Kerns v. California Department of Corrections

• Court: District Court, N.D. California
• Decided: March 12, 2025
• Docket: 5:22-cv-06979
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES R. KERNS, Case No. 22-cv-06979-PCP

8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. SUMMARY JUDGMENT

10 Y. CUEVAS, et al., Re: Dkt. No. 24 Defendants. 11

12 13 James Kerns, a California prisoner proceeding pro se, has filed a civil rights complaint 14 pursuant to 42 U.S.C. § 1983. Mr. Kerns alleges that defendants Cuevas and Jones failed to 15 adequately separate inmates during medical appointments, and that this negligence caused Mr. 16 Kerns to suffer a beating from another inmate. 17 Defendants have moved for summary judgment. Dkt. No. 24 (“MSJ”). The Court agrees 18 with defendants that Mr. Kerns did not properly exhaust his administrative remedies. Because Mr. 19 Kerns failed to properly exhaust, defendants are entitled to summary judgment and the Court need 20 not consider defendants’ other arguments. 21 For the reasons stated below, defendants’ motion for summary judgment is GRANTED. 22 I. Background 23 At all relevant times, Mr. Kerns was incarcerated at the Correctional Training Facility 24 (“CTF”). 25 A. Underlying Incident 26 On November 12, 2020, Mr. Kerns attended a medical appointment. Defendant Jones 27 showed Mr. Kerns into a treatment room and then closed the door. Defendant Jones did not lock 1 Mr. Kerns decided to lie down and close his eyes while he waited for his appointment to 2 begin. While Mr. Kerns was lying down with his eyes closed, non-defendant inmate Lujan 3 attacked him. See id. at 4–5. In his deposition, Mr. Kerns surmised that inmate Lujan was in a 4 nearby unlocked treatment room and walked past defendant Jones to enter Mr. Kerns’s treatment 5 room and attack him. See Dkt. No. 24-5 (“Transcript”), at 65:24–66:6, 67:3–11. Mr. Kerns argues 6 that defendant Jones “should have been paying attention” to inmate security but instead “was 7 talking to the nurses.” Id. at 67:3–4, 67:24–25. 8 The parties dispute how long the altercation lasted. Compare Dkt. No. 24-1 (“Jones 9 Declaration”) ¶ 11 (“The incident lasted no more than twenty to thirty seconds.”) with Tr. at 10 43:16–44:3, 49:18–19, 58:19–22 (explaining that inmate Lujan attacked Mr. Kerns for a minute 11 before Mr. Kerns even understood what was occurring and that the fight continued another 30 to 12 40 seconds after Mr. Kerns managed to get up). 13 A non-defendant staff member noticed the altercation between Mr. Kerns and inmate 14 Lujan and yelled “stop.” Defendant Jones then responded to the treatment room and ordered the 15 combatants to cease fighting. When they did not, defendant Jones pulled inmate Lujan off Mr. 16 Kerns. Defendant Jones instructed inmate Lujan to “prone out on [the] floor,” and inmate Lujan 17 complied. See Jones Decl. ¶¶ 10–11. 18 Immediately after the fight, inmate Lujan repeatedly stated that he had attacked Mr. Kerns 19 because he mistakenly believed that Mr. Kerns belonged to a rival gang. See MSJ at 5. 20 B. California’s Framework for Administrative Grievances and Appeals 21 The California Department of Corrections and Rehabilitation (“CDCR”) provides its 22 inmates and parolees the right to administratively grieve and appeal any “policy, decision, action, 23 condition, or omission by the Department or departmental staff that causes some measurable harm 24 to their health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3481(a).1 25

26 1 The regulations that set out the features of the administrative remedies process for California prisoners underwent a substantial restructuring in 2020. On March 25, 2020, and effective June 1, 27 2020, California Code of Regulations Title 15, sections 3084 through 3084.9 were repealed and 1 Under the applicable version of the regulations, there are two levels of review for non- 2 health-care appeals by inmates, referred to as a grievance and an appeal. At the first level, the 3 inmate submits a form CDCR 602-1 to the Institutional Office of Grievances at the prison or other 4 facility where he is housed. See id. at § 3482(a), (c) (eff. June 1, 2020–Jan. 4, 2022). “In response, 5 a claimant shall receive a written decision” from the Institutional Office of Grievances “clearly 6 explaining the reasoning for the Reviewing Authority’s decision as to each claim.” Id. at 7 § 3481(a). At the second level, an inmate dissatisfied with the Institutional Office of Grievances’ 8 decision at the first level submits a form CDCR 602-2 to CDCR’s Office of Appeals in 9 Sacramento. Id. at §§ 3481(a), 3485 (eff. June 1, 2020–Jan. 4, 2022). 10 “Administrative exhaustion within California requires the completion of the [final] level of 11 administrative review.” Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017). To exhaust 12 administrative remedies under the applicable regulations, the inmate must complete the review 13 process by appealing the first level decision to the Office of Appeals, in accordance with 15 Cal. 14 Code Regs. §§ 3485–87. Administrative remedies are not exhausted until the Office of Appeals 15 has completed the review process. Id. § 3486(m). 16 C. Mr. Kerns’s Grievances 17 Mr. Kerns represents that he filed two grievances related to the attack by inmate Lujan. See 18 Opp. at 8–9. 19 The first grievance, CTF-100270, discussed the incident on November 12, 2020. See Dkt. 20 No. 24-10 (“MSJ Exhibit E”). The grievance stated that “Officer (c/o) W. Jones allowed another 21 inmate (i/m) to 1. Exit his room, 2. Walk directly in front of, and pass c/o W. Jones, 3. Enter my 22 room, and 4. Physically attack me while I was laying down with my eyes closed.” Id. at 2–3. Mr. 23 Kerns accused defendant Jones of a “dereliction of duty” and “violation of his code of conduct,” 24 which “caus[ed] [Mr. Kerns] physical and other injuries.” Id. at 3. 25 The parties dispute when the first grievance was submitted to the CTF Office of 26 Grievances (“Grievance Office”). The first grievance was signed on November 16, 2020, and Mr. 27 1 Kerns represents that he put the grievance in the locked collection box on that day. See id. at 2 & 2 Opp. at 7. Defendants represent that the grievance was not timely submitted because it was not 3 received by the Grievance Officer until March 22, 2021. See Dkt. No. 24-8 (“Monroy 4 Declaration”) ¶¶ 8, 13. They represent that grievances regularly are gathered from collection boxes 5 so the submission date is on or close to the receipt date. See id. 6 Mr. Kerns’s first grievance was rejected by the Grievance Office as untimely. See MSJ, 7 Ex. E at 4. Mr. Kerns was informed that “[i]f you are dissatisfied with this response, you may 8 appeal the rejection decision to CDCR's Office of Appeals.” Id. It is undisputed that Mr. Kerns did 9 not appeal the rejection for untimeliness. See generally Opp. (not representing that the rejection 10 ever was appealed); see also MSJ at 7 (“Plaintiff did not file an appeal.”) & Ex. D (showing no 11 record of an appeal in CDCR’s tracking system). 12 Mr. Kerns’s second grievance is unnumbered. Mr. Kerns repeatedly conceded that his 13 second grievance discussed his difficulty in getting paperwork related to the incident from CTF 14 rather than discussing the incident itself or the actions of either defendant. See Opp. at 9; see also 15 Tr. at 94:25–95:4, 97:24–99:3, 103:7–10 (“Q. Okay. But the second that you said you filed, that 16 relates to your request for documents and information; is that fair? A. And impeding my appeal 17 process, yes.”). The second grievance was entered into the record during Mr. Kerns’s deposition, 18 and expressly “request[s] all paperwork, incident reports, injury reports, and chronos.” See Tr. Ex. 19 4, at 147.2 It did not complain of defendants’ conduct but instead accused “CTF [of] attempting to 20 obstruct and cover up” the incident. Id. at 148. Because the second grievance concerned a separate 21 wrong—the alleged withholding of documents—it is not relevant to this action. See Cal. Code 22 Regs. tit. 15, § 3482(c) (requiring a prisoner to describe “the claim, including key dates and times, 23 names and titles of all involved staff members” in his grievance). 24 II. Legal Standard 25 Summary judgment is proper where the pleadings, discovery, and affidavits show that 26 there is “no genuine dispute as to any material fact and [that] the moving party is entitled to 27 1 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment “against 2 a party who fails to make a showing sufficient to establish the existence of an element essential to 3 that party’s case, and on which that party will bear the burden of proof at trial ... since a complete 4 failure of proof concerning an essential element of the nonmoving party’s case necessarily renders 5 all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A fact is 6 material if it might affect the outcome of the lawsuit under governing law and a dispute about such 7 a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for 8 the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 9 In a typical summary judgment motion, a defendant moves for judgment against a plaintiff 10 on the merits of his claim. In such a situation, the moving party bears the initial burden of 11 identifying those portions of the record which demonstrate the absence of a genuine dispute of 12 material fact. The burden then shifts to the nonmoving party to “go beyond the pleadings, and by 13 his own affidavits, or by the ‘depositions, answers to interrogatories, or admissions on file,’ 14 designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324. 15 When a defendant moves for summary judgment on an affirmative defense on which he 16 bears the burden of proof at trial, he must come forward with evidence which would entitle him to 17 a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 18 1532, 1536 (9th Cir. 1992). Failure to exhaust administrative remedies is an affirmative defense 19 that must be raised in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 20 (9th Cir. 2014) (en banc). 21 On a motion for summary judgment for nonexhaustion, the defendant has the initial burden 22 to prove “that there was an available administrative remedy, and that the prisoner did not exhaust 23 that available remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to the 24 prisoner to come forward with evidence showing that there is something in his particular case that 25 made the existing and generally available administrative remedies effectively unavailable to him.” 26 Id. The ultimate burden of proof remains with the defendant, however. Id. If material facts are 27 disputed, summary judgment should be denied and the “district judge rather than a jury should 1 than a jury decides disputed factual questions relevant to jurisdiction and venue,” id. at 1170–71. 2 The court’s function on a summary judgment motion is not to make credibility 3 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 4 Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must 5 be viewed in the light most favorable to the nonmoving party, and inferences to be drawn from the 6 facts must be viewed in the light most favorable to the nonmoving party. See id. at 631. 7 III. Analysis 8 Defendants argue that Mr. Kerns’s claim fails on the merits because Mr. Kerns failed to 9 exhaust any grievance against either defendant; that in any event neither defendant was 10 subjectively aware of a risk posed to Mr. Kerns by inmate Lujan; and that defendant Cuevas was 11 improperly sued as a supervisor. See MSJ. at 9–17. 12 The Court agrees that Mr. Kerns failed to exhaust in the manner required by California’s 13 rules. Because the failure to exhaust is fatal to Mr. Kerns’s claim against all defendants, the Court 14 need not consider Defendants’ other arguments. See Albino, 747 F.3d at 1170 (“Exhaustion should 15 be decided, if feasible, before reaching the merits of a prisoner’s claim.”). 16 A. Law Regarding Exhaustion 17 Federal law provides that “[n]o action shall be brought with respect to prison conditions 18 under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 19 other correctional facility until such administrative remedies as are available are exhausted.” 42 20 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. 21 Nussle, 534 U.S. 516, 524 (2002); Ross v. Blake, 578 U.S. 632, 638–39 (2016) (mandatory 22 language of § 1997e(a) forecloses judicial discretion to craft exceptions). All available remedies 23 must be exhausted and exhaustion is a prerequisite to suit. See Porter, 534 U.S. at 524; see also 24 Booth v. Churner, 532 U.S. 731, 741 (2001). District courts lack discretion to ignore a failure to 25 exhaust. See Woodford v. Ngo, 548 U.S. 81, 84 (2006). 26 The PLRA’s exhaustion requirement cannot be satisfied by filing a “procedurally defective 27 administrative grievance or appeal.” Id. “Proper exhaustion demands compliance with an agency’s 1 Kerns was required to satisfy CDCR’s procedural rules in order to exhaust. 2 B. Mr. Kerns’s Relevant Grievance 3 Mr. Kerns submitted only one grievance that is relevant to this action: CTF-100270. 4 Defendants argue that this grievance did not exhaust Mr. Kerns’s administrative remedies because 5 it was not timely filed. See MSJ at 9–13. As noted above, Mr. Kerns disputes this. Because the 6 parties dispute the day on which Mr. Kerns submitted his grievance, the Court cannot grant 7 summary judgment on the basis of the grievance’s purported untimeliness. 8 Even assuming Mr. Kerns timely submitted his grievance, however, Mr. Kerns did not 9 properly exhaust his administrative remedies because he did not appeal its rejection to CDCR’s 10 Office of Appeals. See MSJ at 7 (noting that Mr. Kerns “could [have] appeal[ed] the rejection to 11 CDCR’s Office of Appeals” but “did not file an appeal.”). The Ninth Circuit has recognized that 12 where a prisoner fails to appeal the procedural cancellation of a grievance, that prisoner has failed 13 to exhaust. See Wilson v. Zubiate, 718 F. App’x 479, 481 (9th Cir. 2017) (affirming district court 14 grant of summary judgment where appeal was cancelled at the third level for lack of jurisdiction 15 and plaintiff failed to appeal cancellation). Here, as in Wilson, Mr. Kerns’s grievance was rejected 16 for a procedural reason—untimeliness—and he did not appeal that rejection. Because Mr. Kerns 17 did not appeal to the highest level, he failed to exhaust his administrative appeals. 18 Nor is Mr. Kerns’s failure to exhaust excused. Mr. Kerns argues in his opposition that an 19 inmate need not exhaust where administrative remedies are “so confusing that no reasonable 20 prisoner can use them.” Opp. at 5. But Mr. Kerns “has not shown that the administrative process 21 was so ‘opaque’ that it was effectively incapable of use by an ordinary prisoner.” Wilson, 718 F. 22 App’x. at 482. As in Wilson, the effective regulations clearly announced that Mr. Kerns was 23 required to exhaust the rejection of a grievance and instructed him on how to do so. See Cal. Code 24 Regs. tit. 15 § 3487(a)(1) (eff. June 1, 2020–Jan. 4, 2022) (listing untimeliness as a reason for 25 rejecting a grievance); id. § 3483(i)(6) (listing rejection as one of the possible written responses to 26 a grievance); id. § 3483(m)(1) (“A decision found in subsections 3483(i)(1) through 3483(i)(7) 27 does not constitute exhaustion of all administrative remedies available … . Nor does completion of 1 requires a claimant to appeal such decisions as provided in section 3485.”) (emphasis added). Mr. 2 Kerns conceded in his deposition that he “kn[e]w how to use the grievance system” “at the time of 3 the fight,” had used the grievance system on at least twenty prior occasions, understood the 4 exhaustion requirement, had exhausted prior grievances, and was “satisfied with the grievance 5 process.” See Tr. at 92:4–94:8. Finally, the Grievance Office’s rejection letter informed Mr. Kerns 6 of the possibility of an appeal:

7 This serves as your response by the Office of Grievances. If you are 8 dissatisfied with this response, you may appeal the rejection decision to CDCR’s Office of Appeals. Do not resubmit this claim to the 9 Office of Grievances at Correctional Training Facility. 10 MSJ, Ex. E. Although Mr. Kerns was aware of the appeal requirement from the regulations’ plain 11 language and his own experience exhausting prior claims, he failed to appeal the rejection of his 12 grievance as untimely. 13 Nor has Mr. Kerns shown that prison officials “thwart[ed]” him “from taking advantage of 14 [the administrative review process] through machination, misrepresentation, or intimidation.” 15 Opp. at 7 (citation omitted). He argues that the Grievance Office erred in rejecting his grievance as 16 untimely, but that does not establish that he was unable to appeal this error. See id. at 8–9. He 17 complained to the warden of CTF that a grievance had been submitted but not addressed, see id. at 18 9–11, but the warden’s response reveals both that the Grievance Office had not received any 19 grievance from Mr. Kerns on the date of writing and advised him that he must submit a grievance 20 in order to obtain relief, see id. at 26. Mr. Kerns has not introduced any evidence showing that 21 anyone at CTF “thwarted” his ability to appeal the rejection letter and thereby properly exhaust his 22 administrative remedies. Mr. Kerns’s choice not to appeal the cancellation of his grievance does 23 not render such an administrative appeal unavailable. See Cortinas v. Portillo, No. 15-17174, 2018 24 WL 5733048, at *1 (9th Cir. Oct. 31, 2018) (finding exhaustion was not excused where “some 25 remedy was available” because the plaintiff “could have appealed his improper cancellation”). 26 The undisputed evidence reveals that Mr. Kerns’s grievance was rejected and that Mr. 27 Kerns knew—from his past use of the administrative appeal process and from the regulations— ] failed to appeal. Because defendants presented evidence showing Mr. Kerns failed to exhaust and 2 || because Mr. Kerns failed to present evidence of exhaustion or evidence that his failure to exhaust 3 || was excused, Mr. Kerns has failed to carry his burden at summary judgment. See Jn re Oracle 4 Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (explaining that once the burden shifts to the 5 || non-moving party he “must come forth with evidence” supporting his claim); Celotex Corp., 477 6 || U.S. at 323 (if the non-moving party fails to come forth with evidence, “the moving party is 7 || entitled to judgment as a matter of law”); Keenan, 91 F.3d at 1279 (plaintiff bears the burden of 8 identifying evidence that precludes summary judgment). 9 Because Mr. Kerns did not exhaust his claim for deliberate indifference, the Court 10 || GRANTS defendants’ Summary Judgment Motion. 1] IT IS SO ORDERED. 13 Dated: March 12, 2025 14 Z. 15 L Coy 2 P. Casey Pit = 16 United States District Judge

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