1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES EMMETT FARR, Case No.: 16-CV-1279 JLS (MSB) CDCR #T-51954, 12 ORDER (1) GRANTING Plaintiff, 13 DEFENDANTS’ MOTION FOR vs. SUMMARY JUDGMENT, AND 14 (2) TO SHOW CAUSE WHY WARDEN DANIEL PARAMO, et al., 15 CLAIMS AGAINST DEFENDANT Defendants. STOUT SHOULD NOT BE 16 DISMISSED PURSUANT TO 17 FEDERAL RULE OF CIVIL PROCEDURE 4(m) 18
19 (ECF No. 73)
20 Currently before the Court is a Motion for Summary Judgment filed pursuant to 21 Federal Rule of Civil Procedure 56 by Defendants Hernandez, Ramrakha, and Barnard1 22 (“MSJ,” ECF No. 73), as well as Plaintiff James Emmett Farr’s Opposition (“Opp’n,” ECF 23 No. 92) and Defendants’ Reply (“Reply,” ECF No. 95). For the reasons explained below, 24 the Court GRANTS Defendants’ Motion for Summary Judgment and ORDERS Plaintiff 25 TO SHOW CAUSE no later than thirty (30) days from the date this Order is electronically 26
27 1 In his Complaint, Plaintiff identifies this Defendant as “Bernard”; however, according to the filings by 28 1 docketed why the claims against Defendant Stout should not be dismissed for want of 2 prosecution pursuant to Federal Rule of Civil Procedure 4(m). 3 BACKGROUND 4 I. Procedural Background 5 On May 27, 2016, Plaintiff filed a Complaint (“Compl.”) pursuant to 42 U.S.C. 6 § 1983, alleging constitutional violations by Defendants Paramo, Hernandez, Fink, 7 Ramrakha, Amaro, Barnard, Ramirez, Savala, Soto, Stout, and Wall. See ECF No. 1 at 1, 8 8.2 On January 13, 2017, the Court granted Plaintiff’s request for the United States 9 Marshall Service (“USMS”) to effect service of his Complaint. See ECF No. 11. To date, 10 Defendant Stout has not been properly served; consequently, he has not appeared in this 11 action. See ECF Nos. 19, 48. 12 On March 29, 2017, Defendants Hernandez, Fink, Barnard, Amaro, Ramirez, 13 Paramo, Ramrakha, and Savala moved to dismiss portions of Plaintiff’s Complaint 14 pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 30. On August 18, 15 2017, Magistrate Judge Dembin issued a Report and Recommendation in which he 16 recommended dismissal of (1) all Eighth Amendment claims against Defendants Amarao 17 and Fink; (2) the Fourteenth Amendment, First Amendment retaliation, and generalized 18 conspiracy claims as to all Defendants; (3) all claims against Defendant Paramo; and 19 (4) the Eighth Amendment failure to protect claims as to all Defendants. See ECF No. 35. 20 On December 18, 2017, this Court adopted this Report and Recommendation in its entirety. 21 See ECF No. 44. 22 Plaintiff later requested, and was granted, leave to file an amended complaint. See 23 ECF Nos. 46, 52. Plaintiff was to file his amended complaint no later than April 5, 2018. 24 See ECF No. 52. That date has long since passed and Plaintiff chose not to file an amended 25 26 27 2 Page numbers for all documents filed in the Court’s Case Management/Electronic Case File (“CM/ECF”) refer to the pagination generated by CM/ECF as indicated on the top, righthand corner of each 28 1 pleading. The original Complaint filed by Plaintiff therefore remains the operative 2 pleading. 3 On April 19, 2018, Defendants Soto and Wall filed a Motion to Dismiss the claim 4 against them pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 55. 5 Magistrate Judge Dembin issued a Report and Recommendation in which he recommended 6 that their motion be granted and all claims against them be dismissed with prejudice. See 7 ECF No. 57. The Court adopted this recommendation on October 17, 2018, and dismissed 8 Defendants Soto and Wall from this action. 9 The remaining Defendants who have been served with the Plaintiff’s Complaint— 10 Defendants Barnard, Hernandez, and Ramrakha—filed an Answer to Plaintiff’s sole 11 surviving claim for excessive force in violation of the Eighth Amendment. See ECF No. 12 59. On July 26, 2019, Defendants Barnard, Hernandez, and Ramrakha filed the instant 13 Motion for Summary Judgment. See ECF No. 73. The Court issued the required notice to 14 Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Klingele 15 v. Eikenberry, 849 F.2d 409 (9th Cir. 1998). See ECF No. 74. Plaintiff was informed that 16 he had until September 9, 2019, to file an Opposition, id.; however, Plaintiff later filed a 17 request seeking an extension, see ECF No. 82, which the Court granted. See ECF No. 86. 18 II. Plaintiff’s Allegations3 19 Plaintiff alleges that, on November 1, 2014, he was “brutally and viciously attacked 20 by R.J. Donovan Correctional Facility (“RJD”) staff.” ECF No. 1-2 at 9. On this date, 21 Plaintiff was “ordered to get into [his] blues (Class A clothing) and report to the building 22 10 office” of Ramrakha. Id. at 10. When Plaintiff came to Ramrakha’s office, he claims 23 Ramrakha “irrationally asked [him] about the behavior of another inmate” who was 24 formally Plaintiff’s cellmate. Id. Plaintiff indicated to Ramrakha that he “could not answer 25 / / / 26 27 28 1 why another inmate would behave in a certain manner.” Id. Plaintiff alleges Ramrakha 2 “escalated the situation and went ahead with his plans that began this ordeal.” Id. 3 Plaintiff alleges that Ramrakha wrote an “untruthful” report, in which he claimed 4 that Plaintiff “had previously refused three cellies” and was “having trouble with a fourth 5 cellie currently assigned” to Plaintiff’s cell. Id. Plaintiff claims he “never refused a cellie.” 6 Id. In addition, Ramrakha claimed in the report that, due to Plaintiff’s “aggressive nature 7 and because [Plaintiff] told [Ramrakha] to lock [him] up,” Ramrakha had Plaintiff “placed 8 in handcuffs.” Id. The handcuffs were “placed behind” Plaintiff’s back and he was 9 “escorted to the program office.” Id. 10 While Plaintiff was being escorted, Hernandez reported that Plaintiff stated, 11 “[expletive] you Sarge, I want you guys to assault me so I can sue you [expletive], I am a 12 hell of a writer” and he purportedly “kept shouting obscenities.” Id. at 11. Hernandez 13 reported that Plaintiff “lunged in handcuffs at the Sgt. who allegedly was walking 5 feet in 14 front of [Plaintiff] and that Hernandez felt concern for the safety of his superior.” Id. 15 Hernandez claimed he “tried to pull [Plaintiff] back” but Plaintiff “exerted an aggressive 16 forward momentum.” Id. A “beating ensued” and Plaintiff was “violently shoved into a 17 stand up 3’ x 3’ x 8’ holding cage in handcuffs.” Id. at 12. Plaintiff alleges that the “shove 18 was so hard [his] blood sprayed against the adjacent wall.” Id. Plaintiff claims that a 19 “video will show” that he had a “bleeding wound on the left side of [his] head area above 20 the temple,” a “bleeding scraped area” on his “left forehead area above the left eyebrow, a 21 “bone chip” on his chin, and “two burn like marks” on his left leg. Id. at 13. 22 III. Defendants’ Claims 23 A. Defendant Ramrakha 24 On November 1, 2014, Ramrakha, formerly a Sergeant at RJD, was “informed that 25 inmate Farr, CDCR no. T51954 was having a problem with his cellmate.” ECF No. 73-4 26 (“Ramrakha Decl.”) ¶ 2. When Ramrakha “arrived in housing unit 10,” he was informed 27 by “floor staff” that Plaintiff had “refused cellmates in the past and was having problems 28 with the current inmate in his cell.” Id. Ramrakha interviewed Plaintiff who told him that 1 he “did not want anyone in his cell due to his aggressive personality and was not accepting 2 a cellmate.” Id. Ramrakha claims Plaintiff “became more aggressive by talking louder 3 and assuming an aggressive stance.” Id. He further claims that Plaintiff told him he would 4 not accept a cellmate and that Ramrakha should “just take him to the ‘hole’ (Administrative 5 Segregation).” Id. 6 Ramrakha instructed Hernandez to “handcuff Farr, conduct a clothed body search 7 and escort him to the B Program Office.” Id. ¶ 3. While Plaintiff was being escorted, 8 Ramrakha “walked in front of Farr and Officer Hernandez.” Id. Ramrakha claims Plaintiff 9 “was belligerent and shouted obscenities during the escort.” Id. Ramrakha “heard Officer 10 Hernandez tell Farr to get down” and, when he turned around, he saw “Farr and Officer 11 Hernandez falling to the ground together.” Id. He claims he “did not see what caused this 12 to happen.” Id. Hernandez then “used his body weight and strength to hold [Plaintiff] 13 down.” Id. Ramrakha told Plaintiff to “calm down and placed [his] right hand on 14 [Plaintiff’s] left shoulder to prevent him from getting up.” Id. 15 Ramrakha attests that is the only force he used on Plaintiff and it was “force 16 necessary to maintain control over [Plaintiff] to prevent him from injuring Officer 17 Hernandez or himself.” Id. ¶ 4. He further attests that he “did not see anyone else use 18 unnecessary force” on Plaintiff, nor did he see Hernandez “try to kick” Plaintiff’s legs. Id. 19 “After responding staff arrived,” Plaintiff was “helped” to his feet and “escorted” to a 20 “holding cell in the gym without further incident.” Id. 21 B. Defendant Hernandez 22 Hernandez, formerly a correctional officer at RJD, attests that he did place Plaintiff 23 in handcuffs and “began escorting him from housing unit 10 to the program office” at the 24 direction of Ramrakha. ECF No. 73-5 (“Hernandez Decl.”) ¶¶ 1, 2. During the escort, 25 Hernandez was “holding [Plaintiff’s] forearm.” Id. ¶ 2. While they were walking, 26 Hernandez claims Ramrakha was “walking a few feet” in front of Hernandez and Plaintiff. 27 Id. “During the escort, [Plaintiff] appeared very agitated” and was “continually shout[ing] 28 obscenities” at Hernandez and Ramrakha. Id. 1 Hernandez claims Plaintiff “appeared to lunge” at Ramrakha and, “fearing for 2 Sergeant Ramrakha’s safety,” Hernandez “pulled [Plaintiff] backwards toward” him. Id. 3 Plaintiff, however, “continued to pull forward despite [Hernandez’s] efforts to pull him 4 back.” Id. Hernandez claims that he “allowed the forward momentum to pull us both to 5 the ground, where [Hernandez] landed on [Plaintiff].” Id. Hernandez ordered Plaintiff to 6 “stop resisting and lay down.” Id. Plaintiff “continued to struggle on the ground,” which 7 caused Hernandez to use his “body weight and strength to hold [Plaintiff] to the ground” 8 while he waited for “responding staff to arrive.” Id. Hernandez attests Ramrakha “assisted 9 in subduing [Plaintiff] by holding down his left shoulder.” Id. Barnard “arrived, and we 10 helped [Plaintiff] to his feet and escorted him to a holding cell.” Id. Hernandez claims that 11 “ended” his “involvement in the incident.” Id. 12 LEGAL STANDARD 13 Summary judgment is appropriate when the moving party “shows that there is no 14 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 15 of law.” Fed. R. Civ. P. 56(a). The “purpose of summary judgment is to ‘pierce the 16 pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 17 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations 18 omitted). 19 As the moving parties, Defendants “initially bear[] the burden of proving the absence 20 of a genuine issue of material fact.” In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th 21 Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). While Plaintiff 22 bears the burden of proof at trial, Defendants “need only prove that there is an absence of 23 evidence to support [Plaintiff’s] case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 24 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be 25 entered, after adequate time for discovery and upon motion, against a party who fails to 26 make a showing sufficient to establish the existence of an element essential to that party’s 27 case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. 28 at 322. “[A] complete failure of proof concerning an essential element of the nonmoving 1 party’s case necessarily renders all other facts immaterial.” Id. In such a circumstance, 2 summary judgment should be granted, “so long as whatever is before the district court 3 demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 4 If Defendants meet their initial responsibility, the burden then shifts to Plaintiff to 5 establish that a genuine dispute as to any material fact actually does exist. Matsushita Elec. 6 Indus. Co., 475 U.S. at 586. In attempting to establish the existence of this factual dispute, 7 Plaintiff may not rely upon the allegations or denials of his pleadings but is instead required 8 to tender evidence of specific facts in the form of affidavits, and/or admissible discovery 9 material, to support his contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); 10 Matsushita, 475 U.S. at 586 n.11. “A [p]laintiff’s verified complaint may be considered 11 as an affidavit in opposition to summary judgment if it is based on personal knowledge and 12 sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 n.14 13 (9th Cir. 2000) (en banc). 14 Plaintiff must also demonstrate that the fact in contention is material, i.e., a fact that 15 might affect the outcome of his suit under the governing law, see Anderson v. Liberty 16 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 17 Assoc., 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence 18 is such that a reasonable jury could return a verdict for him. See Wool v. Tandem 19 Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 20 Finally, district courts must “construe liberally motion papers and pleadings filed by 21 pro se inmates and . . . avoid applying summary judgment rules strictly.” Thomas v. 22 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). If, however, Plaintiff “fails to properly 23 support an assertion of fact or fails to properly address [Defendants’] assertion of fact, as 24 required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the 25 motion.” Fed. R. Civ. P. 56(e)(2). Further, the Court cannot permit Plaintiff, as the 26 opposing party, to rest solely on conclusory allegations of fact or law. Berg v. Kincheloe, 27 794 F.2d 457, 459 (9th Cir. 1986). Indeed, a “motion for summary judgment may not be 28 defeated . . . by evidence that is ‘merely colorable’ or ‘is not significantly probative.’” 1 Anderson, 477 U.S. at 249–50 (1986); Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2 2016) (“[M]ere allegation and speculation do not create a factual dispute for purposes of 3 summary judgment.”) (alteration in original) (quoting Nelson v. Pima Cmty. Coll., 83 F.3d 4 1075, 1081 (9th Cir. 1996)); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 5 2006). 6 ANALYSIS 7 Defendants seek summary judgment as to Plaintiff’s Eighth Amendment excessive 8 force claims on the grounds that (1) no genuine issue of material fact shows that Hernandez 9 or Ramrakha used excessive force against him, (2) Defendants are entitled to qualified 10 immunity, and (3) Plaintiff failed to exhaust his administrative remedies as to Barnard. See 11 MSJ at 15–26. 12 I. Defendants Hernandez and Ramrakha’s Motion for Summary Judgment 13 Hernandez and Ramrakha claim that they are entitled to summary judgment of 14 Plaintiff’s Eighth Amendment excessive force claims because “the undisputed material 15 facts show that [they] used only reasonable force” and they “are entitled to qualified 16 immunity.” MSJ at 6; see also id. at 16–22. 17 A. Eighth Amendment Excessive Force 18 In general, an Eighth Amendment violation occurs only when an inmate is subjected 19 to the “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 20 (1986); Jeffers v. Gomez, 267 F.3d 895, 900 (9th Cir. 2001). With respect to Plaintiff’s 21 claims that Defendants used excessive force against him, the “core judicial inquiry” is 22 “whether force was applied in a good faith effort to maintain or restore discipline or 23 maliciously and sadistically for the very purpose of causing harm.” Hudson v. McMillian, 24 503 U.S. 1, 6 (1992) (extending Whitley’s Eighth Amendment analysis from prison riots to 25 “whenever guards use force to keep order.”); Wilkins v. Gaddy, 559 U.S. 34, 40 (2010). In 26 making this determination, courts consider factors such as: (1) extent of the injury, (2) need 27 to use the force, (3) relationship between the need and the amount of force used, (4) the 28 / / / 1 threat “reasonably perceived” by the officials, and (5) “any efforts made to temper the 2 severity” of the force. Hudson, 503 U.S. at 7 (citations omitted). 3 Ultimately, Plaintiff must show more than “merely objectively unreasonable force,” 4 Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002), to prove that Defendants acted in 5 bad faith with the intent to harm him. Wilkins, 559 U.S. at 37; Rodriguez v. Cnty. of L.A., 6 891 F.3d 776, 795 (9th Cir. 2018); Hoard v. Hartman, 904 F.3d 780, 790 (9th Cir. 2018); 7 Jeffers v. Gomez, 267 F.3d 895, 912 (9th Cir. 2001) (affirming summary judgment on 8 behalf of correctional officers because there was an “absence of evidence showing that 9 either officer acted purposely to injure” and the officers’ actions did not suggest “malice 10 or sadism or otherwise create an inference of impermissible motive”). The Supreme Court 11 has made clear that the Eighth Amendment may be violated by the use of excessive force 12 against a prison inmate “[even] when the inmate does not suffer serious injury.” Wilkins, 13 559 U.S. at 34 (2010) (quoting Hudson, 503 U.S. at 4). While the extent of an inmate’s 14 injury is relevant to the Eighth Amendment inquiry, “[i]njury and force . . . are only 15 imperfectly correlated, and it is the latter that ultimately counts.” Id. at 38. At the same 16 time: 17 [N]ot “every malevolent touch by a prison guard gives rise to a federal cause of action.” . . . “The Eighth Amendment’s 18 prohibition of ‘cruel and unusual’ punishments necessarily 19 excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 20 repugnant to the conscience of mankind.” . . . An inmate who 21 complains of a “push or shove” that causes no discernible injury almost certainly fails to state a valid excessive force claim. 22
23 Wilkins, 559 U.S. at 38 (quoting Hudson, 503 U.S. at 9); Hudson, 503 U.S. at 7–9; Martinez 24 v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 25 1. Extent of Plaintiff’s Injury 26 In his Complaint, Plaintiff alleges that he suffered from “bleeding wound on the left 27 side of [his] head area above the temple,” a “bleeding scraped area” on his “left forehead 28 area above the left eyebrow, a “bone chip” on his chin, and “two burn like marks” on his 1 left leg following the incident. Compl. at 13. Defendants do not point to any evidence in 2 the record to dispute Plaintiff’s claims that he suffered these injuries, which are more than 3 de minimis. 4 2. Defendants’ Need to Use Force 5 Hernandez attests that the initial use of force was needed because he believed that 6 Plaintiff “appeared to lunge towards Sergeant Ramrakha” and, consequently, Hernandez 7 “fear[ed] for Sergeant Ramrakha’s safety.” Hernandez Decl. ¶ 2. Plaintiff disputes this, 8 claiming he was “subdued and compliant” and walking with a “controlled escort restraining 9 his arms with his hands twisted and thumbs pointing out behind his back.” Opp’n at 7. 10 Ramrakha attests that, during the escort, he “turned around and saw Farr and Officer 11 Hernandez falling to the ground together” but he “did not see what caused this to happen.” 12 Ramrakha Decl. at ¶ 3. He saw Hernandez use his “body weight and strength” to hold 13 Plaintiff down and placed his “right hand on [Plaintiff’s] left shoulder to prevent him from 14 getting up.” Id. 15 Plaintiff’s own deposition testimony directly contradicts that he was “compliant” 16 during the escort. During his deposition, Plaintiff testified that, prior to being escorted out 17 of the building by Hernandez, he realized he was “going to the hole” and the reality “hit” 18 him that he would be “missing a lot.” ECF No. 73-3 Ex. A (“Pl.’s Dep.”) at 16–17. As a 19 result, Plaintiff “let it all out verbally” because he did not care if he was “[written] up for 20 verbal disrespect” because he was “never getting out of prison no matter how [he] 21 behave[d].” Id. at 17. He further acknowledged that he was “cussing” out Defendants 22 while they were escorting him, id. at 19, and that he was “on a tirade,” saying, “[expletive] 23 you, when you get me to the hole, I’m not going to take a celly back there either.” Id. 24 Plaintiff also testifies that he was “belligerent” and “rebellious.” Id. 25 Hernandez attests that Plaintiff “appeared very agitated and continually shouted 26 obscenities” at him and Ramrakha. Hernandez Decl. ¶ 2. Ramrakha testifies that Plaintiff 27 was “aggressive” when he initially interviewed him regarding Plaintiff’s “issues he was 28 / / / 1 having with his cellmate.” Ramrakha Decl. ¶ 2. Ramrakha further attests that Plaintiff 2 “was belligerent and shouted obscenities during the escort.” Id. ¶ 3. 3 Further, as to Ramrakha, it is undisputed that he did not witness what precipitated 4 the fall by Plaintiff. He attests that he did not see what happened to cause Plaintiff and 5 Hernandez to fall to the ground. See Ramrakha Decl. ¶ 3. Plaintiff points to no evidence 6 in the record that disputes this assertion. Ramrakha acknowledges that, while Plaintiff was 7 on the ground, Ramrakha put his hand on Plaintiff’s shoulder to “prevent him from getting 8 up.” Id. 9 As set forth above, not “every malevolent touch by a prison guard gives rise to a 10 federal cause of action.” Hudson, 503 U.S. at 10 (citing Johnson v. Glick, 481 F.2d 1028, 11 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem unnecessary in 12 the peace of a judge’s chambers, violates a prisoner’s constitutional rights”). Here, the 13 undisputed facts support a finding that some use of force was necessary following Plaintiff 14 and Hernandez falling to the ground. 15 3. Relationship Between the Need and Amount of Force Used 16 In Plaintiff’s verified Complaint, he appears to allege that he was kicked, which 17 caused him to fall to the ground. See Compl. at 11. Specifically, he alleges that Defendants 18 “physically assaulted Plaintiff in violation of his Constitutional rights under the [Eighth 19 Amendment,] which prohibits cruel and unusual punishment[,] by slamming Plaintiff onto 20 the pavement, a malicious and sadistic use of force meant to cause deliberate harm by 21 kicking Plaintiff.” Id. Plaintiff fails to attribute any specific use of force to the Defendants 22 as individuals. 23 Plaintiff then contradicted these allegations, however, in his deposition. 24 Specifically, he testified that he “knew what [Hernandez] was doing” during the escort and, 25 “rather than allow [him]self to be faceplanted, [he] just crumpl[ed] to the ground.” Pl.’s 26 Dep. at 18. Plaintiff testified he “just let [his] legs go.” Id. When Plaintiff fell to the 27 ground he landed on his “left shoulder.” Id. at 21. He does not know where Hernandez 28 “put his hands” because he “couldn’t feel it.” Id. He knew his “head bounced,” but he 1 could not see Hernandez. Id. at 21–22. These allegations are inconsistent with the facts 2 set forth in Plaintiff’s verified Complaint that he was “kicked” by the Defendants. 3 Plaintiff also testified that he “made no resistance” but “this guy [was] yelling, ‘stop 4 resisting, stop resisting, stop resisting.’” Id. at 22. The only person he could see while he 5 was on the ground was Ramrakha. Id. 6 By Plaintiff’s own admission, Plaintiff did not fall to the ground as the result of any 7 force used by Defendants. Plaintiff also testified that, after he was on the ground, he was 8 “shifted” for Hernandez “to get a good hold, he had to reposition himself.” Id. at 27. As a 9 result, Plaintiff was “turned . . . a little bit” to where he was “almost flat on [his] face.” Id. 10 at 27–28. At this point, he tried to “pick [his] head up” and “somebody” pushed his head 11 down. Id. at 29. Plaintiff further acknowledges that he was “belligerent” and “rebellious” 12 during the escort and purposefully caused himself to fall. Id. at 18–19. It is undisputed 13 that Hernandez placed his body weight on top of Plaintiff and that Ramrakha placed his 14 hand on Plaintiff’s shoulder to prevent him from getting up, but Plaintiff acknowledged in 15 his deposition that he could not identify any other use of force by these two Defendants. 16 “Force does not amount to a constitutional violation . . . if it is applied in a good faith 17 effort to restore discipline and order and not ‘maliciously and sadistically for the very 18 purpose of causing harm.’” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (quoting 19 Whitley, 475 U.S. at 320–21). Here, there is no evidence in the record that these Defendants 20 used force that was malicious or sadistic for the purpose of causing harm. 21 4. Perceived Threat 22 Plaintiff’s actions leading up to the use of force indicate that a reasonable inference 23 can “be drawn as to whether the use of force could plausibly have been thought necessary.” 24 Whitley, 475 U.S. at 320–21. It is undisputed that Plaintiff’s actions by purposefully falling 25 to the ground started the chain of events that led of the use of force. Taking Plaintiff’s 26 factual allegations as true, the evidence in the record demonstrates that he was belligerent 27 and caused himself to fall and that Defendants could reasonably have perceived that 28 Plaintiff posed a threat to the “safety of inmates and prison staff.” Id. at 320. Further, in 1 “carrying out decisions involving the use of force to restore order in the face of a prison 2 disturbance, prison officials undoubtedly must take into account the very real threats the 3 unrest presents to inmates and prison officials alike.” Id. Here, the record before the Court 4 fails to establish a genuine disputed issue of material fact as to whether Defendants 5 reasonably perceived a threat to their safety. 6 5. Efforts Made to Temper Force 7 Plaintiff admitted in his deposition testimony that Ramrakha had stopped another 8 officer from using pepper spray against him. Specifically, Plaintiff testified that he “knew” 9 Ramrakha’s hand was on his shoulder and that Ramrakha had “stopped one officer from 10 spraying” Plaintiff with pepper spray. Pl.’s Dep. at 22. 11 Based on the evidence in the record before it, and in light of the relevant law, the 12 Court finds that no genuine dispute of material fact exists as to show that either Hernandez 13 or Ramrakha used force with the malicious and sadistic intent necessary to support an 14 Eighth Amendment violation. Hudson, 503 U.S. at 6. Accordingly, the Court GRANTS 15 Defendants’ Motion for Summary Judgment as to Plaintiff’s Eighth Amendment excessive 16 force claim. 17 B. Qualified Immunity 18 Defendants Hernandez and Ramrakha also argue they are entitled to qualified 19 immunity. See MSJ at 20–22. But if, when “[t]aken in the light most favorable to the party 20 asserting the injury, . . . the facts alleged [do not] show the officer’s conduct violated a 21 constitutional right,” Saucier v. Katz, 533 U.S. 194, 201 (2001), “the question of immunity 22 becomes moot.” Gonzalez v. City of Anaheim, 747 F.3d 789, 798 (9th Cir. 2014) (citing 23 Pearson, 555 U.S. at 236); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 24 2012) (“If [the court] answer[s] the first of the two inquiries in the negative, then the 25 officer’s conduct was constitutional, and there can be no violation of § 1983. The officer 26 has no need for immunity; he is innocent of the alleged infractions.”). Because the Court 27 finds no genuine dispute as to any Eighth Amendment violation by these Defendants, it 28 need not further decide whether they are also entitled to qualified immunity. See Greisen 1 v. Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019) (“In resolving whether a government 2 official is entitled to qualified immunity, a court must decide whether the facts that a 3 plaintiff has alleged or shown make out a violation of a constitutional right, and, if so, 4 whether the right at issue was clearly established at the time of defendant’s alleged 5 misconduct.”) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)) (internal quotation 6 marks omitted); Saucier, 533 U.S. at 201). 7 II. Defendant Barnard’s Motion for Summary Judgment 8 Barnard seeks summary judgment on grounds that Plaintiff failed to exhaust his 9 administrative remedies pursuant to 42 U.S.C. § 1997e(a) before filing suit. See MSJ at 10 22–26. 11 A. Legal Standard 12 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust 13 ‘such administrative remedies as are available’ before bringing suit to challenge prison 14 conditions.” Ross v. Blake, 578 U.S. ___, 136 S. Ct. 1850, 1854–55 (2016) (quoting 42 15 U.S.C. § 1997e(a)). “There is no question that exhaustion is mandatory under the PLRA[.]” 16 Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted). The PLRA also requires that 17 prisoners, when grieving their appeal, adhere to CDCR’s “critical procedural rules.” 18 Woodford v. Ngo, 548 U.S. 81, 91 (2006). “[I]t is the prison’s requirements, and not the 19 PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. 20 The exhaustion requirement is based on the important policy concern that prison 21 officials should have “an opportunity to resolve disputes concerning the exercise of their 22 responsibilities before being haled into court.” Jones, 549 U.S. at 204. The “exhaustion 23 requirement does not allow a prisoner to file a complaint addressing non-exhausted 24 claims.” Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). 25 Therefore, regardless of the relief sought, a prisoner must pursue an appeal through 26 all levels of a prison’s grievance process as long as that process remains available to him. 27 “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains 28 ‘available.’ Once that is no longer the case, then there are no ‘remedies . . . available,’ and 1 the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 2 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). 3 “The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need 4 exhaust only such administrative remedies as are ‘available.’” Ross, 136 S. Ct. at 1862; 5 see also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (PLRA does not require 6 exhaustion when circumstances render administrative remedies “effectively unavailable.”). 7 Grievance procedures are available if they are “‘capable of use’ to obtain ‘some 8 relief for the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 9 738); see also Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (“To be available, 10 a remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’”) 11 (quoting Albino, 747 F.3d at 1171). 12 In Ross, the Supreme Court noted “three kinds of circumstances in which an 13 administrative remedy, although officially on the books, is not capable of use to obtain 14 relief.” 136 S. Ct. at 1859. These circumstances arise when: (1) the “administrative 15 procedure . . . operates as a simple dead end—with officers unable or consistently unwilling 16 to provide any relief to aggrieved inmates”; (2) the “administrative scheme . . . [is] so 17 opaque that it becomes, practically speaking, incapable of use . . . so that no ordinary 18 prisoner can make sense of what it demands”; or (3) “prison administrators thwart inmates 19 from taking advantage of a grievance process through machination, misrepresentation, or 20 intimidation.” Id. at 1859–60 (citations omitted). 21 Because the failure to exhaust is an affirmative defense, the defendants bear the 22 burden of raising it and proving its absence. Jones, 549 U.S. at 216; Albino, 747 F.3d at 23 1169 (noting that defendants must “present probative evidence—in the words of Jones, to 24 ‘plead and prove’–that the prisoner has failed to exhaust available administrative remedies 25 under § 1997e(a)”). “In the rare event that a failure to exhaust is clear from the face of the 26 complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 27 1166. Otherwise, the defendants must produce evidence proving the plaintiff’s failure to 28 exhaust, and they are entitled to summary judgment under Rule 56 only if the undisputed 1 evidence, viewed in the light most favorable to the plaintiff, shows he failed to exhaust. 2 Id. 3 When defendants seek summary judgment based on the plaintiff’s failure to exhaust 4 specifically, they must first prove that there was an available administrative remedy and 5 that the plaintiff did not exhaust that available remedy. Williams, 775 F.3d at 1191 (internal 6 quotation marks omitted) (citing Albino, 747 F.3d at 1172). If they do, the burden of 7 production then shifts to the plaintiff “to show that there is something in his particular case 8 that made the existing and generally available administrative remedies effectively 9 unavailable to him.” Williams, 775 F.3d at 1191; see also Ross, 136 S. Ct. at 1858–60; 10 McBride v. Lopez, 807 F.3d 982, 986 (9th Cir. 2015) (citing “circumstances where the 11 intervening actions or conduct by prison officials [may] render the inmate grievance 12 procedure unavailable”). Only “[i]f the undisputed evidence viewed in the light most 13 favorable to the prisoner shows a failure to exhaust, [is] a defendant is entitled to summary 14 judgment under Rule 56.” Albino, 747 F.3d at 1166. 15 B. CDCR’s Exhaustion Requirements 16 A California prisoner may appeal “any policy, decision, action, condition, or 17 omission by the department or its staff that [he] can demonstrate as having a material 18 adverse effect upon his . . . health, safety, or welfare.” 15 C.C.R. § 3084.1(a). Since 19 January 28, 2011, and during the times alleged in Plaintiff’s Complaint, Title 15 of the 20 California Code of Regulations requires three formal levels of appeal review. 21 Consequently, to properly exhaust, a California prisoner must, within thirty calendar days 22 of the decision or action being appealed, or “upon first having knowledge of the action or 23 decision being appealed,” 15 C.C.R. § 3084.8(b), “use a CDCR Form 602 (Rev. 08/09), 24 Inmate/Parolee Appeal, to describe the specific issue under appeal and the relief 25 requested.” 15 C.C.R. § 3084.2(a). The CDCR Form 602 “shall be submitted to the 26 appeals coordinator at the institution.” 15 C.C.R. §§ 3084.2(c), 3084.7(a). 27 If the first level CDCR Form 602 appeal is “denied or not otherwise resolved to the 28 appellant’s satisfaction at the first level,” 15 C.C.R. § 3084.7(b), the prisoner must “within 1 30 calendar days . . . upon receiving [the] unsatisfactory departmental response,” 15 C.C.R. 2 § 3084.8(b)(3), seek a second level of administrative review, which is “conducted by the 3 hiring authority or designee at a level no lower than Chief Deputy Warden, Deputy 4 Regional Parole Administrator, or the equivalent.” 15 C.C.R. §§ 3084.7(b), (d)(2). 5 “The third level is for review of appeals not resolved at the second level.” 15 C.C.R. 6 § 3084.7(c). “The third level review constitutes the decision of the Secretary of the CDCR 7 on an appeal, and shall be conducted by a designated representative under the supervision 8 of the third level Appeals Chief or equivalent. The third level of review exhausts 9 administrative remedies,” 15 C.C.R. § 3084.7(d)(3), “unless otherwise stated.” 15 C.C.R. 10 § 3084.1(b); see also CDCR Operations Manual § 541100.13 (“Because the appeal process 11 provides for a systematic review of inmate and parolee grievances and is intended to afford 12 a remedy at each level of review, administrative remedies shall not be considered exhausted 13 until each required level of review has been completed.”). 14 C. Analysis 15 Plaintiff claims that, on November 2, 2014, Barnard “physically assaulted” Plaintiff, 16 along with the other Defendants, in violation of his Eighth Amendment rights to be “free 17 from cruel and unusual punishment.” Compl. at 14. Barnard argues that Plaintiff failed to 18 identify him by name in any of the administrative grievances he had filed arising from the 19 allegations in the Complaint. See MSJ at 24. 20 In support of his position, Barnard proffers the sworn declarations of E. Frijas, 21 Appeals Coordinator at RJD, and T. Ramos, the Chief of the Office of Appeals. See ECF 22 Nos. 73-6 (“Frijas Decl.”), 73-7 (“Ramos Decl.”). 23 Frijas attests that the “California Attorney General’s Office requested that the [RJD] 24 Inmates Appeals Office search its records and files” to determine whether Plaintiff had 25 “filed any inmate appeals concerning his allegation that Officers Hernandez and Barnard 26 and Sergeant Ramrakha used excessive force against him on November 1, 2014.” Frijas 27 Decl. ¶ 6. Frijas maintains that a search found “one inmate appeal wherein the issue 28 appealed concerned Farr’s complaint of excessive force on November 1, 2014.” Id. 1 Attached to Frijas’ declaration is a CDCR 602 Inmate/Parolee Appeal form, authored by 2 Plaintiff, dated November 13, 2014, and given log number RJD-14-4086. Frijas Decl. Ex. 3 1 at 9. In this grievance, Plaintiff describes the events that are the subject of the allegations 4 contained in his Complaint. Specifically in this grievance, Plaintiff alleged “unnecessary 5 and excessive force and cover-up,” identifying Hernandez and Ramrakha as the 6 perpetrators of the alleged assault. Id. Plaintiff also referred to Lieutenant Savala and 7 indicated that Savala had “the videotape showing [Plaintiff’s] injuries.” Id. No other 8 correctional officer was named in this grievance. 9 Ramos declares that he was asked to search in RJD’s “system files” by the “Office 10 of the Attorney General” for any “third-level inmate appeals” submitted by Plaintiff 11 “concerning an allegation that Officers Hernandez and Barnard and Sergeant Ramrakha 12 used excessive force against him on November 1, 2014.” Ramos Decl. ¶ 6. Ramos attests 13 that, on “August 7, 2015, this office received appeal log no. RJD-14-04086” from Plaintiff 14 “naming Officer Hernandez and Sgt. Ramrakha as involved in the alleged use of excessive 15 force.” Id. ¶ 6a. He further declares that the appeal “also mentions Lieutenant Savala as 16 having videotaped” Plaintiff following the alleged excessive force incident. Id. 17 Plaintiff initially argues that “Defendants have mounted another meager affirmative 18 defense, pointing to Plaintiff’s exhaustion without first considering the insurmountable 19 obstacles and unnecessary hurdles presented by Defendants.” Opp’n at 2. Plaintiff further 20 maintains that it is his “understanding of the level of exhaustion is that he need not 21 specifically name those who appeal in the official reports generated by the incident in 22 question and Plaintiff did name Barnard in his complaint.” Id. 23 As noted above, “the [D]efendant[s]’ burden is to prove that there was an available 24 administrative remedy, and that the prisoner did not exhaust that available remedy.” 25 Albino, 747 F.3d at 1172. The burden then shifts to Plaintiff “who must show that there is 26 something particular in his case that made the existing and generally available 27 administrative remedies effectively unavailable to him.” Williams, 775 F.3d at 1191; 28 Albino, 747 F.3d at 1172; Jones, 549 U.S. at 218. He may do so by “showing the local 1 remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously 2 futile.” Albino, 747 F.3d at 1172; see also Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir. 3 2008) (noting potential “unavailability” of administrative remedies if officials 4 “obstruct[ed] [the prisoner’s] attempt to exhaust,” or “prevented [him] from exhausting 5 because procedures for processing grievances weren’t followed”); Nunez, 591 F.3d at 1224 6 (finding prisoner’s lack of exhaustion “excused” where record showed he “took reasonable 7 and appropriate steps to exhaust . . . [but] was precluded from exhausting, not through his 8 own fault but by the Warden’s mistake”). “Under § 1997e(a), the exhaustion requirement 9 hinges on the ‘availab[ility]’ of administrative remedies: An inmate, that is, must exhaust 10 available remedies, but need not exhaust unavailable ones.” Ross, 136 S. Ct. at 1858; 11 Andres v. Marshall, 854 F.3d 1103, 1104 (9th Cir. 2017) (per curiam). 12 Here, Plaintiff appears to argue that the administrative remedies were “unavailable.” 13 See Opp’n at 2. He provides no specific factual allegation, however, as to how the 14 Defendants purportedly created “insurmountable obstacles and unnecessary hurdles.” Id. 15 Futher, he does not explain why he was able to write a grievance specifically naming the 16 other Defendants and setting forth the factual allegations that gave rise to his Complaint 17 but was prevented from naming Barnard. 18 As stated above, the PLRA requires that prisoners, when grieving their appeal, 19 adhere to CDCR’s “critical procedural rules.” Woodford, 548 U.S. at 91. “[I]t is the 20 prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” 21 Jones, 549 U.S. at 218. Defendant argues that Plaintiff is “required to name all officers 22 against whom he is appealing.” MSJ at 24 (citing 15 C.C.R. § 3084.2(a)(3)). Specifically, 23 section 3084.2(a)(3) provides that “[t]he inmate or parolee shall list all staff member(s) 24 involved and shall describe their involvement in the issue. To assist in the identification 25 of staff members, the inmate or parolee shall include the staff member’s last name, first 26 initial, title or position, if known, and the dates of the staff member’s involvement in the 27 issue under appeal.” Id. 28 / / / 1 Here, Plaintiff clearly did not identify Barnard in the grievance that he filed 2 regarding the November 1, 2014 incident. His claims that he faced “insurmountable 3 obstacles and unnecessary hurdles presented by Defendants” but fails to point to any 4 evidence in the record to support this claim. Further, Plaintiff fails to provide any specific 5 factual allegations to support these conclusory allegations. The Court therefore finds that 6 Plaintiff failed properly to exhaust his administrative remedies as to Barnard prior to filing 7 this action. See Ngo, 548 U.S. at 90–91 (“Proper exhaustion demands compliance with an 8 agency’s deadlines and other critical procedural rules because no adjudicative system can 9 function effectively without imposing some orderly structure on the court of its 10 proceedings.”). Accordingly, the Court GRANTS Barnard’s Motion for Summary 11 Judgment for failure to exhaust administrative remedies. 12 ORDER TO SHOW CAUSE 13 A review of the Clerk’s docket indicates that Defendant Stout has not been served 14 in this action. See ECF Nos. 19, 48; see also Walker v. Sumner, 14 F.3d 1415, 1421–22 15 (9th Cir. 1994) (where a pro se plaintiff fails to provide the Marshal with sufficient 16 information to effect service, the court’s sua sponte dismissal of those unserved defendants 17 is appropriate under Fed.R.Civ.P. 4(m)). According to the summons returned to the Court 18 on February 1, 2018, it appears that the USMS attempted to serve Stout at his residence 19 but that he no longer resided at the address. See ECF No. 48. In the year and a half since 20 the summons was returned unexecuted, Plaintiff has not sought an extension of time 21 properly to serve Stout. 22 Accordingly, this Court ORDERS Plaintiff to show cause no later than thirty (30) 23 days after this Order is electronically docketed why the claims against Defendant Stout 24 should not be dismissed for want of prosecution pursuant to Federal Rule of Civil 25 Procedure 4(m). If Plaintiff wishes to proceed with his claims against Defendant Stout, he 26 SHALL FILE proof of proper service within thirty (30) days after this Order is 27 electronically docketed; otherwise, Defendant Stout SHALL BE DISMISSED 28 WITHOUT PREJUDICE from this action. 1 CONCLUSION 2 In light of the above, the Court GRANTS Defendants Motion for Summary 3 || Judgment (ECF No. 73). The Clerk of Court SHALL ENTER judgment for Defendants 4 || Hernandez, Ramrakha, and Barnard pursuant to Federal Rule of Civil Procedure 54(b). 5 Further, Plaintiff is ORDERED TO SHOW CAUSE within thirty (30) days of the 6 || date this Order is electronically docketed why the claims against Defendant Stout should 7 ||not be dismissed for want of prosecution pursuant to Federal Rule of Civil Procedure 4(m). 8 Should Plaintiff fail to provide the Court with proof of service on Defendant Stout within 9 || thirty (30) days of the date this Order is electronically docketed, Plaintiff's claims against 10 || Defendant Stout SHALL BE DISMISSED WITHOUT PREJUDICE. 1] IT IS SO ORDERED. 12 13 ||Dated: December 9, 2019 tt 14 pee Janis L. Sammartino 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 21