1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 ANTWONE M. LOVEST, Jr., Case No. 2:19-cv-01060-TLN-JDP (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATIONS DEFENDANT’S MOTION FOR SUMMARY 10 v. JUDGMENT BE GRANTED AND ALL OTHER OUTSTANDING MOTIONS BE 11 S. LAROSA, DENIED AS MOOT 12 DEFENDANT. OBJECTIONS DUE IN 14 DAYS 13 ECF Nos. 32, 33, 34, 36 14 15 Antwone M. Lovest, Jr. alleges that defendant LaRosa used racially derogatory language 16 toward him on February 5, 2019. Defendant has filed a motion for summary judgment that 17 argues that plaintiff failed to exhaust his administrative remedies before filing this action. ECF 18 No. 32. Plaintiff filed a single prison grievance related to the claims in this case, but did not 19 pursue it through the third and final level of administrative review. Accordingly, he did not 20 comply with the requirements of the Prison Litigation Reform Act. Defendant’s motion should 21 be granted, the case dismissed, and all other outstanding motions denied as moot. 22 Background 23 Plaintiff alleges that, on February 5, 2019, while he was in the “work/change” area for his 24 prison job, defendant looked at him and asked whether English was his first language. ECF No. 25 18 at 4. Defendant stated that, if it was not, plaintiff should “take his ass back where [he] came 26 from.” Id. Plaintiff states that he is Asian and understood LaRosa’s comments to be racially 27 28 1 motivated. Id. Based on these allegations, Judge Brennan1 found that plaintiff had stated 2 potentially cognizable retaliation and equal protection claims. ECF No. 20. 3 Legal Standards 4 I. Exhaustion Generally 5 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 6 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 7 confined in any jail, prison, or other correctional facility until such administrative remedies as are 8 available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion requirement “applies 9 to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the 10 relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 11 741 (2001). Unexhausted claims must be dismissed. See Jones v. Bock, 549 U.S. 199, 211 12 (2007). 13 A prison’s own grievance process, not the PLRA, determines how detailed a grievance 14 must be to satisfy the PLRA exhaustion requirement. Id. at 218. When a prison’s grievance 15 procedures do not specify the requisite level of detail, “a grievance suffices if it alerts the prison 16 to the nature of the wrong for which redress is sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 17 (9th Cir. 2009) (internal quotation marks omitted). “The grievance ‘need not include legal 18 terminology or legal theories,’ because ‘[t]he primary purpose of a grievance is to alert the prison 19 to a problem and facilitate its resolution, not to lay groundwork for litigation.’” Reyes v. Smith, 20 810 F.3d 654, 659 (9th Cir. 2016) (quoting Griffin, 557 F.3d at 1120). 21 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 22 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1862 23 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the 24 prisoner.” Id. at 1856. The Supreme Court has explained when an administrative procedure is 25 unavailable: 26 [A]n administrative procedure is unavailable when (despite what 27 1 This case was reassigned to me on October 1, 2020, after Judge Brennan screened the 28 complaint. ECF No. 31. 1 regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to 2 provide any relief to aggrieved inmates . . . . Next, an administrative scheme might be so opaque that it becomes, 3 practically speaking, incapable of use . . . . And finally, the same is 4 true when prison administrators thwart inmates from taking advantage of a grievance process through machination, 5 misrepresentation, or intimidation . . . . [S]uch interference with an inmate’s pursuit of relief renders the administrative process 6 unavailable. And then, once again, § 1997e(a) poses no bar. 7 Id. at 1859-60 (citations omitted); see also Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 8 2017) (“When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 9 deemed to have exhausted available administrative remedies.”). 10 If the court concludes that plaintiff has failed to exhaust available remedies, the proper 11 remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(a). See 12 Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 13 II. Summary Judgment Motions for Failure to Exhaust 14 Summary judgment is appropriate when there is “no genuine dispute as to any material 15 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In a 16 summary judgment motion for failure to exhaust, the defendant has the initial burden of 17 establishing “that there was an available administrative remedy, and that the prisoner did not 18 exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the 19 defendant carries that burden, “the burden shifts to the prisoner to come forward with evidence 20 showing that there is something in his particular case that made the existing and generally 21 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 22 persuasion remains with the defendant, however. Id. 23 Analysis 24 The rules of the California Department of Corrections and Rehabilitation state that a 25 prisoner’s grievance is exhausted only after he pursues it through three levels of administrative 26 review. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). Defendant argues that plaintiff 27 filed only one relevant administrative grievance, which was numbered MCSP-19-00713. ECF 28 1 No. 32-2 at 4; ECF No. 32-4 at 3 ¶ 8. That grievance did not proceed through all three levels of 2 review; it was screened out as untimely at the third level. ECF No. 32-4 at 8. Defendant argues 3 that the case must be dismissed on that basis. 4 In his opposition, plaintiff argues that he was not required to complete third-level 5 exhaustion because he received a partial grant at the second level of review. ECF No. 38 at 2. He 6 states that language attached to the second level decision informed him that his requested relief, 7 the defendant’s firing, could not be granted. Id. at 6. Alternatively, he maintains that the third- 8 level grievance was timely based on the date he received the second-level response. Id. at 4-5. 9 Neither argument is persuasive. 10 A partial grant at the second level does not exempt an inmate from his obligation to 11 proceed to the third and final level of review.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 ANTWONE M. LOVEST, Jr., Case No. 2:19-cv-01060-TLN-JDP (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATIONS DEFENDANT’S MOTION FOR SUMMARY 10 v. JUDGMENT BE GRANTED AND ALL OTHER OUTSTANDING MOTIONS BE 11 S. LAROSA, DENIED AS MOOT 12 DEFENDANT. OBJECTIONS DUE IN 14 DAYS 13 ECF Nos. 32, 33, 34, 36 14 15 Antwone M. Lovest, Jr. alleges that defendant LaRosa used racially derogatory language 16 toward him on February 5, 2019. Defendant has filed a motion for summary judgment that 17 argues that plaintiff failed to exhaust his administrative remedies before filing this action. ECF 18 No. 32. Plaintiff filed a single prison grievance related to the claims in this case, but did not 19 pursue it through the third and final level of administrative review. Accordingly, he did not 20 comply with the requirements of the Prison Litigation Reform Act. Defendant’s motion should 21 be granted, the case dismissed, and all other outstanding motions denied as moot. 22 Background 23 Plaintiff alleges that, on February 5, 2019, while he was in the “work/change” area for his 24 prison job, defendant looked at him and asked whether English was his first language. ECF No. 25 18 at 4. Defendant stated that, if it was not, plaintiff should “take his ass back where [he] came 26 from.” Id. Plaintiff states that he is Asian and understood LaRosa’s comments to be racially 27 28 1 motivated. Id. Based on these allegations, Judge Brennan1 found that plaintiff had stated 2 potentially cognizable retaliation and equal protection claims. ECF No. 20. 3 Legal Standards 4 I. Exhaustion Generally 5 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 6 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 7 confined in any jail, prison, or other correctional facility until such administrative remedies as are 8 available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion requirement “applies 9 to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the 10 relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 11 741 (2001). Unexhausted claims must be dismissed. See Jones v. Bock, 549 U.S. 199, 211 12 (2007). 13 A prison’s own grievance process, not the PLRA, determines how detailed a grievance 14 must be to satisfy the PLRA exhaustion requirement. Id. at 218. When a prison’s grievance 15 procedures do not specify the requisite level of detail, “a grievance suffices if it alerts the prison 16 to the nature of the wrong for which redress is sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 17 (9th Cir. 2009) (internal quotation marks omitted). “The grievance ‘need not include legal 18 terminology or legal theories,’ because ‘[t]he primary purpose of a grievance is to alert the prison 19 to a problem and facilitate its resolution, not to lay groundwork for litigation.’” Reyes v. Smith, 20 810 F.3d 654, 659 (9th Cir. 2016) (quoting Griffin, 557 F.3d at 1120). 21 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 22 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1862 23 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the 24 prisoner.” Id. at 1856. The Supreme Court has explained when an administrative procedure is 25 unavailable: 26 [A]n administrative procedure is unavailable when (despite what 27 1 This case was reassigned to me on October 1, 2020, after Judge Brennan screened the 28 complaint. ECF No. 31. 1 regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to 2 provide any relief to aggrieved inmates . . . . Next, an administrative scheme might be so opaque that it becomes, 3 practically speaking, incapable of use . . . . And finally, the same is 4 true when prison administrators thwart inmates from taking advantage of a grievance process through machination, 5 misrepresentation, or intimidation . . . . [S]uch interference with an inmate’s pursuit of relief renders the administrative process 6 unavailable. And then, once again, § 1997e(a) poses no bar. 7 Id. at 1859-60 (citations omitted); see also Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 8 2017) (“When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 9 deemed to have exhausted available administrative remedies.”). 10 If the court concludes that plaintiff has failed to exhaust available remedies, the proper 11 remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(a). See 12 Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 13 II. Summary Judgment Motions for Failure to Exhaust 14 Summary judgment is appropriate when there is “no genuine dispute as to any material 15 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In a 16 summary judgment motion for failure to exhaust, the defendant has the initial burden of 17 establishing “that there was an available administrative remedy, and that the prisoner did not 18 exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the 19 defendant carries that burden, “the burden shifts to the prisoner to come forward with evidence 20 showing that there is something in his particular case that made the existing and generally 21 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 22 persuasion remains with the defendant, however. Id. 23 Analysis 24 The rules of the California Department of Corrections and Rehabilitation state that a 25 prisoner’s grievance is exhausted only after he pursues it through three levels of administrative 26 review. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). Defendant argues that plaintiff 27 filed only one relevant administrative grievance, which was numbered MCSP-19-00713. ECF 28 1 No. 32-2 at 4; ECF No. 32-4 at 3 ¶ 8. That grievance did not proceed through all three levels of 2 review; it was screened out as untimely at the third level. ECF No. 32-4 at 8. Defendant argues 3 that the case must be dismissed on that basis. 4 In his opposition, plaintiff argues that he was not required to complete third-level 5 exhaustion because he received a partial grant at the second level of review. ECF No. 38 at 2. He 6 states that language attached to the second level decision informed him that his requested relief, 7 the defendant’s firing, could not be granted. Id. at 6. Alternatively, he maintains that the third- 8 level grievance was timely based on the date he received the second-level response. Id. at 4-5. 9 Neither argument is persuasive. 10 A partial grant at the second level does not exempt an inmate from his obligation to 11 proceed to the third and final level of review. It is true that the Ninth Circuit has held that “[a]n 12 inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in 13 order to exhaust his administrative remedies.” Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 14 2010). However, the Ninth Circuit subsequently explained that the holding in Harvey applied to 15 the unique circumstance in which an inmate was induced into abandoning his grievance by an 16 unfulfilled promise of relief. Benitez v. Cnty. of Maricopa, 667 F. App’x. 211, 212 (9th Cir. 17 2016). And the Supreme Court has held that exhaustion requires compliance with a prison’s 18 grievance regulations, even if the form of relief an inmate seeks is unavailable. See Booth v. 19 Churner, 532 U.S. 731, 739 (2001); Woodford v. Ngo, 548 U.S. 81, 85 (2006). Plaintiff’s own 20 response to his second-level decision indicates that he was not satisfied. The second-level 21 response contained a section for plaintiff to express any dissatisfaction with the decision. ECF 22 No. 38 at 21. Plaintiff wrote, “I believe the appeal I submitted should have been fully granted, 23 not granted in part.” Id. 24 To the extent plaintiff argues that his third-level grievance was timely, that argument is 25 foreclosed by his failure to challenge the screen-out decision. The decision that cancelled 26 plaintiff’s third-level grievance notified him that he could separately appeal the cancellation. 27 ECF No. 32-4 at 8. If that separate appeal was granted, the original grievance would be 28 reinstated. Id. There is no indication in the record or in plaintiff’s argument that he availed 1 himself of this process. Administrative exhaustion requires an inmate to avail himself of all the 2 steps that the prison offers. See Woodford, 548 U.S. at 90 (“[Proper exhaustion] means using all 3 steps that the agency holds out, and doing so properly (so that the agency addresses the issues on 4 the merits).”). Other courts in this circuit have held that an inmate’s failure to use the separate 5 appeal process renders their claims unexhausted. See, e.g., Wilson v. Zubiate, No. 14-cv-01032- 6 VC, 2016 U.S. Dist. LEXIS 78951 at * 3 (N.D. Cal. June 8, 2016) (“Under the applicable 7 regulations, this was not the end of the line—instead, [plaintiff] had the opportunity to (and was 8 required to) appeal the cancellation.”); McCowan v. Hedricks, No. C 13-3554 RS (PR), 2016 U.S. 9 Dist. LEXIS 78795 at *6 (N.D. Cal. June 16, 2016) (“Although a cancelled appeal may not be 10 submitted for further review, the inmate may separately appeal the cancellation. A cancelled 11 appeal does not exhaust administrative remedies.”) (internal citations omitted); see also Vaughn 12 v. Hood, 670 F. App’x 962, 963 (9th Cir. 2016) (unpublished) (“The district court properly 13 dismissed Vaughn’s action for failure to state a claim because it is clear from the face of the 14 complaint and its attachments that Vaughn failed to exhaust his available administrative remedies 15 by failing to appeal separately the third-level cancellation decision.”). 16 Accordingly, it is recommended that: 17 1. Defendant’s motion for summary judgment, ECF No. 32, be granted, and plaintiff’s 18 claims against defendant LaRosa be dismissed without prejudice for failure to exhaust. 19 2. All other pending motions, ECF Nos. 33, 34 & 36, be denied as moot. 20 3. The Clerk of Court be directed to close the case. 21 I submit these findings and recommendations to the district judge under 28 U.S.C. 22 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 23 Eastern District of California. Within 14 days of the service of the findings and 24 recommendations, the parties may file written objections to the findings and recommendations 25 with the court and serve a copy on all parties. That document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 27 and recommendations under 28 U.S.C. § 636(b)(1)(C).
28 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ June 4, 2021 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28