Ruiz v. Oliveira

          REPORT AND RECOMMENDATION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF NO. 39]

          Hon. Nita L. Stormes United States Magistrate Judge.

         Plaintiff 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.

         Defendants 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.

         Upon due consideration and for the reasons outlined below, the Court RECOMMENDS that the district judge GRANT the motion for summary judgment.

         I. FACTUAL BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         II. LEGAL STANDARDS

         A.LEGAL STANDARD FOR SUMMARY JUDGMENT

         Summary 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.

         The 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).

         Once 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)).

         In 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.

         When 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.

         B. Legal Standard for Exhaustion

         The 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).

         The 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.

         Thus, 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). Administrative remedies

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 administrative remedies.

Id. at § 3084.1(b).

         If a 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 § 3084.7(d)(3).

         III. DISCUSSION

         Defendants' 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.

         A. Plaintiff's ...