [building] 5, [cell] 101 on the upper locked was it out in the open where you didn't have to search for it because I'm hearing Blair's 115 for constructive possession?” The Plaintiff interjected with, “you mind [sic] as well just tell him exactly what to say if your['e] going to lead him like I'm some type of idiot.” Johnson ended the telephone conversation with Ibbs and informed Plaintiff, “I'm finding you guilty possession-constructive possession.” Plaintiff inquired as to the meaning of constructive possession. Johnson replied, “it means you had knowledge of and access to the contraband and therefore guilty of constructive possession.” Plaintiff stated “that's crazy your telling me an inmate is guilty regardless of the circumstances. Even their cellie admits guilt as long as they were in the cell … I just testified that I had and still have no knowledge of the drugs, where they came from, or even when they were discovered and your own C.O. debunked your other C.O.'s logic and case, so now your using a loop hole which is basically indisputable as long as I occupied the cell with another inmate. That being the case I'm requesting single cell status because your rule places me in a position whether it is impossible to exist in a cell with another inmate without the threat of violence. Due to the fact that I'm therefore obligated to searched [sic] through all of my cellies personal property and dispose of whatever contraband they may possess. Just search through a cellie's personal property is a violation of cell conduct which will result in a physical altercation especially here on the high security facility on top of this your['e] instructing us to dispose of them contraband or run to the staff to be labeled a rat… That's a death sentence in here. It's already bad enough your['e] forcing us to house with rival gang members against our will.” Lieutenant Johnson responded “your['e] not obligated to house with rival gang members, you can refuse incompatible cellies.” Plaintiff informed Johnson, “yeah right, my last three cellies were incompatible and we tried to inform your staff of our rival gang status each time we were threatened with disciplinary reprisal for refusing to accept each other as cellies. Johnson indicated that it was an exception and rarely happens. Plaintiff then informed Johnson that he and his current cellie were rival gang members. In response, Lieutenant Johnson insulted Plaintiff by telling him to just “handle your business [and] if your['e] scared go S.N.Y.” Plaintiff replied “nah your['e] the bitch cuz [sic] back in the dayz [sic] C.O.s would actually fight the inmates instead of waiting until we're handcuffed to disrespect us. Now ya'll try to cause disruption amongst us so you can sit back and entertain yourselfs and write us up.”

         Immediately after the hearing, Lieutenant Johnson, Lieutenant Ybarra, Sergeant Chan, officer O'Daniels, officer Franco, officer Alva, and officer Esqueda started telling all of the inmates housed in building E-1 that Plaintiff “was a snitch and need to get [sic] dealt with.”

         On August 29, 2013, Plaintiff received the “falsified” final copy of the administrative hearing for the rules violation report log number C-13-05-004. In retaliation for Plaintiff utilizing the grievance process Lieutenant Johnson falsified the documents to quote Plaintiff as stating, “It wasn't mine. ...


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