John-Charles v. Abanico et al, No. 4:2007cv05786 - Document 36 (N.D. Cal. 2011)
Court Description: ORDER GRANTING DEFENDANTS' 19 MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 2/23/2011. (ndr, COURT STAFF) (Filed on 2/23/2011)
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John-Charles v. Abanico et al 1 Doc. 36 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 No. C 07-5786 CW (PR) CURTIS M. JOHN-CHARLES, ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT Plaintiff, v. E. ABANICO, et al., (Docket no. 19) Defendants. _______________________________/ United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 On November 14, 2007, Plaintiff Curtis M. John-Charles, a state prisoner currently incarcerated at the Sierra Conservation Center, filed this pro se civil rights action under 42 U.S.C. § 1983, alleging violations of his constitutional rights when he was incarcerated at the Correctional Training Facility (CTF). On February 1, 2010, the Court found cognizable Plaintiff's Eighth Amendment sexual assault claims against Defendants CTF Correctional Officers E. Abanico and L. Ragasa,1 as well as Plaintiff's First Amendment retaliation claims against Defendant Abanico. Before the Court are Defendants' motion to dismiss and motion 21 for summary judgment. 22 Plaintiff filed his opposition.2 Defendants did not file a reply. 23 For the reasons discussed below, the Court GRANTS Defendants' 24 25 26 27 28 1 Defendant Ragasa's name was initially misspelled as "Rayasa" in Plaintiff's original complaint and the Order of Service. However, the correct spelling is "Ragasa." (Mot. Summ. J. at 1.) 2 Plaintiff raises additional claims in his opposition which are not relevant to the claims before the Court. If Plaintiff wishes to raise these claims, he must file a new civil rights action after he exhausts his administrative remedies. Dockets.Justia.com 1 motion to dismiss and motion for summary judgment. 2 BACKGROUND 3 Plaintiff alleges in his complaint that his constitutional 4 rights were violated on several occasions while he was incarcerated 5 at CTF between August 18, 2006 and August 29, 2009. The factual 6 background below only relates to: (1) the alleged constitutional 7 violations by Defendant Abanico, including an act of sexual assault 8 on August 18, 2006, another act of sexual assault and retaliation 9 on September 6, 2006, and an act of retaliation on January 25, United States District Court For the Northern District of California 10 2007; and (2) an alleged act of sexual assault by Defendant Ragasa 11 on July 20, 2007. 12 13 14 15 16 On August 18, 2006, Defendant Abanico conducted a clothed body-search of Plaintiff. (Compl. at 3-4.; Abanico Decl. ¶ 4.) Plaintiff alleges that Defendant Abanico's actions amounted to a "sexual assault." (Compl. at 6.) As Plaintiff was returning from 17 the evening meal, he was "directed by Defendant Abanico to get up 18 against the wall." 19 (prone) position," Defendant Abanico "kept ordering [Plaintiff] to 20 back his legs up," until his "body was being supported only by his 21 hands laying flat, and his forehead up against the wall." 22 Defendant Abanico "beg[an] to grab and massage Plaintiff's penis 23 and scrotum in a totally inappropriate manner, all the while 24 attempting to place his arm in between Plaintiff's gluteus." 25 at 4-5.) 26 tighter, pulling the plaintiff towards him more, and continued to 27 go up and down Plaintiff's legs, grabbing and massaging Plaintiff's 28 penis and scrotum each time." (Id. at 4.) As Plaintiff "waited in the search (Id.) (Id. Defendant Abanico then "grabbed [Plaintiff's] shirt (Id. at 5.) 2 Defendant Abanico 1 pulled Plaintiff's sweatpants down halfway, "to get at the 2 sweatshorts he was wearing underneath" in order to remove 3 Plaintiff's wallet and identification cards. 4 Abanico handed the wallet and identification cards to CTF 5 Correctional Officer K. Lynch, and "continued to fondle Plaintiff 6 in a pretense of a search," while CTF Lieutenant A. Padilla and 7 Officer Lynch "looked on knowingly." 8 Wing was called for chow release;" however, he was "order[ed] up 9 against the wall on the opposite side of the corridor." (Id.) (Id.) Defendant Plaintiff claims "C- (Id.) United States District Court For the Northern District of California 10 Once the corridor was empty of inmates, Plaintiff was searched 11 again by Defendant Abanico "several times, grabbing and massaging 12 plaintiff's penis and scrotum on each pass." 13 in original).) 14 across plaintiff's shoulder in a jester [sic] that mimic [sic] an 15 intimate relationship." 16 "smiling," removed Plaintiff's eating utensils from the plastic bag 17 he was carrying, and "began to rub them with the soiled gloves that 18 he was wearing in a very overt sexual manner (i.e. simulating 19 masturbation)." 20 21 22 23 24 25 26 27 (Id. at 5 (emphasis Defendant Abanico "tried to place his forearm (Id.) Finally, Defendant Abanico, while (Id. at 6.) In support of Plaintiff's opposition, CTF inmate P. Shotwell submitted a declaration asserting under penalty of perjury that "on or about 08-18-06, at chow release from my housing unit (C-Wing)," he witnessed Defendant Abanico "stop Inmate John-Charles for a 'pat-down' search," and "grab John-Charles' testicles and attempt[] to place his hand between the crack of John-Charles' buttock." (Opp'n, Ex. 9 at PE-123.) Inmate Shotwell adds that while Defendant Abanico "performed this aggressive procedure, he pulled 28 3 1 John-Charles' sweat pants down below the angles [sic]," and that, 2 after C-Wing "proceeded to chow," he searched Plaintiff for a 3 second time, and "again attempted to grab John-Charles' testicles." 4 (Id.) 5 In contrast, Defendant Abanico claims that he conducted the August 18, 2006 clothed body-search "in accordance with the 7 training [he] received at the correctional academy and with his 8 experience as a correctional officer" at CTF. 9 In support of Defendants' motion for summary judgment, Lieutenant 10 United States District Court For the Northern District of California 6 Padilla, who was present during the search, attests under penalty 11 of perjury that "Officer Abanico's clothed body-search of 12 [Plaintiff] was thorough and professional." (Abanico Decl. ¶ 4.) (Padilla Decl. ¶ 4.) 13 Plaintiff filed a 602 inmate appeal, identified as log no. 14 CTF-C-06-03019, against Defendant Abanico, Lieutenant Padilla and 15 Officer Lynch relating to the alleged August 18, 2006 "sexual 16 assault perpetrated against Plaintiff." (Compl. at 6.) Plaintiff 17 also sent letters to Ombudsman Matthew Thomas, CTF Warden Ben 18 Curry, California Department of Corrections and Rehabilitation 19 (CDCR) Director A.P. Kane and CDCR Secretary James E. Tilton 20 regarding the alleged sexual assault incident. 21 22 Plaintiff alleges that on September 6, 2006, Defendant Abanico 23 and Lieutenant Padilla conducted another clothed body-search of 24 Plaintiff because they were "agitated by the initial sexual assault 25 complaint." 26 massage[d] Plaintiff's penis and scrotum as he proceeded to do his 27 pat down." 28 Abanico. (Compl. at 8.) (Id.) Defendant Abanico "grabbed and Lieutenant Padilla did nothing to stop Defendant Plaintiff again wrote to Ombudsman Thomas, Warden Curry, 4 1 Director Kane and Secretary Tilton to complain about Defendant 2 Abanico's actions on September 6, 2006. 3 (Id. at 9.) On January 25, 2007, Defendant Abanico approached Plaintiff to 4 conduct another clothed body-search. 5 refused to allow Defendant Abanico to search him, requesting that 6 any staff member other than Defendant Abanico perform the search 7 because of "on-going complaint(s) filed against [Defendant Abanico] 8 for sexual assault during pat downs." 9 Sergeant M. Miranda instructed CTF Correctional Officer J. Nabor to (Id. at 13.) Plaintiff (Id. at 13-14.) CTF United States District Court For the Northern District of California 10 continue the search. 11 search while Defendant Abanico searched Plaintiff's legal property. 12 Plaintiff alleges that, in the process of searching his legal 13 property, Defendant Abanico broke his eyeglasses by "bend[ing] them 14 back and forth; all the while smiling at the plaintiff in a (what 15 plaintiff can only describe as a sexual, pouting kind of smile), 16 Officer Nabor conducted the clothed body- saying, 'Sir, we can all get along.'" (Id. at 14.) 17 On January 26, 2007, Plaintiff filed a 602 inmate appeal, 18 identified as log no. CTF-S-07-00651, alleging that Defendant 19 Abanico broke his eyeglasses in an act of "retaliation/reprisal" in 20 "violation of [his] first . . . Amendment right." (Young Decl., 21 Ex. E at AGO-18.) Plaintiff's appeal was partially granted at the 22 first level of review, and an inquiry into the allegations was 23 conducted. As part of the inquiry, CTF Sergeant A. Corona 24 inspected Plaintiff's eyeglasses and interviewed him. Sergeant 25 Corona stated Plaintiff told him that the "frames on [his] glasses 26 had a screw loose," and that Plaintiff had his eyeglasses repaired 27 by the CTF-Optometrist at no cost. 28 5 (Id. at AGO-20.) Plaintiff 1 then appealed to the second level of review, alleging that 2 "retaliatory actions and continued/ongoing harassment" by Defendant 3 Abanico in the form of his broken eyeglasses had "caused an 4 'atypical and significant hardship.'" 5 was partially granted at the second level of review because the 6 reviewer found sufficient the inquiry that had been conducted at 7 the first level. 8 review, and his appeal was denied on July 12, 2007. 9 Ex. A at 1.) (Id.) Plaintiff's appeal Plaintiff appealed to the Director's level of (Foston Decl., United States District Court For the Northern District of California 10 On February 15, 2007, Plaintiff was scheduled for a program 11 review with the Unit Classification Committee in order "to get a 12 reduction in his custody level; as well as, a transfer to alleviate 13 all of the retaliatory reactions, and harassment that he was 14 experiencing whenever he was in the main corridor." 15 16 17 18 19 20 21 22 23 24 25 26 15.) Prior to his program review, Plaintiff had to undergo a general search. Officer Nabor asked Defendant Abanico to perform the required general search, allegedly in order to provide Defendant Abanico "another opportunity to sexually assault plaintiff." (Id.) conduct the search. Plaintiff refused to allow Defendant Abanico to Officer Nabor finally searched Plaintiff. Plaintiff's program review was conducted by CTF Captain I. Guerra as well as CTF Correctional Counselors B. Villelobos and D. J. Carnazzo. Plaintiff claims he attempted to bring to their attention "the on-going problems of harassment by various officers, along with the sexual assaults" and in support of his requests for reduction in custody and a transfer, he "submitted documents which 27 28 (Compl. at 6 1 chronicled these events . . . ." 2 and Counselor Carnazzo informed Plaintiff that they had already 3 denied his request in a "separate" 602 inmate appeal, identified as 4 log no. CTF-S-07-00306, that "was at the third level of review." 5 (Id. at 18.) (Id. at 17-18.) Captain Guerra 6 On February 21, 2007, Plaintiff mailed letters with supporting 7 documents to Senators Machado and Ortiz as well as to Warden Curry, 8 Director Kane and Secretary Tilton regarding the "constant 9 harassment, reprisal, and unwarranted incidents that Plaintiff had United States District Court For the Northern District of California 10 been subjected to" after filing his sexual assault complaint 11 against Defendant Abanico. (Id. at 20.) 12 Plaintiff alleges that on July 20, 2007, he was "sexually 13 assault[ed]" by Defendant Ragasa. (Id. at 24.) He claims that as 14 he returned from his "evening meal," he was stopped and searched by 15 CTF Correctional Officers J. De La Cruz and R. Balicata. (Id.) 16 When the search was completed, he walked "not 20 feet" when he was 17 stopped by Defendant Abanico, who directed Defendant Ragasa to 18 search Plaintiff. (Id.) Plaintiff informed Defendant Ragasa he 19 had "just been searched by" Officers De La Cruz and Balicata. 20 (Id.) Defendant Ragasa, after looking "to [D]efendant Abanico for 21 approval and direction," indicated that he had not seen the 22 officers search Plaintiff. (Id.) Defendant Ragasa then "proceeded 23 to pat Plaintiff down while Defendant Abanico watched." (Id.) He 24 "repeatly [sic] grabbed hold of Plaintiff's penis and scrotum in a 25 very inappropriate manner" as "Defendant Abanico looked on 26 approvingly." (Id.) Plaintiff alleges he then immediately 27 informed CTF Sergeant G. Elliot of the "sexual assault that just 28 7 1 happen[ed]," and the "continuous persecution and harassment that he 2 is being forced to endure" by Sergeant Elliot's officers. 3 24-25.) 4 identified as log no. CTF-C-07-03008, against Defendants Abanico 5 and Ragasa for the alleged sexual assault. 6 54.) 7 (Id. at On July 21, 2007, Plaintiff submitted a 602 inmate appeal, (Opp'n, Ex. J at PE- Plaintiff filed this action on November 14, 2007. 8 DISCUSSION 9 United States District Court For the Northern District of California 10 I. Motion to Dismiss 11 A. Legal Standard 12 The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 13 110 Stat. 1321 (1996) (PLRA), amended 42 U.S.C. § 1997e to provide 14 that "[n]o action shall be brought with respect to prison 15 conditions under [42 U.S.C. § 1983], or any other Federal law, by a 16 prisoner confined in any jail, prison, or other correctional 17 facility until such administrative remedies as are available are 18 exhausted." 19 requirement is therefore mandatory, and no longer left to the 20 discretion of the district court. 21 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). 22 23 24 25 26 27 42 U.S.C. § 1997e(a). The PLRA's exhaustion Woodford v. Ngo, 548 U.S. 81, 85 The PLRA's exhaustion requirement requires "proper exhaustion" of administrative remedies. Woodford, 548 U.S. at 93. This means "[p]risoners must now exhaust all 'available' remedies" (id. at 85) in "compliance with an agency's deadlines and other critical procedural rules." Id. at 90-91. The requirement cannot be satisfied "by filing an untimely or otherwise procedurally 28 8 1 defective administrative grievance or appeal." 2 remedies "available" need not meet federal standards, nor need they 3 be "plain, speedy and effective." 4 524 (2002); Booth, 532 U.S. at 739-40 & n.5. 5 prisoner seeks relief not available in grievance proceedings, 6 notably money damages, exhaustion is still a prerequisite to suit. 7 Woodford, 548 U.S. at 85-86 (citing Booth, 532 U.S. at 734); see 8 also Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010). 9 Id. Further, the Porter v. Nussle, 534 U.S. 516, Even when the An action must be dismissed if the prisoner did not exhaust United States District Court For the Northern District of California 10 all available administrative remedies before he filed suit -- even 11 if the prisoner fully exhausts all available administrative 12 remedies while the suit is pending. 13 1198, 1199 (9th Cir. 2002); see also Vaden v. Summerhill, 449 F.3d 14 1047, 1051 (9th Cir. 2006) (where administrative remedies are not 15 16 17 McKinney v. Carey, 311 F.3d exhausted before the prisoner sends his complaint to the court, it will be dismissed even if exhaustion is completed by the time the complaint is actually filed). 18 It is the prison's requirements, and not the PLRA, that define 19 the boundaries of proper exhaustion. Jones v. Bock, 549 U.S. 199, 20 218 (2007). The CDCR provides its inmates and parolees the right 21 to appeal administratively "any departmental decision, action, 22 condition, or policy which they can demonstrate as having an 23 adverse effect upon their welfare." Cal. Code Regs. Tit. 15, 24 § 3084.1(a). The CDCR also provides its inmates the right to file 25 administrative appeals alleging misconduct by correctional 26 officers. See id. § 3084.1(e). In order to exhaust all available 27 administrative remedies within this system, a prisoner must submit 28 9 1 his complaint as a 602 inmate appeal and proceed through several 2 levels of appeal: (1) informal level grievance filed directly with 3 any correctional staff member; (2) first formal level appeal filed 4 with one of the institution's appeal coordinators; (3) second 5 formal level appeal filed with the institution head or designee; 6 and (4) third formal level appeal filed with the CDCR director or 7 designee. 8 (9th Cir. 2009); Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. 9 Cal. 1997). United States District Court For the Northern District of California 10 11 Id. § 3084.5; Brodheim v. Cry, 584 F.3d 1262, 1264-65 This satisfies the administrative remedies exhaustion requirement under § 1997e(a). Barry, 985 F. Supp. at 1237-38. Non-exhaustion under § 1997e(a) is an affirmative defense 12 which should be brought by Defendants in an unenumerated motion to 13 dismiss under Federal Rule of Civil Procedure 12(b). 14 Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Wyatt v. 15 B. 16 In the present case, Defendants correctly raise non-exhaustion Analysis 17 in an unenumerated motion to dismiss. 18 Plaintiff exhausted all available administrative remedies for the 19 August 18, 2006 Eighth Amendment claim and the January 25, 2007 20 First Amendment claim, both against Defendant Abanico. 21 argue that Plaintiff did not exhaust the following claims: (1) the 22 September 6, 2006 First and Eighth Amendment claims against 23 Defendant Abanico; (2) the July 20, 2007 Eighth Amendment claim 24 against Defendant Ragasa; and (3) the August 29, 2007 Eighth 25 Amendment claim against Defendant Abanico.3 Defendants acknowledge that Defendants 26 27 28 3 On February 1, 2010, the Court dismissed Plaintiff's Eighth Amendment claim against Defendant Abanico for failure to state a claim for relief. Therefore, the Court need not address 10 1 1. September 6, 2006 First and Eighth Amendment Claims Against Defendant Abanico 2 Plaintiff claims that, following the alleged sexual assault 3 during the September 6, 2006 clothed body-search, he was "forced" 4 to bring this incident to the attention of Ombudsman Thomas, Warden 5 Curry, Director Kane and Secretary Tilton. (Compl. at 9.) 6 However, as mentioned above, the correct avenue to exhaust his 7 administrative remedies is by filing a 602 inmate appeal. The 8 record shows he did not do so. Nor did he mention this incident in 9 his previously-filed 602 inmate appeal, identified as log no. CTFUnited States District Court For the Northern District of California 10 C-06-03019. Plaintiff has therefore failed to properly exhaust 11 administrative remedies for his September 6, 2006 First and Eighth 12 Amendment claims against Defendant Abanico. Accordingly, 13 Defendants' motion to dismiss is GRANTED, without prejudice, as to 14 15 16 17 these claims. 2. July 20, 2007 Eighth Amendment Claim Against Defendant Ragasa Plaintiff claims he attempted twice to pursue this claim to 18 the Director's level of review, but his attempts were 19 "circumvented" because the Inmate Appeals Branch (IAB) sent him 20 letters rejecting the appeal. 21 exhausted his administrative remedies as to this claim because the 22 IAB had notice of the alleged "misconduct." 23 (Opp'n at 12.) Plaintiff argues he (Id. at 12-13.) On July 21, 2007, the day after the alleged sexual assault by 24 Defendant Ragasa, Plaintiff submitted a 602 inmate appeal, 25 identified as log no. CTF-C-07-03008, against Defendants Abanico 26 and Ragasa. (Opp'n, Ex. J at PE-54.) The appeal was received by 27 28 Defendants' argument relating to this claim. 11 1 the first level of review on August 9, 2007. 2 review "partially granted" Plaintiff's 602 inmate appeal, in that 3 an inquiry into his allegations would be conducted. 4 60.) 5 on September 19, 2007 indicating that "a request for administrative 6 action regarding staff . . . [wa]s beyond the scope of staff 7 complaint process;" however, "allegations of staff misconduct do 8 not limit or restrict the availability of further relief via the 9 inmate appeals process." The first level of (Id. at PE- The first level of review response was returned to Plaintiff (Id.) The response further explained United States District Court For the Northern District of California 10 that in order for Plaintiff to properly exhaust administrative 11 remedies, he must submit an appeal "through all levels of appeal 12 review up to, and including, the Director's Level of Review." 13 (Id.) 14 response. 15 second level of review. 16 Plaintiff's appeal to the second level of review. 17 appeal was processed as "a staff complaint appeal inquiry," rather 18 than as a "referr[al] to the Office of Internal Affairs." 19 PE-58.) 20 reiterating that an investigation into the misconduct had been 21 conducted, and "a request for administrative action regarding 22 staff . . . is beyond the scope of the staff complaint process." 23 (Id.) 24 received the second level of review response. 25 was dated October 22, 2007, and it was signed October 24, 2007. 26 (Id.) 27 was returned to Plaintiff on October 25, 2007. Plaintiff was dissatisfied with the first level of review On September 27, 2007, he submitted his appeal to the On October 1, 2007, the IAB received Plaintiff's (Id. at The second level of review "partially granted" the appeal, The record is ambiguous regarding the date Plaintiff The response itself A time stamp on the 602 inmate appeal indicates the response 28 12 (Id. at PE-54.) 1 However, Plaintiff alleged that he did not receive the response on 2 October 25, 2007. 3 The deadline to file his appeal at the Director's level of 4 review allegedly passed on October 30, 2007. 5 54.; see also Opp'n, Ex. N at PE-78.) 6 having received the second level of review response, filed a 7 "request for interview" with CTF Correctional Officer M. Evans on 8 November 11, 2007, seeking assistance to "retrieve appeal log no. 9 CTF-C-07-03008," which "the appeals office ha[d] yet to return to (Opp'n, Ex. J at PE- Plaintiff, purportedly not United States District Court For the Northern District of California 10 [him]." 11 Evans responded to Plaintiff, indicating he did "not have access to 12 the appeal," but that he had "forwarded [Plaintiff's] comments to 13 the Appeals Coordinator." 14 to the Director's level of review, Petitioner filed the present 15 federal action on November 14, 2007. 16 December 5, 2007, he filed his appeal to the Director's level of 17 review, alleging that he had just received the second level of 18 review response on that date. 19 hand corner of the 602 inmate appeal, signed by "the O-Wing floor 20 Officer" also indicates Plaintiff received the second level of 21 review response "thru Mail CTR on 12/5/07." 22 Ex. J at PE-57.) 23 (Opp'n, Ex. J at PE-54.) (Id.) On November 13, 2007, Officer Instead of submitting his appeal (Id.) Twenty-one days later, on A note in the bottom left- (Id.; see also Opp'n, On February 10, 2008, the IAB "screened-out" and "returned" to 24 Plaintiff his appeal "pursuant to CCR 3084.3," because it did not 25 comply with the requirement that an appellant "submit the appeal 26 within 15 working days of . . . receiving a lower level decision in 27 accordance with CCR 3084.6(c)." (Id. at PE-57.) 28 13 On February 22, 1 2008, Plaintiff responded to the IAB screening with a note stating, 2 "the 15-day rule does not apply to me" because "it was the J. Soars 3 [sic] and/or FC-C. Noll who did not get this document back to me in 4 time." 5 Officer note & sign when I was issued back this complaint (as 6 highlighted on the left bottom of this complaint)." 7 April 16, 2008, the IAB responded to Plaintiff with another letter 8 directing him to "provide substantiation to [his] claim that [he] 9 received this appeal from the Second Level of Review on December 5, (Id.) He indicated, "I made sure I had the O-Wing floor (Id.) United States District Court For the Northern District of California 10 2007." 11 On further correspondence between Plaintiff and the IAB. 12 (Id.) The record contains no further documentation of The Court finds that Plaintiff has failed to demonstrate that 13 he has exhausted his administrative remedies with respect to his 14 July 20, 2007 Eighth Amendment claim against Defendant Ragasa prior 15 to filing this suit. 16 true, he failed to complete the administrative review process in 17 accordance with CTF's applicable procedural rules. 18 that Plaintiff's 602 inmate appeal log no. CTF-C-07-03008 was 19 received and did satisfy the requirements up to the second level of 20 review, Plaintiff does not establish that he exhausted the final 21 level of review applicable to his claim prior to filing suit. 22 Plaintiff admits that after receiving no response to his appeal to 23 the second level of review, he filed the present action. 24 finally received the response at the second level of review twenty- 25 one days after he filed this suit, he proceeded to continue his 26 appeal to the Director's level of review. 27 this federal action before exhausting all available remedies with Even accepting Plaintiff's allegations as 28 14 Even assuming When he Because Plaintiff filed 1 respect to the July 20, 2007 Eighth Amendment sexual assault claim 2 against Defendant Ragasa, he has not fulfilled the exhaustion 3 requirement. 4 that he attempted to appeal to the Director's level of review after 5 he filed this action because dismissal is warranted even if he 6 fully exhausted all available administrative remedies while the 7 suit was pending. 8 Defendants' motion to dismiss is also GRANTED, without prejudice, 9 as to this claim. United States District Court For the Northern District of California 10 II. The Court finds unavailing Plaintiff's allegations See McKinney, 311 F.3d at 1199. Accordingly, Motion for Summary Judgment 11 A. 12 Summary judgment is properly granted when no genuine and Legal Standard 13 disputed issues of material fact remain, and when, viewing the 14 evidence most favorably to the non-moving party, the movant is 15 clearly entitled to prevail as a matter of law. 16 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 17 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 18 1987). 19 judgment are those which, under applicable substantive law, may 20 affect the outcome of the case. 21 which facts are material. 22 U.S. 242, 248 (1986). 23 Fed. R. Civ. P. Material facts which would preclude entry of summary The substantive law will identify Anderson v. Liberty Lobby, Inc., 477 The moving party bears the burden of showing that there is no 24 material factual dispute. 25 the opposing party's evidence, as long as it is supported by 26 affidavits or other evidentiary material. 27 324; Eisenberg, 815 F.2d at 1289. Therefore, the Court must regard as true 28 15 Celotex, 477 U.S. at The Court must draw all 1 reasonable inferences in favor of the party against whom summary 2 judgment is sought. 3 Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Acc. & 4 Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). 5 Matsushita Elec. Indus. Co. v. Zenith Radio Where the moving party does not bear the burden of proof on an 6 issue at trial, the moving party may discharge its burden of 7 production by either of two methods: 8 11 The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. 12 Nissan Fire & Marine Ins. Co., v. Fritz Cos., Inc., 210 F.3d 1099, 13 1106 (9th Cir. 2000). 14 showing an absence of evidence to support an essential element of a 15 claim or defense, it is not required to produce evidence showing 16 the absence of a material fact on such issues, or to support its 17 motion with evidence negating the non-moving party's claim. 18 Nissan, 210 F.3d at 1106; see also Lujan v. Nat'l Wildlife Fed'n, 19 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 20 1409 (9th Cir. 1991). 21 evidence to support the non-moving party's case, the burden then 22 shifts to the non-moving party to produce "specific evidence, 23 through affidavits or admissible discovery material, to show that 24 the dispute exists." 9 United States District Court For the Northern District of California 10 25 If the moving party discharges its burden by If the moving party shows an absence of Bhan, 929 F.2d at 1409. If the moving party discharges its burden by negating an 26 essential element of the non-moving party's claim or defense, it 27 must produce affirmative evidence of such negation. 28 16 Nissan, 210 1 F.3d at 1105. 2 burden then shifts to the non-moving party to produce specific 3 evidence to show that a dispute of material fact exists. 4 If the moving party does not meet its initial burden of production 5 by either method, the non-moving party is under no obligation to 6 offer any evidence in support of its opposition. 7 even where the non-moving party bears the ultimate burden of 8 persuasion at trial. 9 United States District Court For the Northern District of California 10 B. If the moving party produces such evidence, the Id. Id. This is true Id. at 1107. Evidence Considered A district court may only consider admissible evidence in 11 ruling on a motion for summary judgment. 12 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 13 In support of their motion for summary judgment, Defendants have 14 submitted declarations by Defendant Abanico, Lieutenant Padilla, 15 CTF Chief D. Foston, CTF Litigation Coordinator T. Lewis, CTF 16 Correctional Counselor J. Keefer, and Deputy Attorney General C. 17 Young (docket nos. 20, 21, 22, 23, 24, 25). 18 the Court directed Defendant Abanico to produce additional 19 documents relevant to Defendants' motion for summary judgment. 20 January 20, 2011, Defendant Abanico responded to the Court's 21 January 13, 2011 Order, and CTF Lieutenant K. Hoffman filed a 22 declaration relevant to Defendants' motion for summary judgment. 23 On January 26, 2011, the Court again directed Defendant Abanico to 24 produce additional documents relevant to Defendants' motion for 25 summary judgment. 26 to the Court's January 26, 2011 Order, and CTF Academy 27 Administrator M. Beaber filed a declaration in support of See Fed. R. Civ. P. On January 13, 2011, On On February 2, 2011, Defendant Abanico responded 28 17 1 2 Defendants' motion for summary judgment. Plaintiff verified his complaint filed on November 14, 2007 by 3 signing it under penalty of perjury. 4 Plaintiff's opposition, which is not signed under penalty of 5 perjury. 6 D. Laurels, M. Estrada, R. Fryer, L. Martin, K. Trask, E. Lewis, L. 7 Toney, and P. Shotwell are signed under penalty of perjury. Also in the record is However, the eight attached declarations by CTF inmates 8 C. Analysis 9 1. United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 August 18, 2006 Eighth Amendment Claim Against Defendant Abanico Sexual assault, coercion and harassment may violate contemporary standards of decency and cause physical and psychological harm. See Jordan v. Gardner, 986 F.2d 1521, 1525-31 (9th Cir. 1993) (en banc). However, not every malevolent touch by a prison guard or official gives rise to an Eighth Amendment violation. The Eighth Amendment's prohibition against cruel and unusual punishment necessarily excludes from constitutional 18 recognition de minimis uses of force. See Hudson v. McMillian, 503 19 U.S. 1, 9-10 (1992); Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th 20 Cir. 1998)(no Eighth Amendment violation where employees briefly 21 touched inmate's buttocks with apparent intent to embarrass him, 22 and touching was unaccompanied by any sexual comments or banter). 23 Also, mere verbal sexual harassment does not necessarily amount to 24 an Eighth Amendment violation. Austin v. Terhune, 367 F.3d 1167, 25 1171-72 (9th Cir. 2004) (upholding summary judgment of Eighth 26 Amendment claim where prison guard exposed himself to prisoner in 27 elevated, glass-enclosed control booth for no more than 30-40 28 18 1 2 seconds). A prisoner therefore must establish that the alleged sexual 3 harassment was egregious, pervasive and/or widespread in order to 4 state a claim under the Eighth Amendment. 5 F.2d at 1525-31 (prison policy requiring male guards to conduct 6 body searches on female prisoners); Watson v. Jones, 980 F.2d 1165, 7 1165-66 (8th Cir. 1992) (correctional officer sexually harassed two 8 inmates on almost daily basis for two months by conducting 9 deliberate examination of genitalia and anus). See e.g., Jordan, 986 United States District Court For the Northern District of California 10 Plaintiff alleges that on August 18, 2006, Defendant Abanico 11 conducted a clothed body-search which violated his Eighth Amendment 12 right because it amounted to a "sexual assault." (Compl. at 3.) 13 Meanwhile, Defendant Abanico alleges that he conducted the clothed 14 body-search in accordance with the training he received at the 15 correctional academy and with his experience as a correctional 16 officer at CTF. (Abanico Decl. ¶ 4.) 17 18 Based on the record, a finder of fact could reasonably 19 conclude that Defendant Abanico's actions constituted a sexual 20 assault in violation of Plaintiff's Eighth Amendment right. 21 grant summary judgment for Defendants, the Court would have to 22 accept Defendant Abanico's version of events while rejecting 23 Plaintiff's. 24 determinations in connection with a summary judgment motion. 25 viewing the evidence in the light most favorable to Plaintiff, the 26 Court finds that Plaintiff has established a "genuine issue for 27 trial" concerning the August 18, 2006 Eighth Amendment claim 28 against Defendant Abanico. To However, the Court cannot make credibility Thus, Celotex, 477 U.S. at 324 (quoting Fed. 19 1 R. Civ. P. 56(e)). 2 2. 3 Defendant Abanico's Qualified Immunity Defense to August 18, 2006 Eighth Amendment Claim 4 The defense of qualified immunity protects "government 5 officials performing discretionary functions . . . from liability 6 for civil damages insofar as their conduct does not violate clearly 7 established statutory or constitutional rights of which a 8 reasonable person would have known." 9 U.S. 800, 818 (1982). Harlow v. Fitzgerald, 457 A court considering a claim of qualified United States District Court For the Northern District of California 10 immunity must determine (1) whether the plaintiff has alleged the 11 deprivation of an actual constitutional right and (2) whether such 12 right was clearly established such that it would be clear to a 13 reasonable officer that his conduct was unlawful in the situation 14 he confronted. 15 808, 818 (2009) (citing Saucier v. Katz, 533 U.S. 194 (2001)). 16 court may exercise its discretion in deciding which prong to 17 address first, in light of the particular circumstances of each 18 case. 19 See Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. The Id. Regarding the first prong, the threshold question must be: 20 taken in the light most favorable to the party asserting the 21 injury, do the facts alleged show the officer's conduct violated a 22 constitutional right? 23 second prong, the inquiry of whether a constitutional right was 24 clearly established must be undertaken in light of the specific 25 context of the case, not as a broad general proposition. 26 202. 27 right is clearly established is whether it would be clear to a Saucier, 533 U.S. at 201. Regarding the Id. at The relevant, dispositive inquiry in determining whether a 28 20 1 reasonable officer that his conduct was unlawful in the situation 2 he confronted. 3 mistaken, belief about the facts or about what the law requires in 4 any given situation. 5 341 (1986)). 6 Id. Defendants can have a reasonable, but Id. (quoting Malley v. Briggs, 475 U.S. 335, A police department's training manual may be relevant to 7 determining whether reasonable officers would have been on notice 8 that conduct was not lawful. 9 F.3d 1052, 1059, 1061-62 (9th Cir. 2003) (using police department See Drummond v. City of Anaheim, 343 United States District Court For the Northern District of California 10 training bulletin warning officers that kneeling on a subject's 11 back or neck could result in compression asphyxia and death as 12 evidence that the force used was unreasonable and that a reasonable 13 officer would have known it). 14 Defendant Abanico claims he is entitled to qualified immunity 15 as to Plaintiff's Eighth Amendment claim because "it would not have 16 been clear" to a reasonable officer that "following contraband 17 search protocols by touching an inmate's genitals would have 18 violated the Constitution." 19 (Mot. Summ. J. at 17.) California Code of Regulations, Title 15, section 3287(b) 20 provides that "random or spot-check inspections of inmates 21 may . . . be authorized by the institution head to prevent 22 possession and movement of unauthorized or dangerous items and 23 substances into, out of, or within the institution." 24 Decl., Ex. A at 3.) 25 professional manner which avoids embarrassment or indignity to the 26 inmate." 27 19, Section 52050 provides that "custody post orders shall require (Id.) (Hoffman "All such inspections shall be conducted in a The CDCR Departmental Operations Manual, Article 28 21 1 random clothed body searches of inmates, or when reasonable 2 suspicion is established. 3 than necessary to control contraband or to recover missing or 4 stolen property; however, the routine search of inmates entering or 5 leaving certain specified areas is not precluded." 6 Ex. B at 4.) 7 that "there are no Operational Procedures at the Correctional 8 Training Facility addressing clothed body searches that supplement 9 the California Code of Regulations and Department Operations United States District Court For the Northern District of California 10 Manual." 11 Random search should be no more frequent (Hoffman Decl., Lieutenant Hoffman declares under penalty of perjury (Hoffman Decl. ¶ 5.) The Correctional Training Center "trains cadets in the 12 techniques and skills associated with" clothed body-searches. 13 (Id.) 14 Search Instructor's Guide" establishes procedures for a 15 "systematic" clothed body-search. 16 to Academy Administrator Beaber's declaration dated January 28, 17 2011, the Instructor's Guide has been "in effect from December 10, 18 2003 to the present, including during the period when Officer 19 Abanico was trained at the Academy." 20 "Instructor's Guide" directs the officer to "check the inmate's 21 left groin, hip and buttock" in the following manner: "Using the 22 palm side of your hand check the hip area and high into the left 23 groin area. 24 hip and buttock area. 25 the left leg to the foot." 26 officer then repeats this procedure for the inmate's right side. 27 While searching an inmate's groin, the officer is also directed to The Correctional Training Center "Body, Cell, Area, and Grid (Id., Ex. C at 32.) According (Beaber Decl. ¶ 4.) The Your left hand simultaneously searches the left rear Using a firm touch continue searching down (Hoffman Decl., Ex. C at 36.) 28 22 The 1 "cup the groin to check for contraband." 2 corresponding 2006 "Body, Cell, Area, and Grid Search Student 3 Workbook" repeats verbatim this "systematic" procedure. 4 Decl., Ex. D at 16.)4 5 (Id. at 37.) The (Hoffman The first prong of Saucier, 533 U.S. at 201, asks "whether the 6 plaintiff has alleged the deprivation of an actual constitutional 7 right." 8 record, a finder of fact could reasonably conclude that Defendant 9 Abanico's actions constituted a sexual assault in violation of The Court has already determined that, based on the United States District Court For the Northern District of California 10 Plaintiff's Eighth Amendment right. 11 533 U.S. at 202, asks "whether such right was clearly established 12 such that it would be clear to a reasonable officer that his 13 conduct was unlawful in the situation he confronted." 14 above, the CDCR Departmental Operations Manual and the 15 "Instructor's Guide" described how to conduct a "systematic" 16 clothed body-search for weapons and other contraband, including 17 touching the subject's genitals. 18 determining whether reasonable officers would have been on notice 19 that such conduct was not lawful. 20 Defendant Abanico's intrusive search could be viewed as consistent 21 with the instruction that he received. 22 law, and the Court is aware of none, indicating that such a The second prong of Saucier, As quoted Such manuals are relevant to See Drummond, 343 F.3d at 1059. Plaintiff cites no case 23 24 25 26 27 28 4 Defendant Abanico claims under penalty of perjury that he participated in "on-the-job training for clothed body-searches" on October 3, 2006 which "reinforced [his] techniques for conducting clothed body-searches, including searching inmates' groins for contraband such as weapons, drugs or other contraband." (Abanico Decl. ¶ 5.) Defendant Abanico's log shows that on October 3, 2006, he participated in an on-the-job training course entitled "Body Searches/ HCSD" for one hour. (Hoffman Decl., Ex. D at 2.) 23 1 thorough search is unconstitutional. 2 Saucier, therefore, it would not be clear to a reasonable officer 3 that following established contraband search protocols by touching 4 an inmate's genitals would have violated Plaintiff's Eighth 5 Amendment rights. 6 Abanico's position could have thought his conduct was lawful, he is 7 entitled to qualified immunity as to Plaintiff's August 18, 2006 8 Eighth Amendment claim. 9 summary judgment is GRANTED as to this claim. United States District Court For the Northern District of California 10 3. Under the second prong of Because a reasonable officer in Defendant Accordingly, Defendants' motion for January 25, 2007 First Amendment Claim Against Defendant Abanico 11 12 Prisoners have First Amendment rights to file prison 13 grievances, and to pursue civil rights litigation in the courts. 14 Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). 15 these constitutional guarantees, "inmates would be left with no 16 viable mechanism to remedy prison injustices." 17 "purely retaliatory actions taken against a prisoner for having 18 exercised those rights necessarily undermine those protections, 19 such actions violate the Constitution quite apart from any 20 underlying misconduct they are designed to shield." 21 e.g., Pratt v. Rowland, 65 F.3d 802, 806 & n.4 (9th Cir. 1995) 22 ("[T]he prohibition against retaliatory punishment is 'clearly 23 established law' in the Ninth Circuit, for qualified immunity 24 purposes.")). 25 Id. Without Because Id. (citing, Retaliation by a state actor for a prisoner's exercise of a 26 constitutional right is actionable under 42 U.S.C. § 1983, even if 27 the act, when taken for different reasons, would have been proper. 28 See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 24 1 274, 283-84 (1977). 2 referred to in the Constitution, is actionable because retaliatory 3 actions may tend to chill individuals' exercise of constitutional 4 rights. 5 the "prison context," a "viable claim of First Amendment 6 retaliation entails five basic elements: 7 state actor took some adverse action against an inmate (2) because 8 of (3) that prisoner's protected conduct, and that such action 9 (4) chilled the inmate's exercise of his First Amendment rights, Retaliation, though it is not expressly See Perry v. Sindermann, 408 U.S. 593, 597 (1972). Within (1) An assertion that a United States District Court For the Northern District of California 10 and (5) the action did not reasonably advance a legitimate 11 correctional goal." 12 Accordingly, a prisoner suing prison officials under § 1983 for 13 retaliation must allege that he was retaliated against for 14 exercising his constitutional rights and that the retaliatory 15 action did not advance legitimate penological goals, such as 16 preserving institutional order and discipline. 17 at 806. 18 Rhodes, 408 F.3d at 567-68 (footnote omitted). See Pratt, 65 F.3d While the prisoner must allege a defendant's actions caused 19 him some injury, Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 20 2000), the prisoner need not demonstrate a total chilling of his 21 First Amendment rights in order to establish a retaliation claim. 22 See Rhodes, 408 F.3d at 568-69 (rejecting argument that inmate did 23 not state a claim for relief because he had been able to file 24 inmate grievances and a lawsuit). 25 Amendment rights were chilled, though not necessarily silenced, is 26 enough. 27 on the inmate enough to chill inmate's First Amendment rights and That a prisoner's First Id. at 569 (destruction of inmate's property and assaults 28 25 1 state retaliation claim, even if inmate filed grievances and a 2 lawsuit). 3 The prisoner bears the burden of pleading and proving absence of legitimate correctional goals for the conduct of which he 5 complains. 6 shifts to the prison official to show, by a preponderance of the 7 evidence, that the retaliatory action was narrowly tailored to 8 serve a legitimate penological purpose. 9 55 F.3d 454, 461-62 (9th Cir. 1995) (defendants had qualified 10 United States District Court For the Northern District of California 4 immunity for their decision to transfer prisoner to preserve 11 internal order and discipline and maintain institutional security). 12 Retaliatory motive may be shown by the timing of the allegedly 13 retaliatory act and inconsistency with previous actions, as well as 14 direct evidence. 15 2003). 16 evaluated in light of concerns over "excessive judicial involvement 17 in day-to-day prison management, which 'often squander[s] judicial 18 resources with little offsetting benefit to anyone.'" 19 F.3d at 807 (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). 20 In particular, courts should "'afford appropriate deference and 21 flexibility' to prison officials in the evaluation of proffered 22 legitimate penological reasons for conduct alleged to be 23 retaliatory." 24 25 26 27 Pratt, 65 F.3d at 806. At that point, the burden See Schroeder v. McDonald, Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. However, retaliation claims brought by prisoners must be Pratt, 65 Id. Plaintiff alleges that on January 25, 2007, Defendant Abanico broke his eyeglasses while searching his property. Plaintiff claims this was an act of retaliation for the complaints of sexual assault he made against Defendant Abanico. 28 26 Defendant Abanico 1 alleges that "the extent of damage to Plaintiff's eyeglasses 2 appears to be merely a loose screw, according to Plaintiff's inmate 3 appeal on this issue." 4 claims that this "slight amount of damage, even if done 5 intentionally, does not constitute an adverse action for purposes 6 of stating a retaliation claim, nor would a person of ordinary 7 firmness be chilled from exercising their First Amendment rights in 8 the future." 9 (Mot. Summ. J. at 15.) Defendant Abanico (Id.) Here, Plaintiff alleges that Defendant Abanico retaliated United States District Court For the Northern District of California 10 against him for filing inmate grievances. 11 argues that a retaliatory motive can be inferred on the part of 12 Defendant Abanico for allegedly breaking his eyeglasses when he 13 "started to bend them back and forth." 14 discussed above, 15 16 17 18 19 20 21 22 23 24 25 (Compl. at 14.) As Defendants claim that Plaintiff told Sergeant Corona the frames on his eyeglasses had a "screw loose." Decl., Ex. E at AGO-20.) (Young Defendants also claim, and Plaintiff does not refute, that the CTF-Optometrist repaired Plaintiff's eyeglasses at no cost. Even if Plaintiff's eyeglasses were damaged by Defendant Abanico, his temporary inability to use his eyeglasses until they were repaired would not dissuade a person of reasonable firmness from exercising his or her right to free speech. Consequently, Plaintiff has not established a "genuine issue for trial" concerning the alleged retaliation claim. at 324 (quoting Fed. R. Civ. P. 56(e)). Celotex, 477 U.S. Accordingly, Defendants' motion for summary judgment is GRANTED as to this claim. 26 CONCLUSION 27 28 Specifically, Plaintiff For the foregoing reasons, 27 1 1. Defendants' Motion to Dismiss (docket no. 19) is GRANTED. 2 Plaintiff's September 6, 2006 First and Eighth Amendment claims 3 against Defendant Abanico and his July 20, 2007 Eighth Amendment 4 claim against Defendant Ragasa are DISMISSED WITHOUT PREJUDICE for 5 failure to exhaust. 6 able to exhaust his administrative remedies in compliance with 7 Title 15 of the California Code of Regulations § 3084. 8 2. Plaintiff may refile these claims if he is Defendants' Motion for Summary Judgment (docket no. 19) is GRANTED as to Plaintiff's August 18, 2006 Eighth Amendment claim 10 United States District Court For the Northern District of California 9 and January 25, 2007 First Amendment claim, both against Defendant 11 Abanico. 12 3. The Clerk of the Court shall enter judgment in favor of 13 Defendant Abanico, and dismiss without prejudice the claims against 14 Defendant Ragasa, in accordance with this Order, terminate all 15 pending motions, and close the case. Each party shall bear his own 16 costs. 17 18 4. 19 IT IS SO ORDERED. 20 This Order terminates Docket no. 19. DATED: 2/23/2011 CLAUDIA WILKEN United States District Judge 21 22 23 24 25 26 27 28 28 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 4 5 JOHN-CHARLES et al, Case Number: CV07-05786 CW 6 7 Plaintiff, CERTIFICATE OF SERVICE v. 8 9 United States District Court For the Northern District of California 10 ABANICO et al, Defendant. / 11 12 13 14 15 16 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 23, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 17 18 19 20 21 22 Curtis M. John-Charles T-56703 Sierra Conservation Center 5100 O'Byrnes Ferry Road P.O. Box 497 Jamestown, CA 95327-0497 23 24 25 Dated: February 23, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 26 27 28 29
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