United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED IN
PART AND DENIED IN PART (ECF No. 36.) OBJECTIONS, IF ANY, DUE
WITHIN FOURTEEN DAYS
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Smith (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. This case now proceeds with Plaintiff's First
Amended Complaint filed on June 23, 2017, against defendants
Sergeant Gonzales, Correctional Officer (C/O) Johnson, C/O
Castro, C/O Miner, C/O Florez, and C/O Potzernitz for use of
excessive force in violation of the Eighth Amendment; against
defendants C/O Fritz and C/O Scaife for failure to protect
Plaintiff in violation of the Eighth Amendment; and against
defendant Sergeant Gonzales for retaliation in violation of
the First Amendment. (ECF No. 12.)
April 30, 2019, Defendants filed a motion for summary
judgment based on Plaintiff's failure to exhaust
administrative remedies. (ECF No. 36.) On July 1, 2019,
Plaintiff filed an opposition to the motion. (ECF No. 39.) On
July 19, 2019, Defendants filed a reply to Plaintiff's
opposition. (ECF No. 44.) Defendants' motion for summary
judgment has been submitted upon the record without oral
argument pursuant to Local Rule 230(l), and for the
reasons that follow, the court finds that Defendants'
motion for summary judgment should be granted in part and
denied in part.
PLAINTIFF'S ALLEGATIONS IN THE FIRST AMENDED
time of the events at issue in this case, Plaintiff was
incarcerated at Corcoran State Prison (CSP) in Corcoran,
September 12, 2013, Plaintiff arrived at CSP. Plaintiff was
diagnosed with a urinary infection which caused him severe
pain, he was prescribed Tylenol with Codeine and antibiotics.
On September 23, 2013, while defendant C/O Johnson was
escorting Plaintiff to get his pain medications, Plaintiff
doubled up in pain. Defendant Johnson asked, “Hey old
timer are you alright, ” and Plaintiff told him about
the infection that was causing him severe pain. (ECF No. 12
September 24, 2013, at 7:00 a.m., defendants C/O Johnson and
C/O Fritz (female) came to conduct a random search of
Plaintiff's cell. C/O Johnson instructed C/O Gonzales
(control booth officer - not a defendant) to open
Plaintiff's cell. Plaintiff's cell mate was sitting
on the top bunk. Defendant Johnson opened the cell door and
instructed Plaintiff to remove all of his clothing, turn
around, bend forward at the waist, and pull his buttocks
apart and hold them open so that defendant Johnson could
examine Plaintiff's rectal area. Other inmates were being
released for breakfast and witnessed this strip search in the
presence of the female C/O. Per CDCR policy, Plaintiff
squatted and coughed. Johnson stated that if Plaintiff
didn't allow him to “look up my butt, ” he
would have Plaintiff placed on potty watch. (ECF No. 12 at
5.) Plaintiff requested potty watch. Defendant Johnson gave
Plaintiff his boxer shorts and as soon as Plaintiff put them
on defendant Johnson grabbed Plaintiff by the arm and the
back of his head and slammed his face into the wall busting
Plaintiff's mouth, and then handcuffed him. C/O Gonzales
also witnessed the incident by C/O Johnson. When C/O Johnson
slammed Plaintiff's face into the wall, C/O Gonzales
stuck his gun out of the control booth and pointed it at
Plaintiff. Defendant Johnson told C/O Fritz to watch
Plaintiff's cell mate and to spray him if he moved. C/O
Johnson locked Plaintiff in the shower and went back to
search Plaintiff's cell. C/O Johnson returned to the
shower and asked if Plaintiff was going to follow his
instructions. Plaintiff just looked at him. C/O Johnson
instructed C/O Gonzales to open the shower door and told
Plaintiff to exit. As Plaintiff came out, C/O Johnson grabbed
him by the hand, still handcuffed, bent his wrist very
aggressively, escorted Plaintiff to the program office and
placed him into a holding cage.
time later, defendants Sgt. Gonzales, C/O Johnson, C/O
Castro, C/O Miner, C/O Florez, C/O Potzernitz, and C/O Scaife
came into the holding area. C/O Scaife stood by the door and
observed. Sgt. Gonzales stated that C/O Johnson believed
Plaintiff had contraband secreted in his rectal cavity.
Plaintiff informed Sgt. Gonzales about his urinary infection
that was causing him severe pain and told Sgt. Gonzales that
he could verify this information at the clinic. Sgt. Gonzales
said that wasn't necessary, he just needed to check
Plaintiff for contraband. Sgt. Gonzales instructed Plaintiff
to remove his boxers, raise his hands up, open his mouth, and
run his fingers through his hair, which Plaintiff did. Sgt.
Gonzales then unlocked the holding cage and instructed him to
exit, which Plaintiff did. Sgt. Gonzales told Plaintiff to
turn his back to him, bend forward at the waist and grab his
buttocks and spread them open so he could “see up my
butt.” (ECF No. 12 at 6:15.) Plaintiff told Sgt.
Gonzales that CDCR policy was to squat and cough. Plaintiff
squatted and coughed five times. Sgt. Gonzales told Plaintiff
he needed to follow his instructions or he would place
Plaintiff on potty watch. Plaintiff said he would rather be
on potty watch than hold his butt open for a bunch of
homosexual correctional officers. Sgt. Gonzales then stated,
“I'm not going to waste everybody's time
placing you on potty watch, ” then grabbed Plaintiff
and instructed the other C/Os to take Plaintiff down. (ECF
No. 12 at 6:19-20.) Defendants Johnson, Castro, Miner,
Florez, and Potzernitz all attacked Plaintiff, forcing him to
the ground naked. Plaintiff was kicked and stomped in the
head, shoulders, back, and legs. C/O Castro and C/O
Potzernitz stood on Plaintiff's upper back pinning him to
the ground. C/O Miner and C/O Florez grabbed Plaintiff's
ankles and forced his legs apart. Defendant C/O Scaife stood
by and watched the assault. Then C/O Johnson got on the
ground, grabbed Plaintiff's buttocks, and spread them
apart. Sgt. Gonzales stood between Plaintiff's legs and
instructed C/O Miner and C/O Florez to lift his legs up. Sgt.
Gonzales then checked Plaintiff's rectal area, Plaintiff
was cleared and the officers let him go. Sgt. Gonzales
instructed Plaintiff to go back into the holding cage and
returned his boxer shorts to him. All of the officers stepped
out into the hallway. Plaintiff was humiliated and
time later, Plaintiff overheard C/O Johnson and Sgt. Gonzales
conspiring in the hallway. C/O Johnson said, “Inmate
Smith has a history of filing staff misconduct
complaints.” (ECF No. 12 at 7:4-5.) Sgt. Gonzales
responded, “Let him go back to his cell and if he says
anything we'll say he got into a fight with his cell
mate.” (ECF No. 12 at 7:6-7.)
Gonzales returned to the holding cage and instructed
Plaintiff to return to his cell. Plaintiff informed Sgt.
Gonzales that he needed medical attention and was in great
pain from being kicked and stomped. Sgt. Gonzales told
Plaintiff to return to his cell and he would notify medical
staff. At this point, Sgt. Gonzales picked up a towel and
started to wipe the boot prints off of Plaintiff's back.
Plaintiff told him not to touch him and started walking out
of the program office. Plaintiff turned left towards medical
instead of right toward 3A05 (his cell). Sgt. Gonzales came
running out of the program office, stopped Plaintiff and told
him to return to his cell. Plaintiff sat on the ground and
told Sgt. Gonzales he was in pain and needed medical
attention. Sgt. Gonzales instructed C/O Castro and C/O
Potzernitz to pick Plaintiff up and return him to his cell.
Castro and Potzernitz each grabbed Plaintiff under his arm
and started to half carry and half drag him across the yard.
Plaintiff started yelling, the yard tower activated an alarm
and Sgt. Gonzales instructed the officers to put him down.
Nurse Levan (not a defendant) arrived and asked what the
matter was. Plaintiff told the nurse that Sgt. Gonzales and
six C/Os had assaulted him. Sgt. Gonzales told the nurse that
they didn't assault Plaintiff, and Plaintiff's back
was dirty because he had lain on the ground. The nurse asked
Sgt. Gonzales how Plaintiff's mouth got busted and his
shoulder got bruised. Sgt. Gonzales told the nurse to
medically clear Plaintiff so they could put him back in his
cell. The nurse told Sgt. Gonzales to use a wheelchair to
return him to his cell and she would have Plaintiff seen by
the doctor later.
Levan filled out a CDCR-7219 medical report of
Plaintiff's injuries, noting redness and dried blood on
his mouth and abrasions on his shoulders, back, and legs.
Johnson confiscated Plaintiff's 602 form from his pocket
at the clinic window at noon when Plaintiff informed Nurse
Levan that he was suicidal. Sgt. Gonzales then read the 602
out loud to other C/Os at the program office while Plaintiff
was waiting to see his clinician Dr. Stokes (not a
Gonzales issued Plaintiff RVR #3-A-13-09-034 for willfully
delaying a peace officer as a way to justify his actions,
using creative writing to say he ordered C/Os Castro and
Potzernitz to pick Plaintiff up and return him to his cell
because when Plaintiff sat down and requested medical
attention, he was blocking the doorway to the program office
which was a hazard. Sgt. Gonzales also said that the 7219
medical report by Nurse Levan only listed a busted lip.
Initially, the RVR was written by C/O Johnson. But Sgt.
Gonzales altered it from saying Plaintiff squatted and
coughed to say that Plaintiff had not followed his
instructions to bend forward at the waist and spread his
buttocks. He said that after five minutes of speaking to
Plaintiff, Plaintiff complied and the search was concluded
with negative results. But the five-minute conversation
actually consisted of Sgt. Gonzales ordering his staff to use
force on Plaintiff, pinning him down, kicking and stomping
him, and forcibly spreading his buttocks apart. There were
also other errors written on the RVR, which is why Plaintiff
requested as witnesses C/O Gonzales, C/O Fritz, and
Plaintiff's cell mate. (ECF No. 12 at 9 ¶3.)
RVR hearing, Nurse Levan told Hearing Officer Lt. Marmolejo
(not a defendant) that Sgt. Gonzales told her (nurse) to turn
the report over to Sgt. Gonzales, who claimed he misplaced it
and never found it. However, Lt. Marmolejo did not record
this statement at the RVR hearing. Plaintiff had two other
medical reports done by Dr. Barnett (not a defendant) on
September 25, 2013, and Nurse Grisweld (not a defendant) on
September 24, 2013, to document Plaintiff's injuries
showing the injuries Plaintiff received from the assault on
September 24, 2013. At the hearing, Plaintiff was not allowed
to question Nurse Levan. Hearing Officer Lt. Marmolejo asked
Sgt. Gonzales if Plaintiff informed him of his medical
condition and that he needed to see the nurse. Sgt. Gonzales
answered that he didn't remember, but he contradicted
himself by saying Plaintiff sat on his butt claiming he
needed medical. Lt. Marmolejo did not allow Plaintiff's
requested witnesses. Also, Plaintiff should have been
assigned an Investigative Employee but was not. Plaintiff was
found guilty of a rules violation and forfeited 90 days of
credits and lost 90 days of privileges. Also, as a result of
the disciplinary proceeding, Plaintiff's privilege group
was changed from A-1 to B-2 status.
noon, Sgt. Gonzales instructed C/O Johnson to roll up
Plaintiff's property and bring it up to the program
office because if Plaintiff was going to file a 602 grievance
for staff misconduct and use of force, then Sgt. Gonzales
would have Plaintiff placed in Administrative Segregation
(Ad-Seg) for three to six months without his property.
Plaintiff was then placed in a mental health crisis bed on
suicide watch for a few days. When he returned to 3A yard all
of his property was missing. On October 16, 2013, some of
Plaintiff's property was returned by C/O Florez.
October 16, 2013, Plaintiff filed a 602 grievance,
#CSP-C-2-13-07568, concerning the use of excessive force and
not reporting it, which was partially granted on December 31,
2013. Plaintiff submitted it to the third level on January
15, 2014, where it was rejected on February 25, 2014.
Plaintiff re-submitted it on April 10, 2014, and it was
rejected again on July 28, 2014. Plaintiff submitted it again
on August 4, 2014, and it was rejected a third time on
October 15, 2014. Plaintiff wrote a letter to Attorney
General Kamala Harris on January 11, 2015, and a letter to
the Inspector General on February 22, 2015.
November 11, 2013, Plaintiff was placed on suicide watch
again. During this time, Plaintiff's property was rolled
up and never issued back to him. When Plaintiff returned back
to 3A yard on November 12, 2013, he refused to be housed with
a gang member. Custody attempted to move Plaintiff into a
cell which was already occupied by an inmate in the lower
bunk who was a gang member. Custody had written on
Plaintiff's bed card that he was a Crip gang member,
which is not true. The inmate had already made plans to move
a friend in with him, so Plaintiff refused to move in because
Plaintiff is not a gang member, and because Plaintiff also
had a lower bunk chrono. This upset Sgt. Gonzales because
Plaintiff had three cell moves in one month.
informed floor staff that he was suicidal and wanted to
return to the mental health crisis bed, so he was taken to
the program office and placed into a holding cage. Sgt.
Gonzales stated that he was tired of Plaintiff “going
suicidal, ” so he was going to move Plaintiff off 3A
yard. (ECF No. 12 at 15:12.) Sgt. Gonzales told
Plaintiff's clinician, Dr. Stokes, that he was placing
Plaintiff in Ad-Seg for safety concerns because Plaintiff had
told him (Gonzales) that Plaintiff was being beaten up by the
black inmates for no reason. Sgt. Gonzales issued Plaintiff a
fictitious lock-up order for safety concerns and had him
placed in Ad-Seg. Plaintiff alleges that he never told Sgt.
Gonzales he was being beaten up and that Sgt. Gonzales made
up a fictitious story to suit his purpose for the lock up
order and RVR.
clinician Dr. Stokes told Plaintiff that Sgt. Gonzales said
he was having Plaintiff placed in Ad-Seg for safety concerns,
but she (Stokes) was sending him to the mental health crisis
bed. When Plaintiff returned on November 15, 2013, he was
placed in Ad-Seg.
November 13, 2013, Sgt. Gonzales issued a chrono for safety
concerns which said that housing unit staff informed
Plaintiff that he would be housed with a compatible cell
mate. Sgt. Gonzales doesn't identify the cell mate or the
housing unit staff who said that Plaintiff stated,
“I'm not going to get beat up again. The last cell
mate I was with beat me up so I said I'd kill him if I
stayed in the cell with him.” (ECF No. 12 at 15:24-25.)
Plaintiff alleges that none of this is true. Plaintiff did
not tell Sgt. Gonzales that he had been assaulted multiple
times on Facility 3A by a black inmate. Plaintiff alleges
that he would have filed a 602 appeal if he had been
assaulted. Sgt. Gonzales never interviewed Plaintiff about
safety concerns. The document stating Plaintiff was claiming
safety concerns endangered Plaintiff's life on the
general population. Plaintiff never said that inmates Johnson
or Law were on his enemy list. Plaintiff contends that Sgt.
Gonzales issued the safety concerns order to get back at
Plaintiff for filing the 602 use of force appeal. Sgt.
Gonzales labeled him as a “snitch” and pressured
Plaintiff into being placed on a sensitive needs yard, both
which placed Plaintiff in danger when released back to the
yard or transferred to another prison. (ECF No. 12 at 17:19.)
CDCR 3315, other employees cannot issue write-ups on other
staff's behavior. The staff who witnessed the infraction
must write the RVR. Plaintiff contends that therefore, 3A02
housing staff, and not Sgt. Gonzales, should have issued him
an RVR for refusing a cell mate.
submitted a 602 appeal concerning his missing property and it
was assigned to Sgt. Gonzales at the first level of review.
On January 15, 2014, Sgt. Gonzales denied the appeal, stating
that Plaintiff never had any property while he was at CSP.
This was not true. Plaintiff had four boxes of property when
he arrived at CSP. The 602 was denied at the second and third
levels of review.
November 23, 2013, Plaintiff was scheduled for transfer to
Lancaster State Prison due to Sgt. Gonzales' safety
concerns. On January 5, 2014, Plaintiff filed a 602 appeal
concerning his transfer and another appeal concerning Sgt.
Gonzales falsifying state documents. On March 3, 2014,
Plaintiff was transferred to Pelican Bay Supermax State
Prison for no reason, where all of his chronos were
alleges he was retaliated against by Sgt. Gonzales for
exercising his right to file a grievance against Sgt.
Gonzales and his staff for using excessive force against
Plaintiff during a random cell search, and the retaliatory
actions did not advance any legitimate penological goals.
Plaintiff alleges that all of the following actions were
retaliatory: issuing the RVR and lock up order and placing
Plaintiff in Ad-Seg on November 12, 2013; recommending that
Plaintiff be transferred; and, confiscating Plaintiff's
personal property on November 12, 2013.
SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST
Statutory Exhaustion Requirement
1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA)
provides that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983],
or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Prisoners are
required to exhaust the available administrative remedies
prior to filing suit. Jones v. Bock, 549 U.S. 199,
211, 127 S.Ct. 910, 918-19 (2007); McKinney v.
Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
Exhaustion is required regardless of the relief sought by the
prisoner and regardless of the relief offered by the process,
Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819
(2001), and the exhaustion requirement applies to all
prisoner suits relating to prison life, Porter v.
Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002).
properly exhaust administrative remedies prisoners
‘must complete the administrative review process in
accordance with the applicable procedural rules,'
-rules that are defined not by the PLRA, but by the prison
grievance process itself.” Jones, 549 U.S. at
218 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126
S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). See also
Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)
(“The California prison system's requirements
‘define the boundaries of proper
exhaustion.'”). An untimely or otherwise
procedurally defective appeal will not satisfy the exhaustion
requirement. Woodford, 548 U.S. at 90. However, the
Ninth Circuit has made clear: A grievance need not include
legal terminology or legal theories unless they are in some
way needed to provide notice of the harm being grieved.
Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.
2009). A grievance also need not contain every fact necessary
to prove each element of an eventual legal claim.
the Ninth Circuit has recognized that a grievance suffices to
exhaust a claim if it puts the prison on adequate notice of
the problem for which the prisoner seeks redress. To provide
adequate notice, the prisoner need only provide the level of
detail required by the prison's regulations. Sapp v.
Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing
Jones, 549 U.S. at 218). The primary purpose of a
grievance is to alert the prison to a problem and facilitate
its resolution, not to lay groundwork for litigation.
Id; Griffin, 557 F.3d at 1120; see also
Jones, 549 U.S. at 219 (citing Johnson v.
Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We
are mindful that the primary purpose of a grievance is to
alert prison officials to a problem, not to provide personal
notice to a particular official that he may be sued; the
grievance process is not a summons and complaint that
initiates adversarial litigation.”). Thus, in this case
“[t]he California prison system's requirements
define the boundaries of proper exhaustion.”
Marella, 568 F.3d at 1027).
prisoner may be excused from complying with the PLRA's
exhaustion requirement if he establishes that the existing
administrative remedies were effectively unavailable to him.
See Albino v. Baca (“Albino II”), 747
F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate's
administrative grievance is improperly rejected on procedural
grounds, exhaustion may be excused as “effectively
unavailable.” Sapp, 623 F.3d at 823; 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,
1044-45 (9th Cir. 2012) (exhaustion excused where futile);
Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005)
(plaintiff not required to proceed to third level where
appeal granted at second level and no further relief was
available); Marella, 568 F.3d 1024 (excusing an
inmate's failure to exhaust because he did not have
access to the necessary grievance forms to timely file his
grievance). In such a case, “the inmate cannot pursue
the necessary sequence of appeals.” Sapp, 623
F.3d at 823.
California prisoner is required to submit an inmate appeal at
the appropriate level and proceed to the highest level of
review available to him. Butler v. Adams, 397 F.3d
1181, 1183 (9th Cir. 2005); Bennett v. King, 293
F.3d 1096, 1098 (9th Cir. 2002); see also Cal. Code
Regs. tit. 15, § 3084.1(b) (explaining that a
cancellation or rejection of an inmate's appeal
“does not exhaust administrative remedies”).
However, a prisoner need not “press on to exhaust
further levels of review once he has received all
‘available' remedies at an intermediate level of
review or has been reliably informed by an administrator that
no remedies are available.” Brown, 422 F.3d at
936 (citing Booth, 532 U.S. at 736-739; see also
Finley v. Skolnik, 616 Fed.Appx. 263, 264 (9th Cir.
2012) (Reversing dismissal for failure to exhaust).
submitting an inmate grievance, California regulations
require a prisoner to “list all staff members
involved” and to “describe their involvement in
the issue.” Cal. Code Regs. tit. 15, § 3084.2(3).
However, the Ninth Circuit has held that “a prisoner
exhausts such administrative remedies as are available . . .
under the PLRA despite failing to comply with a procedural
rule if prison officials ignore the procedural problem and
render a decision on the merits of the grievance at each
available step of the administrative process.”
Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016);
see also Franklin v. Foulk, 2017 WL 784894, at *4-5
(E.D. Cal. Mar. 1, 2017); Franklin v. Lewis, 2016 WL
4761081, at *6 (N.D. Cal. Sept. 13, 2016). Thus, a
prisoner's failure to list all staff members involved in
an incident in his inmate grievance, or to fully describe the
involvement of staff members in the incident, will not
necessarily preclude his exhaustion of administrative
remedies. Reyes, 810 F.3d at 958; Foulk,
2017 WL 784894, at *4 (“[T]he court in Reyes
found that even though the plaintiff's grievance failed
to name two physicians on the prison's three-person pain
committee, prison officials were put on notice of the nature
of the wrong alleged in the suit-that the plaintiff was
wrongfully denied pain medication.”); Lewis,
2016 WL 4761081, at *6 (“[T]o the extent Defendants
argue that Plaintiff failed to comply with a procedural
requirement by not naming Defendants in [his appeal], this
deficiency is not necessarily fatal to Plaintiff's claim
pursuant to Reyes”); Grigsby v.
Munguia, No. 2:14-cv-0789 GAB AC P, 2016 WL 900197, at
*11-12 (E.D. Cal. Mar. 9, 2016); see also Bulkin v.
Ochoa, 2016 WL 1267265, at *1-2 (E.D. Cal. Mar. 31,
2016); see also McClure v. Chen, 246 F.Supp.3d 1286,
1292-94 (E.D. Cal. Mar. 28, 2017).
for administrative remedies to be exhausted by California
prisoners as to defendants who were not identified in the
inmate grievance, there must be a “sufficient
connection” between the claim in the appeal and the
unidentified defendants such that prison officials can be
said to have had “notice of the alleged
deprivation” and an “opportunity to resolve
it.” Reyes, 810 F.3d at 959 (finding that
plaintiff had satisfied PLRA exhaustion requirements as to
two prison doctors despite not having identified them in his
inmate appeals because there was a sufficient connection
between plaintiff's appeal based on inadequate pain
management, and the doctors, who served on the prison
committee that had denied plaintiff medication);
McClure, 246 F.Supp 3d at 1293-94 (remedies
exhausted even though doctors not named in appeal; prison was
placed on notice).
California Department of Corrections and Rehabilitation
(CDCR) Administrative Grievance System
court takes judicial notice of the fact that the State of
California provides its prisoners and parolees the right to
appeal administratively “any policy, decision, action,
condition, or omission by the department or its staff that
the inmate or parolee can demonstrate as having a material
adverse effect upon his or her health, safety, or
welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).
The process is initiated by submitting a CDCR form 602.
Id. at § 3084.2(a).
prisoners are required to submit appeals within thirty
calendar days of the event being appealed, and the process is
initiated by submission of the appeal at the first level.
Id. at §§ 3084.7(a), 3084.8(c). Three
levels of appeal are involved, including the first level,
second level, and third level. Id. at § 3084.7.
The third level of review exhausts administrative remedies.
Id. at § 3084.7(d)(3). A final decision at the
third level of review satisfies the exhaustion
requirement under 42 U.S.C. § 1997e(a). Lira v.
Herrera, 427 F.3d 1164, 1166 (9th Cir. 2005). In order
to satisfy § 1997e(a), California state prisoners are
required to use this process to exhaust their claims prior to
filing suit. Woodford, 548 U.S. at 85 (2006);
McKinney, 311 F.3d. at 1199-1201.
Motion for Summary Judgment for Failure to
failure to exhaust in compliance with section 1997e(a) is an
affirmative defense under which defendants have the burden of
raising and proving the absence of exhaustion.
Jones, 549 U.S. at 216; Wyatt v. Terhune,
315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the
Ninth Circuit issued a decision overruling Wyatt
with respect to the proper procedural device for raising the
affirmative defense of exhaustion under § 1997e(a).
Albino II, 747 F.3d at 1168-69. Following the
decision in Albino II, defendants may raise
exhaustion deficiencies as an affirmative defense under
§ 1997e(a) in either (1) a motion to dismiss pursuant to
Rule 12(b)(6)or (2) a motion for summary judgment under
Rule 56. Id. If the court concludes that Plaintiff
has failed to exhaust, the proper remedy is dismissal without
prejudice of the portions of the complaint barred by §
1997e(e). Jones, 549 U.S. at 223-24; Lira,
427 F.3d at 1175-76.
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); Albino II, 747 F.3d at 1169
(“If there is a genuine dispute about material facts,
summary judgment will not be granted.”) 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, or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). In judging
the evidence at the summary judgment stage, the court
“must draw all reasonable inferences in the light most
favorable to the nonmoving party.” Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936, 942 (9th Cir. 2011). The court must liberally
construe Plaintiff's filings because he is a pro
se prisoner. Thomas v. Ponder, 611 F.3d 1144,
1150 (9th Cir. 2010).
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 II, 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.
arriving at these findings and recommendations, this court
carefully reviewed and considered all arguments, points and
authorities, declarations, exhibits, statements of undisputed
facts and responses thereto, if any, objections, and other
papers filed by the parties. Omission of reference to an
argument, document, paper, or objection is not to be
construed to the effect that this court did not consider the
argument, document, paper, or objection. This court has
thoroughly reviewed and considered the evidence it deemed
admissible, material, and appropriate.
otherwise noted, the following facts submitted by Defendants
are undisputed by the parties or as determined by the court