(PC) Todd v. Johnson et al, No. 1:2012cv02083 - Document 88 (E.D. Cal. 2015)

Court Description: FINDINGS And RECOMMENDATIONS To Deny Defendants' Motion For Summary Judgment (ECF No. 70 ), Fourteen (14) Day Objection Deadline, signed by Magistrate Judge Michael J. Seng on 3/16/2015. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/2/2015. (Fahrney, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ANTHONY TODD, Plaintiff, 12 v. 13 14 P. JOHNSON, et al., Defendants. 15 Case No. 1:12-cv-02083-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 70) FOURTEEN (14) DAY OBJECTION DEADLINE 16 17 18 19 20 21 22 23 24 25 26 27 28 I. PROCEDURAL HISTORY Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Doe, Harrington, Johnson, Norton, and Weatherford on Plaintiff’s Eighth Amendment failure to protect claim. (See ECF No. 29.) Defendants Harrington, Johnson, Norton and Weatherford have appeared in the action. Defendant Doe has not been identified. On July 3, 2014, Defendants filed a motion for summary judgment on the ground Plaintiff failed to exhaust his administrative remedies. (ECF No. 70.) Plaintiff filed an opposition (ECF No. 84), and Defendants filed a reply (ECF No. 87). This matter is deemed submitted. 1 II. LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT 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). The Court shall grant summary judgment if the movant shows that there is no 5 genuine dispute as to any material fact and the movant is entitled to judgment as a 6 matter of law. Fed. R. Civ. P. 56(a); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 7 1216 (9th Cir. 2011). “If undisputed evidence viewed in the light most favorable to the 8 prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under 9 Rule 56.” Albino, 747 F.3d at 1166. If material facts are disputed, summary judgment 10 should be denied, and the Court should decide disputed factual questions relevant to 11 exhaustion “in the same manner a judge rather than a jury decides disputed factual 12 questions relevant to jurisdiction and venue.” Id. at 1169-71. 13 Each party’s position, whether it be that a fact is disputed or undisputed, must be 14 supported by (1) citing to particular parts of materials in the record, including but not 15 limited to depositions, documents, declarations, or discovery; or (2) showing that the 16 materials cited do not establish the presence or absence of a genuine dispute or that 17 the opposing party cannot produce admissible evidence to support the fact. Fed R. Civ. 18 P. 56(c)(1). In judging the evidence at the summary judgment stage, the Court may not 19 make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty 20 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007), and it must draw all inferences in the 21 light most favorable to the nonmoving party, Comite de Jornaleros de Redondo Beach 22 v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). 23 III. FACTUAL SUMMARY 24 Plaintiff’s claims concern acts that occurred at California State Prison, Corcoran 25 (“CSP—COR”). In brief summary, his relevant allegations are as follows: 26 Plaintiff is a member of the United Society of Aryan Skinheads (“USAS”), which 27 forbids members from participating in prison politics or obeying orders issued by gangs. 28 Defendants were aware of Plaintiff’s USAS membership. Plaintiff alleges that 2 1 Defendants ignored threats to his safety by placing him in a double cell on a group yard, 2 despite his affiliation with USAS. His allegations concern Defendants’ conduct from 3 February 10, 2010 to October 2, 2012. (ECF No. 12.) It is undisputed that Plaintiff did not timely and properly exhaust administrative 4 5 remedies with respect to these claims. (ECF Nos. 70, 84, & 87.) As discussed in further 6 detail below, the parties dispute whether administrative remedies were “effectively 7 unavailable” to Plaintiff, thereby excusing Plaintiff from the exhaustion requirement. 8 IV. PARTIES’ ARGUMENTS 9 Defendants argue that Plaintiff’s contentions that his attempted appeals 10 disappeared, were rejected, were cancelled or were destroyed are insufficient to defeat 11 summary judgment.1 (ECF No. 70.) They argue that Plaintiff has not produced copies of 12 the missing appeals or explained his inability to produce such copies. He does not 13 explain when the appeals were submitted, nor to whom or how, and does not provide 14 information regarding the content of the appeals. He does not explain whether the 15 appeals named Defendants or addressed the events alleged in Plaintiff’s complaint. He 16 does not provide facts to indicate the appeals were improperly screened. He does not 17 explain why he did not attempt to submit the improperly screened appeals to the third 18 level of review, at least for purposes of generating a record. Citing cases that preceded 19 Albino, Defendants argue that Plaintiff’s “self-serving testimony” is insufficient to excuse 20 him from the exhaustion requirement. However, Defendants request that a preliminary 21 proceeding be held to resolve the issue of exhaustion if the Court determines that 22 disputed issues of material fact exist. Plaintiff argues that there are genuine issues of material fact regarding 23 24 exhaustion, and that these issues must be resolved by a jury. (ECF No. 84.) He also 25 argues that the PLRA exhaustion requirement is unconstitutional. He contends that he 26 attempted to exhaust his administrative remedies but was prevented from doing so by 27 28 Defendants’ motion for summary judgment largely responds to arguments made in opposition to Defendants’ motion to dismiss for failure to exhaust administrative remedies. That motion was denied on procedural grounds following Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). (ECF No. 69.) 1 3 1 prison officials. He submitted numerous appeals, most of which were never 2 acknowledged. Those that were acknowledged later were lost by prison staff. Plaintiff 3 was unable to copy the appeals prior to submission due to prison policies and limited 4 law library access. During discovery, Defendants refused to provide copies of his 5 attempted appeals or a list of his attempted appeals.2 The California Department of 6 Corrections and Rehabilitation has a long history of destroying inmate appeals. Appeals 7 for inmates in the Security Housing Unit (“SHU”) are handled by multiple correctional 8 officers who know that they can defeat an inmate’s civil action by throwing the appeals 9 away. The process of screening out, rejecting, cancelling, or destroying appeals 10 prevents inmates from exhausting administrative remedies. In support, Plaintiff submits a declaration outlining the following attempts to 11 12 exhaust his administrative remedies: 13 On March 15, 2010, he submitted an appeal alleging that Defendants 14 Johnson, Norton, and Doe set him up to be attacked by members of the 15 Aryan Brotherhood gang. This appeal was never acknowledged. 16 On March 21, 2010, he sent an inquiry to the Appeals Office asking whether 17 his March 15, 2010 appeal had been received. The inquiry was not 18 acknowledged. 19 On March 28, 2010, he submitted a duplicate of the March 15, 2010 appeal. This appeal was never acknowledged. 20 21 On April 4, 2010, he inquired about the March 15 and March 28, 2010 appeals, and his inquiry was not acknowledged. 22 23 From January 31, 2011 to February 12, 2012 Plaintiff submitted several 24 appeals and inquiries not relevant to the claims in the instant action. These 25 appeals were not acknowledged. 26 27 28 2 Plaintiff did not file any motions to compel discovery. 4 1 On October 21, 2012, Plaintiff submitted an appeal alleging that Harrington 2 Weatherford, Mascarenas and Smith3 set him up to be attacked by members 3 of the Aryan Brotherhood gang. This appeal was not acknowledged. 4 On October 28, 2012, Plaintiff submitted an inquiry regarding the October 21, 2012 appeal, but the inquiry was not acknowledged. 5 In reply, Defendants reiterate that Plaintiff’s account of his attempt to exhaust is 6 7 vague and self-serving. (ECF No. 87.) They also reiterate their request for an 8 evidentiary hearing. 9 V. DISCUSSION Legal Standard – Exhaustion 10 A. 11 The Prison Litigation Reform Act (“PLRA”) provides, “No action shall be brought 12 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by 13 a prisoner confined in any jail, prison, or other correctional facility until such 14 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 15 Therefore, prisoners are required to exhaust all available administrative remedies prior 16 to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007). Prisoners must complete the 17 administrative review process in accordance with the applicable procedural rules. 18 Woodford v. Ngo, 548 U.S. 81, 90 (2006). An untimely or otherwise procedurally 19 defective appeal will not satisfy the exhaustion requirement. Id. Defendants have the burden of proving Plaintiff failed to exhaust available 20 21 administrative remedies. See Jones, 549 U.S. at 216 (failure to exhaust is an affirmative 22 defense). A defendant's burden of establishing an inmate's failure to exhaust 23 administrative remedies has been characterized by the Ninth Circuit as “very low.” 24 Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). The defendant need only show the 25 existence of a grievance procedure the plaintiff did not use. Id. (citing Hilao v. Estate of 26 Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). 27 3 Claims against Defendant Mascarenas were dismissed. (ECF No. 29.) No one named Smith was ever a party to this 28 action. (ECF No. 12.) 5 1 An inmate may be excused from the exhaustion requirement where 2 administrative remedies were “effectively unavailable.” Nunez v. Duncan, 591 F.3d 3 1217, 1226 (9th Cir. 2010). Administrative remedies may be considered “effectively 4 unavailable” where prison officials fail to respond to a properly filed grievance or 5 administrative appeals are improperly screened. Sapp v. Kimbrell, 623 F.3d 813, 822-23 6 (9th Cir. 2010). To fall within this exception, an inmate must establish, “(1) that he 7 actually filed a grievance or grievances that, if pursued through all levels of 8 administrative appeals, would have sufficed to exhaust the claim that he seeks to 9 pursue in federal court, and (2) that prison officials screened his grievance or 10 grievances for reasons inconsistent with or unsupported by applicable regulations.” Id. 11 at 823-24. 12 B. Analysis 13 As an initial matter, Plaintiff’s argument that the issue of exhaustion must be 14 decided by a jury is incorrect. The United States Court of Appeals for the Ninth Circuit 15 has clearly stated that the issue of exhaustion is to be resolved by a judge, rather than a 16 jury. Albino, 747 F.3d at 1170. 17 Additionally, Defendants request for an evidentiary hearing at this stage of the 18 proceedings is misplaced. The Court cannot hold an evidentiary hearing to resolve 19 disputed factual questions on a motion for summary judgment. Id. at 1169-71. Rather, 20 where disputed factual issues preclude summary judgment, the motion must be denied, 21 and the issue of exhaustion must be resolved by the judge in a separate preliminary 22 proceeding. Id. 23 In that vein, the Court finds that there is a genuine issue of material fact as to 24 whether Plaintiff attempted to exhaust his administrative remedies, but was prevented 25 from doing so for reasons inconsistent with or unsupported by applicable regulations. 26 Plaintiff contends that he attempted to appeal the conduct at issue in this case on March 27 15, 2010, and October 21, 2012, but that his appeals were never acknowledged. He 28 6 1 attempted to obtain records regarding these appeals from Defendants but none were 2 provided. He was unable to make copies of these appeals due to prison policies and 3 lack of law library access. Defendants attempt to cast doubt on Plaintiff’s contentions by 4 pointing out that Plaintiff successfully filed numerous other appeals during the relevant 5 period, and exhausted at least eleven appeals to the third level of review. They also 6 state that his description of the appeals is vague, self-serving, and unsupported by 7 documentary evidence. Neither party submits documentary evidence proving or 8 disproving the existence of these disputed appeals, and it appears that no such 9 evidence exists. 10 The Court cannot resolve this issue without weighing the evidence and making a 11 finding as to parties’ credibility. However, such determinations are prohibited on a 12 motion for summary judgment. Soremekun, 509 F.3d at 984. Because of this dispute of 13 material fact, the Court will recommend that the motion for summary judgment be 14 denied. 15 VI. CONCLUSION AND RECOMMENDATION 16 The Court finds there are disputed issues of material fact regarding exhaustion, 17 precluding summary judgment. Accordingly, the Court HEREBY RECOMMENDS that 18 Defendants’ motion for summary judgment (ECF No. 73) be denied. It is FURTHER 19 RECOMMENDED that an evidentiary hearing be conducted to resolve the issue of 20 exhaustion. 21 The findings and recommendations will be submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 23 Within fourteen (14) days after being served with the findings and recommendations, 24 the parties may file written objections with the Court. The document should be 25 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” A party 26 may respond to another party’s objections by filing a response within fourteen (14) days 27 after being served with a copy of that party’s objections. The parties are advised that 28 failure to file objections within the specified time may result in the waiver of rights on 7 1 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: March 16, 2015 /s/ 6 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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