United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTIONS; AND (Docs. 54,
55, 63, 69) FINDINGS AND RECOMMENDATIONS TO GRANT
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES AND TO DENY AS MOOT
DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (Doc.
49) FOURTEEN-DAY DEADLINE
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
move for summary judgment for failure to exhaust
administrative remedies. They also move for judgment on the
pleadings on qualified immunity grounds as to one of the
claims asserted against Defendants Longoria and Noland.
Plaintiff opposes the first motion, but he has not asserted
any argument against the latter motion. Plaintiff has also
filed several discovery-related motions. Because the
undisputed facts demonstrate that Plaintiff did not exhaust
his administrative remedies prior to filing suit as to any of
his claims, the Court will deny all of Plaintiff's
motions, and it will recommend that Defendants' motion
for summary judgment for failure to exhaust administrative
remedies be granted and that the motion for judgment on the
pleadings be denied as moot.
Plaintiff's Federal Rule of Civil Procedure 56(d) and
Local Rule 260(b) Motion
moves to stay adjudication of Defendants' motion for
summary judgment so that the parties may have an opportunity
to conduct discovery before proceeding to the merits of his
claims. (Doc. 54.) The Court construes this motion as one
brought pursuant to Federal Rule of Civil Procedure 56(d) and
Local Rule 260(b).
56(d) provides “a device for litigants to avoid summary
judgment when they have not had sufficient time to develop
affirmative evidence.” United States v. Kitsap
Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002). A
party seeking additional discovery under Rule 56(d) must
“explain what further discovery would reveal that is
‘essential to justify [its] opposition' to the
motion[ ] for summary judgment.” Program Eng'g,
Inc. v. Triangle Publ'ns, Inc., 634 F.2d 1188, 1194
(9th Cir. 1980) (first alteration in original).
showing cannot, of course, predict with accuracy precisely
what further discovery will reveal; the whole point of
discovery is to learn what a party does not know or, without
further information, cannot prove. See, e.g.,
Pac. Fisheries Inc. v. United States, 484 F.3d 1103,
1111 (9th Cir. 2007) (“[T]he purpose of discovery is to
aid a party in the preparation of its case ....”);
Fed.R.Civ.P. 26(b) advisory committee's note to 1946
amendment) (“The purpose of discovery is to allow a
broad search for facts ... or any other matters which may aid
a party in the preparation or presentation of his
case.”). But for purposes of a Rule 56(d) request, the
evidence sought must be more than “the object of pure
speculation.” California v. Campbell, 138 F.3d
772, 779-80 (9th Cir. 1998) (citation omitted). A party
seeking to delay summary judgment for further discovery must
state “what other specific evidence it hopes to
discover [and] the relevance of that evidence to its
claims.” Program Eng'g, 634 F.2d at 1194
(emphasis added). In particular, “[t]he requesting
party must show [that]: (1) it has set forth in affidavit
form the specific facts it hopes to elicit from further
discovery; (2) the facts sought exist; and (3) the
sought-after facts are essential to oppose summary
judgment.” Family Home & Fin. Ctr., Inc. v.
Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.
Rule 260(b), in turn, provides, in relevant part, “If a
need for discovery is asserted as a basis for denial of the
motion [for summary judgment], the party opposing the motion
shall provide a specification of the particular facts on
which discovery is to be had or the issues on which discovery
is necessary.” E.D. Cal. Local Rule 260(b).
fails to identify any discovery that he believes is necessary
to oppose Defendants' motion for summary judgment.
Instead, he cites to several cases for the proposition that a
court should not grant summary judgment against a party who
has not yet had an opportunity to pursue discovery. See,
e.g., Jones v. Blanas, 393 F.3d 918, 930-31
(9th Cir. 2004). While this is true, the fact remains that a
motion for summary judgment for failure to exhaust
administrative remedies is not a vehicle through which the
merits of a Plaintiff's claims are reached. Rather, it
concerns a preliminary jurisdictional requirement that must
be satisfied before the merits may even be reached.
Therefore, Plaintiff's motion will be denied.
Defendants' Motion for Summary Judgment for Failure to
Plaintiff's Allegations and Undisputed Facts
Court found Plaintiff's complaint to state several
cognizable claims stemming from multiple, distinct incidents:
1) a First Amendment retaliation claim against Villarrial,
Dollarhide, Longoria, and Noland in their individual
capacities; 2) an Eighth Amendment excessive force claims
against Campbell, Morelock, Longoria, Noland and Burns in
their individual capacities; 3) an Eighth Amendment medical
indifference claim against Dollarhide, Longoria, and Burns in
their individual capacities; 4) a Fourteenth Amendment Equal
Protection claim against Longoria, Noland, and Alvarado in
their individual capacities; and 5) Americans with
Disabilities Act (“ADA”) claims against Alfaro
and Sexton in their official capacities.
facilitate review of Plaintiff's claims and related
administrative grievances, the Court will present each
incident separately and include evidence of Plaintiff's
is a state prisoner who suffers from a psychiatric disorder,
Self-Injurious Behavior (“SIB”), whereby he cuts
himself with sharp objects to relieve anxiety and other
mental distress. SIB can lead to dangerous levels of
self-harm. In September 2016, Plaintiff arrived at California
State Prison in Corcoran to participate in the Mental Health
Services Delivery System (“MHSDS”). He describes
several incidents in which he was deliberately treated poorly
by staff members who were aware of his susceptibility to
self-harm. Due to these incidents, Plaintiff did indeed
engage in self-harm.
October and December 2016, Defendants Noland and Longoria
openly ridiculed Plaintiff and other MHSDS prisoners who were
standing in line for medication. When Plaintiff complained
about the treatment to these staff members, Longoria and
Noland, along with other officers, hand-cuffed Plaintiff,
pushed him into walls while escorting him to a holding cage,
locked him in the holding cage for 1-2 hours still
handcuffed, and continued to call him names.
Evidence of Exhaustion
is no evidence that Plaintiff submitted a grievance as to the
conduct of thes two Defendants' from October through
December 2016. There is, however, an inmate grievance
submitted on January 11, 2017, Log No. 17-0305, alleging
misconduct by non-party CO Flores and Defendant Noland on
January 10, 2017, in the form of tight handcuffs, shoving
Plaintiff into a wall, forcefully pushing Plaintiff into a
holding cage, and name calling, but this could not have
served to exhaust Plaintiff's administrative remedies
because it related to a January 2017 incident and it involved
different individuals. See Decl. of D. Goree in
Supp. of Defs.' Mot. Summ. J. (Doc. 49-5) Ex. V.
around February 11, 2017, Plaintiff was assigned to a yard
crew position as a part of his mental health treatment.
However, Defendants Alvarado, Longoria, and Noland refused to
call Plaintiff to report to work or to put Plaintiff to work.
In late February 2017, Plaintiff asked Alvarado, Longoria,
Noland and other officers why he had not been called to work.
Longoria stated, “We don't hire J-cats.”
Noland laughed, and Alvarado stated, “Go back to your
cell. If we want you, we'll call you.” Plaintiff
was never called to work.
Evidence of Exhaustion
March 29, 2017, Plaintiff submitted an inmate grievance, Log
No. 17-2955, complaining about the refusal of various yard
officers to call Plaintiff to work because of his mental
health status. See Goree Decl. Ex. CC (Doc. 49-5 at
177-83). This grievance was lost for a period of time.
11, 2017, Plaintiff submitted a Reasonable Modification or
Accommodation Request (“RAP”) on a CDCR 1824
form, Log No. 17-2507, complaining about the failure of
facility staff to allow Plaintiff to report to work because
of his “mental health psychiatric disability.”
Goree Decl. Ex. GG (Doc. 49-5 at 215-16). The RAP was denied
on June 1, 2017, because Plaintiff's request did not
include any disability discrimination issues. Id.
(Doc. 49-5 at 214). Plaintiff was then informed that if he
disagreed with the decision, he could submit an inmate
4, 2017, Plaintiff submitted an inmate grievance regarding
the RAP denial. Goree Decl. Ex. JJ (Doc. 49-5 at 258-60).
This grievance appears to have been related to the
earlier-filed grievance, Log No. 17-2955, and construed at
the second level of review as a staff complaint. It was
partially granted at the second level of review on July 13,
2017, and then denied at the third level of review on
November 3, 2017. Decl. of M. Voong in Supp. of Defs.'
Mot. Summ. J. ⁋ 11, Ex. YY (Doc. 49-7 at 85-86, 91-92).
This grievance did not exhaust Plaintiff's administrative
remedies as to this incident because the grievance was
processed at the final level of review after this case was
January 23, 2017, there was a gang-related disturbance at
CSP-Cor. Although Plaintiff was not involved, he was ordered
to lay prone and was shivering in wet grass for two hours.
Campbell and Morelock secured Plaintiff's wrist with
excessively tight restraints. They then commented that
Plaintiff was an MHSDS inmate as they roughly searched
Plaintiff and removed his pants, exposing his buttocks.
During the search, Plaintiff's pubic hairs were
forcefully ripped out. Defendants roughly pulled up
Plaintiff's pants and boxer shorts, causing Plaintiff
discomfort. As Plaintiff was putting his feet into his shoes,
Defendants shoved him forward, preventing Plaintiff from
putting on one shoe and causing other prisoners to laugh.
Evidence of Exhaustion
January 23, 2017, Plaintiff filed an inmate grievance, Log
No. 17-0465, concerning this incident. Goree Decl. Ex. W
(Doc. 49-5 at 102-09). This grievance was converted to a
staff complaint and was partially granted at the second level
of review on July 28, 2017. Plaintiff was informed that he
could appeal the decision by submitting an appeal to the
Secretary's/Third Level of Review, but there is no
evidence that Plaintiff submitted the appeal for further
review. This grievance therefore did not exhaust
Plaintiff's administrative remedies as to this incident.
about April 12, 2017, Plaintiff's counselor determined
that Plaintiff was eligible for a Level III override referral
to a progressive programming facility at California State
Prison - Los Angeles (“CSP-LAC”). On May 30,
2017, Plaintiff learned that the referral was not going
through. On June 2, 2017, Dollarhide advised Plaintiff that
his case needed to be taken back to the committee to be
approved. Then, on June 4, Dollarhide said that Villarrial
had intervened and stopped the Level III override from going
back to the committee because Plaintiff “files a lot of
complaints.” Villarrial refused to hold a new committee
for Plaintiff's referral. He also falsified information
about Plaintiff not meeting behavioral requirements, using
this as a pretense to reject Plaintiff's referral.
Evidence of Exhaustion
filed several grievances regarding referrals to other
institutions. On May 31, 2017, Plaintiff submitted an inmate
grievance, Log No. 17-2954, complaining about his exclusion
by the Unit Classification Committee (“UCC”) on
May 3, 2017, from an override to another facility. Goree
Decl. Ex. HH (Doc. 49-5 at 221-23). Plaintiff claimed he met
all the requirements for a transfer, but he was denied due to
a “bogus” Staff Separation Alert that he claims
was planted in his file. Plaintiff's grievance was denied
at the first level of review on June 22, 2017, and then at
the second level of review on September 11, 2017.
Id. (Doc. 49-5 at 224-28). There is no record of
Plaintiff submitting this grievance to the third level of
11, 2017, Plaintiff submitted an inmate grievance, Log No.
17-3020, regarding a “botch[ed]” UCC action from
May 24, 2017. Goree Decl. Ex. KK (Doc. 49-5 at 265-68). This
grievance was bypassed at the first level of review and then
partially granted at the second level of review on August 1,
2017. Id. (Doc. 49-5 at 269-70). There is no record
of Plaintiff submitting this grievance to the third level of
21, 2017, Plaintiff submitted an inmate grievance, Log No.
17-3177, complaining about Dollarhide and Villarrial's
denial of Plaintiff's override. Goree Decl. Ex. II (Doc.
49-5 at 250-253). The grievance was screened on June 22,
2017, and it was rejected for having exceeded the allowable
number of appeals within a 14-day period. Id. (Doc.
49-5 at 249). Presumably upon resubmission, it was screened
again at the second level of review on July 3, 2017, and
Plaintiff was asked to explain how this ...