Robinson v. Schrag

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES RE: DKT. NO. 21

          HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         BACKGROUND

         I. Complaint

         According 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. No. 10.

         II. Additional Factual Background

         That 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.

         On April 12, 2017, plaintiff was found guilty of the RVR. Dkt. No. 21-3 at 9-16.

         Plaintiff filed two grievances regarding this incident: Grievance No. PBSP-A-17-01008 and Grievance No. OOA-17-06786.^[1]

         Grievance No. PBSP-A-17-01008.

         On May 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 PBSP-16-02187.

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.

         On June 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.^[2] 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 ...