United States District Court, N.D. California
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT FOR
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES RE: DKT. NO.
HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE
has filed a pro se action pursuant to 42 U.S.C.
§ 1983 alleging that on September 6, 2016, Pelican Bay
State Prison (“PBSP”) officers J. Schrag, A.
Maylin, T. Gray, and J. Taylor used excessive force on him in
violation of the Eighth Amendment. Now pending before the
Court is defendants' motion for summary judgment for
failure to exhaust administrative remedies. ECF No. 12.
Plaintiff has not filed an opposition, and defendants have
not filed a reply and the deadline to do so has long since
passed. For the reasons set forth below, defendants'
motion for summary judgment is GRANTED.
to the amended complaint (Dkt. No. 10), on September 6, 2016,
while plaintiff was housed in PBSP Unit 2, Cell 210,
defendants used excessive force on him. While plaintiff was
pinned to the floor by defendants Maylin, Gray and Taylor,
defendant Schrag ordered two of his correctional officers to
“get [plaintiff's] arms.” Plaintiff was not
resisting but defendant Maylin proceeded to use unnecessary
force by pinning plaintiff's right arm to the ground, and
defendant Gray proceeded to use unnecessary force by pinning
plaintiff's left arm to the ground. Defendant Taylor then
placed plaintiff on the cell floor with such force that both
arms of plaintiff's eyeglasses broke off. Defendant
Taylor then placed his entire body on the length of
plaintiff's body and put plaintiff in a headlock.
Plaintiff did not resist but believed that Defendant Taylor
would choke him to death. Defendant Taylor eventually stopped
choking plaintiff at the direction of defendant Gray. Dkt.
Additional Factual Background
same day, plaintiff was issued a rules violation report, RVR
No. 854730, for battery on a peace officer. According to RVR
No. 854730, defendant Schrag approached plaintiff's cell
that day to talk to him about moving to a different building.
After plaintiff exited his cell, he was advised of the
upcoming move. Plaintiff became resistant and backed into his
cell with defendant Schrag following him into the cell.
Plaintiff was ordered to stop moving, but he continued
backing up into the cell. Defendant Schrag attempted to place
plaintiff's left hand behind his back in order to secure
him in restraints. Plaintiff immediately wildly swung his
left arm and hit defendant Schrag on the upper right side of
his lip. Plaintiff was restrained and moved to short term
restrictive housing. Dkt. No. 21-3 at 6; Dkt. No. 21-2 at 9.
April 12, 2017, plaintiff was found guilty of the RVR. Dkt.
No. 21-3 at 9-16.
filed two grievances regarding this incident: Grievance No.
PBSP-A-17-01008 and Grievance No. OOA-17-06786.
18, 2017, a month after the guilty finding, plaintiff filed
Grievance No. PBSP-A-17-01008 seeking the dismissal of the
RVR and the related guilty finding. Plaintiff stated:
On the date in question I did not even resist as all parties
present [Officers Maylin, Taylor and Gray] physically
restrained myself. According to Sergeant J. Schrag incident
report I was being re-housed based on a staff complaint that
I had submitted days prior. The log # on said complaint is
Dkt. No. 21-2 at 11, 13. This grievance bypassed the first
level of review and was denied at the second level on June
13, 2017, on the grounds that there was no compelling reason
why the Senior Hearing Officer (“SHO”) that
conducted the RVR disciplinary hearing should have rendered a
different decision; that the guilty finding was reasonable;
and that plaintiff had failed to present sufficient evidence
to warrant a reduction, dismissal or alteration of the guilty
finding. The second level decision stated that “[t]he
purpose of [a grievance] is not to conduct a new hearing or
arrive at a finding independent of the SHO.” The second
level decision reported that at the RVR hearing, plaintiff
made the following statement in his defense “Not
Guilty;” made no other statement; and offered no
evidence in his defense or to support his not guilty plea.
The second level decision also reported that the SHO noted
that all due process issues had been met and complied with
and that there was a preponderance of evidence to support the
charge and finding of guilt. Dkt. No. 21-2 at 8-10.
26, 2017, plaintiff appealed the second level decision to the
third level. Dkt. No. 21-4 at 5. On July 17, 2017, the appeal
was screened out for failure to attach supporting documents.
Dkt. No. 21-4 at 5. On July 31, 2017, plaintiff resubmitted
the second level decision to the third level. The appeal of
the second level decision was screened out on August 25, 2017
for “time constraints not [being] met.” Dkt. No.
21-4 at 5. There is no copy of this appeal in the
record so it is unclear on what grounds plaintiff appealed
the second level decision on June 26, 2017, and what
supporting documents were not attached to the June 26, 2017