United States District Court, N.D. California
MIGUEL A. CELIS, V74892, Plaintiff,
R. RUIZ, et al., Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON GROUNDS
OF FAILURE TO PROPERLY EXHAUST (ECF NO. 22)
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
before the court for decision is defendants' motion for
summary judgment under Federal Rule of Civil Procedure 56 on
the grounds that plaintiff failed to properly exhaust
available administrative remedies before filing suit, as
required by the Prison Litigation Reform Act (PLRA). For the
reasons that follow, the motion will be granted.
OF THE CASE
February 2, 2019, plaintiff, a prisoner at Salinas Valley
State Prison (SVSP), filed a pro se complaint under
42 U.S.C. § 1983 alleging deliberate indifference to his
health and safety by several correctional and medical
officials at SVSP. ECF No. 1.
alleges that on November 23, 2017, Correctional Officer R.
Ruiz acted with deliberate indifference to plaintiff's
health and safety when, in an attempt to stop an assault on
plaintiff by another prisoner, Ruiz fired a rubber bullet at
close range and without warning hitting plaintiff on the head
and causing him serious head injury. Id. at 6.
Plaintiff further alleges that doctors Steven Virant, Carl
Bourne and Anthony Huyuth, and Chief Medical Officer Bright,
have been deliberately indifferent to his serious medical
needs by failing to properly address and treat his repeated
complaints of severe headaches, dizziness and memory loss.
Id. at 8-12
move for summary judgment under Federal Rule of Civil
Procedure 56 on grounds that plaintiff failed to properly
exhaust available administrative remedies before filing suit,
as required by the PLRA. ECF No. 22. Plaintiff did not file
an opposition despite being advised to do so.
OF UNDISPUTED FACTS
January 8, 2018, plaintiff filed grievance SVSP-18-000156,
which alleged that Ruiz used inappropriate or excessive force
by shooting plaintiff with a rubber foam bullet during an
altercation between plaintiff and another prisoner on
November 27, 2017. ECF No. 22, Spaich Decl., Ex. B at 3-6.
The grievance bypassed the first level of review and was
processed as a staff complaint at the second level of review.
Id. at 7-8. On February 4, 2018, the grievance was
denied at the second level. Id. The second level
response found that Ruiz did not violate California
Department of Corrections and Rehabilitation (CDCR) policy
and noted that plaintiff was interviewed about the issue, and
his only statement in support of his claim was “no
comment.” Id. Plaintiff appealed the denial to
the third level of review. At the third level, the office of
appeals received plaintiff's appeal on March 1, 2018 but
cancelled it on the ground that plaintiff exceeded the time
limits to submit the appeal despite having the opportunity to
do so within the prescribed time limits. Id. at 2.
The letter informing him of the cancellation decision advised
the he could separately appeal the cancellation decision.
Id. Plaintiff did not do so. Id. at Ex. A.
November 28, 2018, plaintiff filed healthcare grievance
SVSP-HC-18002544, asserting that he was shot with a rubber
foam bullet on November 27, 2017, requesting an MRI, and
claiming that medical staff violated his constitutional
rights by denying the MRI. ECF No. 22, Gates Decl., Ex. B at
4-5. He received a response from the institutional level -
the first level of review - stating that no intervention by
the institution was necessary. Id. at 2-3. The
response also notified plaintiff that he could appeal the
decision by submitting his grievance to the headquarters
level, and the headquarters level review would constitute the
final disputation and exhaust his administrative remedies.
Id. Plaintiff did not appeal to the headquarters
level. Id. at Ex. A.
Standard of Review
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) (en banc)
(citing Woodford v. Ngo, 548 U.S. 81, 85 (2006)). To
the extent that the evidence in the record permits, the
appropriate procedural device for pretrial determination of
whether administrative remedies have been exhausted under the
PLRA is a motion for summary judgment under Rule 56.
Id. at 1168. The burden is on the defendant to prove
that there was an available administrative remedy that the
plaintiff failed to exhaust. Id. at 1172. If the
defendant meets that burden, the burden shifts to the
prisoner to present 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
the defendant, however. Id.
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. Id. at 1166. But
if material facts are disputed, summary judgment should be
denied and the district judge ...