(PC) Smith v. Jenkens, No. 2:2015cv00344 - Document 57 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 8/16/2017 RECOMMENDING defendants' 50 motion for summary judgment be granted; and the action be dismissed without prejudice for failure to exhaust administrative remedies under the PLRA. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DESHONE SMITH, 12 No. 2:15-cv-00344 WBS DB Plaintiff, 13 v. 14 JENKENS, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in an action brought 17 18 under 42 U.S.C. § 1983. Plaintiff asserts claims for excessive force and retaliation, alleging that 19 defendants punched him in the back and ribs because he previously pursued litigation against 20 correctional officers. 21 Defendants move for summary judgment, arguing that plaintiff failed to exhaust 22 administrative remedies under the Prison Litigation Reform Act (“PLRA”) by not submitting his 23 appeal to the third level. Defendants also argue for summary judgment on the merits of the case; 24 however, because it is clear that plaintiff did not exhaust administrative remedies -- and makes no 25 showing that the administrative process was effectively unavailable to him -- the court need not 26 reach the merits arguments. Accordingly, for the reasons outlined below, the motion should be 27 granted and the action dismissed without prejudice. 28 //// 1 1 I. BACKGROUND 2 A. Factual Background 3 In the second amended complaint, plaintiff alleges that upon being transferred to Mule 4 Creek State Prison (MCSP), defendants Jenkens and Pogue escorted him to the Facility A-Yard. 5 (ECF No. 16-1 at 2.) According to the complaint, these defendants threatened plaintiff because 6 he was a “prison litigator.” (Id.) In addition to threatening him, plaintiff alleges defendants 7 struck him with their fists and held a billy club against his back. (Id.) 8 B. 9 On November 12, 2014, plaintiff filed a “CDCR 602 Inmate/Parolee Appeal” form 10 regarding these allegations. (ECF No. 50-2 at 5.) The appeal was noted as received on December 11 24, 2014. (Id.) After its filing, plaintiff’s appeal was screened, returned to him for corrections, 12 and received again on January 13, 2015. (ECF No. 50-2 at 3, 5.) 13 Procedural Background Plaintiff states that he submitted his original complaint to this court on November 22, 14 2014, and that he resubmitted it on February 3, 2015. (ECF No. 1 at 6.) The original complaint 15 was docketed on February 10, 2015. (ECF No. 1.) 16 The first level of review for the prisoner appeal was bypassed, and the second-level 17 review was completed on February 24, 2015. (ECF No. 50-2 at 3, 6.) The appeal states that it 18 was returned to plaintiff on May 4, 2015. (Id.) M. Voong, Chief of the Office of Appeals for the 19 CDCR, declares that plaintiff did not submit a third-level appeal. (ECF No. 50-3 ¶ 8.) 20 On May 5, 2015, plaintiff sent a notice addressed to the Appeals Coordinator claiming 21 that he had submitted a previous notice on April 29, 2015 stating that his appeal was missing. 22 (ECF No. 55-1 at 7.) Plaintiff claims that a second notice was submitted on May 3, 2015 23 concerning the purportedly missing appeal. (Id.) The Appeals Coordinator reviewed plaintiff’s 24 May 5, 2015 notice and filed a response on May 11, 2015 stating that plaintiff’s appeal “was 25 completed and returned to [him] on 5/4/15.” (Id.) 26 As noted above, plaintiff’s original complaint was docketed on February 10, 2015. (ECF 27 No. 1.) The second amended complaint, which is operative, was docketed on April 10, 2015. 28 (ECF No. 16.) The court screened the second amended complaint and found that plaintiff stated a 2 1 cognizable retaliation claim against Jenkens and a cognizable excessive force claim against 2 Jenkens and Pogue. (ECF No. 17 at 1.) 3 C. Motion for Summary Judgment 4 Defendants move for summary judgment. (ECF No. 50.) Defendants argue that plaintiff 5 failed to exhaust administrative remedies because he never submitted his appeal to the third level 6 and filed this action before the second-level review was complete. (Id. at 5–7.) They further 7 argue that plaintiff did not suffer any harm and, therefore, lacks constitutional standing. (Id. at 8.) 8 Additionally, they argue that defendants did not use excessive force. (Id. at 9) 9 Plaintiff opposes defendants’ motion for summary judgment. (ECF No. 55.) Plaintiff 10 contends that he exhausted administrative remedies because his appeal went missing and was 11 never responded to. (ECF No. 55-1 at 7.) He also asserts that he has constitutional standing 12 because defendants’ alleged assault caused or exacerbated pain in his testicles, legs, and lower 13 back. (Id. at 2, 4.) Additionally, plaintiff argues that defendants used excessive force on him 14 because they punched him in his back and ribs for malicious and retaliatory reasons, which his 15 cellmate witnessed. (See ECF Nos. 55 at 2; 55-1 at 2, 4.) Defendants filed a reply memorandum. 16 (ECF No. 56.) 17 Defendants’ motion for summary judgment included a so-called “Rand Notice” (ECF No. 18 50-5) to plaintiff informing him of the requirements for opposing a motion pursuant to Rule 56 of 19 the Federal Rules of Civil Procedure. See Woods v. Carey, 684 F.3d 934, 941 (9th Cir. 2012); 20 Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988); Rand v. Rowland, 154 F.3d 952, 21 957 (9th Cir. 1998) (en banc). For the reasons outlined below, the court grants defendants’ motion for summary on the 22 23 grounds that plaintiff failed to exhaust administrative remedies before filing this lawsuit. The 24 court will not address the merits portion of the summary judgment motion. 25 II. STANDARD OF REVIEW 26 A. 27 Summary judgment is appropriate when there is “no genuine dispute as to any material 28 Summary Judgment Standard fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 3 1 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 2 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 3 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 4 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986); Nw. Motorcycle Ass’n v. 5 U.S. Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). At bottom, a summary judgment 6 motion asks whether the evidence presents a sufficient disagreement to require submission to a 7 jury. 8 9 The moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes 10 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 11 317, 323–24 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the 12 moving party meets its burden with a properly supported motion, the burden then shifts to the 13 opposing party to present specific facts that show there is a genuine issue for trial. Anderson, 477 14 U.S. at 248; Matsushita, 475 U.S. at 586–87; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th 15 Cir. 1995) (per curiam). 16 To defeat summary judgment the opposing party must establish a genuine dispute as to a 17 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 18 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 19 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 20 will properly preclude the entry of summary judgment.”). Second, the dispute must be genuine. 21 In determining whether a factual dispute is genuine the court must again focus on which party 22 bears the burden of proof on the factual issue in question. Where the party opposing summary 23 judgment would bear the burden of proof at trial on the factual issue in dispute, that party must 24 produce evidence sufficient to support its factual claim. Conclusory allegations unsupported by 25 evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 26 1989) (citation omitted). 27 //// 28 //// 4 1 B. 2 The Prison Litigation Reform Act of 1995 (PLRA) mandates that “[n]o action shall be Failure to Exhaust Administrative Remedies Standard 3 brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a 4 prisoner confined in any jail, prison, or other correctional facility until such administrative 5 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Although “the PLRA's 6 exhaustion requirement applies to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 7 516, 532 (2002), the requirement for exhaustion under the PLRA is not absolute. See Albino v. 8 Baca, 697 F.3d 1023, 1030–31 (9th Cir. 2012). As explicitly stated in the statute, “[t]he PLRA 9 requires that an inmate exhaust only those administrative remedies ‘as are available.’” Sapp v. 10 Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (quoting 42 U.S.C. § 1997e(a)) (administrative 11 remedies plainly unavailable if grievance was screened out for improper reasons); see also Nunez 12 v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (“Remedies that rational inmates cannot be 13 expected to use are not capable of accomplishing their purposes and so are not available.”). “We 14 have recognized that the PLRA therefore does not require exhaustion when circumstances render 15 administrative remedies ‘effectively unavailable.’” Sapp, 623 F.3d at 822 (citing Nunez, 591 16 F.3d at 1226); accord Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The obligation to 17 exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no 18 longer the case, then there are no ‘remedies . . . available,’ and the prisoner need not further 19 pursue the grievance.”). 20 Dismissal of a prisoner civil rights action for failure to exhaust administrative remedies 21 must generally be brought and decided pursuant to a motion for summary judgment under Rule 22 56, Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc). 23 Defendant bears the burden of proving that there was an available administrative remedy that the 24 prisoner did not exhaust it. Id. at 1172. If defendant meets this burden, then the burden shifts to 25 plaintiff to “come forward with evidence showing that there is something in his particular case 26 that made the existing and generally available administrative remedies effectively unavailable to 27 him.” Id. In adjudicating summary judgment on the issue of exhaustion, the court must view all 28 the facts in the record in the light most favorable to plaintiff. Id. at 1173. 5 1 2 III. ANALYSIS Plaintiff submitted a first-level appeal on November 12, 2014, and that the second-level 3 review was completed on February 24, 2015. (ECF No. 50-2 at 3, 5–6.) The evidence before the 4 court shows that the appeal was returned to plaintiff on May 4, 2015. (ECF Nos. 50-2 at 3, 6; 55- 5 1 at 7.) Additionally, Voong declares that plaintiff failed to submit his appeal to the third level 6 (ECF No. 50-3 at 2-3), which plaintiff does not dispute. Accordingly, it is undisputed that 7 plaintiff did not complete his prisoner appeal process through the third level of review. 8 9 Plaintiff argues that the third level was effectively unavailable to him because his appeal went missing (i.e., he never received a second-level response). However, plaintiff filed the 10 original complaint in this lawsuit on February 10, 2015 (ECF No. 1), which is more than two 11 months before plaintiff claims he even inquired with the Appeals Coordinator about the status of 12 his original prisoner appeal (ECF No. 55-1 at 7). Additionally, plaintiff was interviewed 13 concerning his initial appeal (which was bypassed to the second level of review from the start) on 14 December 29, 2014. (ECF No. 50-1 at 6.) Plaintiff asserts (and defendants’ dispute) that he was 15 interviewed again on January 15, 2015 concerning his appeal. This was less than one month 16 before plaintiff filed this lawsuit. 17 The record evidence before the court shows that the second level review of plaintiff’s 18 appeal was returned to him on May 4, 2015. (ECF No. 50-1 at 6.) As noted above, plaintiff did 19 not inquire about the status of the second level of review through official channels until April 29, 20 2015. (ECF No. 55-1 at 7). Even if plaintiff never received the decision concerning the second 21 level review on May 4, 2015, he still filed this lawsuit while the review was indisputably 22 underway; the lawsuit was filed more than two months before plaintiff inquired about the status 23 of his appeal and less than a month after plaintiff claims he was interviewed by prison officials 24 concerning the appeal. While plaintiff disputes that he received a response to his appeal on May 25 4, 2015, it is not disputed that the appeals coordinator received the appeal decision on May 4, 26 2015, which officially signals the conclusion of that level of review. (ECF No. 501- at 6.) 27 Plaintiff filed his lawsuit before the second level appeal process was completed. Plaintiff 28 cannot assert that the decision was missing or that the administrative process was not available to 6 1 him on February 10, 2015 when this action was filed. The record clearly shows that the second 2 level review was underway on that date and that plaintiff never inquired about the status of his 3 appeal until months after he filed the lawsuit. “The obligation to exhaust ‘available’ remedies 4 persists as long as some remedy remains available. Once that is no longer the case, then there are 5 no remedies available, and the prisoner need not further pursue the grievance.” Brown v. Valoff, 6 422 F.3d 926, 935 (9th Cir. 2005) (internal quotations omitted). On February 10, 2015, plaintiff 7 still had available administrative remedies that he did not exhaust before pursuing this action. 8 Accordingly, plaintiff failed to exhaust administrative remedies. For that reason, this action must 9 be dismissed without prejudice. 10 11 IV. CONCLUSION For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendants’ motion 12 for summary judgment (ECF No. 50) be granted, and that the action be dismissed without 13 prejudice for failure to exhaust administrative remedies under the PLRA. 14 These findings and recommendations will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. The document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 objections shall be filed and served within seven days after service of the objections. The parties 20 are advised that failure to file objections within the specified time may result in waiver of the 21 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991). 22 Dated: August 16, 2017 23 24 25 26 27 TIM-DLB:10 DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / smit.0344.msj 28 7

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