(PC)Foster v. Huewe et al, No. 1:2016cv01839 - Document 36 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS Regarding Defendants' 28 Exhaustion Related Motion for Summary Judgment, signed by Magistrate Judge Stanley A. Boone on 1/26/18. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DERRYL TYRONE FOSTER, 12 Plaintiff, 13 v. 14 J. HUEWE, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) Case No. 1:16-cv-01839-AWI-SAB (PC) FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ EXHAUSTIONRELATED MOTION FOR SUMMARY JUDGMENT [ECF No. 28] 17 18 19 20 21 Plaintiff Derryl Tyrone Foster is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Defendants’ exhaustion-related motion for summary judgment, filed December 6, 2017. 22 I. 23 RELEVANT HISTORY 24 25 26 27 This action is proceeding against Defendants Huewe and Vargas for failure to protect and against Defendants Cordova and McIntyre for excessive force in violation of the Eighth Amendment. Defendants filed an answer to the complaint on September 11, 2017. (ECF No. 20.) On September 13, 2017, the Court issued the discovery and scheduling order. (ECF No. 22.) 28 1 On September 28, 2017, Plaintiff filed a first amended complaint pursuant to Federal Rule of 1 2 Civil Procedure 15(a). (ECF No. 23.) Defendants elected not to amend their answer. As previously stated, on December 6, 2017, Defendants filed a motion for summary judgment 3 4 based on Plaintiff’s alleged failure to exhaust the administrative remedies. (ECF No. 28.) Plaintiff 5 filed an opposition on January 8, 2018, and Defendants filed a reply on January 16, 2018. (ECF Nos. 6 33, 34.) On January 25, 2018, Plaintiff filed a supplemental opposition which the Court construes as a 7 surreply.1 (ECF No. 35.) 8 II. 9 LEGAL STANDARD 10 A. Statutory Exhaustion Requirement 11 The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such 12 administrative remedies as are available” before commencing a suit challenging prison conditions.” 13 42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __ 136 S.Ct. 1850 (June 6, 2016) (“An inmate need 14 exhaust only such administrative remedies that are ‘available.’”). Exhaustion is mandatory unless 15 unavailable. “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains 16 ‘available.’ Once that is no longer the case, then there are no ‘remedies … available,’ and the prisoner 17 need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis 18 in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). 19 This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. 20 Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the 21 prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and 22 23 24 25 26 27 28 1 Parties do not have the right to file surreplies and motions are deemed submitted when the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to file a surreply with disfavor. Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D. Ga. 2005)). However, district courts have the discretion to either permit or preclude a surreply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit “inequitable surreply”); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file surreply where it did not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply may not be considered without giving the non-movant an opportunity to respond). Although Plaintiff does not have a right to file a surreply, in this instance the Court will exercise its discretion and consider the surreply in ruling on Defendants’ motion for summary judgment. 2 1 unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing 2 Porter, 534 U.S. at 524). 3 The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising 4 and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. “In the rare 5 event that a failure to exhaust is clear from the face of the complaint, a defendant may move for 6 dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce 7 evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only 8 if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to 9 exhaust. Id. 10 “An inmate is required to exhaust only available remedies.” Albino, 747 F.3d at 1171 (citing 11 Booth v. Churner, 532 U.S. 731, 736 (2001)). “To be available, a remedy must be available ‘as a 12 practical matter’; it must be ‘capable of use; at hand.’” Albino, 747 F.3d at 1171 (quoting Brown v. 13 Valoff, 422 F.3d 926, 937 (9th Cir. 2005)). In Ross v. Blake, the Court set forth the following three 14 examples of when the administrative remedies are not available: (1) the “administrative procedure … 15 operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to 16 aggrieved inmates;” (2) the “administrative scheme … [is] so opaque that it becomes, practically 17 speaking, incapable of use … to that no ordinary prisoner can make sense of what it demands; and (3) 18 “prison administrators thwart inmates from taking advantage of a grievance process through 19 machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.Ct. at 1859-60 (citations 20 omitted). In addition, when an inmate’s administrative grievance is improperly rejected on procedural 21 grounds, exhaustion may be excused as effectively unavailable. Sapp v. Kimbrell, 623 F.3d 813, 823 22 (9th Cir. 2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224-1226 (9th Cir. 2010) (warden’s 23 mistake rendered prisoner’s administrative remedies “effectively unavailable”); Brown v. 24 Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third level where appeal 25 granted at second level and no further relief was available). 26 B. Summary Judgment Standard 27 Any party may move for summary judgment, and the Court shall grant summary judgment if 28 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 3 1 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 2 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 3 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of 4 materials in the record, including but not limited to depositions, documents, declarations, or discovery; 5 or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or 6 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 7 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to 8 by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco 9 Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 10 F.3d 1011, 1017 (9th Cir. 2010). 11 Defendant bears the burden of proof in moving for summary judgment for failure to exhaust, 12 Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative remedy, and 13 that the prisoner did not exhaust that available remedy,” id. at 1172. If the defendants carry their 14 burden, the burden of production shifts to the plaintiff “to come forward with evidence showing that 15 there is something in his particular case that made the existing and generally available administrative 16 remedies effectively unavailable to him.” Id. “If the undisputed evidence viewed in the light most 17 favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment 18 under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary judgment should be 19 denied, and the district judge rather than a jury should determine the facts.” Id. 20 III. 21 DISCUSSION Description of CDCR’s Administrative Remedy Process 22 A. 23 Plaintiff is a former state prisoner who was at the time of filing the instant complaint in the 24 custody of the California Department of Corrections and Rehabilitation (“CDCR”). CDCR has an 25 administrative remedy process for inmate grievances. Cal. Code Regs. tit. 15, § 3084.1 (2014). 26 Compliance with section 1997e(a) is mandatory and state prisoners are required to exhaust CDCR’s 27 administrative remedy process prior to filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 85- 28 86 (2006); Sapp v. Kimbrell, 623 F.3d at 818. CDCR’s administrative grievance process for non4 1 medical appeals consists of three levels of review: (1) first level formal written appeals; (2) second 2 level appeal to the Warden or designees; and (3) third level appeal to the Office of Appeals (OOA). 3 Inmates are required to submit appeals on a standardized form (CDCR Form 602), attach necessary 4 supporting documentation, and submit the appeal within thirty days of the disputed event. Cal. Code 5 Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). Summary of Allegations Underlying Plaintiff’s Constitutional Claims 6 B. 7 The incidents alleged in the complaint occurred while Plaintiff was housed at the California 8 State Prison, Corcoran. Between May 4 through May 22, 2016, Plaintiff was assigned as a kitchen 9 worker in A1-A and the kitchen was in the process of being remodeled. While Plaintiff was working 10 on the line in 3B05 block a fight broke out in B-section involving neighboring inmate Leyva. The 11 third watch officers moved Leyva to cell 220 in another building and replaced him with inmate 12 Antonio Rodriguez. That same or following day, Rodriguez called over the vent and asked Plaintiff if 13 he could get a floater television in the building. Plaintiff told Rodriguez no and stated that he was 14 better off going back to 2 or 3 block for that because officer Huewe will take it. 15 Around May 13, 2016, at morning meal, Rodriguez stepped out of line and talked with officers 16 Huewe and Vargas regarding something that seemed suspicious. The next day at morning meal, 17 Rodriguez disrespectfully cut off Plaintiff’s cellmate Mr. Stratford. Around May 14, 2016, on the 18 morning yard, Rodriguez stopped Plaintiff to ask if he could keep the noise down because he was in 19 school and needed to rest, and Plaintiff told him sure. Plaintiff did not know what noise he was 20 talking about but made sure not to make noise out of respect for Rodriguez. Later the same day, 21 Rodriguez asked the building porter “Shadow” who was housed in cell 229, 230 or 231 in B-section 22 and to inquire about his cell move. Thereafter, “Shadow” talked with officers Huewe and Vargas. 23 On May 17, 2016, officers Huewe and Vargas told Plaintiff to step out of their cell for a cell 24 search. On May 21, 2016, at third watch there was some cell moves done and Rodriguez was not one 25 of the inmates moved. Rodriguez began kicking his cell door and yelling about a cell move but 26 received no response. 27 The next morning, at morning recreational yard release, officers Huewe and Vargas required 28 Plaintiff’s cellmate Mr. Stratford to stay in his cell because of his disciplinary status, but Plaintiff went 5 1 out to yard. Plaintiff went to the gym line to play basketball on the other side of the yard from Block 5 2 building. While Plaintiff was standing in the line, he looked up and Rodriguez came at him with his 3 fist bald up to attack Plaintiff and Plaintiff defended himself. A fight ensued until officer’s arrived. 4 When Plaintiff returned from the nurse, Mr. Stratford told Plaintiff that he saw Rodriguez talk 5 to officers Huewe and Vargas regarding his cell move and they said “find your own way to get you a 6 cell move.” Rodriguez stated well I’m about to go and fight and Huewe said “I don’t care go on and 7 handle your business.” Vargas was standing there during the conversation between Huewe and 8 Rodriguez and both officers allowed Rodriguez to run out of the building and attack Plaintiff. After the incident was over, Defendant Cordova ordered Plaintiff to prone out on the ground. 9 10 Plaintiff complied; and Defendant Cordova searched and handcuffed Plaintiff. Plaintiff told 11 Defendant Cordova to be careful with his right hand because she was hurting him. Defendant 12 Cordova said so what and grabbed Plaintiff’s right thumb and bent it back to his wrist. Defendant 13 Cordova tried to pick Plaintiff up off the ground and she was unable to do so. Defendant McIntyre 14 saw the struggle and grabbed Plaintiff’s handcuff links and yanked Plaintiff off the ground hurting his 15 wrist. 16 Plaintiff seeks compensatory and punitive damages. 17 C. Statement of Undisputed Facts2 18 1. Plaintiff is, and was at all times relevant to this action, a prisoner incarcerated within 19 the California Department of Corrections and Rehabilitation (“CDCR”). (1st Amd. Compl., ECF No. 20 24.) 2. 21 22 Plaintiff was, at all times relevant to this action, an inmate at California State Prison- Corcoran (“Corcoran”). (1st Amd. Compl.) 3. 23 The only appeals submitted by Plaintiff between May 1, 2016, and July 16, 2017, that 24 identify any of the Defendants in this case—Huewe, Vargas, Cordova, and/or McIntyre—or relate to 25 the incident that is the subject of this action, a fight on May 22, 2016, between Plaintiff and inmate 26 27 28 2 Referenced hereinafter as “UDF”. 6 1 Rodriguez are: CSPC-3-16-02828, CSPC-3-16-03040, and CSPC-3-16-03166. (Decl. of M. Oliveira, 2 ¶¶ 7-8, ECF No. 28-4.) 4. 3 Neither CSPC-3-16-02828, CSPC-3-16-03040, nor CSPC-3-16-03166 asserts that 4 either Cordova or McIntyre subjected Plaintiff to excessive force. (Appeals with Log Nos. CSPC-3- 5 16-03040, CSPC-3-16-03166, and CSPC-3-16-02828, attached as Exhibits “B,” “C,” and “C,” 6 respectively, to Oliveira Decl.) 5. 7 Neither CSPC-3-16-02828, CSPC-3-16-03040, nor CSPC-3-16-03166 identifies or 8 otherwise mentions either Cordova or McIntyre. (Appeals with Log Nos. CSPC-3-16-03040, CSPC- 9 3-16-03166, and CSPC-3-16-02828, attached as Exhibits “B,” “C,” and “C,” respectively, to Oliveira 10 11 Decl.) 6. Among CSPC-3-16-02828, CSPC-3-16-03040, and CSPC-3-16-03166, the only appeal 12 that relates to the alleged failure to protect Plaintiff by Huewe and Vargas that resulted in a fight with 13 Rodriguez on May 22, 2016, is CSPC-3-16-02828. (Appeals with Log Nos. CSPC-3-16-03040, 14 CSPC-3-16-03166, and CSPC-3-16-02828, attached as Exhibits “B,” “C,” and “C,” respectively, to 15 Oliveira Decl.) 16 7. The appeal with Log No. CSPC-3-16-02828 is dated May 26, 2016, and was received 17 by the Appeals Office at Corcoran on or about May 31, 2016. (Oliveira Decl., ¶ 11; IATS Log, 18 attached as Exhibit “A” to Oliveira Decl.; appeal with Log No. CSPC-3-16-02828, attached as Exhibit 19 “D” to the Oliveira Decl.) 20 8. On June 1, 2016, the appeal with Log No. CSPC-3-16-02828 was screened-out at the 21 first level because the action Plaintiff was requesting—postponing a Rules Violation Report 22 (“RVR”)—could not be done, as the charges were non-DA referable and only DA referable charges 23 can be postponed. The appeal was returned to Plaintiff on or about June 1, 2016, with a letter 24 requesting that he clarify the action requested. (Oliveira Decl., ¶ 12; letter attached as Exhibit “E” to 25 the Oliveira Decl.) 26 9. Plaintiff returned the letter with a notation that he was requesting that the RVR be 27 dismissed because Huewe and Vargas encouraged Rodriguez to fight. (Oliveira Decl., ¶ 13; Plaintiff’s 28 notation on the letter attached as Exhibit “E” to the Oliveira Decl.) 7 1 10. On June 9, 2016, the appeal with Log No. CSPC-3-16-02828 was screened-out at the 2 second level of review in accordance with section 3084.6(b)(7) of Title 15 because Plaintiff had not 3 submitted documents necessary to evaluate it; specifically, a copy of the final RVR signed by the 4 Chief Disciplinary Officer demonstrating that Plaintiff was found guilty of the offense charged, along 5 with the evidence submitted at the hearing. Without such information, the Appeals Coordinator and 6 other prison officials could not properly consider the action Plaintiff was requesting; i.e., dismissal of 7 the RVR. The appeal was returned to Plaintiff on or about June 9, 2016, with a letter requesting that 8 he attach a copy of the final Rules Violation Report signed by the Chief Disciplinary Officer, along 9 with the evidence submitted at the hearing. (Oliveira Decl., ¶ 14; letter attached as Exhibit “F” to the 10 11 Oliveira Decl.) 11. Plaintiff returned the appeal with some extraneous documents, but without the 12 requested final RVR and supporting evidence. On or about June 23, 2016, the appeal was screened- 13 out once again and Plaintiff was advised to return the appeal without the extraneous documents. 14 (Oliveira Decl., ¶ 15; letter attached as Exhibit “G” to the Oliveira Decl.) 15 12. Plaintiff returned the appeal without the extraneous documents. However, the appeal 16 still did not contain necessary documents; specifically, the final RVR and supporting evidence. It was, 17 therefore, screened-out in accordance with section 3084.6(b)(7) of Title 15 and returned to him on or 18 about June 28, 2016, along with a letter advising him to resubmit the appeal within thirty days with the 19 requested final RVR and supporting evidence. (Oliveira Decl., ¶ 16; letter attached as Exhibit “H” to 20 the Oliveira Decl.) 21 13. The appeal with Log No. CSPC-3-16-02828 was never resubmitted (with or without the 22 requested supporting documentation) following the June 28, 2016 screen-out, and no decision was 23 ever issued at the first or second level of review for this appeal. (Oliveira Decl., ¶ 17.) 24 14. Plaintiff submitted the appeal with Log No. COR-16-02828 to the Office of Appeals for 25 review at the third and final level. The Office of Appeals received it on August 15, 2016. (Decl. of 26 M. Voong, ¶¶ 6-7, 9; Tracking System Log, attached as Exhibit “A” to the Voong Decl.; appeal with 27 Log No. COR-16-02828, attached as Exhibit “C” to the Voong Decl.) 28 8 1 15. On or about October 28, 2016, the appeal with Log No. COR-16-02828 was screened- 2 out at the third level of review in accordance with section 3084.6(b)(15) of Title 15 because Plaintiff 3 submitted the appeal to the Office of Appeals before obtaining a decision at the second level of 4 review. (Voong Decl., ¶ 10; Tracking System Log. Attached as Exhibit “A” to the Voong Decl.; letter 5 attached as Exhibit “D” to the Voong Decl.) 6 7 16. No decision was ever issued at the third and final level of review for the appeal with Log No. COR-16-02828. (Voong Decl., ¶ 11.) Analysis and Findings on Defendants’ Motion 8 D. 9 Defendants argue that it is undisputed that Plaintiff never submitted any inmate appeal related 10 to his excessive force claim against Defendants Cordova and McIntyre. Defendants further argue that 11 although Plaintiff did submit an appeal related to his failure to protect claim against Defendants 12 Huewe and Vargas, it was properly screened-out in accordance with Title 15 as a result of his failure 13 to comply with applicable regulations. 14 Here, there is no dispute that that CDCR has an administrative remedy process for inmate 15 grievances which is initiated by submitting a CDCR Form 602 “Inmate/Parolee Appeal” within thirty 16 calendar days. Cal. Code Regs., tit. 15, §§ 3084.2(a), 3084.8(b)(1) (quotation marks omitted); 17 Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015); Wilkerson v. Wheeler, 772 F.3d 834, 839 18 (9th Cir. 2014). 19 1. 20 It is undisputed that Plaintiff did not submit an inmate appeal that either (a) identifies Cordova Excessive Force Claim Against Defendants Cordova and McIntyre 21 and McIntyre, or (b) relates to his excessive force claim against them. (UDF 4.) However, Plaintiff 22 argues that he would have exhausted the administrative remedies if prison officials had investigated 23 his grievance related to the alleged failure to protect by Defendants Huewe and Vargas, during an 24 investigation of Appeal Log No. CSPC-3-16-02828. Plaintiff argument is without merit. 25 As previously stated, an inmate is required to exhaust only available remedies.” Albino, 747 26 F.3d at 1171 (citing Booth v. Churner, 532 U.S. 731, 736 (2001)). “To be available, a remedy must be 27 available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Albino, 747 F.3d at 1171 28 (quoting Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005)). In Ross v. Blake, the Court set forth the 9 1 following three examples of when the administrative remedies are not available: (1) the 2 “administrative procedure … operates as a simple dead end—with officers unable or consistently 3 unwilling to provide any relief to aggrieved inmates;” (2) the “administrative scheme … [is] so opaque 4 that it becomes, practically speaking, incapable of use … to that no ordinary prisoner can make sense 5 of what it demands; and (3) “prison administrators thwart inmates from taking advantage of a 6 grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.Ct. 7 at 1859-60 (citations omitted). In addition, when an inmate’s administrative grievance is improperly 8 rejected on procedural grounds, exhaustion may be excused as effectively unavailable. Sapp v. 9 Kimbrell, 623 F.3d at 823; see also Nunez v. Duncan, 591 F.3d at 1224-1226 (warden’s mistake 10 rendered prisoner’s administrative remedies “effectively unavailable”); Brown v. 11 Valoff, 422 F.3d at 940 (plaintiff not required to proceed to third level where appeal granted at second 12 level and no further relief was available). 13 In this instance, Plaintiff has failed to present evidence that prison officials somehow prevented 14 him from submitting a grievance regarding the alleged use of excessive force by Cordova and 15 McIntyre. Furthermore, Plaintiff’s contention that he would have raised the excessive force issue in 16 the appeal regarding his failure to protect against Huewe and Vargas, even if true, does not excuse him 17 from exhaustion. Proper exhaustion of the administrative remedies demands compliance with an 18 agency’s deadlines and other critical procedural rules. Woodford v. Ngo, 548 U.S. 81, 91 (2006). 19 Thus, prisoners are required to submit appeals on a CDCR Form 602, and identify each staff member 20 alleged to have been involved in the action or decision being appealed as well as describe all staff 21 members’ involvement in the issue. Cal. Code Regs. tit. 15, §§ 3084.2(a), 3084.2(a)(3) (2016). 22 “Administrative remedies shall not be considered exhausted relative to any new issue, information, or 23 person later named by the appellant that was not included in the originally submitted CDCR Form 24 602.” Cal. Code Regs. tit. 15, § 3084.1(b) (2016); see also Valencia v. Gipson, No. 1:12-cv-01446 25 AWI SAB, 2015 WL 2185220, *10 (E.D. Cal. 2015). Therefore, raising the claim that Cordova and 26 McIntyre used excessive force during the investigation of Appeal Log No. CSPC-3-16-02828, rather 27 than by way of a separate Form 602 as required by CDCR regulations, would not have sufficed to 28 properly exhaust the administrative remedies as to Plaintiff’s excessive force claim against Defendants 10 1 Cordova and McIntyre. Accordingly, Defendants’ motion for summary judgment should be granted. 2 2. Failure to Protect Claims Against Defendants Huewe and Vargas 3 Appeal Log No. CSPC-3-16-02828 was received by the Office of Appeals on August 15, 2016. 4 (Voong Decl. ¶ 9, Ex. C.) In Appeal Log No. CSPC-3-16-02828, Plaintiff requested that the RVR he 5 received for fighting on May 22, 2016, be dismissed. (UDF 9.) Plaintiff claimed that because officers 6 Huewe and Vargas encouraged inmate Rodriguez to fight him he was simply defending himself and 7 should not have received a RVR. Plaintiff attached a copy of the original RVR, but he did not include 8 a copy of the final RVR signed by the Chief Disciplinary Officer indicating that he was actually found 9 guilty of the charged offense. (UDF 10.) Nor did Plaintiff submit copies of the evidence presented at 10 the hearing. (Id.) Each prison is required to have an “appeals coordinator” whose job it is to “screen all appeals 11 12 prior to acceptance and assignment for review.” Cal. Code Regs. tit. 15, § 3084.5(b). The appeals 13 coordinator may refuse to accept an appeal, by “rejecting” or “cancelling” it. Id., § 3084.6(a) 14 (“Appeals may be rejected pursuant to subsection 3084.6(b), or cancelled pursuant to subsection 15 3084.6(c), as determined by the appeals coordinator”). Pursuant to the regulations, “a cancellation or 16 rejection decision does not exhaust administrative remedies.” Id., § 3084.1(b). Under section 17 3084.6(b)(7) of Title 15, an appeal can be rejected if it is missing necessary supporting documents. 18 Cal. Code Regs. tit. 15, § 3084.6(b)(7) (2016). “Supporting documents” are defined by section 19 3084(h) to include, among other things, “documents that are needed to substantiate allegations made in 20 the appeal including … disciplinary reports with supplements…” Cal. Code Regs. tit. 15, § 3084(h) 21 (2016). In the initial appeal, dated May 26, 2016, Plaintiff requested that the RVR be postponed so that 22 23 the incident could be thoroughly investigated. (Oliveira Decl. ¶ 11, Ex. D.)3 On June 1, 2016, the 24 appeal was screened-out at the first level because the action Plaintiff was seeking—postponement of 25 the RVR—could not be done, as the charges were non-DA referable. Only DA referable charges can 26 be postponed. (Id. ¶ 12, Ex. E.) The appeal was returned to Plaintiff on or about June 1, 2016, with a 27 3 28 M. Oliveira, is the Custody Appeals Coordinator at California State Prison-Corcoran. (Oliveira Decl. ¶ 1; ECF No. 284.) 11 1 letter directing that he clarify the action requested. (Id.) Plaintiff returned the letter indicating that he 2 was requesting that the RVR be dismissed because Huewe and Vargas encouraged inmate Rodriguez 3 to fight. (Id. ¶ 13, Ex. E.) The appeal bypassed the first level of review and was submitted to the 4 second level. (Id. ¶ 13.) The appeal was screened out at the second level of review pursuant to section 3084.6(b)(7) 5 6 because Plaintiff failed to submit documents necessary to evaluate it; specifically, a copy of the final 7 RVR signed by the Chief Disciplinary Officer, demonstrating that he was found guilty of the offense 8 charged, along with evidence submitted at the hearing. (Id. ¶ 14.) Oliveira declares that “[w]ithout 9 such information, the Appeals Coordinator and other prison officials could not properly consider the 10 action [Plaintiff] was requesting; i.e., dismissal of the RVR.” (Id.) The appeal was returned to 11 Plaintiff on or about June 9, 2016, with a letter requesting that he attach a copy of the final RVR 12 signed by the Chief Disciplinary Officer, along with the evidence submitted at the hearing. (Id., Ex. 13 F.) 14 Plaintiff returned the appeal with some other extraneous documents, but without the final RVR 15 and supporting evidence. (Id. ¶ 15.) On or about June 23, 2016, the appeal was again screened-out 16 and Plaintiff was advised to re-submit the appeal without the extraneous documents. (Id., Ex. G.) 17 Plaintiff removed the extraneous documents and returned the appeal, but it still did not contain the 18 necessary RVR and supporting evidence. (Id. ¶ 16.) Therefore, the appeal was again screened out 19 pursuant to section 3084.6(b)(7) and returned to Plaintiff on or about June 28, 2016, with a letter 20 instructing him to resubmit the appeal within thirty days along with the requested final RVR and 21 supporting evidence. (Id., Ex. H.) There is no record of Appeal Log No. CSPC-3-16-028282 being 22 resubmitted with or without the necessary supporting documentation. (Id. ¶ 17.) 23 However, Plaintiff submitted the appeal with Log No. COR-16-02828 to the Office of Appeals 24 for review at the third and final level, which was received on August 15, 2016. (Decl. of M. Voong, 25 ¶¶ 6-7, 9.) On or about October 28, 2016, the appeal with Log No. COR-16-02828 was screened-out 26 at the third level of review in accordance with section 3084.6(b)(15) of Title 15 because Plaintiff 27 submitted the appeal to the Office of Appeals before obtaining a decision at the second level of 28 12 1 review. (Voong Decl., ¶ 10.) No decision was ever issued at the third and final level of review for the 2 appeal with Log No. COR-16-02828. (Voong Decl., ¶ 11.) 3 This appeal was properly screened-out at the institutional level because Plaintiff failed to 4 submit a copy of the necessary and final RVR with the appeal. Cal. Code Regs. tit. 15, § 3084.6(b)(7); 5 see also Lathan v. Ducart, No. 14-CV-04389-DMR (PR), 2016 WL 1180201, at *6-13 (N.D. Cal. 6 March 25, 2016) (finding the rejection of an appeal related to an RVR proper where the inmate failed 7 to submit a copy of the final RVR); Campbell v. Beard, No. 1:14-cv-00801 LJO SAB PC, 2015 WL 8 6705605, at *4 (E.D. Cal. Nov. 3, 2015) (same); James v. Calipatria State Prison, No. 3:14-cv-00964- 9 BTM-MDD, 2015 WL 8759031, at *2 (S.D. Cal. Dec. 14, 2015) (inmate failed to comply with 10 procedural requirement to submit necessary supporting documentation along with inmate appeal). In 11 addition, the appeal was properly screened-out at the third level of review because Plaintiff improperly 12 bypassed the second level of review. Cal. Code Regs. tit. 15, § 3084.6(b)(15) (2011) (prohibits 13 attempts to bypass lower levels of review); see also Purtue v. Kearnes, No. 1:15-cv-00551-DAD-SAB 14 (PC), 2017 WL 1064651, at *9 (E.D. Cal. 2017) (noting that appeal was properly rejected when 15 submitted directly to the third level of review in violation of section 3084.6(b)(15)). 16 In his opposition and surreply, Plaintiff contends that he should be excused from the 17 exhaustion requirement because he never received a copy of the final 115 RVR, despite his requests 18 for it. However, Plaintiff has failed to present any evidence or provide a reasonable explanation as 19 why he was unable to obtain a copy of the final RVR at any time after it was first requested by the 20 appeals coordinator on June 9, 2016.4 In his opposition, Plaintiff simply claims that he received an 21 incomplete RVR and did not wish to submit it because it was evidence and he had a hard time 22 obtaining a copy of the injury report 7219. (Pl.’s Opp’n at 4.) However, Plaintiff is not at liberty to 23 disagree with the provided instructions and the fact he did not want to submit the RVR he was in 24 possession of does not excuse him from providing the necessary documents to properly analyze his 25 grievance. See, e.g., Harrison v. Morring, No. C 10-3701 RS PR, 2011 WL 2446309, at *2 (N.D. Cal. 26 4 27 28 Attached to his surreply, Plaintiff submits inmate grievances dated May 26, 2016 and June 9, 2016, respectively in which he requested a final copy of the RVR. (Surreply, Ex. D; ECF No. 35.) In contrast, Plaintiff attaches documents that demonstrate he requested, and was successful in obtaining, a copy of the Form 7219 related to the subject incident with inmate Rodriguez. (Pl.’s Opp’n, pp. 37-43, ECF No. 33.) 13 1 2011) (although the plaintiff claimed that certain documents requested by the appeals coordinator were 2 “unavailable,” the court nevertheless found that the plaintiff had not shown that administrative 3 remedies were unavailable where he failed to specify “whether or not he sought to obtain these 4 documents, and why his requests, if any, for these documents were ignored or denied.”). 5 Furthermore, if Plaintiff could not obtain the supporting documents as he claims in his surreply, he 6 could have provided an explanation why the supporting documents were not available to him, Cal. 7 Code Regs. tit. 15, § 3084.3(b)-which he failed to do. When Plaintiff submitted appeal Log. No. 8 CSPC-3-16-02828 to the third level of review Plaintiff simply stated, “Dated 8-9-2016 Tuesday I 9 added my copy of 7219 Report of Injury or Unusual Occurrence. I want to get a log number from 3rd 10 level on appeals coordinator. Thank you.” (Voong Decl., Ex. C.) Thus, contrary to the appeal 11 instructions provided at the second level of review on July 28, 2016, Plaintiff failed to submit or 12 explain why he did not or could not obtain and submit a copy of the necessary final RVR and 13 supporting evidence. Moreover, there is no evidence that Plaintiff appealed the rejection of his appeal 14 at the third level of review on October 28, 2016, which clearly stated, “[b]e advised that you cannot 15 appeal a rejected appeal, but should take the corrective action necessary and resubmit the appeal 16 within the timeframes specified in CCR 3084.6(a) and CCR 3094.6(b). Pursuant to CCR 3084.6(e), 17 once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate appeal 18 can be filed on the cancellation decision. The original appeal may only be resubmitted if the appeal on 19 the cancellation is granted.” (Id.) Accordingly, Defendants’ motion for summary judgment should be 20 granted. 21 IV. 22 RECOMMENDATIONS 23 Based on the foregoing, it is HEREBY RECOMMENDED that: 24 1. Defendants’ motion for summary judgment be granted in its entirety; and 25 2. The instant action be dismissed, without prejudice, for failure to exhaust the 26 administrative remedies. 27 /// 28 /// 14 These Findings and Recommendations will be submitted to the United States District Judge 1 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after 3 being served with these Findings and Recommendations, the parties may file written objections with 4 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 5 Recommendations.” The parties are advised that failure to file objections within the specified time 6 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 7 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 10 11 IT IS SO ORDERED. Dated: January 26, 2018 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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