ANTHONY W. ISHII, Senior District Judge.
Plaintiff Louis Branch is a California state prisoner proceeding in this civil rights action pursuant to 42 U.S.C. 1983. Generally, Plaintiff contends that Defendants Alvarez, Szalia, and Umphenour were deliberately indifferent to Plaintiff's safety in violation of the Eighth Amendment in watching but not intervening while Plaintiff was bludgeoned on the head, beaten to semi-consciousness, and stabbed four times by other inmates. Additionally, Plaintiff contends that Defendant Umphenour allowed (or caused) this encounter to retaliate against Plaintiff, in violation of the First Amendment, for having submitted a declaration attesting that Plaintiff witnessed an officer at Avenal state prison batter an inmate.
On September 2, 2014, Defendants Alvarez, Szalia, and Umphenour moved for summary judgment contending, in part, that Plaintiff failed to exhaust his administrative remedies. Doc. 138. After providing the parties the opportunity to brief the issue, the Magistrate Judge issued a Findings and Recommendations, finding that Plaintiff failed to exhaust and recommending that this Court enter summary judgment in Defendants' favor. Plaintiff filed objections to the Findings and Recommendations on July 20, 2015. In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff's objections, this Court declines to adopt the Findings and Recommendations. For the following reasons, this Court will deny Defendants' motion for summary judgment.
Plaintiff has also filed a motion for extension of time to request reconsideration of the Magistrate Judge's Findings and Recommendations. Doc. 177. Because that order is not final and because this Court will not adopt those Findings and Recommendations, Plaintiff's motion is DENIED as moot.
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600, (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). Simply, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "`pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001) (en banc). If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir.1995).
A clear focus on where the burden of proof lies as to the factual issue in question is crucial to summary judgment procedures. Depending on which party bears that burden, the party seeking summary judgment does not necessarily need to submit any evidence of its own. When the opposing party would have the burden of proof on a dispositive issue at trial, the moving party need not produce evidence which negates the opponent's claim. See, e.g., Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885 (1990).
Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir.) cert. denied sub nom. Scott v. Albino, 135 S.Ct. 403 (2014) (emphasis in original). Generally, a claim is not exhausted until it is appealed through the Third Level.
Plaintiff filed two sets of administrative grievances in the timeframe of the assault. It is clear that the only inmate appeal accepted by the California Department of Corrections ("CDC")
In the second set of grievances Plaintiff addressed the assault by inmates and alleged retaliation by prison personnel at issue in this action. See Briggs Decl. ¶ 12; Donaldson Decl. ¶ 8. Plaintiff sought: (1) photocopies of certain documents; (2) the Warden's "personal response required by 15 CCR 3084.5(e)(2); (3) an OIA investigation; and (4) that no classification or transfer reprisals be imposed. Briggs Decl., Exh. 2; Doc. 174 at 21. That grievance was designated a "staff complaint" and assigned Appeal No. ASP-M-04-2265. Staff complaints do "not proceed through the usual grievance procedures." Willis v. Folsom State Prison Medical Staff, 2012 WL 3283457, *4 (E.D. Cal. Aug. 10, 2012). A staff complaint is often routed in the first instance to the Second Level. Id. at *4. Such was the case here, where the relief was "partially granted" on October 27, 2004.
The Ninth Circuit has held that "[a]n inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative remedies." Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir.2010); Morris v. Bradford, 2015 WL 135925, at *7 (E.D. Cal. Jan. 9, 2015) report and recommendation adopted 2015 WL 1014608 (E.D. Cal. Mar. 4, 2015). The Ninth Circuit has also made clear that "there can be no `absence of exhaustion' unless some relief remains available.'" Brown v. Valoff, 422 F.3d 926, 937 (9th Cir.2005); Morris, 2015 WL 135925, at *7. Whether administrative remedies are "available" hinges on whether the relevant prison officials have the authority to take some action, despite the fact that they are unable to provide an inmate with the form of relief he requests. Booth v. Churner, 532 U.S. 731, 741 (2001); See also, Albino v. Baca, 697 F.3d at 1031-32 ([A]waiting "the results of investigations triggered by the grievance process but outside of it can serve the purposes of the exhaustion requirement." (quoting Brown, 422 F.3d at 936-37)).
Two cases on either side of this matter were confronted by the Ninth Circuit in Brown v. Valoff, 422 F.3d 926 (9th Cir. 2005) (consolidating two district court cases for purposes of appeal). In Brown, the Ninth Circuit accepted two interlocutory appeals — Brown and Hall; the district court in both instances had found that the inmate plaintiff had exhausted administrative remedies after completion of the staff complaint process. In the former matter, the complaint filed was classified as a "staff complaint," and was "Partially Granted"
The Ninth Circuit came to the opposite conclusion in Hall, highlighting two relevant differences. First, Hall's appeal, although designated a staff complaint, contained issues which were not the appropriate subject of a staff complaint — challenges to medical treatment given and deprivation of property; was marked "Denied"; and he was advised that if he was "dissatisfied with the decision," "further review" was available. Brown, 422 F.3d at 941. The medical challenges and property deprivation — the Second Level response indicated to Hall that those issues must be appealed separately — were raised in the district court complaint without separately exhausting. Second, the Ninth Circuit emphasized the fact that Hall initiated the proceedings prior to termination of the staff misconduct investigation, thereby not allowing a full opportunity to satisfy a primary purpose of the PRLA: resolving prisoner disputes without litigation. Id. at 942. Between the prison's indication to Hall of the availability of further review for the non-staff complaint portion of the grievance and the fact that his district court complaint was filed prior to completion of the staff complaint investigation, the Ninth Circuit found that Hall had not adequately exhausted his administrative remedies.
In this case, the Warden concluded the Second Level response by informing Plaintiff that "[i]f [he was] dissatisfied with th[e] decision, [he could] complete Section "H" of [his] appeal and forward it to" the Third (Director) Level. Doc. 174 at 23. Plaintiff did not appeal to the Third Level (apparently detailing the perceived failures in the OIS investigation rather than seeking additional relief) until January 24, 2005. Doc. 174 at 24. That appeal was filed approximately two months prior to the conclusion of the OIS investigation. Even in light of the ongoing investigation, the appeal was screened out as untimely at the Third Level for not having been filed within 15 working days of the prisoner's receipt of the Second Level decision. See Cal. Code Reg. § 3084.6(c).
It is a defendant's burden under Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) to demonstrate what process remained available to a plaintiff should he have continued to pursue his appeal. See Brown, 422 F.3d at 936-937. According to the CDC's own policies, as noted in Brown, a prisoner "shall be notified . . . that the other issue(s) must be appealed separately."
Defendant has not met its obligation to prove that further administrative appellate process was available to Plaintiff. Defendant's motion for summary judgment will be denied on that ground.
Defendants' motion for summary judgment on the substance of Plaintiff's claims relies in large part upon disputed factual contentions. Plaintiff and Defendants have presented two distinct versions of the events leading up to the assault on Plaintiff.
Both parties agree that Defendant Umphenour and Plaintiff had an interaction earlier in the week of July 11, 2004. The content of that interaction is disputed. Defendants contend that Umphenour counseled Plaintiff against smoking. Defendants' Separate Statement of Undisputed Facts ("DSSUF") at ¶ 21; Declaration of D. Umphenour, Doc. 138-4 at 4-6, ("Umphenour Decl.") at ¶ 15. Umphenour later determined that Plaintiff had previously been counseled for smoking and issued a "counseling chrono (CDC 128-C)." Id. Plaintiff contends that he has not smoked since 1976 when his father died of lung cancer. Declaration of Louis Branch, Doc. 142 ("Branch Decl.") at ¶ 20. Instead, Plaintiff asserts that the interaction between Plaintiff and Umphenour earlier in the week was unrelated to smoking; Plaintiff claims that Umphenour told Plaintiff that he would be "dealt with" for having submitted a false declaration to the warden regarding witnessing another officer assault an inmate. Branch Decl. at ¶ 5.
On July 11, 2004, Defendants Umphenour, Szalai, and Alvarez worked third watch (2:30 p.m. to 10:30 p.m.) in Housing Unit 250 at Avenal State Prison. Defendants' Separate Statement of Undisputed Facts ("DSSUF") at ¶ 6. It is undisputed that at some time between 3:15 (Lt. Marmolejo Clarification Report, Doc. 138-4 at 11) and 3:45 p.m. (Branch Decl. at ¶ 10) on that date, Plaintiff met with Lieutenant Marmolejo to request a transfer from Housing Unit 250 because "he was having trouble with other inmates." Doc. 138-4 at 10. Beyond what is agreed upon, Plaintiff alleges that Defendant Umphenour had called to obtain Lieutenant Marmolejo's permission for the requested interview. Branch Decl. at ¶ 9. Plaintiff further alleges that Lieutenant Marmolejo called Umphenour after the interview to inform Umphenour that "due to the tension and hostility that [Plaintiff] reported," Lieutenant Marmolejo was rehousing Plaintiff after the 4:45 p.m. institutional count. Branch Decl. at ¶ 11.
It is undisputed that Plaintiff returned to Housing Unit 250 at approximately 4:10 p.m., after the interview with Lieutentant Marmolejo. Defendant Umphenour contends that, shortly before 4:30 p.m., he was "patrolling `C' side of Housing Unit 250," after having finished "patrolling `A' and `B' sides" and finding "no suspicious activity." Umphenour Decl. at ¶ 5. In the same approximate window of time, Defendant Szalai claims to have been in the staff office preparing for the 4:45 p.m. institutional count. Declaration of L. Szalai, Doc. 138-4 at 26-27, ("Szalai Decl.") at ¶ 5. At approximately 4:30, Defendant Alvarez exited the staff bathroom in Housing Unit 250. Declaration of J. Alvarez, Doc. 138-4 at 31-33, ("Alvarez Decl.") at ¶ 5. All of the defendants claim that they were unaware of the assault on Plaintiff until Sergeant Wicks instructed Officer Umphenour to summon Plaintiff to the officer's podium using the public address system. Umphenour Decl. at ¶¶ 8, 13, 14; Szalai Decl. at ¶¶ 6, 7, 11; Alvarez Decl. at ¶¶ 7, 13.
Plaintiff's description of his assault is markedly different; he contends that he returned to Housing Unit 250 at 4:10 p.m. and returned to his assigned bed on "A Side." Branch Decl. at ¶12. He then claims to have been surrounded, stabbed, beaten and bludgeoned on the Day Room Floor by [four to six other inmates all] in full view of the [D]efendants." Id. Specifically, Plaintiff alleges that he "saw [D]efendants observing [him] being [attacked] until a look-out . . . yelled, `the Sergeant is coming.'" Id. at ¶ 13. At that point, Plaintiff alleges that the Defendants left the podium area and his attackers returned to their respective bed areas. Id.
Defendants move for summary judgment on both issues, treating their version of the facts as undisputed. At least one material fact is in dispute as to Plaintiff's Eighth Amendment claim, precluding summary judgment: whether Defendants saw Plaintiff being attacked. Compare Branch Decl. at ¶12, 13; with Umphenour Decl. at ¶¶ 8, 13, 14; Szalai Decl. at ¶¶ 6, 7, 11; Alvarez Decl. at ¶¶ 7, 13.
If Defendants were actually aware of the attack and purposefully did nothing to prevent or stop it, then Defendants failed in their duty to take "reasonable steps to protect inmates from physical abuse." Williams v. Young, 2015 WL 4617985, *16 (E.D. Cal. July 31, 2015) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982)). However, if the situation was as described by the Defendants — each was unaware of the risk and not present at the time of the attack — then they cannot be held liable for failing to intercede. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000).
Similarly, in addition to the fact relevant for the Eighth Amendment claim, at least one material fact is in dispute as to Plaintiff's retaliation claim, precluding summary judgment: 1) whether Defendant Umphenour was aware of and had threatened Plaintiff over Plaintiff's declaration regarding the inmate assault that he witnessed. Compare Umphenour Decl. at ¶¶ 15-17 (Defendant Umphenour was unaware of the inmate grievance only interacted with Plaintiff to counsel him against smoking.) With Branch Decl. at ¶¶ 5, 17-20 (Defendant Umphenour threatened that Plaintiff would be "dealt with" for submitting a false declaration against the officer that Plaintiff allegedly witnessed attacking an inmate.)
Defendants note that "apart from the counselling (sic) incident, [Plaintiff] does not offer any . . . evidence linking Officer Umphenour to the" assault. Doc. 145 at 6. If Defendant Umphenour did threaten Plaintiff regarding Plaintiff's testimony against another prison guard — regardless of whether Defendant Umphenour did allow or facilitate the attack on Plaintiff to follow through with that threat — then Plaintiff needs no additional evidence for a jury to be able to determine that Defendant Umphenour acted in retaliation. Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012) ("The mere threat of harm can be an adverse action. . . .") (citation omitted); see Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) ("Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal."). If, however, the jury determines that Defendant Umphenour never threatened Plaintiff, it is unlikely that they could find that Defendant Umphenour acted in retaliation because Plaintiff has submitted no other evidence to support a finding that Defendant Umphenour knew about Plaintiff's declaration. Watison, 668 F.3d at 1114 (requiring a plaintiff to show a causal connection between any adverse action and protected conduct).
Defendants' bid for qualified immunity is equally unavailing. Defendants again frame that argument in reliance on disputed facts. For instance, Defendants present a laundry list disputed factual situations — which are clearly not constitutional violations — then conclude that, based on those disputed facts, they are entitled to qualified immunity:
Doc. 145 at 9. Certainly, a reasonable officer would believe that patrolling the halls after clearing an area would be constitutional. However, it is not undisputed that Defendant Umphenour was, in fact, patrolling the halls after having cleared a different area. Similarly, it is not undisputed that Defendant Szalai was in the staff office, or that Defendant Alvarez was in the restroom at the time of Plaintiff's attack. Accordingly, Defendants have not proven entitlement to qualified immunity.
Based on the foregoing, Defendants have not made the requisite showing for a grant of summary judgment. Accordingly, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
Id.
