(PC) Foster v. Baker

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 RICKY TYRONE FOSTER, ) Case No.: 1:18-cv-01511-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONGS 13 v. ) REGARDING DEFENDANTS’ EXHAUSTION MOTION FOR SUMMARY JUDGMENT 14 C. BAKER, et.al., ) ) [ECF No. 16] 15 Defendants. ) ) 16 ) ) 17 )

18 Plaintiff Ricky Tyrone Foster is a state prisoner pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. 20 Currently before the Court is Defendants’ exhaustion motion for summary judgment, filed 21 February 12, 2020. 22 I. 23 PROCEDURAL BACKGROUND 24 On October 30, 2018, Defendant Baker and Navarro removed this action from the Kern County 25 Superior Court. 26 On January 13, 2020, the undersigned screened Plaintiff’s first amended complaint and found 27 that Plaintiff stated a cognizable claim for retaliation and failure to intervene while Plaintiff was 28 assaulted by another inmate against Defendants C. Baker, J. Navarro, John Doe 1 and John Doe 2. 1 As previously stated, on February 12, 2020, Defendants filed the instant motion for summary 2 judgment. (ECF No.. 16.) Plaintiff filed an opposition on March 4, 2020, and Defendants filed a reply 3 on March 10, 2020. (ECF Nos. 27, 28, 29.) On March 24, 2020, Plaintiff filed a second opposition 4 and a surreply.1 (ECF Nos. 30, 31.) 5 II. 6 LEGAL STANDARD 7 A. Statutory Exhaustion Requirement 8 The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such 9 administrative remedies as are available” before commencing a suit challenging prison conditions.” 42 10 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __ 136 S.Ct. 1850 (June 6, 2016) (“An inmate need 11 exhaust only such administrative remedies that are ‘available.’”). Exhaustion is mandatory unless 12 unavailable. “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains 13 ‘available.’ Once that is no longer the case, then there are no ‘remedies … available,’ and the prisoner 14 need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis 15 in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). 16 This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. 17 Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the 18 prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and 19 unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 20 534 U.S. at 524). 21 The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising 22 and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino v. Baca, 747 F.3d 1162, 1166 23 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the face of the complaint, a 24 defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the 25 defendants must produce evidence proving the failure to exhaust, and they are entitled to summary 26

27 1 No further briefing on Defendants’ motion for summary judgment is permitted absent leave of court. The Court did not grant Plaintiff leave to file a surreply, and the Court does not desire any further briefing on the motion. Accordingly, 28 1 judgment under Rule 56 only if the undisputed evidence, viewed in the light most favorable to the 2 plaintiff, shows he failed to exhaust. Id. 3 B. Summary Judgment Standard 4 Any party may move for summary judgment, and the Court shall grant summary judgment if the 5 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 6 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 1166; 7 Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it 8 be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials 9 in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) 10 showing that the materials cited do not establish the presence or absence of a genuine dispute or that the 11 opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) 12 (quotation marks omitted). The Court may consider other materials in the record not cited to by the 13 parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified 14 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 15 1017 (9th Cir. 2010). 16 The defendants bear the burden of proof in moving for summary judgment for failure to exhaust, 17 Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative remedy, and 18 that the prisoner did not exhaust that available remedy,” id. at 1172. If the defendants carry their burden, 19 the burden of production shifts to the plaintiff “to come forward with evidence showing that there is 20 something in his particular case that made the existing and generally available administrative remedies 21 effectively unavailable to him.” Id. “If the undisputed evidence viewed in the light most favorable to 22 the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.” 23 Id. at 1166. However, “[i]f material facts are disputed, summary judgment should be denied, and the 24 district judge rather than a jury should determine the facts.” Id. 25 III. 26 DISCUSSION 27 A. Description of CDCR’s Administrative Remedy Process 28 Plaintiff is a state prisoner in the custody of the California Department of Corrections and 1 Rehabilitation (“CDCR”), and CDCR has an administrative remedy process for inmate grievances. Cal. 2 Code Regs. tit. 15, § 3084.1 (2014). Compliance with section 1997e(a) is mandatory and state prisoners 3 are required to exhaust CDCR’s administrative remedy process prior to filing suit in federal court. 4 Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). 5 CDCR’s administrative grievance process for non-medical appeals consists of three levels of review: 6 (1) first level formal written appeals; (2) second level appeal to the Warden or designees; and (3) third 7 level appeal to the Office of Appeals (OOA). Inmates are required to submit appeals on a standardized 8 form (CDCR Form 602), attach necessary supporting documentation, and submit the appeal within thirty 9 days of the disputed event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). The California 10 Code of Regulations also requires the following: 11 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee 12 shall include the staff member’s last name, first initial, title or position, if known, and the dates of the staff member’s involvement in the issue under appeal. If the inmate or parolee does not 13 have the requested identifying information about the staff member(s), he or she shall provide 14 any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question. 15 16 Cal. Code Regs. tit. 15, § 3084.2(a)(3). 17 B. Summary of Allegations Underlying Plaintiff’s Claims 18 On October 23, 2016, Plaintiff was informed by prison officials that another prisoner was 19 serving time for being a child molester. 20 Plaintiff filed a complaint to the prison law office on November 21, 2016, which resulted in an 21 investigation and video recording of Plaintiff. 22 On March 23, 2017, Plaintiff filed an inmate appeal against captain Gamboa and officer 23 Longoria for retaliation for filing prior inmate grievances. 24 On April 14, 2017, Plaintiff’s appeal was partially granted and Plaintiff was cleared of any 25 gang affiliation. 26 Plaintiff filed a third complaint with the prison law office for a murder cover-up. 27 In late 2017, two Black gang members who were known to be enemies were housed together 28 which resulted in one being killed. The incident was reported to the local news stations which caused 1 the victim’s family to be contacted by members of the gang. Plaintiff filed several inmate appeals 2 against Warden D. Davey for misconduct. 3 On August 6, 2017, Plaintiff was attacked by inmate Abella while Plaintiff was secured and 4 strapped to an ambulance hospital gurney and was attacked by another inmate. Defendants C. Baker, 5 J. Navarro and John Does 1 and 2, permitted inmate Abella to be left unhandcuffed and to attack 6 Plaintiff in retaliation for filing prior complaints. 7 C. Statement of Undisputed Facts 8 1. The California Department of Corrections and Rehabilitation (CDCR) uses a program 9 called the Inmate Appeals Tracking System (IATS) to electronically log and track non-medical 10 appeals through all levels of review. (Pollard Decl. ¶ 4; Ceballos Decl. ¶ 4; Vasquez Decl. ¶ 3.) 11 2. At all relevant times, CDCR, Calipatria State Prison (CAL) and California State Prison, 12 Corcoran (CSP-COR) had an administrative process available for inmates to submit appeals. (Pollard 13 Decl. ¶ 4; Ceballos Decl. ¶ 4; Vasquez Decl. ¶ 3.) 14 3. The CAL and CSP-COR Appeals Office receive, review, and track all non-medical 15 inmate appeals submitted for first and second-level review concerning events there. Accepted first 16 and second-level appeals are assigned a log number in the institutions’ IATS system (IATS I & II). 17 (Pollard Decl. ¶¶ 2-5; Ceballos Decl. ¶¶ 2-5.) 18 4. CDCR’s Office of Appeals (OOA) receives, reviews, and maintains inmates’ non- 19 medical appeals accepted at the third and final level of administrative review. When OOA receives an 20 appeal, it is assigned a third level tracking number and entered into OOA’s computer tracking system 21 (IATS III). (Vasquez Decl. ¶¶ 2-3.) 22 5. The events that are the subject of this lawsuit occurred at CSP-COR on August 6, 2017. 23 (Am. Compl., ECF NO. 9 at 8.) 24 6. On September 5, 2017, Plaintiff transferred out of CSP-COR, and he arrived at CAL on 25 September 6, 2017. (Mathison Decl. ¶ 2, Ex. A.) 26 7. Plaintiff’s administrative appeal of the lawsuit events, institutional log no. CAL-17- 27 01322, was received by the CAL Appeal Office on September 11, 2017. The appeal was forwarded to 28 1 the CSP-COR Appeals Office for review, with notice to Plaintiff of that action. (Pollard Decl. ¶ 7, Ex. 2 B.) 3 8. The appeal was received by the CSP-COR Appeals Office on September 15, 2017, and 4 assigned log no. CSPC-8-17-04927. In the appeal Plaintiff alleged that on August 6, 2017, as two 5 unknown correctional officers stood by, he was subjected to excessive force when another inmate 6 attempted to assault him. The appeal does not identify the names of any prison staff involved in the 7 incident. The appeal was bypassed for the first level review. In a second level decision dated October 8 20, 2017, the appeal was partially granted, in that an appeal inquiry (investigation) was conducted and 9 it was determined that prison staff did not violate CDCR policy with respect to the issues appealed. In 10 an amended second level decision dated March 17, 2018, the same decision was reached, adding a 11 note that on November 3, 2017, the investigation report was completed, and determined policy was not 12 violated and no further action was necessary. (Ceballos Decl. ¶ 7, Ex. B.) 13 9. The appeal was received by the OOA for third level review on April 20, 2018, and 14 assigned a Third Level Review No. 1805816. On July 17, 2018, the appeal was cancelled at the third 15 level for exceeding time constraints, because the appeal was initially submitted at the institutional 16 level more than thirty days after the appealed events occurred. The cancellation notice informed 17 Plaintiff that once an appeal had been cancelled it may not be resubmitted, but that a separate appeal 18 could be filed on the cancellation decision. (Vasquez Decl. ¶ 6.) 19 10. Plaintiff did not submit an appeal of the cancellation decision. (Vasquez Decl. ¶ 6.) 20 11. From the time of the subject events on August 6, 2017, until Plaintiff filed this lawsuit 21 on August 27, 2018, he submitted no other appeals that concerned the lawsuit events. (Pollard Decl. ¶ 22 8; Ceballos Decl. ¶ 8; Vasquez Decl. ¶ 7.) 23 D. Analysis of Defendants’ Motion 24 Defendants argue that Plaintiff’s administrative appeal relating to the events at issue herein 25 was cancelled at the third level of review for exceeding the time limits, and Plaintiff did not appeal the 26 cancellation. In addition, the relevant appeal did not name or identify the Defendants in order to 27 properly put the prison on notice of the issues. 28 1 In opposition, Plaintiff argues that he filed the grievance on September 5, 2017, after being 2 retaliated against and subjected to excessive force. Plaintiff further submits that he was not given any 3 timely reports of the named correctional officers which is why he was not able to attach any of the 4 incident reports to his grievance. 5 Viewed in the light most favorable to Plaintiff, and drawing all reasonable inferences in 6 Plaintiff’s favor for purposes of this motion, Defendants have not met their burden of proof in 7 demonstrating that Plaintiff failed to exhaust the “available” administrative remedies. 8 As an initial matter, there is no dispute that CAL and CSP-COR had an administrative process 9 available to Plaintiff and that Plaintiff availed himself of the process. 10 The parties agree that Plaintiff submitted Appeal Log No. CSPC-8-17-04927 concerning the 11 events at issue in this action. It is undisputed that the events at issue in this action took place on 12 August 6, 2017, which triggered the applicable 30-day deadline. Defendants submit the declaration of 13 D. Pollard, Appeals Coordinator at CAL, who declares that Plaintiff’s appeal (Appeal Log No. CAL- 14 O-17-01322) on September 11, 2017, and the appeal was forwarded to CSP-COR Appeals Office for 15 review. (Pollard Decl. ¶ 7.) J. Ceballos, Appeals Coordinator at CSP-COR, declares that the appeal 16 was received at CSP-COR on September 15, 2017. (Ceballos Decl. ¶ 7.) The appeal was bypassed for 17 the first level of review. (Id.) It was then denied at the second level review on October 20, 2017. 18 (Id.) An amended second level decision was issued on March 17, 2018, the same decision was 19 reached, with a notation that on November 3, 2017, the investigations was completed and it was 20 determined that policy was not violated. (Id.) Plaintiff then submitted the appeal to the third and final 21 level of review. On July 17, 2018, the appeal was denied at the third level of review as untimely 22 finding that the appeal was not received until September 11, 2017. (Vasquez Decl. ¶ 6, Ex. B.) 23 Defendants argue that Plaintiff has not exhausted the administrative remedies because the appeal was 24 denied at the third level of review as untimely. 25 Defendants do not dispute (and it is therefore undisputed) that Log No. CSPC-8-17-04927 is 26 self-dated September 5, 2017. It is further undisputed that the appeal was stamped received by the 27 CAL Appeals Office on September 11, 2017, at the second level of review, which Defendants contend 28 was untimely under the 30-day deadline. However, Defendants reliance on section 3084.8 does not 1 support their argument. Section 3084.8(b), states “an inmate or parolee must submit the appeal within 2 30 calendar days of (1) [t]he occurrence of the evidence or decision being appealed…[¶].” Thus, the 3 plain language of the regulation states that Plaintiff need only submit the grievance within thirty 4 calendar days of the incident being appealed. The regulation does not contain language that supports 5 Defendants’ contention that the Appeals Office must actually receive the grievance by such date. 6 Defendants provide no evidence to determine the date in which Plaintiff submitted his appeal to the 7 second level of review, and the date of the appeal (i.e., September 5, 2017) is within the 30-day time 8 frame. Therefore, the rejection of Appeal Log No. CSPC-8-17-04927 as untimely was improper. See 9 McBride v. Lopez, 807 F.3d 982, 986 (9th Cir. 2015) (the third level decision rejecting Plaintiff’s 10 appeal as untimely was improper. A prison’s improper screening of a grievance can render the 11 administrative remedy process unavailable) (quoting Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 12 2010). 13 Defendants further argue that Plaintiff was required to appeal the third level cancellation of his 14 appeal and his failure to do so waived any claim that the cancellation was improper. However, 15 Defendants have failed to demonstrate that Plaintiff was required to appeal the cancellation in order to 16 exhaust the administrative remedies. Section 3084.6(e), cited in the third level cancellation, states that 17 “the application of the rules provided in subsection 3084.6(c) to the cancellated appeal may be 18 separately appealed..” Cal. Code Regs. tit. 15, § 3084.6(e). This language is permissive, not 19 mandatory, and Defendants provide no other authority that the third level cancellation must be 20 appealed in order to satisfy the exhaustion requirement. 21 Lastly, with regard to Defendants’ argument that Plaintiff failed to name the individuals in the 22 grievance, the Court finds it to be without merit. First, Plaintiff submitted Appeal Log No. CSPC-8- 23 17-04927 to all “available” levels, and the appeal was not rejected for failure to name any of the prison 24 officials. Because the appeal was improperly rejected as untimely, the Court declines to find that 25 Plaintiff failed to exhaust based on a procedural defect that was not imposed. Second, in the initial 26 appeal, Plaintiff specifically stated that he could not identify any of the staff members in the 27 immediate area and identified the individuals as unknown correctional officers who were standing by 28 the gurney and permitted the inmate to jump up and charge Plaintiff. (Vasquez Decl., Ex. B; Pl.’s wOAoe 4:.£0°UV VEEL MARE YAR OO POC a ee AY VI

1 Opp’n, 11.) The regulations require only that Plaintiff provide as much information as available to 2 ||him. See Cal. Code Regs. tit. 15, § 3084.2(a)(3) (“If the inmate or parolee does not have the requeste 3 || identifying information about the staff member(s) [name, title or position], he or she shall provide am 4 || other available information that would assist the appeals coordinator in making a reasonable attempt 5 || identify the staff member(s) in question.”’) 6 Based on the evidence in record, Defendants have filed to meet their burden to show that 7 || Plaintiff did not exhaust the available administrative remedies, and Defendants’ motion for summary 8 || judgment should be denied. 9 IV. 10 RECOMMENDATION 11 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ exhaustion-relate 12 || motion for summary judgment be DENIED. 13 This Findings and Recommendation will be submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty (30) days aft 15 || being served with this Findings and Recommendation, the parties may file written objections with the 16 || Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 17 || Recommendation.” The parties are advised that failure to file objections within the specified time mz 18 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 19 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 22 IT IS SO ORDERED. A (Fe 23 ll Dated: _ April 16, 2020 OF 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28