GONZALO P. CURIEL, District Judge.
Selvin O. Carranza ("Plaintiff") is currently incarcerated at High Desert State Prison, and is proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983.
On January 24, 2017, the Court screened Plaintiff's Second Amended Complaint ("SAC") pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and directed U.S. Marshal service pursuant to 28 U.S.C. § 1915(d) and FED. R. CIV. P. 4(c)(3) as to 39 Defendants, all of whom are alleged to have violated Plaintiff's First, Eighth, and Fourteenth Amendment rights while Plaintiff was incarcerated at Richard J. Donovan Correctional Facility ("RJD") in San Diego from June 2012 through April 2013. See ECF No. 42.
On May 3, 2017, twenty-seven Defendants
Plaintiff divides his SAC into five separate causes of action. See ECF No. 33 at 21-25.
In Count One, Plaintiff claims that on June 22, 2012, RJD officials L. Tillman, S. Rink, K. Thaxton, E. Pimentel, N. Scharr, J. Rodriguez, J. Reyes, E. Garcia, L. Brown, and W. Suglich conspired and set him up to fight another inmate "gladiator style" and then used excessive force by shooting him in order to break up the fight in violation of the Eighth Amendment. Id. at 21, 30-38, ¶¶ 1-72.
In Count Two, Plaintiff claims that on August 10, 2012, L. Tillman assaulted him "in retaliation" for his having complained about the June 22, 2012 incident, and R. Lemon failed to intervene. Id. at 21, 38-43, ¶¶ 73-127.
In Count Three, Plaintiff claims L. Tillman, S. Rink, A. Buenrostro, R. Lopez, R. Davis, L. Vanderweide, W. Shimko, I. Marquez, R. La Costa, L. Romero, and other "unknown defendants" conspired to "beat," "mutilate," and attempted to "murder him by strangulation" while he was in handcuffs, and that others failed to intervene or provide him medical attention on August 15, 2012—again in violation of the Eighth Amendment and in retaliation for his previous complaints against staff. Id. at 23, 43-55 ¶¶ 128-245. Plaintiff further claims Defendants R. Casper, N. Molina,
In Count Four, Plaintiff claims G. Savala, G. Stratton, J. Gomez, R. Davis, R. Lopez, Ojeda, C. Franco, Morales, Q. Jackson, D. Arguilez, M. Stout, J. Brown, C. Meza, and G. Hernandez falsely accused him of exposing himself to a female officer on November 24, 2012, placed him in segregation, then charged and found him guilty of a "sex offense" also in violation of due process. Plaintiff claims these Defendants did so in order to damage his reputation, justify the cancellation of an internal "FBI investigation," and further retaliate against him for his "continuous" complaints and efforts to exhaust his administrative remedies. Id. at 24, 61-68, ¶¶ 295-366.
In Count Five, Plaintiff claims D. Arguilez, R. Davis, A, Buenrostro, A. Silva, R. Lopez, A. Demesa, "and other unknown C/Os," used excessive force against him again on April 18, 2013, while escorting him from his cell and in preparation for his transfer to Kern Valley State Prison ("KVSP"). Plaintiff claims Defendants Lopez and Silva also failed to properly decontaminate him after he had been pepper sprayed, and RN Sanchez failed to attend to his injured wrist afterward—again in "retaliation for [him] continuously complaining verbally and by filing 602[] staff complaints about correctional officers." Id. at 25, 68-71 ¶¶ 367-404.
Plaintiff seeks various forms of injunctive relief as well as nominal and "unlimited" amounts of compensatory and punitive damages. Id. at 29, 73-75.
Under Federal Rule of Civil Procedure 4(m), "[i]f a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time." See Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013).
A review of the Court's docket indicates that Plaintiff has failed to properly serve Defendants M. Stout, C.P. Franco, K. Thaxton, and R. Casper. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (where a pro se plaintiff fails to provide the Marshal with sufficient information to effect service, the court's sua sponte dismissal of those unserved defendants is appropriate under FED. R. CIV. P. 4(m)). Although an incarcerated pro se plaintiff proceeding IFP is entitled to rely on the United States Marshal for service of the summons and complaint, he must provide the Marshal with the information necessary to effectuate that service. See Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990). Reliance on the U.S. Marshal does not mean that a plaintiff can "remain silent and do nothing to help effectuate service." Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987); Puett, 912 F.3d at 274-75.
In this case, Plaintiff has had notice of his failures to effectuate service upon Defendants M. Stout, C.P. Franco, K. Thaxton, and R. Casper, has already been granted extensions of time pursuant to FED. R. CIV. P. 4(m), and was also provided assistance from the Deputy Attorney General in correcting his service insufficiencies to no avail. See ECF Nos. 86, 94, 107. Therefore, the Court
Plaintiff has not filed an opposition; however, his SAC is verified under penalty of perjury. See ECF No. 33 at 28, 75. In his SAC, Plaintiff swears he has exhausted all his claims. Id. at 26-28.
"The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust `such administrative remedies as are available' before bringing suit to challenge prison conditions." Ross v. Blake, 136 S.Ct. 1850, 1854-55 (2016) (quoting 42 U.S.C. § 1997e(a)). "There is no question that exhaustion is mandatory under the PLRA[.]" Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted). The PLRA also requires that prisoners, when grieving their appeal, adhere to CDCR's "critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 91 (2006). "[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218.
The exhaustion requirement is based on the important policy concern that prison officials should have "an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones, 549 U.S. at 204. The "exhaustion requirement does not allow a prisoner to file a complaint addressing non-exhausted claims." Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).
Therefore, regardless of the relief sought, a prisoner must pursue an appeal through all levels of a prison's grievance process as long as that process remains available to him. "The obligation to exhaust `available' remedies persists as long as some remedy remains `available.' Once that is no longer the case, then there are no `remedies . . . available,' and the prisoner need not further pursue the grievance." Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). "The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are `available.'" Ross, 136 S. Ct. at 1862; see also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (PLRA does not require exhaustion when circumstances render administrative remedies "effectively unavailable.").
Grievance procedures are available if they are "`capable of use' to obtain `some relief for the action complained of.'" Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738); see also Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) ("To be available, a remedy must be available `as a practical matter'; it must be `capable of use; at hand.'") (quoting Albino, 747 F.3d at 1171).
In Ross, the Supreme Court noted "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." 136 S. Ct. at 1859 (emphasis added). These circumstances arise when: (1) the "administrative procedure . . . operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates;" (2) the "administrative scheme . . . [is] so opaque that it becomes, practically speaking, incapable of use . . . so that no ordinary prisoner can make sense of what it demands;" and (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1859-60 (citations omitted).
Applying these principles, the Ninth Circuit has specifically found that "[w]hen prison officials fail to respond to a prisoner's grievance within a reasonable time, the prisoner is deemed to have exhausted available administrative remedies within the meaning of the PLRA." See Andres v. Marshall, 854 F.3d 1103, 1105 (9th Cir. 2017) (per curiam) (finding RJD's 6-month failure to respond to an inmate grievance rendered prisoner's administrative remedies unavailable); accord Dole v. Chandler, 438 F.3d 804, 809, 811 (7th Cir. 2006) (officials' failure to respond to a "timely complaint that was never received" rendered prisoner's administrative remedies unavailable). The Ninth Circuit has further found administrative remedies "plainly unavailable" where prison officials "screen out an inmate's appeals for improper reasons," Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010), and "effectively unavailable" where they provide the inmate mistaken instructions as to the means of correcting a claimed deficiency, but upon re-submission, reject it as untimely after compliance proved impossible. See Nunez, 591 F.3d at 1226. Administrative remedies may also prove unavailable if the prisoner shows an "objectively reasonable" basis for his belief that "officials would retaliate against him if he filed a grievance." McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015).
Because the failure to exhaust is an affirmative defense, Defendants bear the burden of raising it and proving its absence. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1169 (noting that Defendants must "present probative evidence—in the words of Jones, to `plead and prove'-that the prisoner has failed to exhaust available administrative remedies under § 1997e(a)"). "In the rare event that a failure to exhaust is clear from the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6)." Albino, 747 F.3d at 1166. Otherwise, Defendants must produce evidence proving the Plaintiff's failure to exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable Plaintiff, shows he failed to exhaust. Id.
Summary judgment is generally proper if the movant shows there is no genuine dispute as to any material fact and he or she is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether a fact is disputed or undisputed, must be supported by: (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. FED. R. CIV. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, although it is not required to do so. FED. R. CIV. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
When Defendants seek summary judgment based on the Plaintiff's failure to exhaust specifically, they must first prove that there was an available administrative remedy and that Plaintiff did not exhaust that available remedy. Williams, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172) (quotation marks omitted). If they do, the burden of production then shifts to the Plaintiff "to show that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Williams, 775 F.3d at 1191; see also Ross, 136 S. Ct. at 1858-60; McBride, 807 F.3d at 986 (citing "circumstances where the intervening actions or conduct by prison officials [may] render the inmate grievance procedure unavailable.").
Only "[i]f the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, [is] a defendant is entitled to summary judgment under Rule 56." Albino, 747 F.3d at 1166.
Finally, "[a] [p]laintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and sets forth specific facts admissible in evidence." Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). District courts must also "construe liberally motion papers and pleadings filed by pro se inmates and . . . avoid applying summary judgment rules strictly." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).
With respect to their initial burden on summary judgment, the Court finds Defendants have offered sufficient evidence, which Plaintiff does not contradict, to prove that the California Department of Corrections and Rehabilitation (CDCR) has established an "administrative remedy" for prisoners like Plaintiff to pursue before filing suit under § 1983. See Williams, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172) (quotation marks omitted).
Specifically, a California prisoner may appeal "any policy, decision, action, condition, or omission by the department or its staff that [he] can demonstrate as having a material adverse effect upon his . . . health, safety, or welfare." CAL CODE REGS., tit. 15 § 3084.1(a). Since January 28, 2011, and during the times alleged in Plaintiff's SAC, Title 15 of the California Code of Regulations requires three formal levels of appeal review. See Self Decl. (ECF No. 92-3) ¶ 2. Thus, in order to properly exhaust, a California prisoner must, within 30 calendar days of the decision or action being appealed, or "upon first having knowledge of the action or decision being appealed," CAL. CODE REGS., tit. 15 § 3084.8(b), "use a CDCR Form 602 (Rev. 08/09), Inmate/Parolee Appeal, to describe the specific issue under appeal and the relief requested." Id. § 3084.2(a). The CDCR Form 602 "shall be submitted to the appeals coordinator at the institution." Id. § 3084.2(c), § 3084.7(a). If the first level CDCR Form 602 appeal is "denied or not otherwise resolved to the appellant's satisfaction at the first level," id. § 3084.7(b), the prisoner must "within 30 calendar days . . . upon receiving [the] unsatisfactory departmental response," id. § 3084.8(b)(3), seek a second level of administrative review, which is "conducted by the hiring authority or designee at a level no lower than Chief Deputy Warden, Deputy Regional Parole Administrator, or the equivalent." Id. § 3084.7(b), (d)(2). "The third level is for review of appeals not resolved at the second level." Id. § 3084.7(c). "The third level review constitutes the decision of the Secretary of the CDCR on an appeal, and shall be conducted by a designated representative under the supervision of the third level Appeals Chief or equivalent. The third level of review exhausts administrative remedies," id. § 3084.7(d)(3), "unless otherwise stated."
First, Defendants concede Plaintiff has exhausted all available administrative remedies as alleged in Count 1 against Tillman, Rink, Scharr, Pimentel, Suglich, Rodriguez, and Garcia via CDCR 602 Inmate Appeal Log No. RJD-B-12-02812. See Defs.' P&As in Supp. of Summ. J. (ECF No. 92-1) at 7-11; Voong Decl. ¶ 8.
In Log No. RJD-B-12-02812, which is signed by Plaintiff as "submitted" on July 7, 2012, Plaintiff initially claimed Defendants Tillman and Rink "set [him] up," and "stag[ed] . . . a fight" that he "desperately tried to avoid," by telling him to "handle [his] business" and then shooting him 6 times as his "enemy attacked." See Self Decl. Ex. A at 11-13. In the "Action Requested" section of this appeal, Plaintiff sought an investigation by "Internal Affairs," the preservation of video tapes "for all four cameras in B-6 group yard," and financial compensation from Defendants Tillman, Rink, as well as from Defendants Thaxton, "who shot [him]," Scharr, Pimentel, and Rodriguez for "standing on [the] sidelines to see the fight," and from W. Suglich and E. Garcia "for ignoring [his] safety concerns." Id. at 13.
Because CDCR 602 Log No. RJD-B-12-02812 was classified as a "staff complaint" pursuant to CAL. CODE REGS., tit. 15 § 3084.9(i), the first level of administrative review was "bypassed," see Self Decl. ¶ 6.a & Ex. A at 11, and Plaintiff's appeal was accepted at the second level of review by Defendant A. Hernandez on December 1, 2012. Id., Ex. A at 12. Plaintiff was interviewed by Defendant Savala, and a second level response was issued on January 16, 2013, and reviewed by Defendant Stratton. Id. at 9-10. Stratton "partially granted" the appeal insofar as Plaintiff's request for an "inquiry" was completed, and his mental health file was reviewed, but Stratton determined that staff "did not violate CDCR policy with respect to one or more of the issues appealed." Id. at 10. Stratton's response also informed that "all issues unrelated to the allegation of staff misconduct must be appealed separately and w[ould] not be addressed," id. at 9,
On February 17, 2013, Plaintiff completed Section F of CDCR 602 Log No. RJD-B-12-02812, indicating he was dissatisfied with the Second Level Response, and he submitted it for a Third Level Review. Id. at 22. On the CDCR 602, Plaintiff continued to request compensatory damages from Defendants Tillman, Rink, Thaxton, Reyes, Rodriguez, Pimentel, and Scharr for "premeditating [his] shooting for job security," and "creating an incident of violence by staging [his] fight," and "getting [him] shot 6 times." Id.
On June 12, 2013, CDCR 602 Log No. RJD-B-12-02812 was denied at the Third Level of Review. Id. at 19-20. Plaintiff was advised that an "inquiry was conducted and [it was] concluded that staff did not violate policy." Id. The Third Level decision also noted that Plaintiff "ha[d] added new issues and requests to his appeal," but they were not addressed "as it is not appropriate to expand the appeal beyond the initial problem and the initially requested action," and that the decision "exhaust[ed] the administrative remedy available within CDCR." Id. at 20.
As to Plaintiff's remaining Counts, however, Defendants contend summary judgment should be entered on their behalf because "the evidence shows" Plaintiff failed to properly exhaust those claims pursuant to 42 U.S.C. § 1997e(a). See Defs.' Mem. of P&As in Supp. of Summ. J. (ECF No. 92-1) at 4-7.
In support, Defendants proffer the sworn declarations of M. Voong, Chief of the CDCR Office of Appeals, ECF No. 92-2, attached to which is a copy of all Third Level Appeals received from Plaintiff and recorded by the CDCR's Inmate/Parolee Appeals Tracking System ("IATS") in Sacramento. Id. at 6, Ex. 1.
Defendants also offer the sworn Declaration of B. Self, the Appeals Coordinator at RJD. See ECF No. 92-3. Attached to Self's Declaration are copies of several, but not all, of the CDCR 602 inmate appeals Plaintiff filed at RJD for the period beginning June 22, 2012 and ending May 18, 2013.
Those appeals were designated as follows:
Log No. RJD-B-13-01039 is dated as "submitted" by Plaintiff on January 7, 2013; but Defendants attest it was not received until March 15, 2013, see Self Decl., ECF No. 92-3 at 4, ¶ 6.b, at which time it was "screened out" at the first level of review,
See Self Decl. Ex. C [ECF No. 92-3] at 62. This appeal was classified as "Disciplinary" and was rejected at the first level of administrative review via two CDCR Form 695s, both dated March 19, 2013. Id., Ex. C, at 64-65. Plaintiff was first advised this appeal was rejected because he failed attach his "original 115/115A" as required by CAL. CODE REGS., tit. 15 § 3084.6(b)(7), and because he had "exceeded the allowable number of appeals filed in a 14 calendar day period" per CAL. CODE REGS., tit. 15 § 3084.6(b)(3). Id. On April 12, 2013, however, Plaintiff was informed the appeal had been cancelled pursuant to CAL. CODE REGS., tit. 15 § 3084.6(c)(4) because it was filed more than 30 days after the hearing date of the RVR it sought to challenge, "even though [he] had the opportunity to submit within the time constraints." Id. at 63.
In the "Action Requested" portion of this CDCR 602, Plaintiff asked that "this incident" be referred to the San Diego District Attorney's Office "for criminal prosecution of Lt. Savala, C/O R. Davis, C/O R. Lopez & C/O J. Gomez & all C/Os involved," and that he be awarded "compensatory, punitive & nominal damages" from Defendants Savala, R. Davis, R. Lopez, C. Meza, J. Gomez, Morales, Jackson, D. Arguilez, Stout, and Hernandez
Log No. RJD-B-13-01131 is dated as "submitted" by Plaintiff on December 17, 2012; but Defendant Self attests that it too was not received until March 15, 2013, see Self Decl., ECF No. 92-3 at 5, ¶ 6.d, at which time it was "screened out" at the first level of review, and cancelled on March 26, 2013, pursuant to CAL. CODE REGS., tit. 15 § 3084.6(c)(4) because it contained "three different staff complaints with incidents ranging from August 10, 2012 to November 14, 2012" and was untimely.
In the "Action Requested" portion of this CDCR 602, Plaintiff asked that "this incident" be referred to the San Diego District Attorney's Office "for criminal prosecution of Sgt. L. Tillman, Lt. S. Rink & all C/Os named," id. at 78, and that he be awarded "compensatory, punitive & nominal damages" from Defendants Tillman, Rink, Buenrostro, R. Lopez, R. Davis, J. Vanderweide, W. Shimko, I. Marquez, R. La Costa, L. Romero, and A. Hernandez
Log No. RJD-B-13-01132 is dated as "submitted" by Plaintiff on September 12, 2012; but Defendants attest that it too was not received until March 15, 2013, see Self Decl., ECF No. 92-3 at 6, ¶ 6.e, at which time it was "screened out" at the first level of review, and cancelled as untimely on March 26, 2013, pursuant to CAL. CODE REGS., tit. 15 § 3084.6(c)(4) because "the incident date is August 15, 2012." Id. Ex. E at 77.
In the "Action Requested" portion of this CDCR 602, Plaintiff asked that "this incident" be referred to the San Diego District Attorney's Office "for criminal prosecution of Sgt. L. Tillman for assaulting [him] w/deadly weapon w/traumatizing great bodily injury." Id. at 85. He also requested "compensatory, punitive & nominal damages" from Defendants Tillman, and "superiors" Rink, E. Garcia, and A. Hernandez
Log No. RJD-B-13-01223 is dated as "submitted" by Plaintiff on August 27, 2012; but Defendants attest again that it too was not received until March 15, 2013, see Self Decl., ECF No. 92-3 at 6, ¶ 6.f, at which time it was "screened out" at the first level of review, and cancelled as untimely on April 11, 2013, pursuant to CAL. CODE REGS., tit. 15 § 3084.6(c)(4) because "the date of the incident was 8/10/12."
See Self Decl. at 6-7 ¶ 6.g, Ex. G at 91.
This appeal was classified as "Legal: Processing of Appeals" and was rejected at the first level of administrative review via a CDCR Form 695, dated April 19, 2013. Id., Ex. G, at 92. Plaintiff was advised this appeal was rejected pursuant to CAL. CODE REGS., tit. 15 § 3084.6(b)(7) because it was "missing necessary supporting documents" as required by § 3084.3. Id. Specifically, Plaintiff was told: "You need to appeal your cancelled appeals separately on a different appeal and attach the original copy of the cancelled appeal." Id.
In the "Action Requested" portion of this CDCR 602 appeal, Plaintiff again asked that the incident be referred to the District Attorney for "criminal prosecution of all involved," id. at 95, as well as for compensatory, punitive, and nominal damages from Defendants Arguilez, R. Davis, A. Buenrostro, A. Silva, R. Lopez, A. Demesa, M. Stout, S. Rink, A. Hernandez, and G. Stratton for "creating incidents of violence w/prisoners for job security," for "beating [him] severely," and for "refusing to discipline staff." Id. at 97.
Log No. RJD-X-13-01776 is signed by Plaintiff as "submitted" on May 12, 2013, id. at 95, and Defendants admit they received this one on May 20, 2013. See Self Decl. at 7 ¶ 6.h, Ex. H at 95. However, it too was screened at the first level of review, and rejected pursuant to CAL. CODE REGS., tit. 15 § 3084.6(b)(7) on June 3, 2013, because it was "missing necessary supporting documents" as required by § 3084.3.
For his part, Plaintiff "declare[s] under penalty of perjury" that he exhausted Count 1 by "timely fil[ing] a 602" on July 7, 2012, CDCR 602 Log No. RJD-B-12-02812, and pursuing it to the "highest level." See SAC (ECF No. 33) at 26-28.
Plaintiff also swears to have filed "individual 602 appeals" regarding Counts 2, 3, and 4 with "the Appeals Coordinator" at RJD on August 27, 2012 (Count 2—Log No. RJD-B-13-01223), September 12, 2012 (Count 3—Log No. RJD-B-13-01132), and on December 17, 2012 (Count 4—Log No. RJD-B-13-01131), but the Appeals Coordinators "continuously replied that they had not received [them]." Id. at 27. Therefore, on March 14, 2013, Plaintiff attests to have "hand delivered five (5) 602 appeals to Warden Paramo at RJD, and informed him the Appeals Coordinators continuously claimed they weren't receiving [his] 602 staff complaints." Id. Plaintiff swears that the Warden "instructed [him] to re-file them," and he "delivered them to the Appeals Coordinator's Office himself," but they were all dismissed as untimely. Id.
Finally, Plaintiff attests to have "timely filed another 602 staff complaint" on May 12, 2013, regarding Count 5 (Log No. RJD-X-13-01776). Id. This appeal was rejected on June 3, 2013, because Plaintiff was told he failed to attach an "incident package 837." Plaintiff swears he was instructed to provide those "missing documents" and re-submit his appeal, but his counselors at KVSP (to which he had since been transferred) informed him he "had been sent on a goose chase for documents that didn't exist." Id. at 27-28. Plaintiff therefore swears he "mailed [this] 602 appeal back to RJD" on July 8, 2013, informing them that he "never received an 837 package," but RJD then "cancelled [it] as untimely." Id. at 28.
As noted above, "the [D]efendant[s]' burden is 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. The burden then shifts to Plaintiff "who must show that there is something particular in his case that made the existing and generally available administrative remedies effectively unavailable to him." Williams, 775 F.3d at 1191; Albino, 747 F.3d at 1172; Jones, 549 U.S. at 218. He may do so by "showing the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile." Albino, 747 F.3d at 1172 (citation omitted); see also Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir. 2008) (noting potential "unavailability" of administrative remedies if officials "obstruct[ed] [the prisoner's] attempt to exhaust," or "prevented [him] from exhausting because procedures for processing grievances weren't followed."); Nunez, 591 F.3d at 1224 (finding prisoner's lack of exhaustion "excused" where record showed he "took reasonable and appropriate steps to exhaust . . . [but] was precluded from exhausting, not through his own fault but by the Warden's mistake.")
"Under § 1997e(a), the exhaustion requirement hinges on the `availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Ross, 136 S. Ct. at 1858; Andres, 854 F.3d at 1104.
In this case, the Court finds that M. Voong and B. Self's Declarations, ECF Nos. 92-2; 92-3, like the evidence presented in Williams, "at most meets [Defendants'] burden of demonstrating a system of available administrative remedies at the initial step of the Albino burden-shifting inquiry." Williams, 775 F.3d at 1192; Voong Decl. ¶¶ 3-4; Self Decl. ¶¶ 2-4 (citing CAL. CODE REGS., tit. 15 § 3084, et seq.). Indeed, Plaintiff does not dispute that CAL. CODE REGS., tit. 15 § 3084.1 "provide[s] a remedy for inmates and parolees with identified grievances . . . [with] an administrative mechanism for review of departmental policies, decisions, actions, conditions, or omissions that have a material adverse effect on the welfare of inmates and parolees."
Plaintiff swears, however, that those mechanisms were not "available," i.e. "capable of use" to him as to Counts 2-4 because RJD appeals officials "continuously" denied ever receiving the five individual, timely, and successive CDCR 602s "staff complaints" he submitted between August 27, 2012 (Log No. RJD-B-13-01223) and January 7, 2013 (Log No. RJD-B-13-01039), and then ultimately rejected them as untimely—and only after the Warden personally delivered them to the appeals office for him on March 14, 2013. See ECF No. 33 at 27; Ross, 136 S. Ct. at 1859 (citing Booth, 532 U.S. at 738).
Plaintiff further swears administrative remedies as to Count 5 were also "unavailable" because while CDCR 602 Log No. RJD-X-13-01776 was timely, signed by him on May 12, 2013, and received by RJD's appeals office on May 20, 2013, see Self Decl. at 7, ¶ 6.h & Ex. H at 95, RJD appeals coordinators "thwarted [him] from taking advantage of [that] grievance process," when they screened and rejected this CDCR 602 at the first level of review by "sending him on a wild goose chase" for documents his counselors at KVSP told him "didn't exist." See ECF No. 33 at 27-28; Ross, 136 S. Ct. at 1860 (noting unavailability may be shown when "prison officials devise procedural systems (including . . . blind alleys and quagmires . . .) in order to `trip[] up all but the most skillful prisoners.'") (quoting Woodford, 548 U.S. at 102); Nunez, 591 F.3d at 1226 (administrative remedies "effectively unavailable" where prisoner was precluded from properly exhausting due to a mistaken instruction requiring an unavailable document that was needed to pursue the appeal); Sapp, 623 F.3d at 823 ("[W]e hold that improper screening of an inmate's administrative grievances renders administrative remedies `effectively unavailable' such that exhaustion is not required under the PLRA.").
Based on this precedent, and having carefully considered all the evidence presented, the Court finds "genuine dispute[s] about material facts" exist related to the exhaustion of Plaintiff's administrative remedies, and those genuine disputes preclude summary judgment in this case. Albino, 747 F. 3d at 1169. Defendants Declarations, together with the Exhibits attached, including copies of Plaintiff's multiple CDCR 602 Appeals, while sufficient to establish the existence of administrative remedies "in a general sense," are insufficient to carry Defendants' "ultimate burden of proof," Albino, 747 F.3d at 1172, in light of Plaintiff's sworn counter-factual allegations
This sworn testimony, when viewed in the light most favorable to Plaintiff, satisfies Plaintiff's burden of production under Albino and Williams insofar as it shows that administrative remedies—at least with respect to Count 2-5—were not "available" to him because RJD officials "thwarted the effective invocation of the administrative process through threats, game-playing, or misrepresentations, . . . in [his] individual case." Ross, 136 S. Ct. at 1862; see also Williams, 775 F.3d at 1191 (unavailability may be shown if grievance process, as administered "through machination," proved "ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile." (quoting Albino, 747 F.3d at 1172) (internal citation omitted). In fact, the Ninth Circuit recently remanded a district court's grant of summary judgment on § 1997e(a) grounds where the record showed "defendants improperly fail to process [a prisoner's] timely filed grievance." Andres, 854 F.3d at 1104-05. In Andres, the plaintiff "filed a 602 grievance" two days after an alleged incident involving excessive force, "but [he] never received a response" from RJD appeals staff. Id. at 1104. The Court found administrative remedies were "rendered effectively unavailable by defendants' actions," and therefore summary judgment pursuant to § 1997e(a) was improper. Id. at 1105 (citing Ross, 136 S. Ct. at 1859-60); see also Brown, 422 F.3d at 943 n.18 (noting that an unjustified delay in responding to a grievance "particularly a time-sensitive one, may demonstrate that no administrative process was in fact available."); see also Watts v. Nguyen, 2015 WL 4557522 at *9 (E.D. Cal. July 27, 2015) (citing the 30-day time limit set for the submission of an inmate appeal by CAL. CODE REGS., tit. 15 § 3084.8(b), as well as the time limits set for the "completion of appeals" by prison officials at all three levels of review in § 3084.8(c), and noting that "[a]s a general principal, [the] procedural rules [governing proper exhaustion per 42 U.S.C. § 1997e(a)] must be adhered to by both inmates and prison officials.") (italics added).
And while Defendants have submitted the Declaration of B. Self, RJD's Appeals Coordinator, whose "[o]ffice . . . receives all inmate grievances," and whose "[o]ffice did not receive and accept for review any timely or properly filed appeals from Plaintiff" related to Counts 2-5, see ECF No. 92-3 at 1, 7 ¶¶ 1, 7 (emphasis added), Defendants do not further provide any sworn testimony from "Appeals Coordinators at RJD J. Ramirez and R. Olson," whom Plaintiff attests are the persons who "continuously replied they had not received [his] 602 staff complaints," see ECF No. 33 at 27, and who are also the same two RJD appeals officials who later screened and rejected them as untimely. See e.g., Self Decl. Ex. B at 26-27 [Log No. RJD-B-13-01039]; Ex. D. at 67 [Log No. RJD-C-13-01131]; Ex. E at 77 [Log No. RJD-B-13-01132]; Ex. F at 84 [Log No. RJD-B-01223]; Ex. H at 94, 99 [Log No. RJD-X-13-01776].
Because "the defendant[s] in a PLRA case must plead and prove non-exhaustion as an affirmative defense," and it is not clear as a matter of law whether Plaintiff failed to exhaust the remedies made "available" to him at RJD, the Court finds that summary judgment pursuant to 42 U.S.C. § 1997e(a) is not warranted, and "the case may proceed to the merits." Albino, 747 F.3d at 1171; Williams, 775 F.3d at 1192 ("[P]ermitting a defendant to show that remedies existed in a general sense where a plaintiff has specifically alleged that official action prevented [him] from filing a particular grievance would force a plaintiff to bear the burden of proof, a burden which the plaintiff does not bear.") (quoting Albino, 747 F.3d at 1172).
Accordingly, the Court:
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