HAYWOOD S. GILLIAM, JR., District Judge.
Plaintiff, an inmate at San Quentin State Prison ("SQSP"), has filed a pro se complaint under 42 U.S.C. § 1983. Now pending before the Court is Defendants' motion for summary judgment for failure to exhaust administrative remedies. Dkt. No. 24. Plaintiff has filed an opposition and related documents, Dkt. Nos. 25 and 26; and Defendants have filed a reply, Dkt. No. 29. For the reasons set forth below, Defendants' motion for summary judgment is GRANTED.
The following facts are undisputed unless otherwise indicated.
On April 19, 2016, the instant complaint was filed in Marin County Superior Court. Dkt. No. 1 and Dkt. No. 11 at 1. On September 2, 2016, Defendants removed this action to federal court. Dkt. No. 1.
The complaint makes the following allegations. In late 2014, Officer Arana removed Plaintiff from his job. Dkt. No. 1-1 at 7 and 15. Plaintiff filed a grievance that successfully challenged the job removal as improper. Id. Officer Arana retaliated against Plaintiff in various ways, in violation of the First Amendment. Id. Plaintiff reported Officer Arana's harassment and retaliation to Officer Arana's supervisors, Sgt. J. Van Blarcom, Lt. B.A. Wells, and Capt. E. Evans. Plaintiff also filed grievances that formally notified these supervisor-defendants of Officer Arana's harassment and retaliation. Id. These supervisor-defendants ignored Plaintiff's complaints and grievances and allowed Officer Arana to continue his retaliatory actions against Plaintiff. Id. Officer Mitchell covered up the other defendants' misconduct. Id.
In its screening order, the Court found that the following allegations in the complaint stated cognizable First Amendment claims and cognizable state-law intentional tort claims for violation of Plaintiff's civil rights: (1) Officer Arana removed Plaintiff from his lead yard attendant job in May 2015 and reassigned him to sweeping and mopping stairs; withheld Plaintiff's May 2015 pay; moved Plaintiff from his cell in June 2015; and continually harassed Plaintiff from late 2014 through March 2016 in retaliation for filing a successful grievance; (2) Sgt. Blarcom, Lt. Wells, and Capt. Evans participated in the retaliation and civil rights violations when they were informed of, but did not stop, Officer Arana's retaliation and harassment; (3) Officer Mitchell participated in the retaliation and civil rights violations when he covered up the other defendants' misconduct; and (4) all defendants engaged in retaliation and civil rights violations when they conducted a "massive" search of Plaintiff's cell in February 2016; moved him from his cell in February 2016; added false documents to his grievances; and falsified a 129B chrono. Dkt. No. 14 at 5-7.
Plaintiff alleges that he has filed eight grievances relevant to this action. Dkt. No. 26. However, he only identifies and discusses two of these eight grievances: Grievance No. SQ-15-02514 and Grievance No. SQ-15-01751. Dkt. Nos. 25 and 26.
The Inmate/Parolee Appeals Tracking System ("IPATS") tracks all grievances submitted to the third level of review, regardless of whether these grievances are adjudicated on the merits or screened out. According to the IPATS, between January 2015 (when Plaintiff alleges the harassment and retaliatory actions started) and April 19, 2016 (when this action was filed in state court), Plaintiff filed seven grievances: SQ-15-00059; SQ-15-01300; SQ-15-01751; SQ-15-02389; SQ-15-02514; SQ-15-03254; and SQ-16-00644.
After reviewing the record, the Court has only identified three grievances which are relevant to the issues raised in this action: SQ-15-1751; SQ-15-02514, and SQ-15-03254.
Grievance No. SQ-15-01751 was submitted on June 11, 2015. This grievance alleged that Officer Arana had harassed Plaintiff by inter alia illegally removing him from his job; withholding his May 2015 pay; and moving him to a new cell. Dkt. No. 24-1 at 33-40. Grievance No. SQ-15-01751 further alleged that, despite Plaintiff's repeated requests, Officer Arana's supervisors — whom he did not identify by name — refused to stop Officer Arana's harassment. Id. The grievance bypassed the first level of review, and was handled at the second level of review by the SQSP Appeals Coordinator. This grievance was denied at the second level of review on September 20, 2015. Id. at 33-34. In October 2015, Plaintiff appealed the September 2015 second level response to the Office of Appeals, Dkt. No. 25 at 28, which is responsible for performing the third level of review, 15 Cal. Code Regs. § 3084.7(d)(3). The Office of Appeals issued a modification order which ordered the SQSP Appeals Coordinator to amend the previously issued second level response. Dkt. No. 24-1 at 3.
On December 1, 2015, Plaintiff received a letter from the Office of Appeals.
On January 11, 2016, an amended second level response was issued. Dkt. No. 24-1 at 41-42. On January 14, 2016, Plaintiff appealed this amended second level response to the Office of Appeals. Dkt. No. 25 at 34.
The Office of Appeals issued a second modification order and again sent the amended second level response back to the SQSP Appeals Coordinator. Dkt. No. 25 at 28. The SQSP Appeals Coordinator again amended the second level response and, in May 2016, issued another amended second level response. Dkt. No. 25 at 28.
On May 15, 2016, Plaintiff appealed the May 2016 amended second level response. Dkt. 25 at 31-34. In this appeal, Plaintiff informed prison officials that he had completed the required "level of responses," in that he had submitted his appeal for the third level of review three times, on October 6, 2015; January 14, 2016; and May 15, 2016:
Dkt. No. 25 at 31-34.
On September 2, 2016, Plaintiff received a letter from the Office of Appeals.
On September 12, 2016, the Office of Appeals issued yet another modification order, again directing the SQSP Appeals Coordinator to modify the second level response:
Dkt. No. 25 at 48.
On September 19, 2016, the SQSP Appeals Coordinator issued another amended second level response which specified that this response superseded all prior responses provided to Plaintiff regarding this grievance. The memorandum informed Plaintiff that, after further reviewing the issues raised in Grievance No. SQ-15-01751, prison officials had determined that the removal of Plaintiff from his work assignment violated CDCR policy, specifically section 3040(c), (f) of the California Code of Regulations, title 15. The memorandum found that the other allegations of harassment were unsupported. The memorandum concluded:
Dkt. No. 25 at 49 (emphasis in original).
There is nothing in the record that indicates any further filings or appeals by Plaintiff after September 19, 2016, or any memorandums or decisions issued by prison officials after September 19, 2016.
Grievance No. SQ-15-02514 was submitted on August 26, 2015. This grievance alleged that Officer Arana had been harassing Plaintiff since May 2, 2015 in the following ways: treating Plaintiff with disrespect and contempt in the presence of other inmates; instructing Plaintiff to clean areas that were the responsibility of other porters; and trying to get Plaintiff to quit his job or accept another job assignment. Dkt. No. 24-1 at 57-60. The grievance also alleged that Plaintiff had reported these acts of retaliation to the unit sergeant on August 11, 2015; to Lt. Walls on August 12, 2015; and to Officer Arana on August 13, 2015. Id. The grievance further alleged that, on August 20, 2015 and August 26, 2015, in order to retaliate against for Plaintiff filing prison grievances, Officer Arana and Lt. Walls urged Plaintiff to consider going to third watch or to accept a different job. Id.
On October 23, 2015, Plaintiff's grievance was denied at the second level of review on the grounds that the allegations were unfounded. The second level denial was mailed to Plaintiff on October 29, 2015. Dkt. No. 24-1 at 58 and 61-62. On November 2, 2015, Plaintiff appealed the second level response, and on June 22, 2016, this grievance was denied at the third level. Id. at 55-56.
Grievance No. SQ-15-03254 was submitted on November 5, 2015. This grievance alleged that Officer Arana filed a false official state document business record in the course of duty when he issued a CDC-128-B (rules violation report) falsely accusing Plaintiff of refusing to sign an inmate job description on October 22, 2015. Dkt. No. 24-1 at 66-69. This grievance also alleged that Officer Arana's issuance of the false CDC-128-B was part of an ongoing pattern of harassment and retaliation by Officer Arana. Id. On April 13, 2016, this grievance was granted in part at the first level in that the challenged CDC-128-B was removed from Plaintiff's file because there was a discrepancy between the dates listed on Plaintiff's job description and those listed on the challenged CDC-128-B. Id. at 70-71. Officer Arana was instructed to author a new CDC-128-B with the current date that would document, to the best of Officer Arana's memory, the date on which Plaintiff refused to sign the job description. Id. On May 12, 2016, Plaintiff appealed the first level response. Id. at 67. On June 25, 2016, this grievance was partially granted at the second level with respect to Plaintiff's request that he not suffer any reprisals, harassment, or retaliation, but denied in that the second level response found that the CDC-128-B issued by Officer Arana did not violate any policy or procedure regarding appropriate documentation. Id. at 72-73. On August 21, 2016, Plaintiff appealed the second level response. Id. at 67. On September 28, 2016, the appeal was denied at the third level. Id. at 64-65.
Summary judgment is proper where the pleadings, discovery and affidavits show there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(a) (2014). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See id.
A court shall grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Id. The burden then shifts to the nonmoving party to "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" See id. at 324 (citing Fed. R. Civ. P. 56(e)).
For purposes of summary judgment, the court must view the evidence in the light most favorable to the nonmoving party; if the evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the court must assume the truth of the evidence submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"), amended 42 U.S.C. § 1997e to provide that "[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). Exhaustion is mandatory and no longer left to the discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006). Courts may not create their own "special circumstances" exceptions to the exhaustion requirement. Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (reversing Fourth Circuit's ruling that failure to exhaust was justified where prisoner reasonably but mistakenly believed he had exhausted administrative remedies).
A prisoner must exhaust administrative remedies before bringing his suit to federal court, even if the prisoner fully exhausts while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative remedies are not exhausted before prisoner sends complaint to court, action will be dismissed even if exhaustion is completed by time complaint is actually filed). Prisoners must exhaust all available remedies, regardless of whether the remedies meet federal standards or whether the remedies are plain, speedy and effective. Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford, 548 U.S. at 84. The Supreme Court has identified three circumstances where an administrative remedy is unavailable. Ross, 136 S. Ct. at 1859. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. (offering as example prison handbook "directing inmates to submit their grievances to a particular administrative office—but in practice that office disclaims the capacity to consider those petitions"). Second, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. (offering as example situation where "some mechanism exists to provide relief, but no ordinary person can discern or navigate it"). Third, an administrative remedy is not available "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1863 (citing as examples Woodford, 548 U.S. at 102, and various appellate court cases addressing "a variety of instances in which officials misled or threatened individual inmates so as to prevent their use of otherwise proper procedures"). The Ross court describes these categories as "three kinds of circumstances," id. at 1859, and does not suggest that these categories are exclusive.
Proper exhaustion requires using all steps of an administrative process and complying with "deadlines and other critical procedural rules." Woodford, 548 U.S. at 90. The level of detail in an administrative grievance necessary to properly exhaust a claim is determined by the prison's applicable grievance procedures. Jones v. Bock, 549 U.S. 199, 218 (2007); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) ("To provide adequate notice, the prisoner need only provide the level of detail required by the prison's regulations.").
The defendant's burden is to prove that there was an available administrative remedy and that the prisoner did not exhaust that available administrative remedy. Albino v. Baca, 747 F.3d 1162, 1172, 1176 (9th Cir. 2014) (en banc) (reversing district court's grant of summary judgment to defendants on exhaustion issue because defendants did not carry their initial burden of proving that there was an available administrative remedy that prisoner-plaintiff failed to exhaust); see also Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005) (there can be no absence of exhaustion unless some relief remains available; movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting results of relief already granted as result of administrative remedy process). Once the defendant has carried that burden, the prisoner has the burden of production. Albino, 747 F.3d at 1172. That is, the burden shifts to the prisoner 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. Id; see also Draper v. Rosario, 836 F.3d 1072, 1079-80 (9th Cir. 2016).
The California Department of Corrections and Rehabilitation ("CDCR") provides its inmates the right to appeal administratively "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." 15 Cal. Code Regs. § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must submit his complaint on CDCR Form 602 (referred to as a "602") and proceed through three levels of review: (1) screening at the first level of review by a prison official who did not participate in the event at issue and who is of equivalent or higher rank than the participating staff, unless the first level of review is exempted; (2) a second level of review by a hiring authority or designee at a level no lower than Chief Deputy Warden, Deputy Regional Parole Administrator, or the equivalent; and (3) a third level of review by a designated representative under the supervision of the third level Appeals Chief or equivalent. Id. § 3084.7. The third level of review exhausts administrative remedies. Id. § 3084.7(d)(3).
The CDCR regulations in force at all times relevant to Plaintiff's claims required inmates to identify the staff members involved with the following level of specificity:
15 Cal. Code Regs. § 3084.2(a)(3)-(4).
Plaintiff does not dispute that there was an administrative remedy available to him. The Court therefore examines whether Defendants have carried their burden of proving that Plaintiff failed to exhaust that available administrative remedy, and whether, if applicable, Plaintiff has carried his burden of providing evidence from which it can be reasonably inferred that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.
Defendants argue that Plaintiff has not exhausted the following claims against Officer Arana: in retaliation for Plaintiff's successful grievance regarding being removed from his job in late 2014, Officer Arana moved Plaintiff from his cell in June 2015; harassed Plaintiff daily from December 2015 to March 25, 2016; did not distribute Plaintiff's May 2015 salary, conducted a "massive" search of Plaintiff's cell in February 2016; again moved Plaintiff from his cell in February 2016; added documents to a grievance filed by Plaintiff; and falsified a CDCR Form 128B. Dkt. No. 24 at 6. Defendants argue that none of the three relevant grievances exhausted Plaintiff's claims because Grievance No. SQ-15-01751 was not appealed to the third and final level of review; and because Plaintiff failed to exhaust Grievance Nos. SQ-15-02514 and SQ-15-03254 prior to filing this action.
The parties do not dispute that Grievance No. SQ-15-01751 raises the following issues: general harassment by Officer Arana, failure of Officer Arana's supervisors to address the harassment, withholding of Plaintiff's May 2015 pay, and the June 2015 cell move. Dkt. No. 29 at 3. Viewing the facts in the light most favorable to Plaintiff, this grievance also alleged that Officer Arana illegally removed Plaintiff from his job in May 2015.
It is undisputed that Grievance No. SQ-15-01751 was not appealed to the third and final level of review. Dkt. No 25 at 6 and 8. Plaintiff argues that, pursuant to section 3084.7(i)(3) of the California Code of Regulations, title 15, inmates need not obtain a third level decision in order to exhaust administrative remedies where prison officials fail to complete modification orders within the prescribed deadlines, as he claims is the case with Grievance No. SQ-15-01751. Dkt. No. 25 at 8. Plaintiff also argues that administrative remedies were effectively unavailable to him because the September 19, 2016 "document" "erroneously" informed him that a third level decision had already been rendered on the issues raised in the grievance outside of the claim that he was improperly removed from his job. Finally, Plaintiff also argues that any failure to exhaust was excused when Defendants decided his grievance on the merits. Dkt. No. 25 at 9-10. Defendants argue that Plaintiff has misread section 3084.7(i)(3), and contend that, contrary to Plaintiff's argument, the September 19, 2016 letter specified that a third level of review remained. Defendants do not directly address Plaintiff's remaining argument.
Within the CDCR administrative grievance procedure, a modification order refers to an order issued during the grievance procedure that directs the modification of a lower level decision. 15 Cal. Code Regs. § 3084(d). Section 3084.7(i) of the California Code of Regulations, title 15, provides that a modification order "shall be completed within 60 calendar days of the appeal decision which determined the need for a modification order." 15 Cal. Code Regs. § 3084.7(i). It is undisputed that the modification orders in Grievance No. SQ-15-01751 were not timely completed. Plaintiff argues that Section 3084.7(i)(3) provides that, where prison officials fail to complete modification orders within the prescribed deadlines, inmates need not obtain a third level decision in order to exhaust administrative remedies. Dkt. No. 25 at 6 and 8. Defendants argue that Plaintiff has misread section 3084.7(i)(3).
Having reviewed section 3084.7, the Court agrees that Plaintiff's reading of subsection (i)(3) is incorrect. Courts must "interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous." Boise Cascade Corp. v. U.S. E.P.A., 942 F.2d 1427, 1432 (9th Cir. 1991). In relevant part, Section 3084.7(i)(3) states: "If the modification order is not completed after 120 calendar days of the issuance, the appellant may submit the appeal to the next level for administrative review within 30 calendar days." Plaintiff argues that the use of the word "may" renders appeal to the next level of administrative review permissive, or optional. Dkt. No. 25 at 8. Plaintiff's reading of subsection (i)(3) would make subsection (d)(3) ineffective. Subsection (d)(3) provides that a decision at the third level of review "constitutes the decision of the Secretary of the California Department of Corrections and Rehabilitation on an appeal. . . [and] exhausts administrative remedies." 15 Cal. Code Regs. § 3084.7(d)(3). Plaintiff's reading of subsection (i)(3) takes that provision out of context and is unnecessarily broad. Read in context, subsection (i)(3) allows the inmate the option of either (1) appealing to the next level of review despite not yet having received a decision at the current level of review; or (2) waiting until he receives the amended response before appealing to the next level of review. The use of the word "may" is permissive in that it provides an inmate with two options regarding when he seeks the next level of review. The use of the word "may" does not, as Plaintiff urges, make the next level(s) of administrative review optional.
To the extent that Plaintiff is arguing that his administrative remedies should be considered exhausted because Defendants failed to complete the modification orders within the prescribed deadlines, the Court is unaware of any Ninth Circuit precedent finding such an exception.
To the extent that Plaintiff is arguing that he exhausted administrative remedies by appealing this grievance to the third level, whether or not he received a third level decision, Plaintiff incorrectly equates a modification order with a final third-level decision. A modification order modifies a lower level decision. As a result, the original lower level decision is no longer in effect and is instead replaced by an amended lower level decision. A modification order issued at the third level does not suffice as a third level and final decision of the grievance on the merits. Rather, it is a third level finding that the second level decision requires amendment. With the issuance of a modification order at the third level, the inmate retains the option of appealing the amended second level decision. Therefore, in order to exhaust his administrative remedies, the inmate is still required to appeal the amended second level decision up to the third level of review and obtain a final decision on the merits of his grievance.
The Court finds that Defendants' failure to complete the modification orders within the time limits set forth in section 3084.7(i) did not excuse Plaintiff's failure to exhaust this grievance by appealing to the third level of review. Nor did Plaintiff's appeal of this grievance to the third level of review on October 6, 2015, January 14, 2016, and May 15, 2016 exhaust administrative remedies. The Office of Appeals responded to these appeals by issuing modification orders and thereby returning this grievance to the second level of review, meaning that a third level of review was available.
Plaintiff argues that his administrative remedies were effectively unavailable because the September 19, 2016 "document" erroneously informed him that the issues raised had already been decided at a third level of review. Dkt. No. 25 at 8-9. Defendants argue that the September 19, 2016 amended second level response clearly stated that a third level of review remained.
The Court agrees with Defendants that the September 19, 2016 document was an amended second level response and that it clearly specified that an additional level of review remained. The September 19, 2016 amended second level response states:
Dkt. No. 25 at 49 (emphasis in original). While the September 19, 2016 amended second level response references a "Third Level Decision," this Third Level Decision is the modification order which directed an amendment of the second level decision. In other words, the Third Level Decision referenced in the September 19, 2016 letter was not a final decision regarding the grievance. Instead, this Third Level Decision sent the grievance back to the second level of review for issuance of an amended response. Similar to any other second level response, this amended second level response could be appealed by Plaintiff if he was dissatisfied with it, and an appeal to the third level of review was required before administrative remedies would be deemed exhausted. The language of the September 19, 2016 amended second level response did not render Plaintiff's administrative remedies effectively unavailable.
Plaintiff argues that because Defendants decided his grievance on the merits, his failure to exhaust was excused. Dkt. No. 25 at 10. However, as discussed above, Grievance No. SQ-15-01751 was not decided on the merits because Plaintiff did not appeal it to the third level of review and obtain a final third level decision, as required to exhaust administrative remedies.
Accordingly, this argument fails.
Because Plaintiff failed to exhaust his administrative remedies with respect to Grievance No. SQ-15-01751, the following claims are unexhausted and are DISMISSED for failure to exhaust administrative remedies and without prejudice to refiling in a new action when administrative remedies have been exhausted: that Officer Arana harassed him; that Officer Arana removed him from his job in May 2015; that Officer Arana withheld his May 2015 pay; and that Officer Arana moved him from his cell in June 2015.
Grievance Nos. SQ-15-02514 and SQ-15-03254 alleged that Officer Arana harassed Plaintiff from May 2015 to October 2015 (SQ-15-02514 and SQ-15-03254); that Officer Arana's unit sergeant and Lt. Walls were aware of this behavior and refused to address it (SQ-15-02514); and that Officer Arana filed a false CDC-128-B in or around October 2015 (SQ-15-03254). However, it is undisputed that both SQ-15-02514 and SQ-15-03254 were exhausted after Plaintiff filed this instant action on April 19, 2016.
Plaintiff argues that his failure to exhaust prior to filing suit should be excused because the failure to timely exhaust was due to prison officials' failure to timely respond to his grievances. The Court finds Plaintiff's argument to be unsupported by the record. The record indicates that prison officials timely responded to Grievance Nos. SQ-15-02514 and SQ-15-03254.
Pursuant to section 3084.8(c) of the California Code of Regulations, title 15, prison officials have thirty working days from the date of receipt of an inmate's grievance to issue a first level response; thirty working days from the date of receipt of an inmate's appeal of a first level decision to issue a second level response; and sixty working days from the date of receipt of an inmate's appeal of a second level decision to issue a third level response. 15 Cal. Code Regs. § 3084.8(c).
Grievance No. SQ-15-02514 was submitted by Plaintiff on August 26, 2015. Dkt. No. 24-1 at 57. On September 8, 2015, this grievance was rejected at the first level, and then, on September 16, 2016, it was finally accepted at the second level of review, after having bypassed the first level. Dkt. No. 24-1 at 58. The second level response was due October 29, 2015, and was timely mailed or delivered to Plaintiff on October 29, 2015. Dkt. No. 24-1 at 58. On November 2, 2015, Plaintiff appealed the second level response to the third level of review. Dkt. No. 24-1 at 58. On November 6, 2015, the appeal was rejected. Dkt. No. 24-1 at 8. The record is silent as to why the appeal was rejected and when Plaintiff resubmitted the appeal. The appeal was accepted at the third level on April 11, 2016. Dkt. No. 24-1 at 7. The third level response was due July 6, 2016. This grievance was timely denied at the third level on June 22, 2016. Dkt. No. 24-1 at 7. The record is silent as to why Plaintiff's appeal was not accepted until five months after it was rejected at the third level on November 6, 2015. The IPATS log indicates that during this five-month period, this grievance was either screened out or rejected at least once, Dkt. No. 24-1 at 8, which would result in Plaintiff having to resubmit the grievance and would contribute to a delay in this grievance being accepted at the third level. Plaintiff does not proffer any explanation for the five-month gap between the November 6, 2015 rejection and the April 11, 2016 acceptance. Accordingly, the lack of clarity in the record as to the exact reason for the delay in accepting this grievance at the third level of review does not support a reasonable inference that Defendants rendered administrative remedies unavailable to Plaintiff for this grievance.
Grievance No. SQ-15-03254 was submitted on November 26, 2015. Dkt. No. 24-1 at 66-69. This grievance was cancelled and rejected multiple times before finally being accepted at the first level of review on March 21, 2016. The grievance was cancelled on December 7, 2015; rejected on December 17, 2015; and rejected again on March 4, 2016. Dkt. No. 24-1 at 66. The grievance was accepted at the first level on March 21, 2016. Dkt. No. 24-1 at 66. The first level response was therefore due on May 2, 2016. The first level response was timely mailed or delivered to Plaintiff on April 19, 2016. Dkt. No. 24-1 at 66 and 70-71. On May 12, 2016, Plaintiff appealed the first level response to the second level of review. Dkt. No. 24-1 at 67 and 69. On June 10, 2016, this appeal was rejected. Dkt. No. 24-1 at 67. On June 23, 2016, this appeal was resubmitted by Plaintiff and accepted at the second level of review. Dkt. No. 24-1 at 67. The second level response was therefore due on August 5, 2016. On July 13, 2016, the second level response was timely mailed or delivered to Plaintiff. Dkt. No. 24-1 at 67. On July 21, 2016, Plaintiff appealed the second level response to the third level of review. Dkt. No. 24-1 at 67 and 69. The third level response was therefore due on October 17, 2016. On September 28, 2016, the third level response was timely mailed or delivered to Plaintiff. Dkt. No. 24-1 at 64-65.
Similar to Grievance No. SQ-15-02514, the record is silent as to what happened with Grievance No. SQ-15-03254 between December 17, 2015 to March 4, 2016. It is unclear if the March 4, 2016 rejection was an untimely processing of Plaintiff's grievance since there is nothing in the record indicating when Plaintiff resubmitted this grievance after the December 17, 2015 rejection, or even whether there were multiple resubmissions and rejections during this time period. The record does not support a reasonable inference that Defendants rendered administrative remedies unavailable to Plaintiff for this grievance.
Neither Grievance No. SQ-15-02514 nor Grievance No. SQ-15-03254 was exhausted prior to Plaintiff filing this action. The claims raised in Grievance No. SQ-15-02514 and Grievance No. SQ-15-03254 with respect to Officer Arana — that Officer Arana had harassed him from May 2015 to October 2015; and that Officer Arana filed a false CDC-128-B in or around October 2015 — are therefore unexhausted. The Court DISMISSES these claims without prejudice to re-filing in a new action after Plaintiff has exhausted his administrative remedies for these claims.
Plaintiff also alleges that Officer Arana along with the other defendants, conducted a "massive" search of his cell in February 2016, moved him from his cell in February 2016; and added documents to a grievance he filed. Dkt. No. 1-1 at 6. None of the seven grievances filed between January 2015, when Plaintiff alleges the harassment and retaliatory actions started, and April 19, 2016, when this action was filed, raise these claims. There is nothing in the record suggesting that Plaintiff has exhausted these claims Accordingly, the Court DISMISSES these claims without prejudice to re-filing in a new action after Plaintiff has exhausted his administrative remedies for these claims.
Defendants argue that Plaintiff has exhausted none of his claims against Defendants Van Blarcom, Wells, Evan, and Mitchell. Defendants do not specify why the claims against these defendants are unexhausted, but presumably they are arguing that none of the three relevant grievances — SQ-15-01751; SQ-15-02514; or SQ-15-03254 — specifically name Defendants Van Blarcom, Wells, Evan, and Mitchell, as required by section 3084.2(a) of the California Code of Regulations, title 15. Plaintiff argues that because prison officials decided his grievances on the merits, his failure to identify Defendants Van Blarcom, Wells, Evan, and Mitchell by name in Grievance No. SQ-15-01751; Grievance No. SQ-15-02514; and Grievance No. SQ-15-03254 is excused.
Plaintiff is correct that a grievance is exhausted where prison officials decide the grievance on the merits at all available levels of administrative review despite an inmate's failure to comply with a procedural rule such as section 3084.2(a)'s requirement that all staff members involved in the case be named. Reyes v. Smith, 810 F.3d 654, 656, 656-58 (9th Cir. 2016) (California inmate whose grievance failed to name all staff members involved in his case, as required by 15 Cal. Code Regs. § 3084.2(a), nevertheless exhausted deliberate indifference to serious medical needs claim because claim was decided on its merits at all levels of review). But, because none of these three grievances can exhaust the claims set forth in this action — in that Grievance No. SQ-15-01751 was not appealed to the final level of review and Grievance Nos. SQ-15-02514 and SQ-15-03254 were not exhausted prior to Plaintiff filing this action — it is irrelevant whether prison officials decided these grievances on the merits with respect to Defendants Van Blarcom, Wells, Evan, and Mitchell. The Court finds that Plaintiff has failed to exhaust his claims against Defendants Van Blarcom, Wells, Evan, and Mitchell, and DISMISSES these claims without prejudice to re-filing in a new action after Plaintiff has exhausted his administrative remedies for these claims.
For the foregoing reasons, the Court finds that Plaintiff has failed to exhaust his administrative remedies for all claims raised in this action. Specifically, Plaintiff has not exhausted his claims that Officer Arana retaliated against him by removing him from his job in May 2015; withholding his May 2015 pay; moving him from his cell in June 2015; harassing him daily from December 2015 to March 25, 2016; falsifiying a CDCR Form 128B; conducting a "massive" search of his cell in February 2016; moving him from his cell in February 2016; and adding documents to a grievance he filed. Plaintiff has also failed to exhaust his claims against Defendants Van Blarcom, Wells, Evan, and Mitchell. The Court therefore GRANTS Defendants' summary judgment motion and DISMISSES this action for failure to exhaust administrative remedies and without prejudice to refiling in a new action after administrative remedies have been exhausted.
The Clerk shall terminate Dkt. No. 24, enter judgment in favor of Defendants, and close this case.
Dkt. No. 24-1 at 35. At summary judgment, the Court must draw all reasonable inferences in favor of the non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1868 (2014). The Court therefore presumes that Plaintiff was grieving the May 2015 removal that is at issue in this action.
