(PC) Cross v. Brazil et al, No. 2:2021cv00766 - Document 40 (E.D. Cal. 2023)
Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/15/2023 REASSIGNING This CASE to District Judge Daniel J. Calabretta and Magistrate Judge Carolyn K. Delaney for all further proceedings. New Case Number is: 2:21-cv-00766-DJC-CKD and RECOMMENDING that Defendants' Motion for Summary Judgment 31 be granted; and Plaintiff's remaining claims arising under the First Amendment and the Americans with Disabilities Act 1 , 8 be dismissed resulting in dismissal of defendants Tsushoko and Clays. These Findings and Recommendations are submitted to Judge Daniel J. Calabretta; Objections to these F&Rs due within fourteen days.(Mena-Sanchez, L)
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(PC) Cross v. Brazil et al Doc. 40 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 QUINTIN R. CROSS, 12 No. 2:21-cv-0766 CKD P Plaintiff, 13 v. 14 BRAZIL, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 17 18 rights under 42 U.S.C. § 1983. On January 25, 2022, the court screened plaintiff’s amended 19 complaint as the court is required to do under 28 U.S.C. § 1915A(a). The court found that 20 plaintiff could proceed on a claim arising under the Eighth Amendment against defendant Brazil 21 for use of excessive force; a claim arising under the First Amendment against defendants Brazil, 22 Tsushoko, and Clays; and a claim arising under the Americans with Disabilities Act (ADA) also 23 against defendants Brazil, Tsushoko, and Clays. Defendants Brazil, Tsushoko, and Clays 24 (defendants) have filed a motion for summary judgment, arguing that plaintiff failed to exhaust 25 available administrative remedies prior to filing suit as he is required to do under 42 U.S.C. § 26 1997(e)(a) with respect to the First Amendment and ADA claims. 27 ///// 28 ///// 1 Dockets.Justia.com 1 I. Summary Judgment Standard 2 Summary judgment is appropriate when it is demonstrated that there “is no genuine 3 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 4 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 5 “citing to particular parts of materials in the record, including depositions, documents, 6 electronically stored information, affidavits or declarations, stipulations (including those made for 7 purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R. 8 Civ. P. 56(c)(1)(A). 9 Summary judgment should be entered, after adequate time for discovery and upon motion, 10 against a party who fails to make a showing sufficient to establish the existence of an element 11 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 12 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 13 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 14 Id. 15 If the moving party meets its initial responsibility, the burden then shifts to the opposing 16 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 17 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 18 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 19 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 20 and/or admissible discovery material, in support of its contention that the dispute exists or show 21 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 22 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 23 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 24 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 25 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 26 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 27 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 28 ///// 2 1 In the endeavor to establish the existence of a factual dispute, the opposing party need not 2 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 3 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 4 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 5 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 6 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 7 amendments). 8 In resolving the summary judgment motion, the evidence of the opposing party is to be 9 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 10 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 11 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 12 obligation to produce a factual predicate from which the inference may be drawn. See Richards 13 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 14 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 15 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 16 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 17 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 18 II. Plaintiff’s Allegations 19 On July 20, 2021, plaintiff filed an inmate grievance alleging defendants Brazil and 20 Tsushoko used excessive force against plaintiff. Plaintiff alleges that since he filed that 21 grievance, defendants have interfered with attempts made by plaintiff to obtain housing that 22 accommodates a disability and he had his housing changes cancelled. 23 III. Defendants’ Argument and Analysis 24 Section 1997(e)(a) of Title 42 of the United States Code provides that “[n]o action shall be 25 brought with respect to prison conditions under section 1983 of this title, or any other Federal 26 law, by a prisoner confined in any jail, prison, or other correctional facility until such 27 administrative remedies as are available are exhausted.” The exhaustion requirement demands 28 “proper” exhaustion. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). In order to “properly 3 1 exhaust” administrative remedies, the prisoner must generally comply with department procedural 2 rules, including deadlines, throughout the administrative process. Jones v. Bock, 549 U.S. 199, 3 218 (2006); Woodford, 548 U.S. at 90-91. 4 At the time of the incidents at issue in this case, administrative procedures with respect to 5 claims brought in this court by California Department of Corrections and Rehabilitation inmates 6 are exhausted once the second level of review is complete. The second level of review is 7 conducted by the California Department of Corrections and Rehabilitation Office of Appeals in 8 Sacramento. Cal. Code Regs. tit. 15, §§ 3481-85. 9 Defendant points to evidence indicating plaintiff never submitted a grievance concerning 10 the ADA and First Amendment claims described above. Plaintiff does not dispute this. Instead, 11 plaintiff asserts that requests for a reasonable accommodation under the ADA made by plaintiff 12 suffice to exhaust his administrative remedies concerning his ADA and First Amendment claims. 13 Plaintiff is incorrect. Title 15 Cal. Code Regs. § 3485(l) is clear that the exhaustion of remedies 14 available through the CDCR administrative process does not occur until review at the Sacramento 15 Office of Appeals has concluded. 16 IV. Conclusion 17 There is no genuine issue of material fact before the court as to whether plaintiff properly 18 exhausted all administrative remedies available to him with respect to his remaining ADA and 19 First Amendment claims. Accordingly, the court will recommend that defendants’ motion for 20 summary judgment be granted and that those claims be dismissed. 21 22 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case. 23 IT IS HEREBY RECOMMENDED that: 24 1. Defendants’ motion for summary judgment (ECF No. 31) be granted; and 25 2. Plaintiff’s remaining claims arising under the First Amendment and the Americans 26 with Disabilities Act be dismissed resulting in dismissal of defendants Tsushoko and Clays. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 4 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 objections shall be served and filed within fourteen days after service of the objections. The 5 parties are advised that failure to file objections within the specified time may waive the right to 6 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 Dated: December 15, 2023 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 1 cros0766.fte.cr 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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