United States District Court, E.D. California
CARLTON V. MOSLEY, Plaintiff,
JEFFREY BEARD, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se and in forma pauperis,
seeks relief under 42 U.S.C. § 1983. The matter was
referred to this court pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302. Defendants have moved for
summary judgment. See ECF No. 33. For the reasons
stated below, the undersigned will recommend that the motion
FACTUAL AND PROCEDURAL BACKGROUND
case proceeds on claims that CSP-SAC mental health clinician
Blaikie and correctional officer Jones used excessive force
against plaintiff in violation of his Eighth Amendment
rights, and that CSP-SAC Warden Macomber failed to train
prison staff to handle mentally ill inmates without resorting
to force. ECF Nos. 26 (screening order); 24 (second amended
complaint). Plaintiff alleges that on April 28, 2015, he was
in the prison treatment center when he experienced “a
severe trauma episode.” Plaintiff lay on the floor
“in an attempt to reduce the sensation of
claustrophobia.” ECF No. 24 at 4. Blaikie then
activated an alarm that brought custodial staff to the scene.
Plaintiff alleges that Blaikie falsely told the officers that
plaintiff had been agitated and called her a
“bitch.” Plaintiff was handcuffed and ordered to
stand up. When he was unable to do so because of the trauma
he was experiencing, Blaikie and Jones (and others) roughly
hauled plaintiff up off the floor, injuring him. Plaintiff
was falsely charged with a rules violation. ECF No. 24.
instant motion, defendants contend that plaintiff's
claims are administratively unexhausted. ECF No. 33. The
motion is fully briefed. ECF Nos. 41 (opposition); 44
judgment is appropriate when the moving party “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). Under summary judgment practice, the
moving party “initially bears the burden of proving the
absence of a genuine issue of material fact.” In re
Oracle Corp. Securities Litigation, 627 F.3d 376, 387
(9th Cir. 2010) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)).
moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). “In evaluating the evidence to
determine whether there is a genuine issue of fact, ”
the court draws “all reasonable inferences supported by
the evidence in favor of the non-moving party.”
Walls v. Central Costa County Transit Authority, 653
F.3d 963, 966 (9th Cir. 2011).
Legal Standards for Exhaustion
Prison Litigation Reform Act
plaintiff is a prisoner challenging the conditions of his
confinement, his claims are subject to the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
The PLRA requires prisoners to exhaust available
administrative remedies before bringing an action challenging
prison conditions under § 1983. 42 U.S.C. 1997e(a).
“The PLRA mandates that inmates exhaust all available
administrative remedies before filing ‘any suit
challenging prison conditions,' including, but not
limited to, suits under § 1983.” Albino v.
Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (quoting
Woodford v. Ngo, 548 U.S. 81, 85 (2006)).
“[F]ailure to exhaust is an affirmative defense under
the PLRA.” Jones v. Bock, 549 U.S. 199, 216
(2007). It is the defendant's 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 (citing Hilao v. Estate
of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). The
burden then “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 unavailable to him.”
§ 1997e(a), the exhaustion requirement hinges on the
‘availab[ility]' of administrative remedies: An
inmate . . . must exhaust available remedies, but need not
exhaust unavailable ones.” Ross v. Blake, 136
S.Ct. 1850, 1858 (2016) (brackets in original). In discussing
availability in Ross, the Supreme Court identified
three circumstances in which administrative remedies were
unavailable: (1) where an administrative remedy
“operates as a simple dead end” in which officers
are “unable or consistently unwilling to provide any
relief to aggrieved inmates;” (2) where an
administrative scheme is “incapable of use”
because “no ordinary prisoner can discern or navigate
it, ” and (3) where “prison administrators thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.”
Ross, 136 S.Ct. at 1859-60. “[A]side from [the
unavailability] exception, the PLRA's text suggests no
limits on an inmate's obligation to exhaust -
irrespective of any ‘special circumstances.'
” Id. at 1856. “[M]andatory exhaustion
statutes like the PLRA establish mandatory exhaustion
regimes, foreclosing judicial discretion.” Id.
of the exhaustion requirement is a prerequisite to filing in
federal court. Absent pre-suit exhaustion, a complaint must
be dismissed without prejudice. McKinney v. Carey,
311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam).
The bottom line is that a prisoner must pursue the prison
administrative process as the first and primary forum for
redress of grievances. He may initiate litigation in federal
court only after the administrative process ends and leaves
his grievances unredressed. It would be inconsistent with the
objectives of the statute to let him submit his complaint any
earlier than that.
Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.
2006). Accordingly, the exhaustion requirement is not
satisfied or excused by exhausting available remedies during
the course of the litigation. McKinney, 311 F.3d at
California Regulations Governing Exhaustion of
California prison system's requirements ‘define the
boundaries of proper exhaustion.'” Marella v.
Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting
Jones, 549 U.S. at 218). In order to exhaust, the
prisoner is required to complete the administrative review
process in accordance with all applicable procedural rules.
Woodford, 548 U.S. at 90. California regulations
allow a prisoner to “appeal” any action or
inaction by prison staff that has “a material adverse
effect upon his or her health, safety, or welfare.”
Cal. Code Regs. tit. 15, § 3084.1(a)
(2017). The appeal process is initiated by the
inmate's filing a “Form 602” the
“Inmate/Parolee Appeal Form, ” “to describe
the specific issue under appeal and the relief
requested.” Id, § 3084.2(a). “The
California prison grievance system has three levels of
review: an inmate exhausts administrative remedies by
obtaining a decision at each level.” Reyes v.
Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal.
Code Regs. tit. 15, § 3084.1(b) (2011); Harvey v.
Jordan, 605 F.3d 681, 683 (9th Cir. 2010)).