STANLEY A. BOONE, Magistrate Judge.
Plaintiff James Cato, Jr. is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This action is proceeding against Defendant Dumont for retaliation in violation of the First Amendment.
On July 16, 2015, Defendant filed a motion for summary judgment based on Plaintiff's failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a), Fed. R. Civ. P. 56(c);
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which Defendants have the burden of raising and proving the absence of exhaustion.
Any party may move for summary judgment. 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) (quotation marks omitted);
Unlike a motion for summary judgment on the merits of a plaintiff's claim(s) where a defendant does not bear the burden of proof at trial and in moving for summary judgment, whether the PLRA exhaustion standard has been met is an affirmative defense.
If Defendants meet this initial burden, the burden then 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."
In judging the evidence at the summary judgment stage, the Court must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment,
Pursuant to the Prison Litigation Reform Act of 1996, "[n]o 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). Prisoners are required to exhaust the available administrative remedies prior to filing suit.
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which Defendant has the burden of raising and proving the absence of exhaustion.
The California Department of Corrections and Rehabilitation (CDCR) has an administrative grievance system for prisoners to appeal any departmental decision, action, condition, or policy having an adverse effect on prisoners' welfare. Cal. Code Regs. tit. 15, § 3084.1. Prior to 2011, the process was initiated by submitting a CDC Form 602 describing the problem and the action requested, tit. 15, § 3084.2(a), and appeal had to be submitted within fifteen working days of the event being appealed or of the receipt of the unacceptable lower level decision, tit. 15, § 3084.6(c). Up to four levels of appeal may be involved, including the informal level, first formal level, second formal level, and third formal level, also known as the Director's Level. Tit. 15, § 3084.5. In order to satisfy section 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit.
On July 1, 2012, during medication pick-up, Plaintiff was asked numerous questions by an officer concerning his previous institutional housing. Plaintiff did not have on his eye glasses at the time of the questioning, and later recognized the questioning officer was J. Dumont. Plaintiff recognized his name belonging to a defendant named in his a previous civil rights complaint based on excessive force. When Plaintiff made eye contact with Defendant Dumont, he was openly "smirking" at Plaintiff.
On July 2, 2012, Defendant J. Dumont willfully retaliated against Plaintiff for initiating and maintaining a civil rights lawsuit against him by having Plaintiff removed from general population and placed in administrative segregation where he was subjected to further retaliation by his co-workers. Defendant Dumont's actions were a direct violation of Plaintiff's rights under the First Amendment.
On July 2, 2012, after breakfast two unknown officers went to Plaintiff's cell, handcuffed him, and took him to the program office where he was locked in a cage. Plaintiff was not allowed to pack his property.
Plaintiff was given notice that he was being placed in administrative segregation for investigation into safety concerns involving staff.
On July 10, 2012, a California Department of Corrections and Rehabilitation 128G was issued claiming that Plaintiff was placed in administrative segregation for "investigation into staff safety." A confidential 128B dated July 2, 2012, had been authored by facility staff identifying that if Plaintiff remained on the facility it would present a threat to the safety and security of staff and inmates. The chrono falsely accused Plaintiff of battering multiple staff at Corcoran State Prison, an institution where Plaintiff was beaten by officer J. Dumont and others on September 5, 2005.
Defendant moves for summary judgment on the ground that Plaintiff's claim that he submitted an inmate appeal to an officer collecting mail for delivery to the appeals office is not substantiated because Plaintiff never made an inquiry into the lack of response to the alleged grievance. In addition, Defendant argues that Plaintiff submitted the appeal beyond the statutory deadline regardless of the lack of receive or response.
Plaintiff contends that on August 23, 2012, he submitted a CDCR 602 Inmate Appeal form naming Defendant Dumont as a participant in a systematic retaliation against Plaintiff. Because Plaintiff was in administrative segregation at the time he submitted this appeal he followed "the only submission procedure afforded inmates housed in (ad-seg). Inmates are required to submit all outgoing mail to third watch unit officers for processing and delivery to proper destinations. This is done by placing the outgoing mail through the side of the cell door, or food slot, for unit officers to pick up during nightly inmate count. Plaintiff hereby contends that his 602 appeal was in a state provided u-save'em envelope addressed to the appeals coordinator office and picked up for processing by unit officers." (ECF No. 34, Opp'n at 3-4.) Plaintiff contends he took appropriate steps to exhaust the administrative remedies but was obstructed by prison officials from doing so.
Plaintiff further contends that his inmate appeal was not untimely, as he did not become aware of Defendant Dumont's involvement in Plaintiff's placement in administrative segregation until July 30, 2012, and the grievance submitted on August 23, 2012, was timely.
Lastly, Plaintiff argues that the fact he was able to pursue other appeals while housed at Kern Valley State Prison does not establish that the administrative remedies were available to him at the time he tried to file the appeal relevant to this action.
Defendant argues that although Plaintiff contends he submitted an inmate appeal but never received a confirmation or response, he made no attempt to follow-up or inquire as to the status of the appeal despite the fact Plaintiff was familiar with the appeals process. In any event, Plaintiff submitted the appeal beyond the statutory deadline regardless of the lack of receipt or response.
It is undisputed that Plaintiff has not received a decision from the Third Level of Review relating to his retaliation claim against Defendant Dumont. Defendant has therefore carried his burden of demonstrating Plaintiff's failure to exhaust, and the burden now 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."
As previously stated, Plaintiff contends by way of verified complaint and opposition that on August 23, 2012, he submitted "his 602 appeal was in a state provided u-save'em envelope addressed to the appeals coordinator office and picked up for processing by unit officers." Plaintiff attaches a copy of the 602 appeal to his complaint as well as his opposition, which is dated August 23, 2012 and states the following:
(ECF No. 1, Compl. Ex. F.)
Plaintiff indicates that he never received a response to his appeal. Plaintiff submits he took appropriate steps to exhaust the administrative remedies but was obstructed by prison officials from doing so and when "no response was received within the prescribed time limits exhaustion became unavailable." (Opp'n at 4.)
Defendant argues that exhaustion cannot be excused in this case based merely on Plaintiff's allegation that an appeal was submitted and no response was ever received. Defendant argues that "[w]ithout following up on the status [of the appeal] there would be absolutely no paper trail or evidence to prove or disprove the filing," rendering the appeal system meaningless. However, there is no rule or regulation requiring Plaintiff to take further action. Once Plaintiff indicates, under penalty of perjury, that he has done what is required, Defendant cannot defeat Plaintiff's statements simply by contending that he should have done more.
Based on the foregoing, it is HEREBY RECOMMENDED that Defendant's motion for summary judgment be DENIED, pending an evidentiary hearing.
This Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within
