(PC) Rogers v. Warden

• Court: District Court, E.D. California
• Decided: February 8, 2021
• Docket: 1:18-cv-00846
• Status: Unknown

Opinion

7 8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 PHILIP JAMES ROGERS, CASE NO. 1:18-cv-0846 NONE JLT (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT’S MOTION 13 v. FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST 14 RODRIGUEZ, et al., ADMINISTRATIVE REMEDIES AND TO DENY PLAINTIFF’S MOTION FOR 15 SUMMARY JUDGMENT Defendants.

16 (Docs. 36, 39)

17 FOURTEEN-DAY DEADLINE 18 Defendant Bettencourt moves for summary judgment on the grounds that plaintiff failed to 19 exhaust his administrative remedies prior to filing suit. Plaintiff opposes defendant’s motion and 20 has filed a motion for summary judgment on the merits of his claim. For the reasons set forth below, 21 the Court will recommend that the defendant’s motion be granted, and plaintiff’s motion be denied. 22 I. Summary of Plaintiff’s Allegations 23 This action proceeds on an Eighth Amendment deliberate indifference claim against 24 defendants Rodriguez, a cook in the central kitchen at Kern Valley State Prison, and Correctional 25 Officer Bettencourt, the central kitchen supervisor. Plaintiff’s allegations can be fairly 26 summarized as follows: 27 On June 22, 2017, plaintiff was working in the kitchen when Rodriguez directed him to 28 1 stack boxes of ice in the walk-in freezer. Rodriguez insisted that he do so even after plaintiff 2 explained that he did not have proper shoes to walk over the frozen water on the ground while 3 lifting heavy boxes of ice. Rodriguez threatened plaintiff with a write-up if he did not do as asked. 4 Plaintiff again explained to Rodriguez that a few other inmates had fallen hard trying to walk on 5 that floor, and he asked if he could get the right boots to wear. When Rodriguez asked why 6 plaintiff didn’t have them already, plaintiff informed her that Bettencourt refused to get them 7 even after someone fell on the freezer floor two days prior. Rodriguez again threatened plaintiff 8 with a write-up if he did not comply with her order. 9 Plaintiff then approached Bettencourt to get proper boots to work in the freezer, but this 10 defendant refused to get any boots and simply told plaintiff to be careful. Per plaintiff, 11 Bettencourt knew that rubber boots should be worn in certain areas of the kitchen for safety 12 purposes, and plaintiff had asked him multiple times previously for rubber boots so that he could 13 work safely in the freezer, to no avail. 14 Not wanting to be written-up, plaintiff walked into the freezer to load the ice when he lost 15 his footing and fell hard onto his head and back. As a result, plaintiff remained in a wheelchair for 16 four months. The fall caused permanent nerve damage that limits his mobility and causes back 17 pain and migraine headaches. 18 II. Legal Standards 19 A. Summary Judgment 20 Summary judgment is appropriate when the moving party “shows that there is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 22 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 23 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 24 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by 25 “citing to particular parts of materials in the record, including depositions, documents, 26 electronically stored information, affidavits or declarations, stipulations …, admissions, 27 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 28 1 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 2 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 3 the burden of proof at trial, “the moving party need only prove that there is an absence of evidence 4 to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. 5 at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 6 Summary judgment should be entered against a party who fails to make a showing sufficient 7 to establish the existence of an element essential to that party’s case, and on which that party will 8 bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof 9 concerning an essential element of the nonmoving party’s case necessarily renders all other facts 10 immaterial.” Id. at 322-23. In such a circumstance, summary judgment should be granted, “so long 11 as whatever is before the district court demonstrates that the standard for the entry of summary 12 judgment … is satisfied.” Id. at 323. 13 B. Exhaustion of Administrative Remedies 14 The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect 15 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in 16 any jail, prison, or other correctional facility until such administrative remedies as are available are 17 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and 18 “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). Inmates 19 are required to “complete the administrative review process in accordance with the applicable 20 procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Woodford 21 v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all inmate suits relating 22 to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the 23 prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 24 The failure to exhaust administrative remedies is an affirmative defense, which the 25 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of 26 producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if 27 the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff 28 1 failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). On a motion for summary 2 judgment, the defendant must prove (1) the existence of an available administrative remedy and (2) 3 that Plaintiff failed to exhaust that remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 4 2015) (citations omitted). If the defendant meets this burden, “the burden shifts to the plaintiff, who 5 must show that there is something particular in his case that made the existing and generally 6 available administrative remedies effectively unavailable to him….” Id. If the plaintiff fails to meet 7 this burden, the court must dismiss the unexhausted claims or action without prejudice. See Lira v. 8 Herrera, 427 F.3d 1164, 1175 (9th Cir. 2005). 9 C. CDCR Grievance Process 10 The CDCR has an administrative grievance system for prisoners to appeal a policy, 11 decision, action, condition, or omission by the department or staff if it has an adverse effect on 12 prisoner health, safety, or welfare. Cal. Code Regs. tit. 15, § 3084.1(a) (2015). Compliance with 42 13 U.S.C. § 1997e(a) requires California state prisoners to utilize CDCR’s grievance process to 14 exhaust their claims prior to filing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 15 2010); see also Woodford, 548 U.S. at 85-86. In 2015, administrative appeals were subject to three 16 levels of review before the remedy was deemed exhausted. Cal. Code Regs. tit. 15, § 3084.1(b) 17 (2015); see also Sapp, 623 F.3d at 818. 18 III. Undisputed Facts 19 Plaintiff submitted two inmate grievances and one CDCR 22 Form related to the June 22, 20 2017, kitchen fall. On June 29, 2017, plaintiff filed a non-health care inmate grievance, Log No. 21 KVSP-0-17-02006, stating that he fell in the kitchen freezer due to a small layer of ice build-up on 22 the freezer floor. (Decl. of A. Leyva in Supp. of Def.’s Mot. Summ. J. ⁋ 21, Ex. B [Doc. 36-3 at 23 19-21].) Plaintiff further stated that defendant Rodriguez witnessed the fall, asked if plaintiff was 24 alright, and then notified her supervisor. By way of relief, plaintiff sought a sign that would warn 25 of icy floors, and he wanted a daily inspection of the freezer by staff. 26 There are several sentences in the inmate grievance, Log No. KVSP-0-17-02006, that have 27 been stricken, apparently because the screening responses discussed infra directed him to remove 28 1 them. For example, plaintiff was instructed to remove any reference related to medical care, which 2 included plaintiff’s notations that he was taken to medical for x-rays but they found no broken 3 bones, something was said about his back that plaintiff did not understand, he only received ice 4 packs, and he is still experiencing pain and discomfort and can barely walk. Plaintiff also sought 5 monetary compensation, but this portion of the grievance is crossed out because plaintiff was 6 repeatedly informed that compensation is beyond the scope of the appeals process. 7 On July 10, 2017, plaintiff’s grievance was screened at the first level of review. (Leyva 8 Decl. Ex. B [Doc. 36-3 at 18].) Plaintiff was informed that he needed to submit a CDCR Form 22 9 directly to Central Operations (Central Kitchen). He was also informed that any requests related to 10 medical treatment must be made on a 602-HC form. Lastly, he was told that compensation is 11 beyond the scope of the appeals process. 12 On July 13, 2017, plaintiff submitted a CDCR 22 Form stating, “I slipped on ice built up in 13 central kitchen.” (Leyva Decl. Ex. B [Doc. 36-3 at 54].) He requested a “Slippery when icy &/or 14 wet” sign on the freezer door, daily inspections, medical treatment, and compensation for his 15 injuries. In a July 21 response, plaintiff was informed that a slippery floor sign had been ordered. 16 After submitted his CDCR 22 Form, plaintiff responded to the July 10 screening order stating that 17 he had submitted the form to kitchen staff, which he then attached to his appeal. (Leyva Decl. Ex. 18 B [Doc. 36-3 at 18].) 19 On July 27, 2017, plaintiff’s grievance, Log No. KVSP-0-17-02006, was again screened at 20 the first level of review. (Leyva Decl. Ex. B [Doc. 36-3 at 17].) Plaintiff was informed once more 21 that requests regarding medical treatment must be made in a 602-HC form, that the CDCR Form 22 22 should be utilized and sent to Central Operations (Central Kitchen), and that compensation is 23 beyond the scope of the appeals process. 24 Plaintiff responded to the July 27 screening order expressing confusion, stating “Your … 25 form is indicisive [sic] on the actions your [sic] telling me to take. I completed the [CDCR Form 26 22] request process, as recommended. Now I’m being informed to do other [things]. ….” (Leyva 27 Decl. Ex. B [Doc. 36-3 at 17].) 28 1 On August 9, 2017, plaintiff’s grievance, Log No. KVSP-0-17-02006, was rejected at the 2 first level of review because he did not submit a 602-HC form. (Leyva Decl. Ex. B [Doc. 36-3 at 3 16].) Plaintiff was informed that his appeal cannot be assigned if it contains requests related to 4 medical treatment. He was also directed to remove his request for compensation. Finally, plaintiff 5 was cautioned that failure to follow instructions may result in a canceled appeal. 6 On August 15, 2017, plaintiff submitted a health care inmate grievance, CDCR 602 HC, 7 assigned Log No. KVSP-HC-17038725, writing, “I fell in Central Kitchen, due to ice built up on 8 freezer floor, I was sent to CTC for x-rays, they found no broken bones but said something about 9 my back. I only received a[n] ice pack and no treatment.” (Pl.’s Opp’n Ex. 5 [Doc. 39 at 20].) 10 Plaintiff requested a sign warning of icy floors, daily inspections, medical treatment, and damages. 11 Plaintiff’s CDCR 602 HC was granted at the first level of review. (Pl.’s Opp’n Ex. 5 [Doc. 39 at 12 20].) It is unclear what form of relief was granted because the First Level response for this grievance 13 is not submitted by either party. 14 On August 22, 2017, plaintiff’s non-health care grievance, Log No. KVSP-0-17-02006, was 15 again screened at the first level of review: “Sir your issue is being addressed by central kitchen 16 based on the response from 22 form. Explain how the issue continues to be an adverse effect.” 17 IV. Discussion 18 In support of his motion for summary judgment, Bettencourt argues that plaintiff’s inmate 19 grievance did not mention him or his alleged failure to provide rubber boots. There can be no 20 dispute that plaintiff’s inmate grievances—Log No. KVSP-0-17-02006 and Log No. KVSP-HC- 21 17038725—omit any mention of this defendant or rubber boots. Defendant has thus met his initial 22 burden to “prove that there was an available administrative remedy, and that the prisoner did not 23 exhaust that available remedy.” 24 The burden thus shifts to plaintiff to come forward with evidence that something in his case 25 made the existing administrative remedies effectively unavailable to him. See Albino, 747 F.3d at 26 1172. In his opposition, plaintiff contends that administrative remedies were effectively unavailable 27 to him due to the confusing instructions he received in the screening of Log No. KVSP-0-17-02006. 28 1 He also points to his filing of the CDCR 22 Form and his health care appeal, Log No. KVSP-HC- 2 17038725, both of which he claims were granted. 3 Even if these contentions were true, plaintiff’s grievances and CDCR 22 Form do not 4 mention Bettencourt or plaintiff’s claimed reason for his fall, i.e., the refusal to provide rubber 5 boots. Plaintiff counters that he satisfied the prison’s notice requirement and further details would 6 have emerged “[h]ad the prison officials properly process[ed] the grievance the facts that lead up 7 to the incident may have been developed. … The defendants had an opportunity to process the 8 appeal and develop the facts of the incident.” (Pl.’s Opp’n at 7.) This position is inconsistent with 9 California’s requirements for inmate grievances. 10 “The California prison system’s requirements ‘define the boundaries of proper 11 exhaustion.’” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Jones, 549 U.S. at 12 218). In order to exhaust, the prisoner is required to complete the administrative review process in 13 accordance with all applicable procedural rules. Woodford, 548 U.S. at 90. California regulations 14 allow a prisoner to “appeal” any action or inaction by prison staff that has “a material adverse effect 15 upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). The appeal process 16 is initiated by the inmate's filing a “Form 602” the “Inmate/Parolee Appeal Form,” “to describe the 17 specific issue under appeal and the relief requested.” Id. § 3084.2(a). The level of specificity 18 required in the appeal is described in a regulation: 19 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 20 or parolee 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. 21 If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that 22 would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question. [¶] The inmate or parolee shall state all facts known 23 and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if needed, the Inmate/Parolee Appeal Form 24 Attachment. 25 Cal. Code Regs. tit. 15, § 3084.2(a)(3-4). Accordingly, plaintiff was required to list on his inmate 26 grievance in the first instance—not to inform institutional staff at a later stage or to rely on them to 27 develop facts—all staff members involved, a description of their involvement in the issue, and all 28 1 facts known and available to him. Plaintiff plainly did not meet these requirements. 2 Plaintiff also suggests that he did not name Bettencourt because “[i]nmates are reluctant to 3 name prison staff in appeals because the prison system does nothing to prevent or deter staff from 4 retaliating against an inmate who set forth allegations of staff misconduct.” (Pl.’s Opp’n at 7.) In 5 order to establish that the failure to exhaust was excusable on account of retaliation, plaintiff must 6 show that:

7 ‘(1) the threat [of retaliation] actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that 8 would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to 9 exhaust.’ 10 McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015) (quoting Turner v. Burnside, 541 F.3d 1077, 11 1085 (11th Cir. 2008)). 12 Plaintiff does not offer anything more than general fears of possible retaliation for his failure 13 to name Bettencourt. This is insufficient. Rodriguez v. County of Los Angeles, 891 F.3d 776, 794 14 (9th Cir. 2018) (allegations of “general and unsubstantiated fears about possible retaliation” 15 insufficient to satisfy inmate’s burden to produce evidence of something in the particular case that 16 rendered administrative remedies effectively unavailable) (citing McBride, 807 F.3d at 987-88); 17 Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001) (“conclusory 18 allegations unsupported by factual data are insufficient to defeat ... summary judgment motion”) 19 (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). 20 Plaintiff has failed to meet his burden of demonstrating that the prison’s grievance 21 procedure was effectively unavailable to him. See Albino, 747 F.3d at 1166. Accordingly, this 22 action must be dismissed, and plaintiff’s motion for summary judgment should be denied. As an 23 alternative ground for denial, plaintiff claims he is entitled to summary judgment because defendant 24 admitted all factual allegations (Pl.’s Opp’n at 2), but plaintiff does not cite to any evidence in 25 support. His conclusory assertion without citation to any evidence, such as declaration, deposition 26 transcript, or discovery response, does not meet plaintiff’s burden in proving the absence of a 27 genuine issue of material fact on a claim on which he bears the ultimate burden of proof at trial. 28 1 Plaintiff is therefore not entitled to summary judgment. 2 V. Conclusion 3 For all these reasons, the Court RECOMMENDS granting defendant’s motion for 4 summary judgment based on plaintiff’s failure to exhaust his administrative remedies and denying 5 plaintiff’s motion for summary judgment. 6 These Findings and Recommendations will be submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these Findings and Recommendations, the parties may file written 9 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 Findings and Recommendations.” The parties are advised that failure to file objections within the 11 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 12 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 IT IS SO ORDERED. 14

15 Dated: February 6, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16

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