(PC) Guerra v. Kern County Sheriff's Department et al, No. 1:2013cv01077 - Document 54 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Defendants' 37 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Barbara A. McAuliffe on 3/7/16. Referred to Judge Ishii; 14-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOAQUIN GUERRA, 12 Plaintiff, 13 14 15 v. KERN COUNTY SHERIFF‘S DEPARTMENT, et al., Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-01077-AWI-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF No. 37) FOURTEEN (14) DAY DEADLINE 18 FINDINGS AND RECOMMENDATIONS 19 20 21 I. Background Plaintiff Joaquin Guerra ( Plaintiff ) is proceeding pro se and in forma pauperis in this civil 22 rights action pursuant to 42 U.S.C. §1983. This action proceeds on Plaintiff‘s first amended complaint 23 against Defendants Sweeney and Feely for deliberate indifference to serious medical needs in 24 violation of the Fourteenth Amendment. These claims arise out of Plaintiff‘s allegations that 25 Defendants were aware of but indifferent to Plaintiff‘s need for medical attention for his eye in May 26 2012 while he was in the custody of the Kern County Sheriff. (ECF No. 11.) 27 On May 22, 2015, Defendants filed a motion for summary judgment pursuant to Federal Rule 28 of Civil Procedure 56, arguing Plaintiff has failed to exhaust his administrative remedies. Fed. R. Civ. 1 1 P. 56(c); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 403 2 (2014). (ECF No. 37.) On May 27, 2015, the Court issued a second informational order, providing 3 Plaintiff with notice of the requirements for opposing a motion for summary judgment. Woods v. 4 Carey, 684 F.3d 934 (9th Cir.2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.1988); Klingele v. 5 Eikenberry, 849 F.2d 409, 411–12 (9th Cir.1988). (ECF No. 39.) On June 5, 2015, Plaintiff filed a 6 declaration and brief. (ECF No. 40.) Defendants did not file any reply, but on August 13, 2015, they 7 filed a notice of non-opposition, discussed further below. (ECF No. 41.) At this time, Defendants‘ 8 motion for summary judgment is deemed submitted. Local Rule 230(l). 9 II. Legal Standard 10 A. Statutory Exhaustion Requirement 11 Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that [n]o action shall 12 be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 13 prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as 14 are available are exhausted. 42 U.S.C. § 1997e(a). Exhaustion is required regardless of the relief 15 sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 16 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, 17 Porter v. Nussle, 534 U.S. 516, 532 (2002). 18 The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising 19 and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 921 (2007); 20 Albino, 747 F.3d at 1166. In the rare event that a failure to exhaust is clear on the face of the 21 complaint, a defendant may move for dismissal under Rule 12(b)(6). Albino, 747 F.3d at 1166. 22 Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled 23 to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most 24 favorable to the plaintiff, shows he failed to exhaust. Id. 25 B. Summary Judgment Standard 26 Any party may move for summary judgment, and the Court shall grant summary judgment if 27 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 28 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 2 1 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party‘s position, 2 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of 3 materials in the record, including but not limited to depositions, documents, declarations, or discovery; 4 or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or 5 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 6 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to 7 by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco 8 Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 9 F.3d 1011, 1017 (9th Cir. 2010). 10 The defendants bear the burden of proof in moving for summary judgment for failure to 11 exhaust, Albino, 747 F.3d at 1166, and they must prove that there was an available administrative 12 remedy, and that the prisoner did not exhaust that available remedy, id. at 1172. If the defendants 13 carry their burden, the burden of production shifts to the plaintiff to come forward with evidence 14 showing that there is something in his particular case that made the existing and generally available 15 administrative remedies effectively unavailable to him. Id. If undisputed evidence viewed in the 16 light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary 17 judgment under Rule 56. Id. at 1166. However, [i]f material facts are disputed, summary judgment 18 should be denied, and the district judge rather than a jury should determine the facts. Id. 19 III. Discussion Summary of CDCR’s Administrative Review Process 20 A. 21 The California Department of Corrections and Rehabilitation (CDCR) has an administrative 22 grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. The process is initiated by 23 submitting a CDCR Form 602 describing the issue and the relief requested. Id. at § 3084.2(a). Three 24 levels of review are involved—a first level review, a second level review and a third level review. Id. 25 at § 3084.7. Bypassing a level of review may result in rejection of the appeal. Id. at § 3084.6(b)(15). 26 Under § 1997e, a prisoner has exhausted his administrative remedies when he receives a decision at 27 the third level. See Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997). 28 /// 3 Plaintiff’s Allegations in First Amended Complaint 1 B. 2 In Plaintiff‘s first amended complaint, he alleges as follows: On May 28-2012 after being booked into the Kern County Jail I asked both the Arresting Officer Chris Sweeney & Booking Officer Feely if I could get medical attention for a bad eye. At that time one of the officers asked the Jane Doe #1 nurse if she would see me she looked my way and denied me even though I told Jane Doe #1 nurse and Officer Sweeney & Feely that I was in servier pain. Just by looking at me I needed medical attention my eye was chut and it was dischargeing liquid it was obvious I need to go to the hospital because Officer Feely said that (Jane Doe #1) nurse never sends anyone to the (Hospital and/or KMC). Right after he said this all of them Officer Sweeney & Feely, (Jane Doe #1 nurse) started laughing and jokeing. 3 4 5 6 7 8 9 10 (ECF No. 11, pp. 3-4) (errors in original). 11 C. Statement of Defendants’ Relevant Facts1 12 1. Plaintiff stated in his First Amended Complaint that there is an inmate appeal or 13 administrative remedy process available at his institution, and he did not file an appeal or grievance 14 concerning the facts contained in the First Amended Complaint. (FAC, ECF No. 11, p. 2.) 15 2. At the time plaintiff was a prisoner in the Kern County Jail in May of 2012, there was a 16 grievance procedure in place for prisoners regarding treatment at Kern County Jail. (Decl. of Michael 17 Mahoney ( Mahoney Decl. ), ECF No. 38-1, ¶¶ 4-6; see also Kern County Sheriff‘s Department 18 Detentions Bureau Policies and Procedures, ECF No. 38-1, pp. 15-20.)2 19 3. Plaintiff testified at his deposition that there was a grievance procedure in place for 20 prisoners regarding treatment at the Kern County Jail. (Pl.‘s Dep., ECF No. 38-1, pp. 46:10-18, 47:14- 21 19.) 22 23 24 Defendants‘ Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, ECF No. 38. 1 It is unclear exactly what facility Plaintiff means by Kern County Jail in his first amended complaint. Consequently, Defendants have submitted a declaration by a declarant who states he is familiar with the Kern County Sherriff‘s Department generally, (Mahoney Decl. ¶ 3), and that the inmate grievance procedure applies to all Kern County Detention Facilities, including the Central Receiving Facility, Lerdo Pre-Trial Facility, Lerdo Max-Med Facility and the Lerdo Minimum Security Facility, (Id. ¶ 4). As noted below, in the declaration Plaintiff submitted in opposition to Defendants‘ motion, Plaintiff declares that he was held at the Lerdo Pre-trial Facility at the time of the incident. (Declaration of Joaquin Guerra, ECF No. 40, p.1.) 2 25 26 27 28 4 4. 1 2 Plaintiff testified at his deposition that he did not see the need to continue with the grievance process. (Id.) 5. 3 There is no record of any grievance filed by the plaintiff with regards to his treatment in 4 the Kern County Jail in May of 2012. (Decl. of Sergeant Anthony Gordon ( Gordon Decl. ), ECF No. 5 38-1, ¶ 3; Decl. of Lieutenant Adam Plugge ( Plugge Decl. ), ECF No. 38-1, ¶ 4.)3 Summary of Plaintiff’s Relevant Facts4 6 D. 7 The affiant [Plaintiff] swears that administrative tort claim was filed by mail with the County 8 of Kern, Clerk of the Board of Supervisors (Government Code 910, 910.2 & 910.4) on the date of July 9 24, 2012, address 1115 Truxtun Ave 5th floor Bakersfield, CA 93301 and never received any kind of 10 response from the Board of Supervisors. 11 Also Plaintiff Guerra declares that any/all legal advice and/or legal forms filed were given to 12 Plaintiff Guerra by the legal research associates at Lerdo Pre-trial Facilitie where Plaintiff Guerra was 13 being detained at the time of this incident. 14 Plaintiff Guerra being a layman not having sufficient knowledge of the law could only follow 15 the instructions given to Plaintiff Guerra by the Kern County Pre-Trial Legal Research Associates 16 governed by the County of Kern. 17 Plaintiff Guerra declares that in a memo Plaintiff Guerra Received from Legal Research 18 Associates stated in bod black lettering, (you must first have exhausted the administrative procedures. 19 This means filing an administrative tort claim with the city, county, and/or state in question) Which Plaintiff Guerra did, with this said all Plaintiff Guerra did was follow instructions with 20 21 the understanding that, that was the procedure needed to exhaust administrative remedies. Plaintiff Guerra was never instructed that he must file a grievance first nor was Plaintiff Guerra 22 23 ever given a grievance form to file. 24 25 3 27 Declarant Plugge states in his declaration that Plaintiff has never filed a grievance while incarcerated at the Central Receiving Facility/Downtown Jail. (Plugge Decl. ¶ 4). Declarant Gordon states in his declaration that there is no record of a grievance filed by Plaintiff at the Central Receiving Facility, or the Lerdo Pre-trial or Lerdo Maximum-Medium facilities, and that the relevant records do not show Plaintiff was housed at the Lerdo Minimum facility. (Gordon Decl. ¶ 3.) 28 4 26 Guerra Decl. (all errors in original). 5 1 2 E. Analysis 1. Defendants’ Notice of No Opposition Filed 3 Before addressing the issue of Plaintiff‘s exhaustion of his administrative remedies, the Court 4 must first address Defendants‘ notice of no opposition. (ECF No. 41.) In that notice, Defendants 5 request that the Court dismiss Plaintiff‘s action with prejudice for failure to prosecute. Defendants cite 6 in support the Court‘s May 27, 2015 second information order informing Plaintiff that his failure to 7 respond to their motion for summary judgment could result in such a dismissal. (ECF No. 39 ¶ 2.) 8 They argue that although Plaintiff filed and served a declaration on June 5, 2015, he did not serve 9 them with an opposition, and therefore dismissal with prejudice for failure to prosecute is proper here. 10 On June 5, 2015, Plaintiff filed and served a declaration from himself, signed under penalty of 11 perjury, (ECF No. 40, pp. 1-2), accompanied by separately signed and dated brief addressing 12 Defendants‘ motion for summary judgment, (Id. at 3.) His filings do not fully comply with the Local 13 Rules or the Court‘s second informational order setting forth instructions for the procedure for 14 opposing Defendants‘ motion. However, it is well-established that the pleadings of pro se litigants are 15 held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 16 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam). Inmate litigants, therefore, should not 17 be held to a standard of strict literalness with respect to the requirements of the summary judgment 18 rule. Jacobsen v. Filler, 790 F.2d 1362, 1364–65 & n. 4 (9th Cir. 1986). 19 In this instance, Plaintiff has filed a one-page brief discussing his reasons for opposing 20 Defendants‘ motion for summary judgment. (ECF No. 40, p. 3.) Defendants do not discuss this brief in 21 their notice, but it was attached to the declaration filed with this Court that Defendants acknowledge 22 Plaintiff served upon them. Plaintiff‘s declaration was also separately signed under penalty of perjury, 23 and contains facts in support of his position in his brief. (Id. at pp. 1-2.) A declaration that is based 24 upon personal knowledge, and which sets forth facts admissible into evidence to which the declarant is 25 competent to testify, is appropriate evidence to consider at the summary judgment stage. See Moran v. 26 Selig, 447 F.3d 748, 759–60 (9th Cir. 2006); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004); 27 Lopez v. Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000). See also 28 U.S.C. § 1746. Plaintiff also 28 attached a relevant exhibit to this filing, which is discussed in his declaration. (ECF No. 40, pp. 4-5.) 6 1 Although Plaintiff‘s brief is not artfully presented, the Court will not construe Plaintiff‘s 2 submissions as if he failed to submit any opposition to Defendants‘ motion whatsoever. To the extent 3 Plaintiff‘s declaration sets forth admissible evidence, it should be considered in opposition to 4 Defendants‘ motion, along with his arguments. Thus, in these circumstances it is not appropriate to 5 dismiss Plaintiff‘s action with prejudice for failure to prosecute, and Defendants‘ request should be 6 denied. 7 2. Exhaustion of Administrative Remedies 8 Turning to Defendants‘ motion for summary judgment, the Court finds that Defendants 9 Sweeney and Feely have carried their initial burden of showing the absence of exhaustion here. As 10 Defendants argue, Plaintiff does not dispute that there was a grievance procedure in place at his 11 institution at the time of the incident he complains about. Plaintiff also does not dispute that he did not 12 file any inmate appeal or grievance through the institution‘s procedures. 13 The burden therefore shifts to Plaintiff, who must show that there is something particular in 14 his case that made the existing and generally available administrative remedies effectively unavailable 15 to him by showing that the local remedies were ineffective, unobtainable, unduly prolonged, 16 inadequate, or obviously futile.‘ Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting 17 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014)). Acts by prison officials that prevent the 18 exhaustion of administrative remedies may make administrative remedies effectively unavailable. See 19 Nunez v. Duncan, 591 F.3d 1217, 1224–25 (9th Cir. 2010). The ultimate burden of proof, however, 20 remains with the defendants, and the evidence must be viewed in the light most favorable to Plaintiff. 21 Paramo, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172). 22 In this case Plaintiff contends, albeit inartfully, that he was mislead, either mistakenly or 23 intentionally, by the jail‘s officials regarding the procedure for exhausting his administrative remedies, 24 making those remedies effectively unavailable to him. (ECF No. 40, p. 3.) In support, Plaintiff submits 25 a declaration under penalty of perjury explaining that he was instructed by the legal research 26 associates at the Lerdo Pre-trial Facility (where he was being held at the time of the incident) that he 27 needed to file an administrative claim form with Kern County to exhaust his administrative remedies. 28 (ECF No. 40, pp. 1-2.) Attached to Plaintiff‘s declaration is a hand-written copy of the claim form he 7 1 declares he was instructed to file, which is completed, signed, and dated July 24, 2012. (ECF No. 4-5.) 2 The form references the California Government Code, and is a form used for exhausting 3 administrative remedies with respect to a state tort claim under the California Government Claims Act. 4 See Cal. Gov‘t Code §§ 905.2, 910, 911.2, 945.4, 950, 950.2 (West 2011). See also Shirk v. Vista 5 Unified Sch. Dist., 42 Cal. 4th 201, 208-09 (2007) (presentation of a written claim and action on or 6 rejection of the claim are conditions precedent to a suit under the California Government Claims Act); 7 State v. Superior Court of Kings Cnty. (Bodde), 32 Cal. 4th 1234, 1239, 13 Cal. Rptr. 3d 534 (2004) 8 (same). Plaintiff declares that in following the instructions from the legal research assistants to 9 complete and file this form, he understood that this was all that was needed to do to exhaust his 10 administrative remedies. (ECF No. 40, p. 2.) Plaintiff further declares that he was not otherwise 11 instructed to file a grievance form or given any grievance form to file. (Id.) 12 Upon shifting the burden to Plaintiff, the Court, viewing the evidence in the light most 13 favorable to Plaintiff, finds that he has sufficiently demonstrated that the prison‘s administrative 14 remedies were effectively unavailable to him. Paramo, 775 F.3d at 1191. He has proffered evidence 15 showing that he took reasonable steps in attempting to exhaust his administrative remedies, but was 16 prevented from properly exhausting his federal claims by misleading information from the jail‘s legal 17 staff. The jail‘s legal research associates, Plaintiff admits, may have acted based on an innocent 18 mistake or misunderstanding. Based on Plaintiff‘s testimony in his declaration, however, the staff‘s 19 instructions were the cause of Plaintiff‘s failure to exhaust his administrative remedies, regardless of 20 whether they acted in bad faith or not. Nunez 591 F.3d at 1226 (plaintiff excused from exhaustion 21 based on warden‘s innocent mistake in misinforming plaintiff about information related to claim). A 22 reasonable, rational inmate in Plaintiff‘s position cannot be expected to discern that the staff‘s legal 23 advice only related to exhausting the administrative remedies for a state law tort claim and not for 24 federal constitutional claims. 25 In these circumstances, Plaintiff has sufficiently rebutted Defendants‘ evidence in support of 26 their motion, and they have not carried their ultimate burden of proof for their affirmative defense. 27 Accordingly, Defendants are not entitled to summary judgment based on the failure to exhaust 28 administrative remedies at this time. 8 1 2 3 V. Conclusion and Recommendation For the reasons stated, IT IS HEREBY RECOMMENDED that Defendants‘ motion for summary judgment for failure to exhaust administrative remedies (ECF No. 37) be DENIED. 4 These Findings and Recommendations will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 6 days after being served with these Findings and Recommendations, the parties may file written 7 objections with the Court. The document should be captioned Objections to Magistrate Judge‘s 8 Findings and Recommendations. The parties are advised that failure to file objections within the 9 specified time may result in the waiver of the right to challenge the magistrate‘s factual findings on 10 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 11 1391, 1394 (9th Cir. 1991)). 12 13 14 15 IT IS SO ORDERED. Dated: /s/ Barbara March 7, 2016 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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