(PC) Garcia v. Biter et al, No. 1:2013cv00599 - Document 90 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendant's Motion for Summary Judgment be GRANTED and Plaintiff's case be DISMISSED without prejudice for failure to exhaust this administrative remedies re 60 MOTION for SUMMARY JUDGMENT ; referred to Judge O'Neill,signed by Magistrate Judge Sheila K. Oberto on 8/16/2016. Objections to F&R due (21-Day Deadline) (Martin-Gill, S)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 FELIPE GARCIA, Case No. 1:13-cv-00599-LJO-SKO (PC) Plaintiff, 11 FINDINGS AND RECOMMENDATION THAT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BE GRANTED v. 12 R. HERNANDEZ, et al., 13 (Doc. 60) Defendants. 21 DAY OBJECTION DEADLINE 14 _____________________________________/ 15 16 I. BACKGROUND Plaintiff Felipe Garcia, a state prisoner proceeding pro se and in forma pauperis, filed this 17 18 civil rights action pursuant to 42 U.S.C. § 1983 on April 25, 2013. This action is proceeding on 19 Plaintiff’s third amended complaint against Defendants Baker, Hernandez, and Mosqueda. 20 (Doc. 21 (Third Amended Complaint (“TAC”)).) On October 1, 2015, Defendants filed a motion for summary judgment1 pursuant to Federal 21 22 Rule of Civil Procedure 56. (Doc. 60 (“Motion”).) Plaintiff filed his opposition on October 19, 2 23 2015, and Defendants filed their reply on November 2, 2015. (Docs. 63 (“Opposition”); 72 24 (“Reply”).) Defendant’s motion for summary judgment was submitted on the record without oral 25 argument pursuant to Local Rule 230(l). 26 27 1 Concurrently with their motion for summary judgment, Defendants served Plaintiff with the requisite notice of the requirements for opposing the motion (Doc. 60-1). Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (See Doc. 66-2 (Rand warning).) 2 28 Plaintiff also filed a “second opposition” to the Motion (Doc. 73), which the Court struck as duplicative on May 9, 2016 (Doc. 85). 1 Defendants contend (1) Plaintiff failed to administratively appeal his First Amendment 2 Retaliation claim and Eighth Amendment claim for endangering his safety through the third and 3 final level of review, and (2) Plaintiff was not excused from complying with the exhaustion 4 requirement of the Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C. § 1997e(a). 5 Plaintiff contends he followed the correct procedure and that any failure of compliance was due to 6 Defendants’ or Defendants’ agents own errors. 7 After review of all submitted evidence and the statement of undisputed facts, the 8 undersigned RECOMMENDS Defendants’ motion be GRANTED. Construing all evidence 9 presented in the light most favorable to Plaintiff, the Court finds there is no genuine issue of 10 material fact regarding whether Plaintiff failed to comply with the exhaustion requirement of the 11 PLRA. For the reasons that follow, it is RECOMMENDED that Defendant’s motion be 12 GRANTED for failure to exhaust his administrative remedies. 13 II. 14 BACKGROUND3 Plaintiff is an inmate in the custody of the California Department of Corrections and 15 Rehabilitation (“CDCR”). (Doc. 60-3 (Defendants’ Statement of Undisputed Facts in Support of 16 Defendants’ Motion for Summary Judgment (“DUMF”)), ¶ 1.) Plaintiff filed this action on April 17 25, 2013, and filed his third amended complaint on May 7, 2014, containing allegations against 18 Defendants while Plaintiff was incarcerated at Kern Valley State Prison (“KVSP”). (Id., ¶ 2; 19 TAC.) Plaintiff filed the action after “discover[ing] [a] copy of 602-grievance dated Sept. 11, 20 2015 now stamped “confidential” - during discovery in criminal case: People v. Garcia, No. 21 DF011059A.” (Doc. 63 (Plaintiff’s Statement of Undisputed and Disputed Facts in Support of 22 Plaintiff’s Opposition (“PUMF”)), ¶ 1.) 23 It is undisputed that Plaintiff knew about and used the administrative grievance process 24 between March 6, 2006, and January 1, 2015. (DUMF, ¶ 12; PUMF, ¶ 12.) Appeal Log No. 25 3 This Court carefully reviewed and considered the record, including all evidence, arguments, points and authorities, 26 declarations, testimony, statements of undisputed facts and responses thereto, objections and other papers filed by the parties. Omission of reference to evidence, an argument, document, objection or paper is not to be construed to the 27 effect that this Court did not consider the evidence, argument, document, objection or paper. Although this Court has also reviewed, considered and applied the evidence it deemed admissible and material, it does not rule on objections 28 in a summary judgment context, unless otherwise noted. 2 1 MCSP-09-00854, filed in 2009 and involving a disciplinary issue at a different prison, was 2 accepted at the third level of review. (DUMF, ¶ 34.) Appeal Log No. KVSP-O-12-03486, 3 regarding Plaintiff’s complaint that his television had not been properly returned to him after 4 being repaired, was received and screened out in 2013 because Plaintiff failed to comply with the 5 requisite time constraints. (Id., ¶¶ 13-14, 33.) Appeal Log. No. OOA-12-10399, regarding a 6 dispute over a legal issue, was received and screened out/rejected in 2013, because Plaintiff again 7 failed to comply with the requisite time constraints. (Id., ¶ 33.) No staff complaints and other 8 appeals were accepted for review at the first or second levels of review at KVSP during the 9 relevant time period. (Id., ¶ 15.) No other appeals were accepted at the third level of review 10 between the given time frames that related to claims of retaliation or Eighth Amendment 11 violations endangering Plaintiff’s safety at KVSP against correctional officers B. Baker, R. 12 Hernandez, or J. Mosqueda. (Id., ¶ 35.) 13 III. RELEVANT STANDARDS 14 A. Statutory Exhaustion Requirement 15 Pursuant to the Prison Litigation Reform Act of 1996 (“PLRA”), “[n]o action shall be 16 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 17 prisoner confined in any jail, prison, or other correctional facility until such administrative 18 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Jones v. Bock, 549 U.S. 19 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 20 “The PLRA attempts to eliminate unwarranted federal-court interference with the 21 administration of prisons, and thus seeks to afford corrections officials time and opportunity to 22 address complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo, 23 548 U.S. 81, 93 (2006) (alterations, footnote, and quotation marks omitted). Requiring exhaustion 24 provides prison officials a “fair opportunity to correct their own errors” and creates an 25 administrative record for grievances that eventually become the subject of federal court 26 complaints. Id. at 94, 126; see also Porter v. Nussle, 534 U.S. 516, 524-25 (2002). Exhaustion is 27 required regardless of the relief sought by the prisoner and regardless of the relief offered by the 28 process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to 3 1 all prisoner suits relating to prison life, Porter, 534 U.S. at 532. 2 Prisoners must adhere to the deadlines and other “critical procedural rules” of the prison’s 3 grievance process, Woodford, 548 U.S. at 90; Jones, 549 U.S. at 218, such that an untimely or 4 otherwise procedurally defective grievance is insufficient, Woodford, 548 U.S. at 83-84. The 5 California prison grievance system has three levels of review; an inmate exhausts administrative 6 remedies by obtaining a decision at each level. Cal. Code Regs., tit. 15, § 3084.1(b) (2011); 7 Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010). 8 “A grievance need not include legal terminology or legal theories unless they are in some 9 way needed to provide notice of the harm being grieved.” Griffin v. Arpaio, 557 F.3d 1117, 1120 10 (9th Cir. 2009); Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010). “A grievance also need not 11 contain every fact necessary to prove each element of an eventual legal claim.” Griffin, 557 F.3d 12 at 1120. The primary purpose of a grievance is to alert prison officials to a problem and facilitate 13 its resolution. Id. Where a prison’s grievance procedures are silent or incomplete as to the level 14 of factual specificity required, “‘a grievance suffices if it alerts the prison to the nature of the 15 wrong for which redress is sought.’” Id. (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 16 2002); Morton, 599 F.3d at 946. The grievance must “‘provide enough information . . . to allow 17 prison officials to take appropriate responsive measures.’” Griffin, 557 F.3d at 1121 (quoting 18 Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)). 19 Failure to exhaust may be excused where the administrative remedies have been rendered 20 “unavailable”; in such a case, the plaintiff bears the burden of demonstrating that the grievance 21 process was unavailable to him through no fault of his own. Sapp v. Kimbrell, 623 F.3d 813, 82222 23 (9th Cir. 2010). See also Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012) (exhaustion 23 excused where futile); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (warden’s mistake 24 rendered prisoner’s administrative remedies “effectively unavailable”); Brown, 422 F.3d at 939-40 25 (plaintiff not required to proceed to third level where appeal granted at second level and no further 26 relief was available). Aside from this single exception, “the PLRA’s text suggests no limits on an 27 inmate’s obligation to exhaust -- irrespective of any ‘special circumstances.’ . . . [a]nd that 28 mandatory language means a court may not excuse a failure to exhaust, even to take such 4 1 circumstances into account.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). 2 The test for deciding whether a grievance procedure was unavailable uses an objective 3 standard. Albino v. Baca (Albino I), 697 F.3d 1023, 1035 (9th Cir. 2012). “[A]ffirmative actions 4 by jail staff preventing proper exhaustion, even if done innocently, make administrative remedies 5 effectively unavailable.” Id. at 1034. An inmate may demonstrate the unavailability of remedies 6 by showing “(1) that jail staff affirmatively interfered with his ability to exhaust administrative 7 remedies or (2) that the remedies were unknowable.” Id. at 1033. The inmate must make “a 8 good-faith effort” to determine and comply with a prison's grievance procedures. Id. at 1035. 9 Because “there can be no absence of exhaustion unless some relief remains available, a 10 defendant must demonstrate that pertinent relief remained available, whether at unexhausted levels 11 of the grievance process or through awaiting the results of the relief already granted as a result of 12 that process.” Brown, 422 F.3d at 936-37. 13 B. California Department of Corrections and Rehabilitation (CDCR) 14 The State of California provides its prisoners and parolees the right to appeal 15 administratively “any policy, decision, action, condition, or omission by the department or its staff 16 that the inmate or parolee can demonstrate as having a material adverse effect upon his or her 17 health, safety, or welfare.” Cal. Code Regs. tit. 15 § 3084.1(a). The process is initiated by 18 submitting a CDCR Form 602 (“602 form”). Id. at § 3084.2(a). 19 At the time of the events giving rise to the Complaint in this action, California prisoners 20 were required to submit appeals within thirty calendar days of the event being appealed, and the 21 process was initiated by submission of the appeal at the first level. Id. at §§ 3084.7(a), 3084.8(c). 22 Three levels of appeal were involved, including the first level, second level, and third level. Id. at 23 § 3084.7. The third level of review exhausts administrative remedies. Id. at § 3084.7(d)(3). In 24 order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust 25 their claims prior to filing suit. Woodford, 548 U.S. at 85; McKinney, 311 F.3d. at 1199-1201. 26 C. Summary Judgment Standard 27 The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under 28 which Defendant has the burden of raising and proving the absence of exhaustion. Jones, 549 5 1 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the United 2 States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt with respect to 3 the proper procedural device for raising the affirmative defense of exhaustion under § 1997e(a). 4 Albino v. Baca (Albino II), 747 F.3d 1162, 1168-69 (9th Cir. 2014) (en banc). Following the 5 decision in Albino II, defendants may raise exhaustion deficiencies as an affirmative defense under 6 § 1997e(a) in either (1) a motion to dismiss pursuant to Rule 12(b)(6)14 or (2) a motion for 7 summary judgment under Rule 56. Id. If the Court concludes that Plaintiff has failed to exhaust, 8 the proper remedy is dismissal without prejudice of the portions of the complaint barred by 9 § 1997e(e). Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). Summary judgment is appropriate when it is demonstrated that there “is no genuine dispute 10 11 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 12 56(a); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts, summary 13 judgment will not be granted”). A party asserting that a fact cannot be disputed must support the 14 assertion by “citing to particular parts of materials in the record, including depositions, documents, 15 electronically stored information, affidavits or declarations, stipulations (including those made for 16 purposes of the motion only), admissions, interrogatory answers, or other materials, or showing 17 that the materials cited do not establish the absence or presence of a genuine dispute, or that an 18 adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 19 The Court may consider other materials in the record not cited to by the parties, but is not required 20 to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 21 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 22 2010). In judging the evidence at the summary judgment stage, the Court “must draw all 23 reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros 24 de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The Court must 25 also liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder, 611 26 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). 27 4 Motions to dismiss under Rule 12(b)(6) are only appropriate “[i]n the rare event a failure to exhaust is clear on the 28 face of the complaint.” Albino II, 747 F.3d at 1162. 6 1 In a summary judgment motion for failure to exhaust administrative remedies, the 2 defendants have the initial burden to prove “that there was an available administrative remedy, and 3 that the prisoner did not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the 4 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 5 showing that there is something in his particular case that made the existing and generally 6 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 7 proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 8 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 1166. 9 IV. 10 DISCUSSION5 Defendants assert that Plaintiff did not exhaust available administrative remedies on either 11 of these claims before he filed suit, entitling them to judgment. (Mot.) 12 A. Appeal Log No. KVSP-0-12-03373 13 On September 11, 2012, Plaintiff submitted an appeal to KVSP regarding a Staff 14 Complaint investigation, single cell status, and a transfer. (DUMF, ¶ 16; PUMF, ¶ 2.) The appeal 15 was entered into the appeals office on September 14, 2012, as Appeal Log No. KVSP-0-12-03373 16 and categorized under “living conditions.” (DUMF, ¶ 16.) The appeal was rejected and was not 17 accepted for review, and a “CDC Form 695” was generated, noting that the appeal was rejected for 18 lacking supporting facts on September 21, 2012. (Id., ¶ 19.) As the appeals office does not keep 19 copies of appeals that are not accepted for a first or second level review, the CDC 695 form and 20 the original Appeal Log No. KVSP-O-12-03373 were mailed back to Plaintiff. (Id., ¶ 20; 21 Doc. 60-5 (Declaration of S. Tallerico), Exh. D.) 22 // 23 5 Plaintiff devotes a 24 improperly screened outsubstantial portion of his opposition to disputing that Appeal Log No. KVSP-12-03486 was for failing to comply with the applicable time constraints; however, Appeal Log No. KVSP12-03486 involved Plaintiff’s complaint that his television had not been properly returned to him after being repaired. 25 In screening the operative third amended complaint, the Court found that only Plaintiff’s First Amendment retaliation claim and Eighth Amendment claim for spreading rumors about Plaintiff and thereby endangering his safety around 26 other inmates were cognizable federal claims, and dismissed all other claims and defendants except Defendants Hernandez, Mosqueda, and Baker. (Docs. 28, 32.) Accordingly, any allegations and evidence submitted regarding 27 the alleged theft of Plaintiff’s television and the appeal resolving, in part, his claim of theft at the second level of review of Appeal Log No. KVSP-12-03486 are not relevant to the instant case or the Motion currently pending before 28 the Court. 7 1 Plaintiff did not attempt to resubmit the appeal; he instead mailed his appeal to Acting 2 Captain Lesniak, on Facility B. (DUMF, ¶ 21; PUMF, ¶ 21.) Captain Lesniak assigned the appeal 3 to Lieutenant S. Duncan, who interviewed Plaintiff on September 25, 2012, and responded to 4 Plaintiff’s cell status in a memorandum response format. (DUMF, ¶ 22; Tellerico Decl., Exh. D; 5 see also PUMF, ¶ 22 (disputing only as to the date of the interview).) Captain Lesniak wrote a 6 Confidential Memorandum regarding Plaintiff’s allegations and safety concerns, and stamped both 7 the memorandum and the appeal “CONFIDENTIAL” even though appeals are not confidential 8 and Plaintiff’s appeal had never been accepted or logged by the appeals office. (DUMF, ¶ 23; 9 Tallerico Decl., Exh. E; PUMF, ¶ 23.) The memorandum and appeal were forwarded to Acting 10 Associate Warden Stebbins. (DUMF, ¶ 24.) 11 Plaintiff alleges that the “improper screening of 602 filed on Sept. 11, 2011 (sic), failing to 12 notify of classification as a ‘confidential memorandum’ [ ] inhibit[ed] Plaintiff[’s] ability to 13 continue his appeal, rendering administrative remedies ‘effectively unavailable.’” (PUMF, ¶ 7.) 14 B. Summary Judgment Should Be Granted 15 On review of Defendants’ Motion, the Court finds that Defendants have carried their initial 16 burden of showing the absence of exhaustion. As Defendants argue, Plaintiff does not dispute that 17 there was a grievance procedure in place at the time of the incident, nor does he dispute that he 18 failed to exhaust his administrative remedies. (See Oppo., pp. 7-8.) 19 It is undisputed that Plaintiff submitted an appeal on September 11, 2012, noting issues 20 with a Staff Complaint investigation, Single Cell status, and a transfer. (DUMF, ¶ 16; Tallerico 21 Decl., Exh. C; PUMF, ¶ 16.) The appeal was screened out at level one for “lacking facts” and a 22 comment was entered asking Plaintiff to “provide the specific dates staff made these statements[,] 23 provide the specific statements made by each employee” and directing that “each allegation must 24 be separated and cannot be submitted on 1 appeal.” (Tallerico Decl., Exh. D.) It is also 25 undisputed that once the appeal was rejected and not accepted for review, Plaintiff did not attempt 26 to resubmit the appeal. (DUMF, ¶ 21; PUMF, ¶ 21.) Instead, Plaintiff forwarded the appeal to 27 Captain Lesniak, on Facility B, despite being demonstrably aware of the proper procedure for re28 submitting an appeal. (DUMF, ¶¶ 12-14, 33-4; Oppo., p. 7.) 8 1 The burden therefore shifts to Plaintiff, “who must show that there is something particular 2 in his case that made the existing and generally available remedies effectively unavailable to him 3 by ‘showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, 4 or obviously futile.’” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Albino 5 II, 747 F.3d at 1172). Acts by prison officials that prevent the exhaustion of administrative 6 remedies may make administrative remedies effectively unavailable. See Nunez v. Duncan, 591 7 F.2d 1217, 1224-25 (9th Cir. 2010). “The ultimate burden of proof, however, remains with the 8 defendants,” and the evidence must be viewed in the light most favorable to plaintiff. Paramo, 9 775 F.3d at 1191 (citing Albino II, 747 F.3d at 1172). 10 Here, Plaintiff asserts that “special circumstances” prevented him from complying with the 11 PLRA’s exhaustion requirement -- namely, Defendants’ allegedly improper screening of his 12 grievance. It is true that “improper screening of an inmate’s grievances renders administrative 13 remedies ‘effectively unavailable’ such that exhaustion is not required under the PLRA.” Sapp, 14 623 F.3d at 822-23. However, to fall within this exception to the exhaustion requirement, Plaintiff 15 must show that (1) he filed a grievance that, if pursued through all three levels, would have 16 sufficed to exhaust the claim, and (2) prison officials screened the grievance for reasons 17 inconsistent with or unsupported by the regulations. Id. 18 Plaintiff contends that Captain Lesniak’s referral of the matter to Lieutenant Duncan, who 19 investigated and subsequently marked his memorandum summarizing his investigation as 20 “CONFIDENTIAL”, rendered administrative remedies effectively unavailable to Plaintiff. 21 However, regardless of whether Captain Lesniak and Lieutenant Duncan improperly investigated 22 the subject matter of the appeal and marked the memorandum confidential, the undisputed facts 23 remain that Plaintiff was notified Appeal Log No. KVSP-0-12-03373 had been rejected and not 24 accepted for review on September 21, 2012, was given the opportunity to re-submit the appeal and 25 remedy the deficiencies of the factual allegations of the appeal, and failed to do so. Plaintiff’s 26 failure to comply with the well-established administrative exhaustion requirements with which he 27 was familiar and experienced does not render those administrative remedies unavailable. 28 // 9 1 Defendants have demonstrated that an internal administrative avenue remained open to 2 Plaintiff, and that Plaintiff failed to comply with the prison’s grievance procedures before filing 3 suit. The evidence before the Court thus shows that Plaintiff elected not to pursue the grievance 4 through the proper channels. Because Plaintiff has failed to show that he had no available relief 5 through the proper administrative channels, his claims against Defendants Hernandez, Mosqueda, 6 and Baker must be dismissed without prejudice for failure to exhaust. 7 V. 8 CONCLUSION AND RECOMMENDATION For the reasons set forth herein, IT IS HEREBY RECOMMENDED that Defendant’s 9 motion for summary judgment be GRANTED and Plaintiff’s case be DISMISSED without 10 prejudice for failure to exhaust his administrative remedies. 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 13 twenty-one (21) days after being served with these Findings and Recommendations, the parties 14 may file written objections with the Court. Local Rule 304(b). The document should be 15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 16 advised that failure to file objections within the specified time may result in the waiver of rights on 17 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 18 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: 22 August 16, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 10 .
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