(PC) Brown v. Gipson et al, No. 1:2013cv02084 - Document 85 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Defendant's Motion for Summary Judgment for the Failure to Exhaust Administrative Remedies 61 is Granted ; referred to Judge Ishii, signed by Magistrate Judge Barbara A. McAuliffe on 8/23/2018. Objections to F&R due 14-Day Deadline(Martin-Gill, S)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM BROWN, 10 11 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT FOR THE FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Defendant. [Doc No. 61] v. W. RASLEY, 13 Case No. 1:13-cv-02084-AWI-BAM (PC) 14 FOURTEEN-DAY DEADLINE 15 16 17 I. Introduction Plaintiff William Brown is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s claims against 19 Defendant Rasley for retaliation in violation of the First Amendment, excessive force in violation 20 of the Eighth Amendment, and conversion under state law. 21 Plaintiff’s claims arise out of allegations concerning events occurring at CSP-Corcoran on 22 November 7, 2013. Plaintiff alleges that while he was housed in ASU, Defendant Rasley threw a 23 smoke grenade into Plaintiff’s cell because of complaints and grievances that Plaintiff made 24 regarding prison conditions, and took his television and other items in retaliation for the same 25 complaints and protesting. (See Ex. to Compl., Rules Violation Report (“RVR”) #3A04-13-11- 26 002, Doc. No. 1, at 72-73.) 27 28 Currently before the Court is Defendant’s motion for summary judgment for the failure to exhaust administrative remedies pursuant to Federal Rule of Civil Procedure 56, filed on 1 1 December 28, 2017. (Doc. No. 61.) Plaintiff filed opposition papers on February 5, 2018, 2 including a declaration. (Doc. Nos. 66, 67, 71, 72.) Defendant filed a reply on February 12, 3 2018, (Doc. No. 75), with a declaration in support, (Doc. No. 76). The motion is now deemed 4 submitted. Local Rule 230(l). 5 II. Motion for Summary Judgment 6 A. Legal Standard 7 Any party may move for summary judgment, and the Court shall grant summary judgment 8 if the movant shows that there is no genuine dispute as to any material fact and the movant is 9 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 10 747 F.3d 1162, 1166 (9th Cir. 2014); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 11 2011). Each party’s position, whether it be that a fact is disputed or undisputed, must be 12 supported by (1) citing to particular parts of materials in the record, including but not limited to 13 depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not 14 establish the presence or absence of a genuine dispute or that the opposing party cannot produce 15 admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). 16 The failure to exhaust is an affirmative defense, and Defendant bears the burden of raising 17 and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino, 747 18 F.3d at 1166. Defendant must “prove that there was an available administrative remedy, and that 19 the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the Defendant 20 carries this burden, the burden of production shifts to Plaintiff “to come forward with evidence 21 showing that there is something in his particular case that made the existing and generally 22 available administrative remedies effectively unavailable to him.” Id. 23 “If undisputed evidence viewed in the light most favorable to the prisoner shows a failure 24 to exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. “If material 25 facts are disputed, summary judgment should be denied, and the district judge rather than a jury 26 should determine the facts.” Id. 27 /// 28 /// 2 1 B. 2 Defendant argues that although Plaintiff filed a few appeals around the time of the 3 incidents in question, none of them exhausted the federal claims at issue in this case, including an 4 appeal filed after he began this lawsuit. Further, as to the conversion claim, Plaintiff failed to file 5 a claim with the California Government Claims Program as required by state law. Therefore, 6 summary judgment is appropriate as to all claims in this action. 7 Parties Arguments In opposition, Plaintiff relies upon an appeal he filed to overturn findings in a disciplinary 8 proceeding, arguing that this staff complaint was directed at the events at issue in this case. 9 Plaintiff further asserts in the alternative that administrative remedies were not available here. 10 In reply, Defendant argues that Plaintiff does not address his failure to file a claim with 11 the California Government Claims Program, and therefore he has conceded that he failed to 12 exhaust his state law claim. As to the exhaustion of Plaintiff’s federal claims, Defendant argues 13 that Plaintiff’s assertions have no merit, and that there is no material dispute that remedies were 14 available here but he failed to exhaust those remedies. 15 C. Analysis 16 1. Exhaustion of First and Eighth Amendment Claims 17 The Court will first address Defendant’s argument that Plaintiff failed to exhaust his First 18 and Eighth Amendment claims. 19 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 20 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 21 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 22 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion 23 is required regardless of the relief sought by the prisoner and regardless of the relief offered by 24 the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies 25 to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002). 26 The California Department of Corrections and Rehabilitation (“CDCR”) has an 27 administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. The 28 process is initiated by submitting a CDCR Form 602 describing the issue and the relief requested. 3 1 Id. at § 3084.2(a). Three levels of review are involved—a first level review, a second level 2 review and a third level review. Id. at § 3084.7. Bypassing a level of review may result in 3 rejection of the appeal. Id. at § 3084.6(b)(15). Under § 1997e, a prisoner has exhausted his 4 administrative remedies when he receives a decision at the third level. See Barry v. Ratelle, 985 5 F. Supp. 1235, 1237-38 (S.D. Cal. 1997). 6 The PLRA requires that a prisoner exhaust available administrative remedies before 7 bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter, 8 534 U.S. at 524 (“Even when the prisoner seeks relief not available in grievance proceedings, 9 notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” 10 Woodford v. Ngo, 548 U.S. 81, 93 (2006). This means that a grievant must use all steps the 11 prison holds out, enabling the prison to reach the merits of the issue. Id. at 90. 12 The facts regarding exhaustion are undisputed here. As noted above, Defendant used a 13 chemical agent on Plaintiff’s cell on November 7, 2013. The parties dispute the reasons why and 14 whether the use of force was excessive. They do not dispute that Plaintiff was issued an RVR on 15 November 7, 2013 charging him with obstructing a peace officer resulting in the use of chemical 16 agents (cell extraction). (RVR #3A-04-13-11-002, Compl. 71-72.) The correctional officers 17 essentially contend that Plaintiff refused multiple orders to submit to restraints and re-housing 18 following disruptive behavior, eventually requiring the use of chemical agents to gain Plaintiff’s 19 compliance. 20 It is further undisputed that Plaintiff entered a plea of not guilty to the RVR charge, and 21 provided a written statement declaring that the RVR was fabricated, and that Defendant had 22 violated his First Amendment rights and Plaintiff’s rights as a “Whistle Blower.” (RVR #3A-04- 23 13-11-002, Part C, Doc. No. 61-5, Ex. D, at 24-36.) Plaintiff further declared that Defendant was 24 “attempting to use every effort to cover his ass” by issuing the RVR to shield the violation of 25 Plaintiff’s rights, because Plaintiff had been “speaking out” for prisoner rights. (Id. at 29.) 26 Plaintiff indicated that he had “been face with several Act of reprisal,” including the fabricated 27 RVR. (Id. (errors in original).) The report goes on to state that Plaintiff refused to attend his 28 November 28, 2013 hearing, and thus his plea and statement was entered on his behalf. (Id.) 4 1 An investigation was conducted by Correctional Officer J. Tienda regarding the RVR, and 2 Plaintiff accepted Officer Tienda’s role as the investigative employee, although he refused to sign 3 documentation. 4 According to the investigation, three inmate witnesses were asked whether on the day before the 5 use of force, November 6, 2013, Plaintiff was seen attempting to flag down and speak to the 6 Attorney General and grand jury investigator about prison rights. (Id. at 32-33.) All of the 7 inmates responded that they did witness this, and that Plaintiff was being retaliated against. (Id.) 8 One inmate stated that the retaliation was what was being alleged against Plaintiff, another stated 9 that it was moving Plaintiff from his cell, and another responded that the retaliation was for 10 speaking up about his rights. (Id.) Plaintiff was subsequently found guilty of the RVR on 11 November 28, 2013. (Loss of Privileges Chrono, Doc. No. 61-5, Ex. D, at 35.) (Id. at 32.) Plaintiff provided questions to be asked of inmate witnesses. 12 Plaintiff appealed that finding, asserting that he was inappropriately found guilty of the 13 RVR, that Defendant used excessive and unnecessary force, and that there were due process 14 violations, among other issues. (Inmate Appeal Log No. COR-14-01131/PBSP-14-01002, Doc. 15 No. 61-7, Ex. H, at 13-16.) Plaintiff filed his original complaint in this case on December 23, 16 2013, and the claims brought in this case were alleged in that original complaint. (Compl., Doc. 17 No. 1, 22-23.) Plaintiff’s appeal of his RVR charge was submitted on or about February 2, 2014, 18 after he initiated this lawsuit by filing the original complaint. (Inmate Appeal Log No. COR-14- 19 01131/PBSP-14-01002.) 20 Plaintiff’s retaliation claim brought in this suit. The second level reviewer reviewed the evidence 21 considered by the hearing officer, and found that a preponderance of the evidence supported 22 finding that Plaintiff refused orders to exit his cell, that it was necessary to use force to extract 23 him, and that his property was properly confiscated. 24 Decision, Doc. No. 61-7, Ex. H, at 11-12.) Thus, his appeal was denied at the second level. (Id.) 25 Plaintiff’s appeal was subsequently denied at the third level on September 19, 2014, when 26 the third-level examiner again found that Plaintiff was properly found guilty. (Id.) Plaintiff was 27 then notified that the third level denial exhausted his available administrative remedies. 28 /// The reviewers of Plaintiff’s appeal addressed the substance of 5 (Sept. 19, 2014 Third Level Appeal 1 Plaintiff’s appeal of the disciplinary findings against him was directed at the claim at issue 2 in this case, and his allegations of retaliation were investigated and considered by prison officials 3 against the evidence in support of the RVR charges. Further, Plaintiff fully exhausted the appeal 4 to the third level. However, the appeal process was not begun until around February 2, 2014, 5 more than a month after Plaintiff initiated this lawsuit. The appeal was not fully exhausted until 6 several months later, during this litigation. 7 The Ninth Circuit has repeatedly held that a prisoner may not litigate claims that were not 8 exhausted prior to filing suit. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (A 9 prisoner “may initiate litigation in federal court only after the administrative process ends and 10 leaves his grievances unredressed.”). See also McKinney v. Carey, 311 F.3d 1198, 1199-1201 11 (9th Cir. 2002) (prisoner does not comply with the exhaustion requirement by exhausting 12 available remedies during course of the litigation); Giles v. Felker, 689 F. App’x 526, 527 (9th 13 Cir. 2017) (“Contrary to Giles’s contention, exhaustion of administrative remedies before filing 14 an amended complaint alleging the same claims does not constitute proper exhaustion.”). As 15 explained above, Plaintiff did not begin the exhaustion process until after his original complaint 16 containing the claims at issue in this case was filed, and therefore he did not properly exhaust his 17 administrative remedies here. 18 Based on the foregoing, Defendant has carried the initial burden of showing that there was 19 an available administrative remedy and that Plaintiff did not exhaust that remedy. Albino, 747 20 F.3d at 1172. The burden now shifts to Plaintiff to show that something about the circumstances 21 made the existing and generally available administrative remedies effectively unavailable to him. 22 Id. 23 Plaintiff’s main argument is that remedies were unavailable because he was obstructed 24 from exhausting due to the threat of retaliation. (Pl.’s Decl., Doc. No. 71, ¶ 16.4(d) (citing Tighe 25 v. Wall, 100 F.3d 41, 43 (5th Cir. 1996) (discussion claim of retaliation), Bart v. Telford, 677 F.2d 26 622 (7th Cir. 1982) (same)). “[A] prisoner is excused from the exhaustion requirement in 27 circumstances where administrative remedies are effectively unavailable, including circumstances 28 in which a prisoner has reason to fear retaliation for reporting an incident.” Rodriguez v. Cty. of 6 1 Los Angeles, 891 F.3d 776, 792 (9th Cir. 2018) (citing McBride v. Lopez, 807 F.3d 982, 987 (9th 2 Cir. 2015)). “In order for a fear of retaliation to excuse the PLRA’s exhaustion requirement, the 3 prisoner must show that (1) ‘he actually believed prison officials would retaliate against him if he 4 filed a grievance’; and (2) ‘a reasonable prisoner of ordinary firmness would have believed that 5 the prison official’s action communicated a threat not to use the prison’s grievance procedure and 6 that the threatened retaliation was of sufficient severity to deter a reasonable prisoner from filing 7 a grievance.’” Id. (quoting McBride, 807 F.3d at 987). 8 Plaintiff’s argument that he would have filed a grievance but for the threat of retaliation 9 does not have support from the record. Plaintiff was no stranger to the formal appeals process at 10 his institution, as it is undisputed that he filed multiple appeals between early November 2013 and 11 the date he initiated this lawsuit. (Goree Decl., Doc. No. 61-5, ¶¶ 14-16, Ex. B, C; Lewis Decl., 12 Doc. No. 61-6, ¶ 9, Ex. F; Voong Decl., Doc. No. 61-7, ¶¶ 10, Ex. G.) Also, as discussed above, 13 from the time of his RVR charge shortly after the incident, Plaintiff made repeated statements to 14 prison officials that he was a whistleblower, that he was going to stand up for prisoner rights, and 15 that Defendant had retaliated against him for his complaints and protests. 16 statement in writing that Defendant had retaliated against him in defense of the RVR charge, as 17 discussed above. Plaintiff has not presented evidence that he was deterred here from filing any 18 grievance. Plaintiff put a 19 Plaintiff also argues that various repeated failures by prison officials to provide timely 20 responses to his CDCR Form 22s, Form 602s, and “K.A.G.E. Demands” rendered administrative 21 remedies effectively unavailable. (Pl.’s Opp’n, Doc. No. 66, at 8; Pl.’s Decl., Doc. No. 71, ¶ 22 16.11(k)). Plaintiff has not created any genuinely disputed material issue of fact in support of this 23 argument. Plaintiff cites to no timely filed appeal regarding the claim at issue in this case that 24 was time-sensitive, and to which a response was never received or unjustifiably delayed. 25 Next, Plaintiff argues that there is no available administrative remedy here because the 26 grievance process at CDCR “leads to nowhere with a 100% denial rate.” (Pl.’s Opp’n 10-11.) 27 The United States Supreme Court has held that an administrative procedure is unavailable when 28 “officers [are] unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross 7 1 v. Blake, — F.3d —, 136 S. Ct. 1850, 1859 (2016) (citing Booth v. Churner, 532 U.S. 731, 736 2 (2001)). Thus, when the facts demonstrate that administrative officials have apparent authority to 3 grant relief, but decline ever to exercise it, then there is no possibility of some relief from the 4 administrative procedure, and a prisoner has no obligation to exhaust the remedy. Id. Here 5 Plaintiff has failed to present evidence that there is no relief available from the administrative 6 procedures here. Although he contends that prison officials deny all appeals, he provides no 7 evidence in support of this assertion, and a review of his own appeals belies this contention. 8 Plaintiff’s own grievances have sometimes been granted or partially granted. (See Goree Decl. 9 Ex. A; Lewis Decl. Ex. E.) Therefore, Plaintiff has not created a genuine issue of material fact in 10 support of this argument. 11 Finally, Plaintiff argues that Defendant failed to respond to discovery. Earlier in this case, 12 Defendant moved for a protective order staying discovery here. (Doc. No. 62.) On February 7, 13 2018, the Court granted the motion in part, but ordered Defendants to respond to any discovery 14 requests by Plaintiff that were relevant to matters of the exhaustion of administrative remedies or 15 government claim presentation. (Doc. No. 74.) This included any discovery propounded prior to 16 that order. (Id. at 3.) Defense counsel declares that all such discovery has been provided to 17 Plaintiff. (Doc. No. 76.) Defendant does not cite any exhaustion-related discovery which was not 18 provided. Therefore, to the extent Plaintiff is raising an argument that the Court should defer or 19 deny Defendant’s summary judgment motion some relevant discovery was not provided, the 20 Court finds that Plaintiff has not supported that argument. 21 For the reasons explained, the Court finds that Defendant has shown that Plaintiff failed to 22 exhaust available administrative remedies for his First and Eighth Amendment claim based on the 23 undisputed evidence. Plaintiff has not raised any material dispute of fact that the remedies were 24 unavailable under the circumstances. 25 Defendant’s favor on those claims. Therefore, summary judgment should be granted in The Court next turns to Defendant’s argument that Plaintiff also failed to exhaust 26 27 available administrative remedies for his state law conversion claim. 28 /// 8 1 2. Exhaustion of Conversion Claim Under State Law 2 Defendant argues that Plaintiff has failed to comply with the claim presentation 3 requirements for his state law conversion claim in this case. Under the California Government 4 Claims Act, a plaintiff may not bring an action for damages against a public employee or entity 5 unless he first presents a written claim to the local governmental entity within six months of the 6 accrual of the incident. See Mabe v. San Bernardino County, Dept. of Public Social Services, 237 7 F.3d 1101, 1111 (9th Cir. 2001) (Government Claims Act requires the “timely presentation of a 8 written claim and the rejection of the claim in whole or in part” as a condition precedent to filing 9 suit); see also Cal. Gov’t Code § 945.4 (“[N]o suit for money or damages may be brought against 10 a public entity ... until a written claim therefor has been presented to the public entity and has 11 been acted upon by the board, or has been deemed to have been rejected by the board ...”). 12 Furthermore, a plaintiff must affirmatively allege compliance with the Government Claims Act’s 13 claims presentation requirement, or explain why compliance should be excused. Mangold v. Cal. 14 Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). The failure to comply with the 15 Government Claims Act is a jurisdictional defect. See Miller v. United Airlines, Inc., 174 Cal. 16 App. 3d 878, 890 (1985); see also Cornejo v. Lightbourne, 220 Cal. App. 4th 932, 938 (2013) 17 (“Ordinarily, filing a claim with a public entity pursuant to the Claims Act is a jurisdictional 18 element of any cause of action for damages against the public entity ...”). 19 Defendant submits a declaration from the Associate Governmental Program Analyst of the 20 California Government Claims Unit showing that their system has no record of any claim 21 presented by Plaintiff regarding this incident. (Salias Decl., Doc. No. 61-4.) Plaintiff has also not 22 pleaded any presentation of a claim nor any facts stating why such a claim could not be brought. 23 Plaintiff also does not address this issue in his opposition, apparently conceding that no claim was 24 properly presented for his state law conversion claim. Therefore, Defendant has shown that 25 Plaintiff has failed to comply with the Government Claims Act, and his state law claim must be 26 dismissed. 27 /// 28 /// 9 1 IV. Conclusion and Recommendations 2 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 3 1. 4 5 6 Defendant’s motion for summary judgment for the failure to exhaust administrative remedies (Doc. No. 61) be granted; 2. Plaintiff’s First and Eighth Amendment claims be dismissed, without prejudice, for Plaintiff’s failure to exhaust available administrative remedies; and Plaintiff’s state law conversion claim be dismissed for the failure to state a 7 3. 8 cognizable claim. 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 11 fourteen (14) days after being served with these Findings and Recommendations, the parties may 12 file written objections with the Court. 13 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 14 objections within the specified time may result in the waiver of the “right to challenge the 15 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 16 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). The document should be captioned “Objections to 17 18 19 20 IT IS SO ORDERED. Dated: /s/ Barbara August 23, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 10
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