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Brown v. Reif

United States District Court, E.D. California

September 9, 2019

RONNIE CHEROKEE BROWN, Plaintiff,
v.
C. REIF, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On June 15, 2018 the court screened plaintiff's complaint and found a cognizable claim for the excessive use of force against defendants Reif, Overby, and Gomez and a failure to protect claim against defendant Overby, all in violation of the Eighth Amendment. ECF No. 13 at 4. The court also found that the complaint stated a cognizable Eighth Amendment claim challenging the conditions of plaintiff's confinement against defendants Reif and Gomez. Id. All defendants were employed at California State Prison-Sacramento (“CSP-Sac”) on December 1, 2017, the date of the allegations in the complaint.

         Currently pending before the court are defendants' motion for summary judgment based on the plaintiff's failure to exhaust administrative remedies, plaintiff's motion for summary judgment, and numerous ancillary motions filed by plaintiff.[1] ECF No. 74. The court will first address plaintiff's pending motions which are not duplicative of those previously filed. See ECF No. 44 (limiting plaintiff to one dispositive motion at a time in light of plaintiff's history of filing repetitious motions). Next, the court will address defendants' motion for summary judgment which has been fully briefed by the parties. See ECF Nos. 80, 81, 88, 105.[2] For the reasons discussed below, the undersigned recommends granting defendants' motion for summary judgment and denying plaintiff's motion as moot.

         I. Plaintiff's Motion to Appoint Counsel

         On August 21, 2019, plaintiff filed his seventh request for the appointment of counsel. As the court has previously informed plaintiff, district courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must consider plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

         Having considered the factors under Palmer, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time.

         II. Plaintiff's Motion for a Preliminary Injunction

         Plaintiff filed his fifth motion for a preliminary injunction on June 6, 2019. ECF No. 92. Defendants filed their opposition one week later. ECF No. 94. On June 27, 2019, the court ordered defendants to file a supplemental response in light of the seriousness of plaintiff's current allegations against a named defendant in this action.[3] ECF No. 97. Defendants filed their supplemental response on July 8, 2019. ECF No. 99.

         In his June 6, 2019 motion, plaintiff generally alleges that he fears for his safety because the three defendants named in the instant lawsuit work in the building next to plaintiff's cell at CSP-Sacramento. ECF No. 92 at 2. As a remedy, plaintiff requests to be transferred back to Corcoran State Prison. ECF No. 92 at 1-2. On August 22, 2019, plaintiff filed a notice of change of address with the court indicating that he had been transferred to Corcoran State Prison. ECF No. 109.

         The undersigned recommends denying plaintiff's motion for a preliminary injunction as moot since plaintiff has been transferred to Corcoran State Prison. The defendants in this action are no longer prison guards at the facility where he is housed. As a result, plaintiff cannot demonstrate any irreparable harm that will befall him in the absence of injunctive relief. Accordingly, the motion should be denied as moot.

         III. Summary Judgment Standards

         Summary judgment is appropriate when it is demonstrated 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). A party asserting that a fact cannot be disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed.R.Civ.P. 56(c)(1)(A).

         In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587.

         In a summary judgment motion for failure to exhaust administrative remedies, the defendants have the initial burden to prove “that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the defendants carry that burden, “the burden shifts to the prisoner 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. The ultimate burden of proof remains with defendants, however. Id. “If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.” Id. at 1166.

         IV. Exhaustion Standard

         The Prison Litigation Reform Act of 1995 provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A prisoner must exhaust his administrative remedies before he commences suit. McKinney v. Carey, 311 F.3d 1198, 1199- 1201 (9th Cir. 2002). Compliance with this requirement is not achieved by satisfying the exhaustion requirement during the course of a civil action. See McKinney, 311 F.3d 1198 (9th Cir. 2002). Failure to comply with the PLRA's exhaustion requirement is an affirmative defense that must be raised and proved by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). In the Ninth Circuit, a defendant may raise the issue of administrative exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc). An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006).

         In order to defeat a properly supported motion for summary judgment based on a prisoner's failure to exhaust pursuant to 42 U.S.C. § 1997e(a), plaintiff must “come forward with some evidence showing” that he has either (1) properly exhausted his administrative remedies before filing suit or (2) “there is something in his particular case that made the existing and generally available remedies unavailable to him by ‘showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.'” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5) (9th Cir. 1996)); Jones, 549 U.S. at 218. “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Ross v. Blake, 136 S.Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). If 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 of the Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). If there is at least a genuine issue of material fact as to whether the administrative remedies were properly exhausted, the motion for summary judgment must be denied. See Fed. R. Civ P. 56(a).

         In the prison context, CDCR regulations provide three formal levels of review to address “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); see also Cal. Code Regs. tit. 15, §§ 3084.1-3085. An inmate appeal is initiated by submitting a CDCR Form 602 which describes “the specific issue under appeal and the relief requested.” Cal. Code Regs. tit. 15, § 3084.2(a). The issue specified in the 602 Form is “addressed through all required levels of administrative review up to and including the third level. Cal. Code Regs. tit. 15, §§ 3084.1(b)-3084.2(a). First and second level appeals are submitted and reviewed by the appeals coordinator at the prison. Cal. Code Regs. tit. 15, § 3084.2(c). If a prisoner is dissatisfied with the second level response, he or she can mail a third level appeal to the Appeals Chief. Cal. Code Regs. tit. 15, § 3084.2(d)(3). Administrative procedures generally are deemed exhausted once a plaintiff has received a third level review with respect to his issue or claim. Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.7(d). An appeal may be rejected or cancelled if it fails to comply with the regulations governing the appeal process, but the inmate is provided the reason for the rejection as well as instructions on how to correct the defect, if possible. See Cal. Code Regs. tit. 15, § 3084.6. California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).

         An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006). When an inmate's administrative grievance is improperly rejected on procedural grounds, however, exhaustion may be excused as “effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir.2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224-26 (9th Cir.2010) (warden's mistake rendered prisoner's administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir.2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (recognizing that “[d]elay in responding to a grievance, particularly a time-sensitive one, may demonstrate that no administrative process is in fact available.”).

         When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by Albino, 747 F.3d at 1168-69.

         V. Defendant's Motion for Summary Judgment

         With respect to plaintiff's Eighth Amendment claims, defendants argue that plaintiff did not exhaust his administrative appeals through all three levels of review before filing the instant lawsuit. ECF No. 74-2 at 6. Their motion details numerous administrative grievances that plaintiff filed and pursued between December 1, 2017, the date of the allegations in the complaint, and May 1, 2018, the date plaintiff filed the complaint. ECF No. 74-2 at 8-15. However, defendants argue that these administrative grievances were either properly screened out or not pursued through the third and final level of administrative review before plaintiff filed suit.

         Defendants further assert that plaintiff never filed or exhausted an administrative appeal concerning his conditions of confinement in December 2017. ECF No. 74-2 at 6, 19-20. Additionally, defendants contend that plaintiff is not excused from the exhaustion requirement for any reason. Id. at 19-21.

         In his opposition, plaintiff concedes that he did not exhaust his administrative appeal at the third and final level of review on his Eighth Amendment claims until after he filed his complaint in this case. ECF No. 80 at 1. However, plaintiff counters that CDCR was obstructing his efforts to properly exhaust his administrative remedies by holding his appeals and not processing them. Id. In his “motion to proceed without [an] inmate grievance” filed on the same day as the complaint, plaintiff further explains that the 602 grievance he filed on December 8, 2017 was not being processed at the third and final level of administrative review. ECF No. 2 at 2. Plaintiff argues that CDCR was interfering with the grievance process effectively rendering it unavailable. ECF No. 2 (citing Andrews v. Marshall, 854 F.3d 1103, 1105 (9th Cir. 2017), amended and superseded by 867 F.3d 1076 (9th Cir. 2017) (per curiam) (finding that “[w]hen prison officials improperly fail to process a prisoner's grievance, the prisoner is deemed to have exhausted available administrative remedies. In such circumstances, prison officials have ‘thwarted inmates from taking advantage of the grievance process; making that process unavailable.”). Also mentioned in the complaint, but never subsequently explained, is plaintiff's alleged “fear[] of retaliation because of threats by defendants….” ECF No. 1 at 12.

         While plaintiff is pro se, the court notes that his opposition does not comply with Local Rule 260(b) because plaintiff did not file a separate document disputing defendants' statement of undisputed facts.[4] The court is mindful of the Ninth Circuit's caution that district courts are to “construe liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (citation omitted). Accordingly, the court considers the record in its entirety despite plaintiff's failure to be in strict compliance with the applicable rules.[5] However, only those assertions in the opposition which have evidentiary support in the record will be considered.

         By way of reply, defendants emphasize that the “undisputed facts demonstrate that Brown filed suit before receiving a third level decision on the appeal concerning his excessive force and failure to intervene allegations…, and that he never filed an appeal through the initial levels of review concerning his conditions of confinement allegations.” ECF No. 81 at 1. In response to plaintiff's argument that exhaustion should be excused in his case, defendants counter that plaintiff was correctly advised of the need to pursue the allegations in this case through the third level of administrative review and the applicable time frames and procedural rules for doing so. ECF No. 81 at 4. Plaintiff's numerous administrative grievances failed to comply with these rules and timeframes. Id.

         In an unauthorized sur-reply, plaintiff indicates that he first attempted to file a 602 grievance concerning the excessive force claim on December 9, 2017, but it “disappeared and was never answered.” ECF No. 88 at 1-2.[6] He subsequently filed a “2nd 602 appeal[] [on] January 2, 2018 for excessive force….” Id. at 2. Plaintiff argues generally that the exhaustion of his administrative remedies was obstructed by state officials. ECF No. 88 at 3.

         VI. ...


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