(PC)Pappas v. North Kern State Prison et al, No. 1:2014cv00109 - Document 46 (E.D. Cal. 2015)
Court Description: FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT LOPEZS MOTION FOR SUMMARY JUDGMENT re 34 FOR FAILURE TO EXHAUST REMEDIES BE GRANTED signed by Magistrate Judge Erica P. Grosjean on 12/29/2015. Referred to Judge Dale A. Drozd; Objections to F&R due by 2/1/2016. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 1:14-cv-00109-DAD-EPG-PC NICHOLAS CHRISTOPHER PAPPAS, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT LOPEZ’S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST REMEDIES BE GRANTED (ECF No. 34) vs. NORTH KERN STATE PRISON, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 17 18 19 20 21 I. BACKGROUND 22 Nicholas Christopher Pappas ( Plaintiff ) is a state prisoner proceeding pro se and in 23 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the 24 Complaint commencing this action on January 27, 2014. (ECF No. 1) This case now proceeds 25 against defendant Correctional Officer J. Lopez, for use of excessive force in violation of the 26 Eighth Amendment. 27 On May 1, 2015, Defendant Lopez filed a motion for summary judgment under Rule 56 28 on the ground that the undisputed facts establish that Plaintiff failed to exhaust his available 1 1 administrative remedies with respect to Plaintiff’s claim against him in this action. (ECF No. 2 34) Plaintiff filed an opposition to Defendant’s motion on June 4, 2015 (ECF No. 39), and 3 Defendant filed a reply on June 11, 2015 (ECF No. 42) 4 summary judgment is now before the Court. 5 II. Defendant Lopez’s motion for SUMMARY OF COMPLAINT 6 Plaintiff is an inmate in the custody of the California Department of Corrections and 7 Rehabilitation (CDCR) at North Kern State Prison. Plaintiff claims that on September 20, 8 2013, he asked to be placed in protective custody due to being a homosexual. Complaint, p. 9 4; ECF No. 1. Plaintiff alleges that instead of following procedures, a C/O harassed Plaintiff, 10 using derogatory terms. Id. Plaintiff alleges that the harassment continued during the morning 11 meal, where Plaintiff was in risk of harm or death by prison gangs (due to their prison rule to 12 not allow homosexuals around them in G.P. or S.N.Y.) Id. Plaintiff then asked Defendant 13 C/O Lopez to please stop the comments due to the risk he’s putting me in. Id. C/O Lopez 14 allegedly continued with his remarks. When Plaintiff asked him what his issue with gays 15 was, Lopez allegedly stepped back, shouted, then sprayed me with mace, pulled out his baton 16 and beat me with it, then once on the ground he sprayed me again in the face with mace. Id. 17 This Court1 screened Plaintiff’s complaint and found that it stated a claim for excessive 18 force in violation of the Eighth Amendment against Defendant Lopez. (ECF No. 8) The Court 19 dismissed the other defendants and causes of action, including Plaintiff’s challenge to his 20 disciplinary proceeding. 21 III. LEGAL STANDARDS 22 A. 23 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that 24 A[n]o action shall be brought with respect to prison conditions under [42 U.S.C. ' 1983], or any 25 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 26 such administrative remedies as are available are exhausted.@ 42 U.S.C. ' 1997e(a). Prisoners Statutory Exhaustion Requirement 27 28 1 Screening was done by the prior judge, Magistrate Judge Gary Austin. 2 1 are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 2 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199- 3 1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and 4 regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 5 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, 6 Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002). 7 An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion 8 requirement. Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 9 (2006). When an inmate's administrative grievance is improperly rejected on procedural 10 grounds, however, exhaustion may be excused as effectively unavailable. Sapp v. Kimbrell, 11 623 F.3d 813, 823 (9th Cir. 2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224–26 (9th Cir. 12 2010) (warden's mistake rendered prisoner's administrative remedies effectively unavailable ); 13 Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012) (exhaustion excused where futile); 14 Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third 15 level where appeal granted at second level and no further relief was available). 16 17 B. California Department of Corrections and Rehabilitation (CDCR) Administrative Grievance System 18 The Court takes judicial notice of the fact that the State of California provides its 19 prisoners and parolees the right to appeal administratively any policy, decision, action, 20 condition, or omission by the department or its staff that the inmate or parolee can demonstrate 21 as having a material adverse effect upon his or her health, safety, or welfare. Cal.Code Regs. 22 tit. 15 § 3084.1(a). The process is initiated by submitting a CDCR Form 602. Id. at § 23 3084.2(a). 24 At the time of the events giving rise to the present action, California prisoners were 25 required to submit appeals within thirty calendar days of the event being appealed. Id. at ' 26 3084.5. The California prison administrative grievance process is initiated by an inmate filing 27 an Inmate/Parolee Appeal Form 602. Id. at '' 3084.1, 3084.2(a). The grievance process has 28 three levels of review. Id. at ' 3084.7. 3 1 C. 2 Summary judgment is appropriate when it is demonstrated that there is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. 4 R. Civ. P. 56(a); Albino II, 747 F.3d at 1169 ( If there is a genuine dispute about material facts, 5 summary judgment will not be granted. ) A party asserting that a fact cannot be disputed must 6 support the assertion by citing to particular parts of materials in the record, including 7 depositions, documents, electronically stored information, affidavits or declarations, 8 stipulations (including those made for purposes of the motion only), admissions, interrogatory 9 answers, or other materials, or showing that the materials cited do not establish the absence or 10 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 11 support the fact. Fed. R. Civ. P. 56(c)(1). The Court may consider other materials in the 12 record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen 13 v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. 14 Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). In judging the evidence at the 15 summary judgment stage, the Court must draw all reasonable inferences in the light most 16 favorable to the nonmoving party. Comite de Jornaleros de Redondo Beach v. City of 17 Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). 18 Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th 19 Cir. 2010) (quotation marks and citations omitted). Standards for Summary Judgment Based on Exhaustion The Court must liberally construe 20 In a summary judgment motion for failure to exhaust administrative remedies, the 21 defendants have the initial burden to prove that there was an available administrative remedy, 22 and that the prisoner did not exhaust that available remedy. Albino II, 747 F.3d at 1172. If 23 the defendants carry that burden, the burden shifts to the prisoner to come forward with 24 evidence showing that there is something in his particular case that made the existing and 25 generally available administrative remedies effectively unavailable to him. Id. The ultimate 26 burden of proof remains with defendants, however. 27 summary judgment should be denied, and the district judge rather than a jury should determine 28 the facts. Id. at 1166. 4 Id. If material facts are disputed, 1 IV. ANALYSIS 2 Defendant Lopez claims that Plaintiff failed to exhaust his administrative remedies 3 because he did not file a 602 appeal claiming that Defendant Lopez used excessive force within 4 the time required under prison rules or prior to filing this lawsuit. 5 According to the declaration of B. Johnson (ECF No. 42-2), Plaintiff submitted two 6 inmate appeals to the first or second level of review between the date of the incident in 7 question, September 20, 2013, and filing of this lawsuit, January 27, 2014. These two appeals 8 were screened-out for failing to comply with applicable procedural rules. One, NKSP-D-13- 9 03961, was rejected for failing to attached the applicable rules violation report. (ECF No. 42-2, 10 Ex. D) The second, NKSP-D-13-03962, was rejected because it addressed two issues that 11 should be submitted separately, namely request for a cellmate and appeal of a rules violation 12 report. (ECF No. 42-2 Ex. E) 13 Notably, Defendant Lopez did not submit copies of these 602 forms in moving for 14 summary judgment. Defendant claims that the prison does not keep copies of screened-out 15 appeals. Indeed, Defendant initially represented to the Court in its summary judgment motion 16 that Plaintiff had not submitted any form 602 at all during this period. (ECF No. 34, p. 2:14- 17 16) ( Plaintiff filed no inmate appeals at NKSP—at any level of review—from September 20, 18 2013 through January 27, 2014 ). However, in opposing Defendant’s motion for summary 19 judgment, Plaintiff submitted a form 602 dated November 1, 2013. 20 concedes he made an error and includes the screening memos for this and another grievance 21 filed in the relevant time period. The prison’s faulty record keeping and initial misstatement on 22 this critical point is frustrating and makes it more difficult for the Court to properly assess 23 Defendant’s exhaution arguments. In reply, Defendant 24 Nevertheless, the form 602 that Plaintiff submits in his opposition does not concern his 25 allegations of excessive force against Defendant Lopez. Instead, the form 602 from November 26 1, 2013 argues that Plaintiff did not receive due process and should get a rehearing on an 27 alleged violation against him that resulted in discplinary action. (ECF No. 39 p. 36-37) This is 28 consistent with the response from the prison, attached to Defendant’s reply, which states that 5 1 you [Plaintiff] are attempting to appeal a RVR [Rule Violation Report], and asks Plaintiff to 2 submit a copy of that RVR. (ECF No. 42-2, Exh. D). Thus, the evidence submitted in 3 connection with all briefs indicates that Plaintiff did not file an administrative grievance 4 addressing the allegations at issue in this complaint prior to filing the complaint, and thus did 5 not properly exhaust his administrative remedies.2 6 Plaintiff subsequently submitted a form 602 grievance on March 13, 2014, which states 7 in part C.O. Lopez used excessive use of force against me with malicious and sidistic [sic] 8 pleasure by his actions. 9 appeal disposition of 115 and asks to have 115 dismissed or reheard and dropped to lesser 10 charge, dismiss pending SHU term, and restore all lost credit. (Id., p. 8) The March 13, 2014 11 grievance referencing excessive force by Defendant Lopez appears to have been raised in the 12 context of contesting the results of a hearing. 13 submitted until after filing of this complaint. Thus, even if the reference to excessive force 14 were sufficient to raise the issue in the grievance process, it was filed more than thirty days 15 after the incident, and thus not in compliance with prison grievance procedures. It was also 16 filed after filing of this complaint, so further cannot satisfy the exhaustion requirement. 42 17 U.S.C.A. § 1997e ( No action shall be brought with respect to prison conditions under section 18 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other 19 correctional facility until such administrative remedies as are available are exhausted. ); 20 Woodford, 548 U.S. at 88-89 ( The doctrine provides that no one is entitled to judicial relief 21 for a supposed or threatened injury until the prescribed administrative remedy has been 22 exhausted. ) (internal quotations and citations omitted). 23 (ECF No. 42-2, p. 9) The grievance states that the issue concerns Regardless, this later grievance was not Because Plaintiff failed to exhaust his administrative remedies, his claim against 24 Defendant Lopez for excessive force should be dismissed. 25 \\ \\ 26 27 28 2 To the extent that the form 602 grievance addressed Plaintiff’s related disciplinary proceeding, it is worth noting again that the Court dismissed Plaintiff’s claims regarding his disciplinary hearing on the basis of Heck v. Humphrey, 512 U.S. 477, 487 (1994). (ECF No. 8, p.4). 6 1 2 V. CONCLUSION AND RECOMMENDATIONS Defendant Lopez has met his burden of demonstrating that under the undisputed facts, 3 Plaintiff failed to exhaust his remedies prior to filing suit, in compliance with ' 1997e(a), 4 concerning his allegation that Defendant Lopez used excessive force against him on September 5 20, 2013. 6 7 Therefore, IT IS HEREBY RECOMMENDED that Defendant Lopez’s motion for summary judgment, filed on May 1, 2015, be GRANTED. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty 10 (30) days after being served with these findings and recommendations, any party may file 11 written objections with the Court. Such a document should be captioned "Objections to 12 Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be 13 served and filed within ten days after service of the objections. The parties are advised that 14 failure to file objections within the specified time may result in the waiver of rights on appeal. 15 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 16 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 19 IT IS SO ORDERED. Dated: December 29, 2015 /s/ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 7
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