United States District Court, S.D. California
REPORT AND RECOMMENDATION GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT [ECF NO. 39]
Nita L. Stormes United States Magistrate Judge.
Rogelio May Ruiz (“Plaintiff”), a prisoner
proceeding pro se and in forma pauperis,
filed this civil rights action under 42 U.S.C. § 1983
claiming that Defendants violated his Eighth Amendment right
to be free from cruel and unusual punishment when they failed
to protect him from being attacked by another prison officer.
ECF No. 17.
filed a motion for summary judgment seeking judgment in their
favor on all claims, contending that Plaintiff failed to
exhaust his administrative remedies. ECF No. 39. Defendants,
and the Court, notified Plaintiff of the requirements for
opposing summary judgment pursuant to Klingele v.
Eikenberry, 849 F.2d 409 (9th Cir. 1988) and Rand v.
Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). ECF
Nos. 39, 40. Plaintiff filed several oppositions in Spanish
(ECF Nos. 43, 46, 50, 55), and the Court ordered Plaintiff to
resubmit the opposition in English. ECF Nos. 44, 47. In
addition, the Court ordered Defendants to submit certified
translations of several exhibits, which included significant
portions of text in Spanish, and Defendants complied. ECF
Nos. 52, 53.
due consideration and for the reasons outlined below, the
Court RECOMMENDS that the district judge
GRANT the motion for summary judgment.
contends that Defendants R. Oliveira and B. Self violated his
right to be free from cruel and unusual punishment under the
Eighth Amendment by failing to protect him from a physical
attack carried out by another corrections officer
(“C/O”) L. Romero. These facts, taken from
Plaintiff's Fourth Amended Complaint, are recited here
only to set the factual background for the allegations in
Plaintiff's complaint and are not to be taken as true for
the purposes of the summary judgment motion.
alleges that C/O Romero injured him in his face around August
15, 2015, threatened him if he were to report the incident,
and refused to let him see a nurse. ECF No. 17 at 3.
Plaintiff alleges that he nevertheless reported this incident
in a CDCR 602 grievance. Id. Subsequently, on
January 26, 2016, Plaintiff alleges that C/O Romero followed
him to the kitchen and threatened him for reporting the
previous incident. Id. Plaintiff alleges that he
also reported this threat through another CDCR 602 grievance.
Id. Then, on February 19, 2016, while another
officer arrested Plaintiff for a fight, Plaintiff alleges
that C/O Romero arrived on the scene, forced him into
handcuffs and the hit him 17 times in his face, breaking his
nose, and caused other physical injury including breaking his
finger and dislocating his shoulder. Id. at 1-2.
alleges that Defendants Oliveira and Self did not protect him
from the attack by C/O Romero despite him filing CDCR 602
grievances about Romero prior to the 2016 incident.
Id. at 1-3.
STANDARD FOR SUMMARY JUDGMENT
judgment is appropriate “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); Celotex. Corp. v. Catrett, 477
U.S. 317, 322 (1986). A fact is material when it affects the
outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is “genuine” if a reasonable jury
could return a verdict for the nonmoving party. Id.
moving party bears the initial burden of establishing the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The moving party can
satisfy this burden in two ways: (1) by presenting evidence
that negates an essential element of the nonmoving
party's case; or (2) by demonstrating the nonmoving party
failed to establish an essential element of the nonmoving
party's case on which the nonmoving party bears the
burden of proving at trial. Id. at 322-23. If the
moving party fails to bear the initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 159-60 (1970).
the moving party establishes the absence of a genuine issue
of material fact, the burden shifts to the nonmoving party to
set forth facts showing a genuine issue of a disputed fact
remains. Celotex, 477 U.S. at 330. “Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no
‘genuine issue for trial.'” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (quoting First Nat'l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 289 (1968)).
making this determination, the Court must draw all inferences
in the light most favorable to the nonmoving party and
determine whether a genuine issue of material fact precludes
entry of judgment. Comite de Jornaleros de Redondo Beach
v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir.
2011). The Court determines only whether there is a genuine
issue for trial and, in doing so, it must liberally construe
Plaintiff's filings because he is a pro se
prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th
Cir. 2010). The court should not engage in credibility
determinations, weighing of evidence, or drawing of
legitimate inferences from the facts; these functions are for
the trier of fact. Anderson, 477 U.S. at 255.
defendants seek summary judgment based on the plaintiff's
failure to exhaust specifically, they must first prove that
there was an available administrative remedy and that
plaintiff did not exhaust that available remedy. Williams
v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing
Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014))
(quotation marks omitted). If they do, the burden of
production then shifts to the plaintiff “to show that
there is something in his particular case that made the
existing and generally available administrative remedies
effectively unavailable to him.” Williams, 775
F.3d at 1191; see also Ross v. Blake, 136 S.Ct.
1850, 1858-60 (2016). Only “[i]f the undisputed
evidence viewed in the light most favorable to the prisoner
shows a failure to exhaust, [is] a defendant is entitled to
summary judgment under Rule 56.” Albino, 747
F.3d at 1166.
Legal Standard for Exhaustion
Prisoner Litigation Reform Act (“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). Therefore, exhaustion is
“mandatory” before bringing a federal action.
Ross, 136 S.Ct. at 1856; see Porter v.
Nussle, 534 U.S. 516, 524 (2002). A prisoner is not
required to plead exhaustion in his complaint; it is an
affirmative defense that must be raised and proven by a
defendant. Jones v. Bock, 549 U.S. 199, 216 (2007).
Supreme Court has “held that to properly exhaust
administrative remedies prisoners must ‘complete the
administrative review process in accordance with the
applicable procedural rules,' -rules that are defined
not by the PLRA, but by the prison grievance process
itself.” Id. at 218 (quoting Woodford v.
Ngo, 548 U.S. 81, 88 (2006) (internal citation
omitted)). The exhaustion requirement offers the prison a
chance to resolve the issue on its own and “promotes
efficiency” by allowing claims to be resolved more
quickly than litigation. Woodford, 548 U.S. at 90.
Thus, a prison's own grievance process, not the PLRA,
determines how detailed a grievance must be to satisfy the
exhaustion requirement. Jones, 549 U.S. at 218.
under this legal framework, the Court must look to the
prison's grievance procedure. The California Department
of Corrections and Rehabilitation's (“CDCR”)
administrative appeal system for inmates in the California
prison system is described in Title 15 of the California Code
of Regulations: “Any inmate . . . under the
[CDCR's] jurisdiction may appeal any policy, decision,
action, condition, or omission by the department or its staff
that the inmate . . . can demonstrate as having a material
adverse effect upon his or her health, safety, or
welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).
For appeals submitted after January 28, 2011, inmates must
commence the appeals process by submitting a CDCR Form 602 to
the facility's appeals coordinator describing “the
specific issue under appeal and the relief requested.”
Id. at § 3084.2(a), (c). Among other
requirements, the appeal must be “limited to one issue
or related set of issues” and “list all staff
member(s) involved and shall describe their involvement in
the issue.” Id. at § 3084.2(a)(1), (3).
shall not be considered exhausted relative to any new issue,
information, or person later named by the appellant that was
not included in the originally submitted CDCR Form 602 . . .
and addressed through all required levels of administrative
review up to and including the third level. In addition, a
cancellation or rejection decision does not exhaust
Id. at § 3084.1(b).
prisoner is not satisfied with the first level response, he
may submit a formal appeal for a second level review, which
is “conducted by the hiring authority or designee at a
level no lower than Chief Deputy Warden . . . or the
equivalent.” Id. at § 3084.7(d)(2). If
the prisoner is not satisfied with the second level review,
he may appeal to the third level of review by the chief of
the Office of Appeals in Sacramento. Id. at §
3084.7(c), (d)(3). “The third level review constitutes
the decision of the Secretary of the California Department of
Corrections and Rehabilitation on an appeal, and . . .
exhausts administrative remedies.” Id. at
sole argument in support of their motion for summary judgment
is that Plaintiff failed to exhaust his administrative
remedies prior to bringing suit. In support of this argument,
Defendants attach the various CDCR 602s Plaintiff filed.
See ECF No. 53. The Court will review each of these
under the exhaustion framework discussed above.