KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel. This civil rights action, filed pursuant to 42 U.S.C. § 1983, proceeds on plaintiff's amended complaint against defendants Dragash, Sherburn, and Haynie. (ECF No. 9.) Defendants' motion for summary judgment on the issue of exhaustion of administrative remedies is before the court. As set forth more fully below, the undersigned finds that defendants' motion for summary judgment should be granted.
Plaintiff claims that defendants violated his Eighth Amendment rights by failing to protect him by knowingly housing him with an inmate known to be assaultive of other inmates.
Defendants move for summary judgment on the grounds that plaintiff failed to "complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." (ECF No. 29-1 at 1), quoting
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 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). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."
Proper exhaustion of available remedies is mandatory,
In California, prisoners may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). On January 28, 2011, California prison regulations governing inmate grievances were revised. Cal. Code Regs. tit. 15, § 3084.7. Now inmates in California proceed through three levels of appeal to exhaust the appeal process: (1) formal written appeal on a CDC 602 inmate appeal form, (2) second level appeal to the institution head or designee, and (3) third level appeal to the Director of the California Department of Corrections and Rehabilitation ("CDCR"). Cal. Code Regs. tit. 15, § 3084.7. Under specific circumstances, the first level review may be bypassed.
A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available to him.
Failure to exhaust is "an affirmative defense the defendant must plead and prove."
A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively unavailable to him.
If under the Rule 56 summary judgment standard, the court concludes that plaintiff has failed to exhaust administrative remedies, the proper remedy is dismissal without prejudice.
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that 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).
Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."
In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed.
By contemporaneous notice provided on March 16, 2015 (ECF No. 30), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure.
1. At times relevant to the lawsuit, plaintiff was an inmate in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), housed at the California State Prison, Sacramento ("CSP-SAC") in Represa, California. (ECF No. 9 at 1.)
2. On July 7, 2014, inmate Candler was plaintiff's assigned cellmate. (ECF No. 9 at 1.)
3. On July 7, 2014, plaintiff and inmate Candler had a fight. (ECF No. 9 at 3; 1 at 3, 21.) No staff use of force was required to stop the fight because the inmates stopped when ordered to do so. (ECF No. 1 at 21.) Plaintiff received a rules violation report ("RVR") for fighting, Log No. B-14-07-017. (ECF No. 1 at 21-23.)
4. On July 9, 2014, plaintiff and Candler had another altercation. (ECF No. 1 at 3.)
5. On July 9, 2014, plaintiff was placed in the Administrative Segregation Unit (ASU). (ECF No. 1 at 12.)
6. On July 13, 2014,
7. Plaintiff's appeal also claimed discrimination and retaliation while stating that the "Code of Silence" is a no-tolerance policy. Plaintiff's appeal requested $1,000,000 in monetary and punitive damages, as well as requesting that Lt. Haynie and Officer Sherburn face criminal charges for falsifying legal documents. (ECF No. 1 at 7-10.)
8. On July 25, 2014, C. Burnett, the Appeals Coordinator for CSP-Sacramento, rejected plaintiff's appeal pursuant to California Code of Regulations, Title 15, § 3084.6(b)(8), for "involving multiple issues that . . . are not directly related and cannot be reasonably addressed in a single response due to this fact." C. Burnett's rejection letter advised plaintiff that he could resubmit the unrelated issues separately using separate appeals. (ECF No. 1 at 6; C. Burnett Decl. ¶11; Ex. A.)
9. C. Burnett's rejection letter also advised plaintiff that the staff complaint portion of his appeal was rejected pursuant to § 3084.6(b)(7) for missing necessary support documents, and specified that a CDC 1858 Rights and Responsibilities form must be attached for staff complaint issues. (ECF No. 1 at 6; C. Burnett Decl. ¶11; Ex. A.)
10. Each institution within the CDCR employs a designated Appeals Coordinator who, prior to accepting an appeal for review, is responsible for screening and categorizing every appeal. (Cal. Code Regs. tit. 15, § 3084.5; C. Burnett decl. ¶2.)
11. At the relevant time in this case, CDCR regulations required prisoners to submit an appeal to the Appeals Coordinator within thirty calendar days of the event or decision being appealed, use the required form, and proceed through three levels of appeal: (1) first level; (2) second level appeal to hiring authority; and (3) third level appeal at the director's level. (Cal. Code Regs. tit. 15, §§ 3084.2(a), 3084.7, 3084.8(b); C. Burnett decl. ¶3.)
12. Plaintiff was required to obtain a decision at the third level (Director's level) in order to fully exhaust his available administrative remedies. (Cal. Code Regs. tit. 15, § 3084.1(b).)
13. In some instances, the Appeals Coordinator will not accept an appeal for review on the merits of the inmate's problem because the appeal is deficient under one or more criteria specified by the California Code of Regulations. For example, an appeal may be rejected, and thus, no response rendered, if it involves multiple issues that do not derive from a single event, or are not directly related and cannot be reasonably addressed in a single response due to this fact. (Cal. Code Regs. tit. 15, § 3084.6(b)(1)-(16); C. Burnett decl. ¶5.)
14. Whenever an appeal is rejected pursuant to § 3084.6(b) of the regulations, the Appeals Coordinator is required to provide clear and sufficient instructions regarding further actions the inmate must take to qualify the appeal for processing. (Cal. Code Regs. tit. 15, § 3084.6(a)(1).) An appeal that is rejected in this way may later be accepted if the reason noted for the rejection is corrected and the appeal is returned to the appeals coordinator within thirty calendar days of rejection. (Cal. Code Regs. tit. 15, § 3084.6(a)(2); C. Burnett decl. ¶5.)
15. If an inmate does not return the corrected appeal within thirty days of rejection by the Appeals Coordinator, the appeal is cancelled and cannot be resubmitted. (Cal. Code Regs. tit. 15, § 3084.6(c)(10).)
16. After plaintiff's appeal was rejected on July 25, 2014, he did not submit a corrected appeal on the issues raised in his rejected appeal. (C. Burnett decl. ¶12.)
17. Plaintiff has not pursued any appeal on this matter to the third level of review.
First, plaintiff argues that defendants are barred from raising an exhaustion defense because he amended his complaint and defendants "already raised this issue." (ECF No. 42 at 1.) However, failure to exhaust is an affirmative defense that defendants are entitled to raise whether or not plaintiff addresses the issue in his pleading. Moreover, in their answer, defendants pled such affirmative defense (ECF No. 22 at 3), thus preserving the defense for resolution by the court.
Second, plaintiff contends that he is not required to exhaust his claims pursuant to Title II of the Americans with Disabilities Act ("ADA"), citing
Here, the question for the court is whether plaintiff exhausted his administrative remedies regarding his claims against the defendants, and if he did not, whether plaintiff's failure to meet the pre-filing exhaustion requirement may be excused.
The undisputed evidence shows that plaintiff did not exhaust his administrative remedies as to the instant claims against defendants through the third level of review. Indeed, in his verified original complaint and verified amended opposition, plaintiff conceded that he did not complete the grievance process through the third level of review. (ECF Nos. 1 at 2; 42 at 6.) It is undisputed that plaintiff did not resubmit his appeal after it was screened out at the first level of review. Moreover, defendants submitted unrefuted evidence that plaintiff submitted no appeals that were accepted for review at the third level of review concerning plaintiff's claims against defendants Haynie, Sherburn, or Dragash, during the period of July 1, 2014, through October 1, 2014. (ECF No. 29-3 at 2; 4.) Thus, defendants have carried their burden of showing that plaintiff did not exhaust his available remedies. Consequently, the burden shifts to plaintiff to come forward with evidence "showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him."
The Ninth Circuit has recognized that administrative remedies may be rendered effectively unavailable if prison officials improperly screen out an inmate appeal. Sapp, 623 F.3d at 822-23. To satisfy this exception to the exhaustion requirement, a plaintiff must show "(1) that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that prison officials screened his grievance or grievances for reasons inconsistent with or unsupported by applicable regulations."
It is undisputed that on July 25, 2014, C. Burnett, Appeals Coordinator for CSP-SAC, wrote plaintiff a letter informing him that appeal Log No. SAC-S-14-02004 was rejected pursuant to California Code of Regulations, Title 15 § 3084.6(b)(8), because the appeal "involve[d] multiple issues that do not derive from a single event, or are not directly related and cannot reasonably be addressed in a single response." (ECF No. 1 at 6; Undisputed Fact ("UDF") 8.) Burnett advised plaintiff that he could resubmit the unrelated issues separately using separate appeals. Plaintiff was also advised that the staff complaint portion of his appeal was rejected pursuant to Title 15 § 3084.6(b)(7) because necessary support documents were missing, and he failed to attach a CDC 1858 Rights and Responsibilities form. (UDF 9.)
Plaintiff argues that the appeal did derive from a single incident, but points to no evidence in support thereof. In his verified amended opposition, plaintiff claims the "screen out was falsified," but offers no evidence or facts in support. (ECF No. 42 at 3),
The appeal was properly screened out based on the undisputed prison regulations set forth above. In his appeal, plaintiff alleged that the subject of his appeal was the Americans with Disability Act. (ECF No. 1 at 7.) He explained his appeal by stating he is mentally and mobility impaired, and that he and his cellmate were having problems and couldn't get along. He claimed he informed defendants a week before that he was mobility impaired and that they were putting his life in jeopardy before "the cell fight." (ECF No. 1 at 9.) Plaintiff alleged that defendant Haynie falsified legal documents, first, a 114-D lock-up order; second, another 114-D claiming plaintiff started two fights. Plaintiff claimed he had been discriminated and retaliated against. He claimed an inmate attacked him on the yard after plaintiff picked up his property. In addition to monetary damages, plaintiff sought criminal charges against defendants Haynie and Sherburn for falsifying legal documents. (ECF No. 1 at 7.)
Plaintiff's appeal is unclear and mentions several possible issues, such as discrimination, retaliation, and falsified legal documents, as well as more than one incident, and provides no facts suggesting the incidents were related. If plaintiff believed that his appeal pertained to one incident, he could have resubmitted the appeal. For example, if he believed that defendants knowingly housed him in a cell with an inmate with a known assaultive history, he could have resubmitted the appeal clarifying his belief that his claims were based on one incident, specifically the alleged wrongful housing. In the alternative, plaintiff could have re-submitted his staff complaint clarifying his allegations against defendants and appended the required documents. Given the murky nature of plaintiff's appeal, the court cannot find that the appeal was improperly rejected. Because plaintiff did not return the corrected appeal within thirty days of the rejection, plaintiff's appeal was properly cancelled and cannot be resubmitted. (UDF 15.)
Plaintiff contends that he could not submit multiple appeals because it would result in his being barred from filing additional appeals. (ECF No. 42 at 6.) Plaintiff claims that he could only file two appeals within a two week period. However, if plaintiff believed that all of his claims stemmed from the improper cellmate assignment, he could have resubmitted such appeal clarifying that fact. Or, plaintiff could have prioritized his complaints and filed the appeal he wished to pursue in federal court.
In opposition, plaintiff claims that he wrote a grievance against C. Burnett "for the Code of Silence." This appeal, Log No. SAC C-14-02296, was signed on August 20, 2014, within the requisite time constraints. (ECF No. 42 at 15.) However, this appeal alleges that CSP-SAC appeal coordinators were impeding plaintiff's access to the courts, and asks that his appeals be processed "as they should be. Stop the scheme `Code of Silence.'" (ECF No. 42 at 15.) Plaintiff only provided the first page of this appeal.
To the extent plaintiff contends that this appeal exhausted his claims, such argument fails. There are no allegations on page one of this appeal that put prison officials on notice that plaintiff believed that defendants knowingly housed plaintiff with an inmate with a known assaultive history. Because plaintiff included no factual allegations as to the instant claims, this appeal would not have exhausted the claims that he seeks to pursue herein.
Plaintiff also provided a copy of the first level appeal response, granting the appeal. (ECF No. 42 at 13.) This appeal response also suggests that there was another page to the appeal because the appeal was summarized to include the additional allegations:
(ECF No. 42 at 13.) The appeal was granted, stating that "[t]he Appeals Coordinator shall not engage in any misconduct or attempt to cover up misconduct by other departmental employees." (
Inferring from the appeal response that there was a second page in which plaintiff specifically included the information referenced in the appeal response, his focus remained on the appeals coordinator's actions, not the named defendants. The response noted plaintiff's lack of documentation, yet plaintiff failed to file a second level appeal either clarifying the nature of his appeal or providing the documentation to pursue a staff complaint against defendants. Thus, Appeal Log No. SAC C-14-02296 would not have served to exhaust his claims against defendants had he pursued the appeal to the third level of review. And, in any event, plaintiff failed to pursue this claim to the third level of review.
Similarly, to the extent plaintiff contends that appeal Log No. SAC C-14-02296 should serve to excuse his failure to exhaust the instant claims to the third level of review, such argument fails, because the appeal was appropriately addressed by prison officials, and did not address or grant plaintiff the relief sought in appeal Log No. SAC-S-14-02004 or in the instant action.
Plaintiff contends that defendants are "distorting the truth," (ECF No. 42 at 2), and refers to his Exhibit 14. Plaintiff claims that he was provided a cane in 2011, and because all defendants have seen him with his cane, they know plaintiff is disabled. (
Plaintiff's "Exhibit 14" is a June 18, 2014 memo from R. Jibson, Appeals Coordinator, screening out request Log No. SAC H-14-01660, noting that plaintiff's documents were returned because his "appeal does not meet the criteria for processing as a CDCR Form 1824 as the issue raised is not subject to the Armstrong Remedial Plan (ARP)." (ECF No. 42 at 9.) Plaintiff was informed that he could file a CDCR Form 602 to appeal the non-ARP issues, and that the "provisions specified in CCR 3084 apply to non-ARP issues." (ECF No. 42 at 9.) Jibson advised plaintiff that his appeal was being returned because he was "requesting to be single celled. You will need to address this issue on a CDCR 602 (green) form and attach your most recent 128-G, Classification Chrono." (ECF No. 33 at 7.) Appended to the Jibson memo was plaintiff's "Reasonable Modification or Accommodation Request" on a CDCR 1824 form, dated June 2, 2014, in which plaintiff sought single cell housing because his mobility issues (his legs are weak and he has a cane) placed him at risk. (ECF No. 33 at 8.) The 1824 form was stamped June 11, 2014.
The United States Supreme Court requires prisoners to "properly exhaust administrative remedies" by following the procedural rules defined "by the prison grievance process." Bock, 549 U.S. at 218. As set forth above in detail, California prisoners are required to pursue administrative remedies by filing a Form 602 grievance through the third level of review. Filing a request for accommodation under the ADA does not exhaust administrative remedies for purposes of bringing a § 1983 action in federal court. Because plaintiff pursued this claim on a CDCR 1824 form and not on the 602 form, his Exhibit 14 is of no consequence here.
Moreover, as noted in footnote 6, infra, the instant action pertains to fights that occurred between July 7 and July 9, 2014; thus, request Log No. SAC H-14-01660, signed June 2, 2014, cannot demonstrate that plaintiff exhausted his administrative remedies following the fights that occurred in July of 2014.
For these reasons, request Log No. SAC H-14-01660 cannot excuse plaintiff from the exhaustion requirement at issue here.
In conclusion, plaintiff should not be excused from the exhaustion requirement. While the Ninth Circuit has recognized that the PLRA may not require exhaustion when circumstances beyond a prisoner's control render administrative remedies "effectively unavailable," Nunez, 591 F.3d at 1226; Sapp, 623 F.3d at 822-23, such unavailability is generally premised on the failure of prison officials to accord meaningful access to the administrative grievance process, or to provide meaningful review of a prisoner's grievance. Plaintiff failed to adduce evidence demonstrating that prison officials prevented him from fully and timely exhausting his administrative grievances. Thus, defendants' motion for summary judgment should be granted based on plaintiff's failure to exhaust his administrative remedies.
Accordingly, IT IS HEREBY RECOMMENDED that:
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
