United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
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
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. 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. For the reasons
discussed below, the undersigned recommends granting
defendants' motion for summary judgment and denying
plaintiff's motion as moot.
Plaintiff's Motion to Appoint Counsel
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
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.
Plaintiff's Motion for a Preliminary Injunction
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. ECF No. 97. Defendants filed
their supplemental response on July 8, 2019. ECF No. 99.
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.
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
Summary Judgment Standards
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....”
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.
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.
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).
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).
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).
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
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.
Defendant's Motion for Summary Judgment
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.
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.
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.
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. 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. However, only those assertions in the
opposition which have evidentiary support in the record will
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.
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
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.