1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LONNIE DONELL PERKINS, Case No. 2:18-cv-03156-JAM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT BE DENIED AND DEFENDANT’S CROSS-MOTION FOR 14 F. HARTWICK, SUMMARY JUDGMENT BE GRANTED 15 Defendant. ECF Nos. 31, 40 16 OBJECTIONS DUE WITHIN FOURTEEN DAYS 17
18 19 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 20 under 42 U.S.C. § 1983. He claims that defendant Hartwick violated his Eighth Amendment 21 rights by pepper-spraying him without justification, not timely decontaminating him, and 22 handcuffing his hands behind his back in violation of his waist-chain chrono.1 ECF No. 1 at 4-7, 23 11-15. Both parties have moved for summary judgment. ECF Nos. 31, 40. I recommend 24 granting defendant’s motion because plaintiff failed to exhaust his administrative remedies before 25 filing this suit. 26 1 Following the court’s screening of plaintiff’s complaint, which contained claims against 27 multiple defendants, plaintiff elected to proceed only with his Eight Amendment claims against defendant Hartwick. See ECF No. 14. Accordingly, all other defendants have been dismissed. 28 See ECF Nos. 15, 21. 1 I. Background 2 On the afternoon of December 7, 2017, a fight broke out between several inmates on a 3 recreational yard at High Desert State Prison. ECF No. 1 at 4. Plaintiff alleges that, at the time of 4 the fight, he was standing on one of the yard’s basketball courts. Id. Correctional officers 5 approached and ordered him onto the ground. Id. Plaintiff complied as officers began to deploy 6 chemical agents to regain control of other parts of the yard. Id. 7 After some time on the ground, a correctional officer named Smith ordered plaintiff to get 8 up and move backwards. Id. at 6. He moved to comply and, without warning, was hit in the face 9 with a blast of chemical spray by the defendant. Id. at 6, 7. Plaintiff waited on the ground for a 10 long time before defendant helped him up and began to guide him across the yard. Id. at 7. 11 Plaintiff asked if he could be taken to decontamination to wash the chemical agent from his eyes. 12 Id. Defendant refused and explained that plaintiff needed to be interviewed first. Id. Plaintiff 13 waited approximately two hours before he was taken to decontamination. Id. 14 Plaintiff alleges that defendant also exhibited deliberate indifference to his serious medical 15 needs by handcuffing his hands behind his back. Id. at 7, 10. Before being handcuffed, plaintiff 16 told defendant that he had a shoulder injury that would be exacerbated if he were restrained in 17 that position. Id. at 11. Defendant allegedly ignored plaintiff’s warning and caused him extreme 18 pain. Id. 19 II. Standard of Review 20 A motion for summary judgment may be granted only when “the pleadings, depositions, 21 answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 22 there is no genuine issue as to any material fact and that the moving party is entitled to a 23 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Fed. R. 24 Civ. P. 56. The moving party bears the burden of establishing that there is no genuine issue of 25 material fact. See Celotex, 477 U.S. at 322-23. If the moving party meets that burden by 26 “presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, [Fed. 27 R. Civ. P. 56(e)(2)] shifts to [the nonmoving party] the burden of presenting specific facts 28 showing that such contradiction is possible.” British Airways Bd. v. Boeing Co., 585 F.2d 946, 1 950-52 (9th Cir. 1978). 2 Each party’s position must be supported by (1) citations to particular portions of materials 3 in the record, including but not limited to depositions, documents, declarations, or discovery; or 4 (2) argument showing that the materials cited do not establish the presence or absence of a 5 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 6 its position. See Fed. R. Civ. P. 56(c)(1). The court can consider other materials in the record not 7 cited by the parties, but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San 8 Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see also Simmons v. Navajo 9 County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 10 The court must apply standards consistent with Rule 56 to determine whether the moving 11 party has demonstrated there to be no genuine issue of material fact and that judgment is 12 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 13 “[A] court ruling on a motion for summary judgment may not engage in credibility 14 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 15 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 16 nonmoving party” and “all justifiable inferences” must be drawn in favor of the non-moving 17 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred 18 Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 19 III. PLRA Exhaustion 20 Defendant argues that plaintiff did not exhaust his administrative remedies before filing 21 this suit, as is required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). 22 ECF No. 40-1 at 7-10. To satisfy PLRA’s exhaustion requirement, a plaintiff’s administrative 23 appeals must “provide enough information . . . to allow prison officials to take appropriate 24 responsive measures.” Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009) (quoting Johnson 25 v. Testman, 380 F.3d 691, 697 (2nd Cir. 2004)); see also Sapp v. Kimbrell, 623 F.3d 813, 824 26 (9th Cir. 2010) (“A grievance suffices to exhaust a claim if it puts the prison on adequate notice 27 of the problem for which the prisoner seeks redress.”). The California prison system’s grievance 28 regulations “define the boundaries of proper exhaustion.” Marella v. Terhune, 568 F.3d 1024, 1 1027 (9th Cir. 2009). The regulations require prisoners to list all staff members involved in the 2 grieved event, and to describe their involvement. Cal. Code Regs. tit. 15, § 3084.2(a)(3) 3 (repealed 2021).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LONNIE DONELL PERKINS, Case No. 2:18-cv-03156-JAM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT BE DENIED AND DEFENDANT’S CROSS-MOTION FOR 14 F. HARTWICK, SUMMARY JUDGMENT BE GRANTED 15 Defendant. ECF Nos. 31, 40 16 OBJECTIONS DUE WITHIN FOURTEEN DAYS 17
18 19 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 20 under 42 U.S.C. § 1983. He claims that defendant Hartwick violated his Eighth Amendment 21 rights by pepper-spraying him without justification, not timely decontaminating him, and 22 handcuffing his hands behind his back in violation of his waist-chain chrono.1 ECF No. 1 at 4-7, 23 11-15. Both parties have moved for summary judgment. ECF Nos. 31, 40. I recommend 24 granting defendant’s motion because plaintiff failed to exhaust his administrative remedies before 25 filing this suit. 26 1 Following the court’s screening of plaintiff’s complaint, which contained claims against 27 multiple defendants, plaintiff elected to proceed only with his Eight Amendment claims against defendant Hartwick. See ECF No. 14. Accordingly, all other defendants have been dismissed. 28 See ECF Nos. 15, 21. 1 I. Background 2 On the afternoon of December 7, 2017, a fight broke out between several inmates on a 3 recreational yard at High Desert State Prison. ECF No. 1 at 4. Plaintiff alleges that, at the time of 4 the fight, he was standing on one of the yard’s basketball courts. Id. Correctional officers 5 approached and ordered him onto the ground. Id. Plaintiff complied as officers began to deploy 6 chemical agents to regain control of other parts of the yard. Id. 7 After some time on the ground, a correctional officer named Smith ordered plaintiff to get 8 up and move backwards. Id. at 6. He moved to comply and, without warning, was hit in the face 9 with a blast of chemical spray by the defendant. Id. at 6, 7. Plaintiff waited on the ground for a 10 long time before defendant helped him up and began to guide him across the yard. Id. at 7. 11 Plaintiff asked if he could be taken to decontamination to wash the chemical agent from his eyes. 12 Id. Defendant refused and explained that plaintiff needed to be interviewed first. Id. Plaintiff 13 waited approximately two hours before he was taken to decontamination. Id. 14 Plaintiff alleges that defendant also exhibited deliberate indifference to his serious medical 15 needs by handcuffing his hands behind his back. Id. at 7, 10. Before being handcuffed, plaintiff 16 told defendant that he had a shoulder injury that would be exacerbated if he were restrained in 17 that position. Id. at 11. Defendant allegedly ignored plaintiff’s warning and caused him extreme 18 pain. Id. 19 II. Standard of Review 20 A motion for summary judgment may be granted only when “the pleadings, depositions, 21 answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 22 there is no genuine issue as to any material fact and that the moving party is entitled to a 23 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Fed. R. 24 Civ. P. 56. The moving party bears the burden of establishing that there is no genuine issue of 25 material fact. See Celotex, 477 U.S. at 322-23. If the moving party meets that burden by 26 “presenting evidence which, if uncontradicted, would entitle it to a directed verdict at trial, [Fed. 27 R. Civ. P. 56(e)(2)] shifts to [the nonmoving party] the burden of presenting specific facts 28 showing that such contradiction is possible.” British Airways Bd. v. Boeing Co., 585 F.2d 946, 1 950-52 (9th Cir. 1978). 2 Each party’s position must be supported by (1) citations to particular portions of materials 3 in the record, including but not limited to depositions, documents, declarations, or discovery; or 4 (2) argument showing that the materials cited do not establish the presence or absence of a 5 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 6 its position. See Fed. R. Civ. P. 56(c)(1). The court can consider other materials in the record not 7 cited by the parties, but it is not required to do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San 8 Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see also Simmons v. Navajo 9 County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 10 The court must apply standards consistent with Rule 56 to determine whether the moving 11 party has demonstrated there to be no genuine issue of material fact and that judgment is 12 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 13 “[A] court ruling on a motion for summary judgment may not engage in credibility 14 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 15 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 16 nonmoving party” and “all justifiable inferences” must be drawn in favor of the non-moving 17 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred 18 Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 19 III. PLRA Exhaustion 20 Defendant argues that plaintiff did not exhaust his administrative remedies before filing 21 this suit, as is required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). 22 ECF No. 40-1 at 7-10. To satisfy PLRA’s exhaustion requirement, a plaintiff’s administrative 23 appeals must “provide enough information . . . to allow prison officials to take appropriate 24 responsive measures.” Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009) (quoting Johnson 25 v. Testman, 380 F.3d 691, 697 (2nd Cir. 2004)); see also Sapp v. Kimbrell, 623 F.3d 813, 824 26 (9th Cir. 2010) (“A grievance suffices to exhaust a claim if it puts the prison on adequate notice 27 of the problem for which the prisoner seeks redress.”). The California prison system’s grievance 28 regulations “define the boundaries of proper exhaustion.” Marella v. Terhune, 568 F.3d 1024, 1 1027 (9th Cir. 2009). The regulations require prisoners to list all staff members involved in the 2 grieved event, and to describe their involvement. Cal. Code Regs. tit. 15, § 3084.2(a)(3) 3 (repealed 2021). But if a prisoner does not know the “identifying information about the staff 4 member(s), he or she shall provide any other available information that would assist the appeals 5 coordinator in making a reasonable attempt to identify the staff member(s) in question.” Id. 6 Plaintiff did not exhaust his administrative remedies against the defendant before filing 7 this suit. The relevant grievance, numbered HDSP-D-17-04517, did not name Hartwick. Instead, 8 it accused two other correctional officers—Boyd2 and Meraz—of the misconduct now at issue. 9 ECF No. 31 at 47. Prison officials processing the grievance confined their investigation to the 10 named officers. In his second-level response, the investigating lieutenant noted that he conducted 11 interviews with officers Boyd and Meraz, as well one other correctional officer and two other 12 inmates. Id. at 56. The response makes no mention of Hartwick and ultimately concludes that 13 “Sergeant Meraz and Sergeant Boyd did not violate CDCR policy with respect to one or more of 14 the issues appealed.” Id. 15 In some instances, failure to name a prison official in a grievance will not preclude 16 exhaustion. In Reyes v. Smith, the Ninth Circuit found that, even though the plaintiff’s grievance 17 failed to identify the defendants by name, prison officials had adequate notice of who they were 18 because the grievance referenced a specific committee to which they belonged. 810 F.3d 654, 19 659 (9th Cir. 2016). Given that information, the Ninth Circuit concluded that prison officials had 20 notice that defendants’ conduct was at issue. Id. The circumstances here are different, however. 21 Plaintiff’s grievance identified two specific non-defendant officers and, in so doing, set the 22 boundaries of prison officials’ administrative review. It would not be appropriate for the court to 23 require a reviewing official, faced with such specific allegations, to somehow realize that an 24 investigation of other, unnamed officers was warranted. 25 In his opposition to defendant’s motion, plaintiff alleges that he did ultimately file a 26 separate grievance against Hartwick. However, in plaintiff’s telling, that grievance related to the 27 2 Plaintiff disputes that this grievance accused Boyd of any wrongdoing. ECF No. 47 at 28 33. Regardless, that issue is irrelevant to the resolution of the exhaustion issue. 1 issuance of a false rules violation report, not to defendant’s alleged deliberate indifference or use 2 of excessive force. ECF No. 47 at 38 (referencing grievance number HDSP-D-18-01053). And 3 plaintiff has not provided the court with a copy of either the grievance or prison officials’ 4 responses to it. Thus, I cannot determine whether prison officials, in addressing plaintiff’s 5 complaints about the rules violation report, also considered the claims at bar. And given that 6 defendant has presented evidence that the claims against Hartwick were not exhausted, the burden 7 is on plaintiff to include the documentation necessary to support his claim to the contrary. See 8 Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012) (explaining that exhaustion is an affirmative 9 defense and that, once defendants meet their burden of proving non-exhaustion, the burden shifts 10 to plaintiff to show that his failure to exhaust should be excused). 11 Neither can I conclude that remedies were unavailable to plaintiff. It may be the case that 12 he could not have identified Hartwick at the outset and that any grievance against the defendant 13 would have, by the time of identification, been untimely under prison regulations.3 But it was not 14 plaintiff’s place to determine futility; his responsibility was to attempt to exhaust using the 15 administrative procedures offered by prison officials. 16 This result could be seen as somewhat unsatisfying, since plaintiff likely had little 17 opportunity initially to identify the officer who allegedly wronged him; plaintiff was ordered to 18 the ground and pepper sprayed. But this court lacks the power to make ad hoc exceptions to the 19 PLRA. See Ross v. Blake, 136 S. Ct. 1850, 1857 (2016) (holding that “mandatory exhaustion 20 statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.”). 21 It is, therefore, RECOMMENDED that: 22 1. Plaintiff’s motion for summary judgment, ECF No. 31, be denied. 23 2. Defendant’s motion for summary judgment, ECF No. 40, and plaintiff’s claims against 24 defendant be dismissed without prejudice for failure to exhaust administrative remedies. 25
3 At his deposition, plaintiff stated that he did not initially know the identity of the officer 26 who sprayed him, but was subsequently told by another inmate that it was Sergeant Meraz. ECF 27 No. 40-5 at 21; see ECF No. ECF No. 31 at 61. Plaintiff explained that he first learned of Officer Hartwick’s involvement after reviewing an incident report, which he received more than a month 28 after the altercation. ECF No. 40-5 at 21, 30. 1 3. The Clerk of Court be directed to close the case. 2 These findings and recommendations are submitted to the U.S. District Judge presiding 3 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 14 days of the service 4 | of the findings and recommendations, the parties may file written objections to the findings and 5 || recommendations with the court and serve a copy on all parties. Their objections must be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 7 | district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 8 9 IT IS SO ORDERED. 10 ( 1 Ow — Dated: _ September 3, 2021 Q_—_—. 11 JEREMY D. PETERSON Db UNITED STATES MAGISTRATE JUDGE
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