(PC) Houston v. Eldridge et al, No. 2:2016cv02561 - Document 87 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/10/2018 RECOMMENDING 72 Motion for Subpoenas, construed as a Motion for Discovery pursuant to Fed. R. Civ. P. 56(d), be denied; 62 Motion for Summary Judgment be gran ted as to the merits of Plaintiff's claim that defendant Eldridge violated Plaintiff's 8th Amendment rights when she released him to A Facility in July 2016; 62 Motion for Summary Judgment be granted as to the enumerated claims in this Fi ndings and Recommendations on grounds that Plaintiff failed to exhaust administrative remedies; and 62 Motion for Summary Judgment on grounds that Plaintiff failed to exhaust administrative remedies as to his excessive force claim against defendants Padilla and Huynh regarding the first 7/17/2016 incident be denied. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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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 WILLIAM HOUSTON, 12 13 14 No. 2: 16-cv-2561 WBS KJN P Plaintiff, v. FINDINGS AND RECOMMENDATIONS L. ELDRIDGE, et al., 15 Defendants. 16 17 18 I. Introduction Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to 42 U.S.C. § 1983. Pending before the court is defendants’ summary judgment motion. (ECF 20 No. 62.) Also pending is plaintiff’s motion for issuance of a subpoena. (ECF No. 72.) 21 For the reasons stated herein, the undersigned recommends that defendants’ summary 22 judgment motion be granted in part and denied in part. The undersigned also recommends that 23 plaintiff’s motion for a subpoena, construed as a motion for discovery pursuant to Federal Rule of 24 Civil Procedure 56(d), be denied. 25 II. Summary Judgment Standards 26 Summary judgment is appropriate when it is demonstrated that the standard set forth in 27 Federal Rule of Civil procedure 56 is met. “The court shall grant summary judgment if the 28 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 1 1 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 2 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 3 4 5 6 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 7 56(c)). 8 9 “Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 10 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 11 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory 12 committee’s notes to 2010 amendments (recognizing that “a party who does not have the trial 13 burden of production may rely on a showing that a party who does have the trial burden cannot 14 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 15 should be entered, after adequate time for discovery and upon motion, against a party who fails to 16 make a showing sufficient to establish the existence of an element essential to that party’s case, 17 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 18 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 19 necessarily renders all other facts immaterial.” Id. at 323. 20 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 21 the opposing party to establish that a genuine issue as to any material fact actually exists. See 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 23 establish the existence of such a factual dispute, the opposing party may not rely upon the 24 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 25 form of affidavits, and/or admissible discovery material in support of its contention that such a 26 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 27 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 28 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 2 1 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 2 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 3 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 4 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 5 1564, 1575 (9th Cir. 1990). 6 In the endeavor to establish the existence of a factual dispute, the opposing party need not 7 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 8 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 9 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 10 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 11 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 12 amendments). 13 In resolving a summary judgment motion, the court examines the pleadings, depositions, 14 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 15 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 16 255. All reasonable inferences that may be drawn from the facts placed before the court must be 17 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences 18 are not drawn out of the air, and it is the opposing party’s obligation to produce a factual 19 predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. 20 Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 21 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 22 some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could 23 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 24 trial.’” Matsushita, 475 U.S. at 586 (citation omitted). 25 By contemporaneous notice provided on January 10, 2017 (ECF No. 16), plaintiff was 26 advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal 27 Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); 28 Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988). 3 1 III. Plaintiff’s Allegations and Legal Claims 2 Plaintiff’s Allegations 3 This action proceeds on the original complaint, filed October 27, 2016, as to defendants 4 Anderson, Barajas, Brewer, Eldridge, Huynh, Morales, Nyberg, Pacheco, Padilla, Rowe, 5 Stanfield and Stuhr. 6 Plaintiff alleges that on February 5, 2016, he returned to California State Prison- 7 Sacramento (“CSP-Sac”) after being out-to-court at California State Prison-Lancaster 8 (“Lancaster”). Plaintiff alleges that defendants Brewer and Huynh came to Receiving and 9 Release (“R and R”) to escort plaintiff to his cell in A Facility, 3 Building, Cell 107. Plaintiff 10 alleges that once they arrived at Cell 107, plaintiff noticed that the cell was dirty. Plaintiff told 11 defendants that the cell was dirty and that it was supposed to be clean for new arrivals. Defendant 12 Brewer became angry and said, “O.K. We’re going to do our job.” Defendants Brewer and 13 Huynh then took plaintiff through the A Section side door into B Section and put plaintiff in the B 14 Section cage. Defendants left plaintiff in handcuffs and leg irons. 15 Defendants Brewer and Huynh returned with defendant Anderson. As they approached 16 the cage they said, “Let’s go.” Plaintiff had a gut feeling that they were going to harm him. 17 Plaintiff stated, “I’m not going anywhere until I see the Lieutenant.” Defendant Brewer then 18 opened the cage, snatched plaintiff out by the left shoulder and arm and violently shoved plaintiff 19 into the hallway of the A3 Building Rotunda blind area. Defendants Huynh and Anderson 20 followed plaintiff and defendant Brewer into the rotunda. Once they had plaintiff in the rotunda 21 blind area, defendant Brewer ordered defendant Stanfield to put a spit mask over plaintiff’s head. 22 Then defendant Brewer slammed plaintiff’s face against the wall. Defendant Brewer grabbed the 23 back of plaintiff’s head and started repeatedly bashing plaintiff’s face into the wall. 24 Plaintiff begged defendant Brewer to stop the assault and asked to be taken to his cell. 25 Defendant Brewer replied, “If I take you to your cell, you’re just going to talk shit…You know 26 what? You just assaulted an officer.” Defendant Brewer then took plaintiff to the floor and 27 started punching and elbowing plaintiff in the face over and over again. Defendant Brewer 28 screamed, “Stop resisting!” Defendant Huynh then started jumping up and down on plaintiff’s 4 1 2 low back and rib area. The alarm was activated and officers from different buildings came charging in. Plaintiff 3 was taken to cell 107. Later that evening, Psychiatric Technician (“Psych Tech”) Moran, escorted 4 by defendant Stanfield, came to the cell with plaintiff’s evening medication. Psych Tech Moran 5 saw plaintiff’s injuries and stated that she was going to “write this down.” Defendant Stanfield 6 signaled plaintiff not to tell what had happened. A few days later, plaintiff received a fabricated 7 rules violation report, prepared by defendant Brewer, falsely accusing plaintiff of headbutting him 8 in the face and ramming his shoulder and head into defendant Brewer’s chest and face area. 9 Plaintiff also alleges that defendant Huynh also prepared false reports regarding the February 5, 10 2016 incident. Plaintiff alleges that defendants Anderson and Stanfield did not write reports 11 regarding the February 5, 2016 incident in support of defendants Brewer and Huynh. Plaintiff 12 alleges that defendants Anderson and Stanfield falsely claimed that they were not present. 13 Plaintiff alleges that defendant Eldridge signed the final copy of the disciplinary report, 14 following plaintiff’s conviction for charges related to the February 5, 2016 incident. Plaintiff 15 alleges that defendant Eldridge knew that plaintiff’s due process rights had been violated during 16 the disciplinary hearing. Plaintiff also alleges that there was insufficient evidence to support his 17 disciplinary conviction. 18 Plaintiff alleges that defendant Eldridge knew that a “serious incident” had occurred on 19 February 5, 2016, between plaintiff and defendants Brewer, Huynh, Anderson and Stanfield. 20 Plaintiff alleges that he filed an administrative grievance against these defendants and also 21 participated in an excessive force video on February 16, 2016. Plaintiff alleges that based on 22 these circumstances, defendant Eldridge knew that these defendants were a threat to plaintiff. 23 Plaintiff alleges that defendant Eldridge failed to protect him from harassment by 24 defendants Brewer and Huynh that occurred on February 17, 2016, in retaliation for plaintiff’s 25 participation in the excessive force video. Plaintiff alleges that on February 17, 2016, defendants 26 Brewer and Huynh took a T.V. out of plaintiff’s cell, left plaintiff in his cell and did not feed him. 27 Plaintiff alleges that on February 17, 2016, defendants Brewer and Huynh prepared another 28 fabricated disciplinary report charging plaintiff with “Delaying a Peace Officer of their Duties.” 5 1 Plaintiff alleges that defendant Eldridge knew that California Department of Corrections and 2 Rehabilitation (“CDCR”) policy required that defendants Brewer and Huynh should not have 3 been near plaintiff on February 17, 2016. 4 Plaintiff alleges that on June 10, 2016, he was placed in Administrative Segregation (“ad 5 seg”) because he presented an immediate threat to the safety of self or others. Plaintiff alleges 6 that defendant Eldridge later made the decision to release plaintiff from ad seg to A Facility, EOP 7 mainline, which was the same facility where defendants Brewer and Huynh worked. Plaintiff 8 alleges that defendant Eldridge knew that releasing plaintiff to A Facility, EOP mainline, where 9 these defendants worked, created a great risk of harm to plaintiff. 10 Plaintiff alleges that on July 17, 2016, when defendants Brewer and Huynh saw plaintiff 11 on the exercise yard, defendant Brewer said, “You’re out of handcuffs now, so do something! Do 12 something!” Plaintiff alleges that as he walked to his building, defendant Brewer charged him 13 from behind. Defendant Brewer then twisted plaintiff around and started punching plaintiff in the 14 face. Plaintiff alleges that defendants Padilla and Huynh tackled plaintiff on the ground and had 15 their knees in plaintiff’s back. Plaintiff alleges that defendant Brewer tried to poke plaintiff’s 16 eyes out with his finger. 17 Plaintiff alleges that defendant Brewer wrote another fabricated rules violation report 18 based on the July 17, 2106 incident alleging that plaintiff threatened to commit violence on him. 19 Plaintiff alleges that later on July 17, 2016, plaintiff was placed in the Ad Seg A Facility 20 Building 5. As soon as plaintiff entered the building, escorting officer Nyberg asked plaintiff, 21 “What happened earlier?” Defendant Nyberg then tripped plaintiff and slammed plaintiff to the 22 ground. Defendants Nyberg, Barajas, Morales, Stuhr, Rowe and Pacheco then assaulted plaintiff. 23 Plaintiff seeks money damages and declaratory relief. 24 Plaintiff’s Legal Claims 25 Defendants’ statement of undisputed facts contains a description of plaintiff’s legal 26 claims, which plaintiff does not dispute. (See ECF No. 73 at 17.) The undersigned adopts this 27 description herein, but with a more detailed description of the alleged failure to protect claims 28 against defendant Eldridge: 1) on February 5, 2016, defendants Brewer, Huynh, Anderson and 6 1 Stanfield used excessive force and/or failed to intervene when excessive force was used; 2) 2 defendants Brewer and Huynh falsified reports regarding the February 5, 2016 incident, and 3 defendants Stanfield and Anderson failed to write reports regarding the February 5, 2016 incident, 4 in violation of plaintiff’s right to due process; 3) on February 17, 2016, defendants Brewer and 5 Huynh retaliated against plaintiff for participating in an excessive force video interview by taking 6 his television, leaving plaintiff in his cell with handcuffs on, failing to feed plaintiff and filing a 7 false disciplinary report against plaintiff for “Delaying a Peace Officer of Their Duties;” 4) 8 defendant Eldridge violated plaintiff’s right to due process when she “signed off” on plaintiff’s 9 disciplinary conviction related to the February 5, 2016 incident; 5) defendant Eldridge failed to 10 intervene to protect plaintiff from the retaliation that occurred on February 17, 2016; 6) defendant 11 Eldridge failed to protect plaintiff from harm when she authorized plaintiff’s release from ad seg 12 to A Facility EOP mainline in July 2016; 7) defendants Brewer, Padilla and Huynh used 13 excessive force against plaintiff during the first July 17, 2016 incident; and 8) defendants Nyberg, 14 Barajas, Morales, Stuhr, Rowe and Pacheco used excessive force against plaintiff during the 15 second July 17, 2016 incident. 16 IV. Alleged Failure to Exhaust Administrative Remedies 17 In the opposition, plaintiff asserts that defendants’ argument regarding failure to exhaust 18 administrative remedies is untimely. Plaintiff argues that defendants should have raised this issue 19 in a motion to dismiss. In the reply, defendants correctly observe that because plaintiff’s 20 exhaustion of administrative remedies was not clear from the face of the complaint, they were 21 required to submit evidence regarding this issue in a summary judgment motion. See Albino v. 22 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). For these reasons, the undersigned finds that 23 defendants have properly raised the argument that plaintiff failed to exhaust administrative 24 remedies in the summary judgment motion. 25 In his opposition, plaintiff also argues that defendants blocked out necessary information 26 in their exhibits. In the reply, defendants state that the packets submitted with Voong’s 27 declaration are complete appeals from the third level of review and the office of appeals, and only 28 identifying information of the officers and prison staff is redacted. (ECF No. 82 at 5 (defendants’ 7 1 reply).) The undersigned finds that the redaction of information regarding officers and prison 2 staff is appropriate as this information is not relevant to this action. 3 A. Legal Standard 4 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that “[n]o 5 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 6 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 7 administrative remedies as are available are exhausted.” 42 U.S.C.§ 1997e(a). Prisoners are 8 required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 9 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 10 Exhaustion is required regardless of the relief sought by the prisoner and regardless of the 11 relief offered by the process, unless “the relevant administrative procedure lacks authority to 12 provide any relief or to take any action whatsoever in response to a complaint.” Booth v. 13 Churner, 532 U.S. 731, 736, 741 (2001); Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). The 14 exhaustion requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 534 15 U.S. 516, 532 (2002). An untimely or otherwise procedurally defective appeal will not satisfy the 16 exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). 17 18 19 20 21 22 23 As the U.S. Supreme Court recently explained in Ross, 136 S. Ct. at 1856, regarding the PLRA’s exhaustion requirement: [T]hat language is “mandatory”: An inmate “shall” bring “no action” (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.... [T]hat edict contains one significant qualifier: the remedies must indeed be “available” to the prisoner. But aside from that exception, the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective of any “special circumstances.” Id. (internal citations omitted). 24 Exhaustion of administrative remedies may occur if, despite the inmate’s failure to 25 comply with a procedural rule, prison officials ignore the procedural problem and render a 26 decision on the merits of the grievance at each available step of the administrative process. Reyes 27 v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (although inmate failed to identify the specific 28 8 1 doctors, his grievance plainly put prison on notice that he was complaining about the denial of 2 pain medication by the defendant doctors, and prison officials easily identified the role of pain 3 management committee's involvement in the decision-making process). 4 B. Discussion 5 Claims Against Defendants Brewer and Huynh Regarding February 17, 2016 6 Defendants argue that plaintiff failed to properly exhaust his administrative remedies 7 regarding his claims that on February 17, 2016, defendants Brewer and Huynh retaliated against 8 him for participating in the use of force interview by taking a T.V. out of plaintiff’s cell, leaving 9 plaintiff in his cell, failing to feed him and filing a fabricated disciplinary report against him. 10 Defendants argue that plaintiff filed one administrative grievance raising claims related to the 11 February 17, 2016 incident, i.e., grievance no. 16-00637. (See ECF No. 62-10 at 3-4; ECF No. 12 62-5 at 8.) Defendants argue that grievance no. 16-00637 did not properly exhaust plaintiff’s 13 claims regarding the February 17, 2016 incidents. 14 The undersigned discusses grievance no. 16-0037 herein. 15 On February 9, 2016, plaintiff submitted a first level grievance no. 16-00637, regarding 16 his claim of excessive force on February 5, 2016. (Id. at 26.) This grievance was bypassed at the 17 first level of review. (Id.) On February 25, 2016, this grievance was granted in part at the second 18 level of review. (Id. at 27, 30-31.) On March 30, 2016, plaintiff appealed grievance no. 16- 19 00637 to the third level of review. (Id. at 27.) In his third level appeal, plaintiff raised his claims 20 against defendants Brewer and Huynh regarding the February 17, 2016 incident. (Id.) 21 On August 15, 2016, grievance 16-00637 was denied at the third, and final, level of 22 review. (Id. at 24-25.) This third level response addressed the merits of plaintiff’s claims 23 regarding the February 5, 2016 incident. (Id.) This third level response also stated, 24 The appellant has added new issues and requests to his appeal. The additional requested action is not addressed herein as it is not appropriate to expand the appeal beyond the initial problem and the initially requested action (CDC Form 602, Inmate/Parolee Appeal Form, Sections A and B). 25 26 27 (Id. at 25.) 28 //// 9 1 “Administrative remedies shall not be considered exhausted relative to any new issue, 2 information, or person later named by the appellant that was not included in the originally 3 submitted CDCR Form 602.” Cal. Code Regs. tit. 15, § 3084.1(b) (2016); see also Valencia v. 4 Gipson, 2015 WL 2185220, *10 (E.D. Cal. 2015). Because plaintiff did not raise his claims 5 against defendants Brewer and Huynh regarding the February 17, 2016 incidents in the first level 6 of grievance 16-00637, the undersigned finds that 16-00637 did not administratively exhaust 7 these claims. 8 9 The undersigned also observes that on July 10, 2017, plaintiff exhausted grievance no. 163877 at the third level, which (arguably) raised the claims regarding the February 17, 2016 10 incidents. (See ECF No. 62-10 at 72-73.) However, because grievance no. 16-3877 was 11 exhausted after plaintiff filed his complaint on October 27, 2016, plaintiff’s claims against 12 defendants Brewer and Huynh regarding the February 17, 2016 incidents are not properly raised 13 in this action. Jones v. Bock, 549 U.S. 199, 211 (2007) (prisoners are required to exhaust the 14 available administrative remedies prior to filing suit) (emphasis added). 15 In his opposition, plaintiff argues that if he had filed another “regular” appeal regarding 16 the February 17, 2016 incident, it would have been screened out as duplicative, citing exhibits C 17 and I attached to the opposition. (ECF No. 73 at 19.) Plaintiff also argues that he exhausted these 18 claims on May 15, 2016. (Id.) Plaintiff also contends that he filed a disciplinary appeal raising 19 the claims regarding the February 17, 2016, also citing exhibit C. (Id.) 20 The undersigned does not understand plaintiff’s claim that he exhausted this issue on May 21 15, 2016. Plaintiff’s exhibit C includes documents regarding grievance no. 16-3877 and the 22 related prison disciplinary. (Id. at 118-151.) As discussed above, plaintiff exhausted grievance 23 no. 16-3877 after he filed this action. Plaintiff’s exhibit I includes documents related to grievance 24 no. 16-3435 which raised claims regarding the events of July 17, 2016. (Id. at 220-27.) This 25 grievance did not raise claims regarding the February 17, 2016 incident. 26 For the reasons discussed above, the undersigned finds that plaintiff failed to exhaust 27 administrative remedies with respect to his claims against defendants Brewer and Huynh 28 regarding the events of February 17, 2016. Accordingly, defendants’ motion for summary 10 1 judgment on these grounds should be granted. 2 3 Claims Against Defendants Padilla and Huynh for Excessive Force Regarding the First July 17, 2016 Incident 4 Regarding the first July 17, 2016 incident, plaintiff alleges that defendants Brewer, Padilla 5 and Huynh used excessive force against him. Defendants argue that the three grievances plaintiff 6 submitted related to the first July 17, 2016 incident, i.e., grievance nos. 16-2658, 16-3435 and 16- 7 3559, failed to exhaust administrative remedies as to the claims against defendants Padilla and 8 Huynh. (See ECF No. 62-5 (declaration of C. Burnett discussing plaintiff’s relevant grievances); 9 ECF No. 62-10 (declaration of M. Voong discussing plaintiff’s relevant grievances). 10 Defendants argue that grievance no. 16-2658 failed to mention either defendant Padilla or 11 Huynh or their alleged use of excessive force during the first July 17, 2016 incident. In grievance 12 16-2658, plaintiff alleged, in relevant part, that during the first July 17, 2106 incident, 13 And once I was on the ground and handcuffed behind my back on 717-16 C/O Brewer was on top of my back and had his hands under my face trying to poke my eyes out with his thumb while the other officers was pile on top of me. 14 15 16 (ECF No. 62-10 at 18.) The third level decision in grievance no. 16-2658 acknowledged plaintiff’s claim that 17 18 officers, in addition to defendant Brewer, were involved in the first July 17, 2016 incident. (Id. at 19 14.) 20 The amount of detail in an administrative grievance necessary to properly exhaust a claim 21 is determined by the prison’s applicable grievance procedures. Jones, 549 U.S. at 218; see also 22 Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (‘‘To provide adequate notice, the prisoner 23 need only provide the level of detail required by the prison’s regulations’’). The level of 24 specificity required in the appeal is described in a regulation: 25 26 27 28 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee shall include the staff member’s last name, first initial, title or position, if known, and the dates of the staff member’s involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any 11 1 2 3 other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question. [¶] The inmate or parolee shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if needed, the Inmate/Parolee Appeal Form Attachment. 4 5 6 Cal. Code Regs. tit. 15, § 3084.2(a) (3–4).9 However, the Ninth Circuit has held that “a prisoner exhausts such administrative 7 remedies as are available...under the PLRA despite failing to comply with a procedural rule if 8 prison officials ignore the procedural problem and render a decision on the merits of the 9 grievance at each available step of the administrative process.” Reyes v. Smith, 810 F.3d 654, 10 658 (9th Cir. 2016); see also Franklin v. Foulk, 2017 WL 784894, at *4–5 (E.D. Cal. Mar. 1, 11 2017); Franklin v. Lewis, 2016 WL 4761081, at *6 (N.D. Cal. Sept. 13, 2016). Thus, a prisoner’s 12 failure to list all staff members involved in an incident in his inmate grievance, or to fully 13 describe the involvement of staff members in the incident, will not necessarily preclude his 14 exhaustion of administrative remedies. Reyes, 810 F.3d at 958; Foulk, 2017 WL 784894, at *4 15 (“[T]he court in Reyes found that even though the plaintiff’s grievance failed to name two 16 physicians on the prison’s three-person pain committee, prison officials were put on notice of the 17 nature of the wrong alleged in the suit -- that the plaintiff was wrongfully denied pain 18 medication.”); Lewis, 2016 WL 4761081, at *6 (“[T]o the extent Defendants argue that Plaintiff 19 failed to comply with a procedural requirement by not naming Defendants in [his appeal], this 20 deficiency is not necessarily fatal to Plaintiff’s claim pursuant to Reyes”); see also Bulkin v. 21 Ochoa, 2016 WL 1267265, at *1–2 (E.D. Cal. Mar. 31, 2016) (declined to dismiss reckless 22 endangerment claims based on failure to name two defendants in appeal because prison officials 23 addressed the claim on the merits, were alerted to the problem, knew the actors involved, and 24 were given an opportunity to rectify the alleged wrong). 25 Nonetheless, for administrative remedies to be exhausted by California prisoners as to 26 defendants who were not identified in the inmate grievance, there must be a “sufficient 27 connection” between the claim in the appeal and the unidentified defendants such that prison 28 officials can be said to have had “notice of the alleged deprivation” and an “opportunity to 12 1 resolve it.” Reyes, 810 F.3d at 959 (finding that plaintiff had satisfied PLRA exhaustion 2 requirements as to two prison doctors despite not having identified them in his inmate appeals 3 because there was a sufficient connection between plaintiff’s appeal based on inadequate pain 4 management, and the doctors, who served on the prison committee that had denied plaintiff 5 medication); McClure v. Chen, 246 F.Supp 3d 1286, 1293–94 (E.D. Cal. 2017) (remedies 6 exhausted even though doctors not named in appeal; prison was placed on notice). 7 While grievance no. 16-2658 did not name defendants Huynh or Padilla, it clearly alleged 8 that other officers were involved in the first July 17, 2016 incident. Grievance 16-2658 also 9 described the conduct of the “other officers,” i.e., they piled on top of plaintiff as defendant 10 Brewer tried to poke plaintiff’s eyes out. These allegations match the claims against defendants 11 Huynh and Padilla made in the instant action. 12 Grievance no. 16-2658 put prison officials on notice that other officers were involved in 13 first July 17, 2016 incident, as it specifically described their conduct. In addition, no part of 14 grievance 16-2658 was rejected based on plaintiff’s failure to identify by name the other officers 15 involved in the first July 17, 2016 incident. In other words, grievance no. 16-2658 was addressed 16 on the merits. For these reasons, the undersigned finds that grievance 16-2658 exhausted 17 plaintiff’s claims against defendants Huynh and Padilla regarding the first July 17, 2016 incident. 18 Defendants also cite grievance no. 16-3465 in which plaintiff alleged that defendant 19 Huynh was present during the first July17, 2016 incident. Grievance no. 16-3465 in the court 20 records is difficult to read. (See ECF No. 62-5 at 29.) However, grievance no. 16-3465 was 21 cancelled as being duplicative of grievance no. 16-2658. (Id. at 28.) 22 Defendants also cite grievance no. 16-3559, in which plaintiff appealed the cancellation of 23 grievance no. 16-3465 on the grounds that the appeal screener misconstrued the issue and took it 24 out of context. (Id. at 35.) Plaintiff argued that grievance no. 16-3465 was tied to the Staff 25 Complaint in grievance no. 16-2658, but it was different in that plaintiff requested a hold placed 26 on video footage for evidence. (Id.) 27 28 Defendants argue that in grievance no. 16-3559, plaintiff abandoned his claim against defendant Huynh regarding his involvement in the first July 17, 2016 incident, which was raised 13 1 in grievance no. 16-3465. This appears to be true. However, the initial rejection of grievance no. 2 16-3465, which raised the issue of defendant Huynh’s involvement in the first July 17, 2016 3 incident, as duplicative of grievance no. 16-2658, supports the undersigned’s finding that 4 grievance no. 16-2658 exhausted plaintiff’s administrative remedies as to the involvement of 5 defendants Huynh and Padilla in the first July 17, 2016 incident. 6 For the reasons discussed above, defendants’ motion for summary judgment on the 7 grounds that plaintiff failed to exhaust his administrative remedies as to his claim that defendants 8 Huynh and Padilla used excessive force during the first July 17, 2016 incident should be denied. 9 10 Due Process Claims Regarding the February 5, 2016 Incident Defendants allege that plaintiff filed a grievance alleging that defendants filed false 11 reports or failed to write reports regarding the February 5, 2016 incident, and that defendant 12 Eldridge allowed the senior hearing officer at the disciplinary hearing to refuse to consider 13 relevant evidence, i.e., grievance no. 16-2902. (See ECF No. 62-10 at 47.) 14 Defendants argue that plaintiff exhausted grievance no. 16-2902, on July 19, 2017. (Id.) 15 Thus, defendants move for summary judgment as to plaintiff’s due process claims regarding the 16 February 5, 2016 incident on the grounds that plaintiff administratively exhausted these claims 17 after he filed the instant action on October 27, 2016. Jones v. Bock, 549 U.S. 199, 211 (2007) 18 (prisoners are required to exhaust the available administrative remedies prior to filing suit) 19 (emphasis added). 20 In his opposition, plaintiff argues that the issues raised in appeal no. 16-2902 had already 21 been addressed in an appeal denied before he filed this action. (ECF No. 73 at 21-22.) Plaintiff 22 cites his exhibits A and G. (Id.) Plaintiff’s exhibit G contains documents related to grievance no. 23 16-2658. (Id. at 195-204.) Grievance no. 16-2658 concerns the second July 17, 2016 incident. 24 (Id.) Thus, grievance no. 16-2658 is unrelated to the February 5, 2018 incident. 25 Plaintiff’s exhibit A includes documents related to grievance no. 16-637. (Id. at 56-66.) 26 Grievance no. 16-637 alleged that the defendants involved in the February 5, 2018 incident used 27 excessive force. Plaintiff appears to argue that this grievance, denied at the third level of review 28 on August 16, 2015, exhausted his related due process claims. 14 1 For the reasons discussed herein, the undersigned finds that grievance no. 16-637 did not 2 exhaust plaintiff’s administrative remedies as to his due process claims regarding the February 5, 3 2016 incident. The undersigned herein compares the claims raised in grievance nos. 16-637 and 4 16-2902. 5 Plaintiff submitted grievance no. 16-637 on February 9, 2016, i.e., four days after the 6 February 5, 2016 incident. (Id. at 58.) In the first level grievance, plaintiff described the subject 7 of his appeal as “physical abuse.” (Id.) Plaintiff alleged that defendants used excessive force. 8 (Id.) In the second level appeal of grievance no. 16-637, plaintiff alleged that defendants 9 “fabricated a 115 report.” (Id. at 59.) The third level appeal decision, issued August 15, 2016, 10 described plaintiff’s argument as alleging that defendant used excessive force against him on 11 February 5, 2016. (Id. at 63.) The response contained plaintiff’s description of the incident, but 12 did not mention any claim by plaintiff regarding false reports. (Id.) 13 Plaintiff submitted grievance 16-2902 on July 31, 2016. (ECF No. 62-10 at 49.) Plaintiff 14 alleged that defendants Huynh and Brewer wrote fabricated reports. (Id.) Plaintiff also alleged 15 that defendants Stanfield and Anderson failed to write reports regarding the incident that made it 16 seem like they did not witness the incident. (Id. at 51.) Plaintiff alleged that defendant Eldridge 17 was in charge of the due process at his disciplinary hearing. (Id. at 50.) Plaintiff alleged that 18 defendant Eldridge “did the wrong thing.” (Id. at 51.) Plaintiff requested that the disciplinary 19 charges be dismissed. (Id. at 49.) This grievance was bypassed at the first level of review and 20 granted in part at the second level of review on August 26, 2016. (Id. at 50, 57.) 21 On January 10, 2017, plaintiff’s third level grievance was rejected because plaintiff had 22 not submitted the appeal printed legibly in ink or typed on the lines provided on the appeal form. 23 (Id. at 69.) On February 17, 2017, plaintiff’s third level appeal was again rejected because it was 24 missing the CDCR Form 602 form. (Id. at 68.) 25 On July 19, 2017, grievance no. 16-2092 was denied at the third level of review. (Id. at 26 47.) The third level decision described plaintiff’s argument as alleging that defendants Brewer 27 and Huynh falsified reports regarding the February 5, 2016 incident. (Id.) The third level 28 decision also stated that plaintiff claimed that defendants Anderson and Stanfield failed to prepare 15 1 2 reports, and that defendant Eldridge allowed staff misconduct. (Id.) After reviewing grievances nos. 16-637 and 16-2092, it is clear that these grievances 3 addressed different, although related, issues. Grievance no. 16-637 addressed plaintiff’s claims of 4 excessive force, while grievance no. 16-2092 addressed plaintiff’s claims alleging false reports 5 and due process violations in connection with his related disciplinary proceeding. Plaintiff’s brief 6 mention of false reports in his second level appeal of grievance no. 16-637 did not put prison 7 officials on notice that he was raising any claims regarding false reports or due process violations 8 in connection with his prison disciplinary proceedings. It does not appear that plaintiff’s 9 disciplinary hearing had even occurred at the time he filed grievance no. 16-637. 10 The record demonstrates that plaintiff exhausted his claims regarding due process 11 violations regarding the February 5, 2016 incident after he filed this action. Accordingly, 12 defendants’ motion for summary judgment on the grounds that plaintiff exhausted these claims 13 after filing this action should be granted. 14 Claims Against Defendant Eldridge Regarding February 17, 2016 Incidents 15 Plaintiff alleges that defendants Brewer and Huynh retaliated against him on February 17, 16 2016, because defendant Eldridge failed to protect plaintiff from defendants Brewer and Huynh 17 after the February 5, 2016 incident. Defendants move for summary judgment as to this claim on 18 the grounds that plaintiff administratively exhausted this claim after he filed this action. 19 Defendants contend that plaintiff raised this claim against defendant Eldridge in grievance no. 16- 20 3877 which was denied at the third level on July 10, 2017, i.e., after this action as filed. (See 21 ECF No. 62-10 at 72.) 22 In his opposition, plaintiff argues that he raised the claim that defendant Eldridge failed to 23 protect him from defendants Brewer and Huynh in a grievance that was denied before he filed 24 this action. (ECF No. 73 at 22.) In support of this argument, plaintiff cites his exhibits A and G. 25 (Id.) Plaintiff’s Exhibit A includes documents related to grievance no. 16-637. (Id. at 57-66.) As 26 discussed above, grievance no. 16-637 raised plaintiff’s claim regarding the February 5, 2016 27 incident. Plaintiff’s exhibit G includes documents related to grievance no. 16-2658. (Id. at 195- 28 204.) Grievance no. 16-2658 raised plaintiff’s claims regarding the July 17, 2016 incidents. (Id.) 16 1 Grievance nos. 16-637 and 16-2658 did not raise plaintiff’s claim that defendant Eldridge failed 2 to protect him from defendants Brewer and Huynh on February 17, 2016. 3 The record discussed above demonstrates that plaintiff administratively exhausted his 4 claim against defendant Eldridge regarding the February 17, 2016 incident after he filed this 5 action. On this ground, defendants should be granted summary judgment as to this claim. 6 Due Process Claim Regarding Second July 17, 2016 Incident 7 Defendants argue that plaintiff administratively exhausted his claim that defendant 8 Eldridge violated his right to due process regarding the second July 17, 2016 incident after he 9 filed this action. After reviewing the complaint, and the undisputed description of plaintiff’s 10 claims, it does not appear that plaintiff is raising such a claim. However, in an abundance of 11 caution, the undersigned addresses this argument herein. 12 In grievance no. 16-3784 plaintiff alleged that defendant Eldridge supported the injustices 13 that occurred in connection with the disciplinary charges filed against plaintiff regarding the 14 second July 17, 2016 incident. (ECF No. 62-10 at 35.) On March 10, 2017, this grievance was 15 denied at the third level of review, i.e., after plaintiff filed this action. (Id.) 16 In his opposition, plaintiff argues that he had previously exhausted his due process claim 17 against defendant Eldridge regarding the second July 17, 2016 incident in other grievances. (ECF 18 No. 73 at 22.) In support of this argument, plaintiff cites his exhibits A and G. (Id.) Plaintiff’s 19 Exhibit A includes documents related to grievance no. 16-637. (Id. at 57-66.) As discussed 20 above, grievance no. 16-637 raised plaintiff’s claim regarding the February 5, 2016 incident. (Id.) 21 Plaintiff’s exhibit G includes documents related to grievance no. 16-2658. (Id. at 195- 22 204.) Grievance no. 16-2658 raised plaintiff’s excessive force claims regarding the July 17, 2016 23 incidents. (Id.) Grievance no. 16-2658 did not raise a claim that defendant Eldridge violated 24 plaintiff’s due process rights in connection with the disciplinary charges filed against plaintiff 25 regarding the second July 17, 2016 incident. 26 The record demonstrates that, to the extent plaintiff raises a claim alleging that defendant 27 Eldridge violated his due process rights in connection with the disciplinary charges filed against 28 plaintiff regarding the second July 17, 2016 incident, plaintiff exhausted his administrative 17 1 remedies as to this claim after filing this action. On this ground, defendants should be granted 2 summary judgment as to this claim. 3 V. Failure to Protect Claim Against Defendant Eldridge 4 Plaintiff alleges that defendant Eldridge failed to protect him from excessive force, in 5 violation of the Eighth Amendment, when she made the decision to release plaintiff from ad seg 6 to A Facility, EOP mainline, in July 2016, which was the same facility where defendants Brewer 7 and Huynh worked. Plaintiff alleges that defendant Eldridge knew that releasing plaintiff to A 8 Facility, EOP mainline, where these defendants worked, created a great risk of harm to plaintiff. 9 “[A] prison official violates the Eighth Amendment only when two requirements are met. 10 First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or 11 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer 12 v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, 13 the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate 14 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). 15 The official is not liable under the Eighth Amendment unless he “knows of and disregards an 16 excessive risk to inmate health or safety; the official must both be aware of facts from which the 17 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 18 inference.” Id. at 837. Then he must fail to take reasonable measures to abate the substantial risk 19 of serious harm. Id. at 847. Mere negligent failure to protect an inmate from harm is not 20 actionable under § 1983. Id. at 835. 21 Defendants move for summary judgment as to plaintiff’s failure to protect claim against 22 defendant Eldridge on the grounds that plaintiff was not exposed to a substantial risk of harm. In 23 other words, defendants move for summary judgment based on the objective component of an 24 Eighth Amendment failure to protect claim. In support of this argument, defendants cite 25 defendant Eldridge’s declaration where she states, in relevant part, 26 27 28 11. As AW [Associate Warden], I also regularly served as a Chairperson during the Institutional Classification Committee (ICC) hearings which determined programming and housing. There are several factors considered when determining the appropriate programming or housing for an inmate, including an inmate’s current 18 1 2 3 4 programs, level of care, level of functioning, mental health status, security level, disciplinary history, staff alerts and enemy listings. Staff alerts indicate when an inmate and staff member need to be separated, and they issued for extreme circumstances. For example, a staff alert could be issued in a situation where an inmate seriously battered a staff member, or if an inmate and staff have a personal history. We normally do not issue a staff alert for an incident where force was used. 5 6 7 12. As the Chairperson, I had access to and review enemy listings (Separation Alerts) when determining classification. I noted that Houston had an enemy alert on B Facility, but the inmate was a General Population (GP) inmate on B Facility and Houston was an Enhanced Outpatient Program (EOP) inmate. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 13. On July 5, 2016, I was the Chairperson on the ICC hearing regarding Houston’s program review, and Houston was present in the committee. After reviewing Houston’s case factors, I released Houston to B Facility. At that time, I was not aware that the B Facility GP and EOP inmates could possibly interact with each other during EOP group escorts to the Treatment Center, via the GP yard. The potential threat of conflict was brought to my attention by a F Facility Captain, and for that reason, there was a Captain to Captain agreement to retain Houston on A Facility once he was released from PSU because he had no enemy concerns or staff alerts on A Facility. Houston was retained on A Facility because of the safety and security risk of housing him on B Facility, where there was a current enemy concern and potential threat to institutional security. See attached as Exhibit D, a copy of the committee hearing notes. 14. The Institution Executive Review Committee (IERC) reviews all use-of-force incidents to determine whether nor not staff used force in compliance with departmental policy. During the times alleged in the complaint, the CSP-Sacramento IERC consisted of the In-Service Training (IST) Manager, the Warden, the Chief Deputy Warden, all Associate Wardens, all Captains, a Medical Representative, a Mental Health Representative, the Use-of-Force (UOF) Analyst, and an Inspector General Representative. Also, all Sergeants and Lieutenants available to attend provided input. Additionally, any time an inmate makes an allegation of excessive force, verbally or in writing, the Allegation Unnecessary Excessive Force (AUEF) videointerview is completed by a non-involved Sergeant. 22 23 24 25 26 27 28 15. Houston made allegations of excessive force, but all allegations of excessive force regarding defendants were thoroughly reviewed by the IERC, and through institutional grievance processes, and were not substantiated. The findings indicated there was no evidence that staff acted inappropriately, that they were targeting Houston, or that there was any reason why Houston could not program successfully on A Facility where staff worked. I was a contributor of the review process and can attest to the integrity of the investigations done and the analysis completed. I had no reason to question the results of the use-of-force investigation or evidence supporting the finding that defendants did not violate policy with regard to the use-of-force incidents with Houston. 19 1 2 (ECF No. 62-6 at 6-7.) In his opposition, plaintiff argues that defendant Eldridge knew that defendants Brewer 3 and Huynh used excessive force against him based on her review of the excessive force video 4 interview. (ECF No. 73 at 6-7.) Plaintiff also alleges that defendant Eldridge knew that on 5 February 17, 2016, defendants Brewer and Huynh retaliated against him for participating in the 6 use of force video. (Id. at 7.) 7 As stated above, defendants move for summary judgment as to this failure to protect claim 8 based on the objective component of the Eighth Amendment, i.e., plaintiff did not face a serious 9 risk of harm when he returned to A Facility on July 5, 2016. The undersigned instead, for the 10 reasons stated herein, recommends that defendant Eldridge be granted summary judgment as to 11 this claim based on the subjective component of the Eighth Amendment, i.e., defendant Eldridge 12 did not act with deliberate indifference. 13 The undersigned finds that defendant Eldridge did not act with deliberate indifference to 14 plaintiff’s safety when she released plaintiff to A Facility on July 5, 2016. In making this 15 decision, defendant Eldridge relied on the results of the IERC investigation, which did not 16 substantiate plaintiff’s claims of excessive force on February 5, 2016, as well as the lack of staff 17 reports in plaintiff’s file. While plaintiff disputes the results of the IERC investigation, plaintiff 18 has not provided evidence demonstrating that defendant Eldridge had information on July 5, 19 2016, based on which she should have rejected the results of the IERC investigation. The record 20 before the court demonstrates that defendant Eldridge had no information from which she could 21 have found that plaintiff faced a serious risk of harm from defendants Brewer and Huynh when 22 she released plaintiff to A Facility on July 5, 2016. 23 Plaintiff also argues that defendant Eldridge knew that defendants Brewer and Huynh 24 retaliated against him on February 17, 2016, for participating in the use of force video by 25 removing his T.V. from his cell, leaving him in his cell and not feeding him, and filing a 26 disciplinary report charging plaintiff with “Delaying a Peace Officer of their Duties.” 27 Defendants’ summary judgment motion does not directly address this argument. As discussed 28 above, plaintiff did not exhaust administrative remedies as to this retaliation claim against 20 1 defendants Brewer and Huynh. It is not clear whether plaintiff administratively exhausted his 2 related claim that defendant Eldridge should not have released him A Facility based on this 3 alleged retaliation. 4 However, even assuming defendant Eldridge knew of plaintiff’s claim that defendants 5 retaliated against him on February 17, 2016 by taking his T.V., not feeding him and filing a false 6 disciplinary report, the undersigned does not find that these allegations would have put defendant 7 Eldridge on notice that plaintiff faced a serious risk of harm from defendants Brewer and Huynh 8 were he returned to A Facility, particularly because the IERC could not substantiate plaintiff’s 9 excessive force claims. 10 For the reasons discussed above, the undersigned recommends that defendant Eldridge be 11 granted summary judgment as to this failure to protect claim. 12 VI. Heck v. Humphrey 13 14 15 Defendants argue that plaintiff’s excessive force claims regarding the February 5, 2016 incident and second July 17, 2016 incident are barred by Heck v. Humphrey. In Heck v. Humphrey, the Supreme Court held that “habeas corpus is the exclusive 16 remedy for a state prisoner who challenges the fact or duration of his confinement and seeks 17 immediate or speedier release, even though such a claim may come within the literal terms of 18 § 1983.” Heck, 512 U.S. 477, 481 (1994). A plaintiff cannot maintain a § 1983 action to recover 19 damages for “harm caused by actions whose unlawfulness would render [his] conviction or 20 sentence invalid” when his sentence and conviction have not previously been reversed, expunged, 21 declared invalid, or called into question upon issuance of a writ of habeas corpus by a federal 22 court. Id. at 486–87. The Supreme Court has extended this holding to civil-rights actions in 23 which the plaintiff seeks declaratory or injunctive relief as well as damages. Edwards v. Balisok, 24 520 U.S. 641, 648 (1997). 25 In the summary judgment motion, defendants argued that plaintiff’s excessive force 26 claims regarding the February 5, 2016 and second July 17, 2016 incidents were Heck barred 27 because plaintiff was found guilty of disciplinary convictions related to these incidents for which 28 he was assessed time credits. 21 1 In his opposition, plaintiff argued that although he was assessed time credits following 2 disciplinary convictions related to the February 5, 2016 and second July 17, 2016 incidents, his 3 sentence was not extended by these assessments. In the reply to the opposition, defendants 4 concede that by the time plaintiff received these rules violation convictions, he was no longer able 5 to have additional time added to his confinement. Thus, defendants appear to withdraw their 6 argument that these claims are Heck barred. Accordingly, the undersigned will not address this 7 issue in these findings and recommendations.1 8 VII. Motion for Discovery 9 Plaintiff requests that subpoenas be issued for photographs of the areas where the alleged 10 excessive force incidents occurred. Plaintiff also requests copies of the use of force interview 11 videos he has participated in. Additionally, plaintiff requests investigation reports of the inmate 12 witnesses of the excessive force incidents. Plaintiff alleges that he requested these photographs, 13 reports and videos from the attorney who represented him in the related state court criminal 14 proceedings, and her investigator, but he has not received them. Plaintiff alleges that he cannot 15 file an adequate opposition to defendants’ summary judgment motion without these photographs, 16 reports and videos. 17 As discussed above, the undersigned construes plaintiff’s motion for subpoenas as a 18 motion pursuant to Federal Rule of Civil Procedure 56(d) to defer defendants’ summary judgment 19 in order to obtain additional discovery. Rules 56 provides that “[i]f a nonmovant shows by 20 affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its 21 opposition, the court may: (1) defer considering the motion or deny it; or (2) allow time to obtain 22 affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. 23 Civ. P. 56(d). “A party requesting a continuance pursuant to Rule 56[d] must identify by affidavit 24 the specific facts that further discovery would reveal, and explain why those facts would preclude 25 summary judgment.” Tatum v. City & Cty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 26 1 27 28 In her declaration dated May 22, 2018, defendant Eldridge states that the rules violation report regarding the first July 17, 2016 is still pending review with the District Attorney and has not been adjudicated. (See ECF No 62-6 at 5.) At the time of trial, defendants shall be required to update the court on the status of the District Attorney’s review of this rules violation. 22 1 2006). “The requesting party must show: (1) it has set forth in affidavit form the specific facts it 2 hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are 3 essential to oppose summary judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan 4 Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008). 5 With respect to plaintiff’s three excessive force claims, defendants move for summary 6 judgment only as to plaintiff’s claim that defendants Padilla and Huynh used excessive force 7 during the July 17, 2016 incident on the grounds that plaintiff failed to exhaust administrative 8 remedies. The undersigned has recommended that this portion of defendants’ summary judgment 9 motion be denied. Thus, if the district court adopts these findings and recommendations, all three 10 of plaintiff’s excessive force claims will be set for trial. Thus, plaintiff does not require the 11 evidence sought in the pending motion to oppose defendants’ summary judgment motion. For 12 this reason, plaintiff’s motion for subpoenas, construed as a motion to defer defendants’ summary 13 judgment motion, should be denied. 14 VIII. Conclusion 15 Defendants move for summary judgment as to the merits of plaintiff’s claim that 16 defendants Brewer and Huynh retaliated against him on February 17, 2016, for participating in 17 the use of force video interview. (See ECF No. 62-2 at 22-25.) Defendants also move for 18 summary judgment as to the merits of plaintiff’s claim that defendant Eldridge violated plaintiff’s 19 right to due process during the rules violation process. (Id. at 26-28.) The undersigned need not 20 address the merits of these claims because plaintiff failed to exhaust administrative remedies as to 21 these claims. 22 In summary, the undersigned recommends that defendants’ motion for summary judgment 23 on the grounds that plaintiff failed to exhaust administrative remedies be granted as to the 24 following claims: 1) defendants Brewer and Huynh retaliated against him on February 17, 2016, 25 for participating in the use of force video; 2) defendants Brewer, Huynh filed false reports 26 regarding the February 5, 2016 incident in violation of plaintiff’s right to due process; defendants 27 Stanfield and Anderson failed to prepare reports regarding the February 5, 2016 incident in 28 violation of plaintiff’s right to due process; 3) defendant Eldridge violated plaintiff’s right to due 23 1 process when she “signed off” on plaintiff’s disciplinary conviction related to the February 5, 2 2016 incident; 4) defendant Eldridge failed to intervene to protect plaintiff from the retaliation 3 that occurred on February 17, 2016; and 5) defendant Eldridge violated plaintiff’s right to due 4 process regarding the second July 17, 2016 incident. 5 The undersigned recommends that defendants’ motion for summary judgment also be 6 granted as to the merits of plaintiff’s claim that defendant Eldridge violated plaintiff’s Eighth 7 Amendment rights when she released plaintiff to A Facility in July 2016. 8 9 10 11 The undersigned recommends that defendants’ summary judgment motion, on the grounds that plaintiff failed to exhaust administrative remedies as to his excessive force claim against defendants Padilla and Huynh regarding the first July 17, 2016 incident, be denied. As discussed above, defendants have withdrawn their summary judgment motion as to the 12 argument that plaintiff’s excessive force claims regarding the February 5, 2016 and second July 13 17, 2016 incidents are barred by Heck v. Humphrey. Accordingly, if these findings and 14 recommendations are adopted, this action will proceed on the following claims: 1) on February 5, 15 2016, defendants Brewer, Huynh, Anderson and Stanfield used excessive force and/or failed to 16 intervene when excessive force was used; 2) defendants Brewer, Padilla and Huynh used 17 excessive force against plaintiff during the first July 17, 2016 incident; and 3) defendants Nyberg, 18 Barajas, Morales, Stuhr, Rowe and Pacheco used excessive force against plaintiff during the 19 second July 17, 2016 incident. 20 Finally, the undersigned observes that plaintiff’s opposition, including exhibits, is 405 21 pages long. Based on this extensive briefing, if plaintiff files objections to these findings and 22 recommendations, the objections may be no longer than 30 pages long, including exhibits. 23 Accordingly, IT IS HEREBY RECOMMENDED that: 24 1. Plaintiff’s motion for subpoenas (ECF No. 72), construed as a motion for discovery 25 26 pursuant to Federal Rule of Civil Procedure 56(d), be denied; 2. Defendants’ motion for summary judgment (ECF No. 62) be granted as to the merits of 27 plaintiff’s claim that defendant Eldridge violated plaintiff’s Eighth Amendment rights when she 28 released him to A Facility in July 2016; 24 1 3. Defendants’ summary judgment be granted as to the following claims on grounds that 2 plaintiff failed to exhaust administrative remedies: 1) defendants Brewer and Huynh retaliated 3 against him on February 17, 2016 for participating in the use of force video; 2) defendants 4 Brewer, Huynh, Stanfield and Anderson violated plaintiff’s right to due process in connection 5 with reports they prepared of failed to prepare regarding the February 5, 2016 incident; 3) 6 defendant Eldridge violated plaintiff’s right to due process when she “signed off” on plaintiff’s 7 disciplinary conviction related to the February 5, 2016 incident; 4) defendant Eldridge failed to 8 intervene to protect plaintiff from the retaliation that occurred on February 17, 2016; 5) defendant 9 Eldridge violated plaintiff’s right to due process regarding the second July 17, 2016 incident; 10 4. Defendants’ motion for summary judgment on grounds that plaintiff failed to exhaust 11 administrative remedies as to his excessive force claim against defendants Padilla and Huynh 12 regarding the first July 17, 2016 incident be denied. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 objections shall be filed and served within fourteen days after service of the objections. The 19 parties are advised that failure to file objections within the specified time may waive the right to 20 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 Dated: December 10, 2018 22 23 24 25 26 Hou2561.sj(2) 27 28 25