(PC) Sahibi v. Gonzales. et al., No. 1:2015cv01581 - Document 64 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 44 Defendant Crounse's Motion for Summary Judgment be DENIED re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Michael J. Seng on 11/7/2016. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 OUSSAMA SAHIBI, Plaintiff, 12 v. 13 14 BORJAS GONZAES, et al., 15 Defendants. Case No. 1:15-cv-01581-LJO-MJS (PC) FINDINGS AND RECOMMENDATION TO DENY DEFENDANT CROUNSE’S MOTION FOR SUMMARY JUDGMENT (ECF No. 44) FOURTEEN (14) DAY OBJECTION DEADLINE 16 17 18 I. Procedural History 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 20 rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on Plaintiff’s 21 Eighth Amendment excessive force claim against Defendants Brandon Cope, Borjas 22 Gonzales, Mario Lozano, Howard Smith, and Stan, and on a Fourteenth Amendment 23 due process claim against Defendant Crounse. 24 Before the Court is Defendant Crounse’s motion for summary judgment, alleging 25 that Plaintiff failed to exhaust administrative remedies. (ECF No. 44.) Plaintiff filed an 26 opposition. (ECF No. 56.) Defendant filed a reply. (ECF No. 59) The matter is 27 submitted. Local Rule 230(l). 28 1 II. Legal Standard 2 A motion for summary judgment is the proper means to raise a prisoner's failure 3 to exhaust administrative remedies. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 4 2014). Defendants have the burden of proving Plaintiff failed to exhaust available 5 administrative remedies. See Jones, 549 U.S. at 216 (failure to exhaust is an affirmative 6 defense). A defendant's burden of establishing an inmate's failure to exhaust 7 administrative remedies has been characterized by the Ninth Circuit as “very low.” 8 Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). 9 The Court shall grant summary judgment if the movant shows that there is no 10 genuine dispute as to any material fact and the movant is entitled to judgment as a 11 matter of law. Fed. R. Civ. P. 56(a); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 12 1216 (9th Cir. 2011). “If undisputed evidence viewed in the light most favorable to the 13 prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under 14 Rule 56.” Albino, 747 F.3d at 1166. If material facts are disputed, summary judgment 15 should be denied, and the Court should decide disputed factual questions relevant to 16 exhaustion “in the same manner a judge rather than a jury decides disputed factual 17 questions relevant to jurisdiction and venue.” Id. at 1169-71. 18 Each party’s position, whether it be that a fact is disputed or undisputed, must be 19 supported by (1) citing to particular parts of materials in the record, including but not 20 limited to depositions, documents, declarations, or discovery; or (2) showing that the 21 materials cited do not establish the presence or absence of a genuine dispute or that 22 the opposing party cannot produce admissible evidence to support the fact. Fed R. Civ. 23 P. 56(c)(1). In judging the evidence at the summary judgment stage, the Court may not 24 make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty 25 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007), and it must draw all inferences in the 26 light most favorable to the nonmoving party, Comite de Jornaleros de Redondo Beach 27 v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). 28 2 1 III. Factual Summary 2 A. 3 Plaintiff’s claims arise out of a July 13, 2013 incident at California Correctional Plaintiff’s Complaint 4 Institution. Plaintiff claims that, on that date, he was released from his cell for Ramadan 5 services when Defendant Gonzales began to make disparaging remarks toward 6 Plaintiff. An altercation occurred between Plaintiff and Defendant Gonzales. Plaintiff was 7 subdued and handcuffed. Plaintiff alleges various acts by Defendant Gonzales and 8 others were excessive. Based on these allegations, the Court has permitted Plaintiff to 9 proceed on an excessive force claim against Defendants Gonzales, Smith, Cope, 10 Lozano and Stan. Such claim, however, is limited to Defendants’ actions after Plaintiff 11 was handcuffed. Plaintiff received a Rules Violation Report (“RVR”) in relation to this incident. On 12 13 November 14, 2013, he appeared before Defendant Crounse for his disciplinary 14 hearing. He asked Defendant Crounse to call Defendants Gonzales, Smith, Stan, Cope 15 and Lozano as witnesses. He alleges Defendant Crounse stated that he would not be 16 calling anyone “as staff reports gave a full account of the incident.” Plaintiff was found 17 guilty of the Rules Violation. The Court has permitted him to proceed on a Fourteenth 18 Amendment claim against Defendant Crounse based on the denial of his right to call 19 witnesses at his disciplinary hearing. 20 B. Exhaustion 21 It is undisputed that Plaintiff did not exhaust administrative remedies with respect 22 to any claims relating to his disciplinary proceedings or the actions of Defendant 23 Crounse. Plaintiff states that, on December 26, 2013, he submitted a 602 administrative 24 appeal regarding his disciplinary hearing but received no response. Defendant disputes 25 that any such appeal was submitted. Documents attached to Plaintiff’s complaint 1 reflect 26 the following with respect to Plaintiff’s efforts to exhaust: 27 28 1 Defendant does not dispute the authenticity of these documents or otherwise object to them. 3 1 On January 12, 2014, Plaintiff submitted a CDCR-22 Request for Interview to the 2 Appeals Coordinator. (ECF No. 56 at 14.) Therein, he stated that he submitted a 602 3 regarding his disciplinary proceeding “about three weeks ago” and had not received a 4 response. On January 16, 2014, staff responded that the institution had no record of 5 such an appeal. 6 On or about January 23, 2014, Plaintiff submitted a 602 administrative appeal as 7 an “emergency appeal.” Therein, he stated that he had submitted a 602 on December 8 26, 2013, but that the appeals office did not receive it. He asked that the institution 9 attempt to locate his 602 or, alternatively, allow his access to his C-file and additional 10 time to re-file the 602. (Id. at 15.) The appeal was rejected because it was not signed or 11 dated and because Plaintiff had not completed the CDCR-22 process. (Id. at 16.) 12 Plaintiff then attempted to pursue his appeal in various ways. He submitted an 13 administrative appeal directly to the third level of review; it was rejected. He resubmitted 14 to the first level of review; he received no response. He wrote letters to the Chief of 15 Appeals, the Prison Law Office, and the Office of the Inspector General; he received no 16 assistance. These efforts are not supported merely by bare assertions from Plaintiff. 17 Plaintiff submits undisputed evidence to show that he engaged in these admittedly 18 flawed attempts to exhaust. 19 IV. Analysis 20 A. 21 The Prison Litigation Reform Act (“PLRA”) stipulates, “No action shall be brought Legal Standard – Exhaustion 22 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by 23 a prisoner confined in any jail, prison, or other correctional facility until such 24 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 25 Therefore, prisoners are required to exhaust all available administrative remedies prior 26 to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). 27 The California Department of Corrections and Rehabilitation has an 28 administrative grievance system for prisoner complaints. Cal. Code Regs. tit. 15 4 1 § 3084.1. The process is initiated by submitting a CDCR Form 602. Id. at § 3084.2(a). It 2 is completed at the third level of review, also known as the Director’s Level of Review. 3 Id. at § 3084.7. 4 “The primary purpose of a [prisoner’s administrative] grievance is to alert the 5 prison to a problem and facilitate its resolution, not to lay groundwork for litigation.” 6 Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). “A grievance need not include 7 legal terminology or legal theories unless they are in some way needed to provide 8 notice of the harm being grieved. A grievance also need not contain every fact 9 necessary to prove each element of an eventual legal claim.” Id. Instead, the grievance 10 must “alert the prison to the nature of the wrong for which redress is sought,” and must 11 give the prison an opportunity “to reach the merits of the issue.” Id. at 1120-21. 12 An inmate may be excused from the exhaustion requirement where 13 administrative remedies were “effectively unavailable.” Nunez v. Duncan, 591 F.3d 14 1217, 1226 (9th Cir. 2010). Administrative remedies may be considered “effectively 15 unavailable” where prison officials fail to respond to a properly filed grievance or 16 administrative appeals are improperly screened. Sapp v. Kimbrell, 623 F.3d 813, 822-23 17 (9th Cir. 2010). To fall within this exception, an inmate must establish, “(1) that he 18 actually filed a grievance or grievances that, if pursued through all levels of 19 administrative appeals, would have sufficed to exhaust the claim that he seeks to 20 pursue in federal court, and (2) that prison officials screened his grievance or 21 grievances for reasons inconsistent with or unsupported by applicable regulations.” Id. 22 at 823-24. 23 B. Discussion 24 As stated, it is undisputed that Plaintiff did not exhaust administrative remedies 25 regarding Defendant Crounse or his rules violation report hearing. The question, then, is 26 whether such remedies were “effectively unavailable.” The Court finds that Plaintiff 27 presents sufficient evidence to raise a triable issue of fact as to whether administrative 28 remedies were effectively unavailable. Accordingly, Defendant Crounse’s motion for 5 1 summary judgment should be denied. Plaintiff states in a sworn declaration that, on December 26, 2013, he submitted 2 3 a 602 administrative appeal regarding his disciplinary hearing. Defendant initially argued 4 that this submission could not serve to exhaust Plaintiff’s administrative remedies 5 because it was untimely. In support, Defendant relied on title 15, section 3084.8(b) of 6 the California Code of Regulations, which requires inmates to submit an appeal within 7 thirty days of “[t]he occurrence of the event or decision being appealed, or . . . [u]pon 8 first having knowledge of the action or decision being appealed.” Plaintiff responded 9 with Department Operations Manual § 54100.8, which requires inmates to submit a 10 copy of their rules violation report with any appeal of a disciplinary action, and thus 11 specifically provides, “The date the final RVR copy is issued to the appellant shall serve 12 to establish the time limits for appeal of the RVR, not the date of the disciplinary 13 hearing.” (Emphasis added.) Defendant does not respond to this argument and thus 14 appears to have abandoned it. (ECF No. 59.) In any event, the final RVR was issued to 15 Plaintiff on December 6, 2013. (ECF No. 31-5 at 3.) Plaintiff’s alleged December 26, 16 2013 appeal was submitted within thirty days of that date and therefore would have 17 been timely.2 Defendant next argues that Plaintiff must be mistaken regarding his contention 18 19 that he submitted a 602 administrative appeal. Defendant opines that Plaintiff likely is 20 referring to a CDCR Form 22 that was submitted on December 26, 2013. Such forms do 21 not exhaust administrative remedies. It is true that Plaintiff submitted a Form 22 on 22 December 26, 2013. (ECF No. 44-5 at 12.) Neither party presents a legible copy of this 23 Form. However, from the little that can be discerned, it appears that Plaintiff was 24 inquiring about the status of an October 22, 2013 staff complaint. The Court can make 25 out no reference to Defendant Crounse, the disciplinary proceeding, or any appeal 26 27 28 2 Additionally, the potential untimeliness of this appeal does not necessarily defeat Plaintiff’s claims. If the appeal had been processed by the prison and rejected due to untimeliness, Plaintiff presumably would have had an opportunity to appeal that rejection. However, because the appeal allegedly was never processed, Plaintiff had no such opportunity. Thus, by failing to even process the appeal, the prison would have rendered any potentially available administrative remedies effectively unavailable to Plaintiff. 6 1 thereof. Again, Plaintiff has submitted a sworn declaration stating that he submitted a 2 602 administrative appeal on December 26, 2013. As Defendant points out, Plaintiff is 3 knowledgeable about the appeal process. (ECF No. 44-1 at 14, 59 at 2.) Records 4 before the Court demonstrate that Plaintiff is well-aware of the differences between a 5 602 and a Form 22. Defendant’s speculative argument does not undermine Plaintiff’s 6 declaration that he submitted a 602 administrative appeal. 7 Defendant next argues that Plaintiff’s assertion that he submitted a 602 is self- 8 serving and unsupported by the evidence. Such an argument is either disingenuous or 9 reflects a disturbing level of ignorance with regard to the legal standards applicable to 10 motions for summary judgment. Of course, declarations offered in support of or 11 opposition to motions for summary judgment often are self-serving. They nonetheless 12 may be sufficient to establish a genuine issue of material fact if, as here, they are based 13 on personal knowledge and state facts that could be offered into evidence, rather than 14 mere conclusions. S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir. 2007). Plaintiff need not 15 here corroborate his assertion. Id. In any event, as stated, Plaintiff has offered 16 corroborating evidence, most notably the January 12, 2014 Form 22 he submitted 17 inquiring after the status of his December 26, 2013 administrative appeal. 18 Finally, Defendant’s argument that Plaintiff’s claim (that he filed a 602) is not 19 credible, is equally questionable. Such arguments are improper on a motion for 20 summary judgment. Soremekun, 509 F.3d at 984 (court may not make credibility 21 determinations or weigh conflicting evidence). Both parties refer the Court to cases 22 outside this jurisdiction on the issue of whether an assertion that an inmate filed a 23 grievance and received no response is sufficient to defeat summary judgment. The 24 Court, however, relies on binding precedent stating that exhaustion motions are to be 25 decided under the standards applicable to any motion for summary judgment. Albino, 26 747 F.3d at 1166, 1169-70. The Court is aware of no circumstance in which a 27 competent declaration is insufficient to raise a genuine issue of material fact on 28 summary judgment. Courts in this district regularly hold that such declarations by 7 1 inmates are sufficient. E.g., Hamilton v. Hart, No. 1:10-cv-00272-LJO-EPG-PC, 2016 2 WL 1090109, at *1 (E.D. Cal. Mar. 21, 2016); Todd v. Johnson, No. 1:12-CV-020833 LJO, 2015 WL 1236440, at *4 (E.D. Cal. Mar. 17, 2015), report and recommendation 4 adopted, No. 1:12-CV-02083-LJO, 2015 WL 1637822 (E.D. Cal. Apr. 13, 2015). In any 5 event, the case relied on by Defendant, Kidd v. Livingston, 463 F. App'x 311, 313 (5th 6 Cir. 2012), was decided after an evidentiary hearing and is therefore inapposite. 7 Plaintiff has submitted evidence showing that he submitted a timely grievance 8 regarding his disciplinary proceeding and the conduct of Defendant Crounse, but 9 received no response. Such conduct, if true, would be sufficient to show that 10 administrative remedies were effectively unavailable. Defendant, however, denies that 11 any such grievance was filed. Accordingly, disputes of fact preclude summary judgment 12 on this issue. 13 C. Evidentiary Hearing 14 Where disputes of fact preclude summary judgment regarding exhaustion, a 15 defendant may seek to have such disputes resolved by a judge through an evidentiary 16 hearing. Albino, 747 F.3d at 1169-71. However, Defendant Crouse has not requested 17 such a hearing. Because exhaustion is an affirmative defense, see Jones, 549 U.S. at 18 216 (failure to exhaust is an affirmative defense), the undersigned will not recommend 19 further proceedings on this defense absent a request by Defendant. Indeed, in light of 20 the corroborating evidence offered by Plaintiff on summary judgment, it is difficult to 21 anticipate that an evidentiary hearing would be productive. Still, Defendant Crounse 22 reserves the right to seek such a hearing via objections to these findings and 23 recommendation. 24 VI. Conclusion and Recommendation 25 Disputes of fact preclude a finding that Plaintiff failed to exhaust administrative 26 remedies that were available to him. Accordingly, it is HEREBY RECOMMENDED that 27 Defendant Crounse’s motion for summary judgment be DENIED. 28 8 1 The findings and recommendation are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 3 fourteen (14) days after being served with the findings and recommendation, any party 4 may file written objections with the Court and serve a copy on all parties. Such a 5 document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendation.” Any reply to the objections shall be served and filed within fourteen 7 (14) days after service of the objections. The parties are advised that failure to file 8 objections within the specified time may result in the waiver of rights on appeal. 9 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 10 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 IT IS SO ORDERED. Dated: November 7, 2016 /s/ 14 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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