MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a federal prisoner proceeding pro se in a civil rights action pursuant to
Before the Court is Defendant's motion for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies before filing his retaliation claim.
For the reasons set forth below, the undersigned will recommend that Defendant's motion be denied.
Plaintiff's allegations may be summarized as follows.
In 2014, Plaintiff filed grievances regarding various non-party correctional staff. At some point, Officer Baker told Plaintiff it probably was not a good idea to be filing grievances. In September 2014, Plaintiff reported this perceived threat to correctional staff Copenhaver. Copenhaver told Plaintiff to talk with correctional staff Snyder. Snyder responded that Plaintiff was paranoid. Neither Copenhaver nor Snyder investigated Plaintiff's concerns or took any action. Defendant Baker was on probation at this time.
On October 13, 2014, an incident occurred between Plaintiff and Defendant Baker in the course of which Plaintiff agreed to submit to handcuffs. However, Baker planted Plaintiff's arm on the ground and twisted it, separating the muscle from the bone and causing Plaintiff a permanent loss of strength. Plaintiff stated, "You broke my arm, you're hurting me." Baker responded, "That will teach you about filing grievances." A Correctional officer Borja was present; he did not intervene, but he did report the incident to Copenhaver and Snyder.
As a result of the incident, Plaintiff was hospitalized until October 20, 2014. Defendant Baker was terminated in November 2014.
On November 19, 2014, Plaintiff submitted Administrative Remedy Request No. 802835-F1
(ECF No. 30-3 at 24.)
On December 30, 2014, the Warden responded, stating that Plaintiff's allegations of staff misconduct would be reviewed, and if necessary, referred to the appropriate department for investigation. (
On January 6, 2015, Plaintiff submitted Administrative Remedy Request No. 802835-R1 to BP-10 at the Western Regional Office, the next level of review. Vickers Decl. Ex. 2, 3 (ECF No. 30-3 at 18, 26.) In this request, Plaintiff asked for an investigation, for the officers involved to be fired, for disciplinary action to be taken, and for compensation for himself. Vickers Decl. Ex. 3 (ECF No. 30-3 at 26.) The request also stated "I received a write-up in Retaliation [sic] for complaining about my mistreatment. Of[ficer] Baker was fired for this?" (
Plaintiff eventually submitted Administrative Remedy Request No. 802835-A1 to the Central Office, BP-11, the final level of review. Vickers Decl. ¶ 7, Ex. 2 (ECF No. 30-3 at 20); (ECF No. 31. at 9.) The appeal was received by the Central Office on April 2, 2015, and was rejected on May 18, 2015 because Plaintiff did not provide a copy, a receipt or a verified photocopy of his original appeal. Plaintiff had fifteen days to correct this error. 28 C.F.R. § 542.17(b). Defendants contend that Plaintiff did not resubmit the appeal within fifteen days. Vickers Decl. ¶ 7, Ex. 2 (ECF No. 30-3 at 20); Supplemental Decl. of G. Cobb in Supp. Defs.' Mot. Summ. J. (ECF No. 34-3) ¶ 7.
In his opposition, Plaintiff states, "I re-submitted a BP-11 to Washington DC in April 2015." (ECF No. 31. at 12.) It is not clear whether this statement is intended to indicate that he did re-submit the appeal after it was rejected or merely to point out that he did, in fact, submit a BP-11 to the third and final level of review. In any event, BOP records reflect that the appeal was not rejected until May 2015. Plaintiff does not contend that he resubmitted the appeal with appropriate documentation after that date.
On November 18, 2014, Plaintiff submitted Administrative Remedy Request No. 801695, characterized by BOP as concerning "staff misconduct in corridor", to the first level of review. See Vickers Decl. Ex. 2 (ECF No. 30-3 at 16.)
Plaintiff states that, in January 2016, he sent a letter inquiring as to the status of this appeal (against Officer Baker), but received no response before filing this lawsuit. (ECF No. 31 at 12.)
At least some of the allegations contained in Plaintiff's Administrative Remedy Request No. 802835 were referred to the Office of Internal Affairs ("01A") in January of 2015 and an investigation was conducted. See Decl. of G. Cobb in Supp. Defs.' Mot. Summ. J. (ECF No. 30-6) ¶ 8; Supplemental Decl. of G. Cobb in Supp. Defs.' Mot. Summ. J. (ECF No. 34-3) ¶¶ 8-9. As part of the investigation Plaintiff was interviewed by Special Investigative Services ("SIS") Lieutenant Glen Cobb in February 2015.
Lieutenant Cobb denies that Plaintiff said during this interview that Defendant Baker had threatened him or had any kind of retaliatory animus towards Plaintiff. See Supplemental Decl. of G. Cobb in Supp. Defs.' Mot. Summ. J. (ECF No. 34-3) ¶¶ 9-11. Plaintiff disputes this. He asserts he there told Cobb that, according to Baker, the October 2014 incident was in retaliation for Plaintiff's grievances. (ECF No. 31. at 7.)
The court must grant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact.
If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence supporting its claims or defenses.
Generally, when a defendant moves for summary judgment on an affirmative defense on which he bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See
In ruling on a motion for summary judgment, inferences drawn from the underlying facts are viewed in the light most favorable to the non-moving party.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See
The Federal Bureau of Prisons ("BOP") has established an administrative remedy procedure through which an inmate can seek review of any complaint regarding any aspect of his imprisonment including security concerns. See 28 C.F.R. § 541.10; Nunez
If the BP-9 request is denied by the warden, as a third step the prisoner may file an appeal with the Regional Director using a BP-10 form. 28 C.F.R. § 542.15(a); Nunez, 591 F.3d at 1219. The BP-10 must be submitted within 20 calendar days of the date the warden responded to the BP-9, with the exception again where there are valid reasons for delay.
As a last step, where the prisoner is not satisfied with the Regional Director's response, he or she may submit an appeal to the BOP General Counsel using a BP-11 form. 28 C.F.R. § 542.15(a); Nunez, 591 F.3d at 1219-20. The BP-11 must be submitted within 30 calendar days of the date of the Regional Director's response to the BP-10, with the same exception for valid reasons for delay. 28 C.F.R. § 542.15(a); Nunez, 591 F.3d at 1220.
Under the PLRA, "No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory.
Under the PLRA, a grievance "suffices if it alerts the prison to the nature of the wrong for which redress is sought."
The Ninth Circuit has recognized that the PLRA does not require exhaustion when circumstances render administrative remedies "effectively unavailable." See
Prison officials may not render the appeals process unavailable through error or misconduct and then take advantage of the prisoner's failure to complete the process. See
Exhaustion of administrative remedies may be deemed complete, despite the inmate's failure to comply with a procedural rule, if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.
Defendants move for summary judgment on the ground that Plaintiff did not exhaust his retaliation claim against Defendant Baker. Defendants argue that Administrative Remedy Request No. 802835 focused on a claim of excessive force without even mentioning the possibility that the force was used in retaliation. As such, it did not put the prison on notice of any claim of retaliation by Baker or provide the prison an opportunity to address such a claim.
Plaintiff's argument is broad and, perhaps as a result, unclear. He states that he repeatedly informed the institution of his complaints about Officer Baker's retaliatory animus in the course of informal communications, administrative grievances, and interviews prompted by his grievances and resulting investigations. He does not expressly state that he filed a written grievance against Baker for retaliation or that he pursued an administrative grievance about Baker through all levels of review. He does not identify any grievance beyond those discussed above. He does suggest that threats from correctional staff dissuaded him from pursuing administrative grievances.
Defendants respond by noting the absence of any evidence of the existence of a written grievance alleging retaliation by Officer Baker. Plaintiff's claim that he was prevented from filing grievances by threats and fear is contradicted by Plaintiff's grievance filing history and his claim that he raised the retaliation issue multiple times in interviews.
Administrative Remedy Request No. 802835 does not allege retaliation by Defendant Baker. It does not allege Baker had or acted out of a retaliatory animus towards Plaintiff. It does not identify any retaliatory threats or other retaliatory animus occurring before the October 13, 2014 incident. Plaintiff's appeals attribute the write up by Borja to a desire by Borja to retaliate against him, but make no such claim against Baker.
Specifically, Plaintiff's first appeal stated, "Of[ficer] Borja retaliated against me by writing me up"; and "I received a write-up to stop me and/or cover-up for the use of excessive force." Vickers Decl. Ex. 2 (ECF No. 30-3 at 24). Plaintiff's second appeal stated, "I received a write-up in retaliation for complaining about my mistreatment Of[ficer] Baker was fired for this?" (
In order to satisfy a prisoner's requirement to exhaust remedies a grievance must alert "the prison to the nature of the wrong for which redress is sought." See Griffin, 557 F.3d at 1120. The inmate need not include specific legal theories, but must as least "alert the prison to a problem and facilitate its resolution."
Plaintiff argues that his OIA interviews with SLS officers and other correctional staff in which he told the interviewers that Bakers' use of force was retaliatory should constitute exhaustion. (ECF No. 31.) These interviews, however, do not comply with the BOP's administrative grievance process. See 28 C.F.R. § 542.10 et seq. As noted,
Plaintiff states, "In January of 2016 I sent a letter to the Administrative Appeal coordinator asking for the status of my grievance against Of[ficer] Baker. Remedy #801695." (ECF No. 31 at 12.) Plaintiff provides no further information regarding this appeal. He does not describe its content, produce a copy, or provide any evidence that it concerned the October 2014 incident or was exhausted through the final level of review. Plaintiff further states, "I did not hear back from the BOP before filing this lawsuit." (
Defendant does not address this appeal beyond the BOP printout of Plaintiff's administrative remedies from October 2014 to October 2016 which indicates that it concerned "staff misconduct in corridor" and was closed for an undefined reason. Vickers Decl. Ex. 2 (ECF No. 30-3 at 16.)
The lack of clarity regarding this appeal and how it was processed militates against the defense and their burden on summary judgment to demonstrate that Administrative Remedy Request 801695 did not exhaust Plaintiff's remedies on his retaliation claim.
It is the Defendants' burden to prove that "there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Albino, 747 F.3d at 1172. They must prove on summary judgment that no reasonable trier of fact could find other than for them.
Therefore, construing all facts in favor of the nonmoving party, the evidence indicates that Defendants have not met their burden of demonstrating that Plaintiff failed to exhaust all available administrative remedies in relation to his retaliation claim against Defendant Baker and the motion should be denied.
Plaintiff asks the Court to hold the motion for summary judgment in abeyance to allow him to pursue discovery to support his claim that he exhausted administrative remedies. (ECF No. 31 at 5.) He specifies various records he has requested that he believes will support his claim that he informed officers during interviews that the incident at issue here was retaliatory. (
"Rule 56(d) `provides a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence.'"
A party asserting that discovery is necessary to oppose a motion for summary judgment "shall provide a specification of the particular facts on which discovery is to be had or the issues on which discovery is necessary." Local Rule 260(b). However, where "no discovery whatsoever has taken place, the party making a Rule 56[(d)] motion cannot be expected to frame its motion with great specificity as to the kind of discovery likely to turn up useful information, as the ground for such specificity has not yet been laid."
Here, the motion for summary judgment was filed three months after discovery opened. (See ECF No. 27.) However, discovery here remains in its initial stages, and Plaintiff has not yet received responses to his discovery requests. Generally, a Rule 56(d) motion will be granted in such circumstances. Here however the Court concludes that the motion for summary judgment should be denied even without additional discovery and evidence from Plaintiff. Thus, because additional discovery is not required for Plaintiff to defeat summary judgment, the Rule 56(d) request should also be denied.
Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendant's motion for summary judgment for failure to exhaust administrative remedies in relation to the First Amendment retaliation claim against Defendant Baker be DENIED.
The findings and recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with the findings and recommendation, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." A party may respond to another party's objections by filing a response within fourteen (14) days after being served with a copy of that party's objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
