1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT EUGENE THOMAS, Case No. 1:19-cv-01185-ADA-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS’ EXHAUSTION- 13 v. BASED MOTION FOR SUMMARY JUDGMENT1 14 SALAS, MEDINA, FLORES, and C/O #1 THIRD WATCH, (Doc. No. 40) 15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16
17 18 Pending before the Court is the Motion for Summary Judgment filed by Defendants Salas, 19 Medina, and Flores on June 9, 2023. (Doc. No. 40, “MSJ”). Plaintiff filed an Opposition, (Doc. 20 No. 46), and Defendants filed a Reply. (Doc. No. 47). The Court, finding no dispute of material 21 fact recommends the district court grant Defendants’ MSJ. 22 I. BACKGROUND 23 A. Summary of Plaintiff’s Complaint 24 Plaintiff Albert Eugene Thomas (“Plaintiff” or “Thomas”), a state prisoner, initiated this 25 action by filing a pro se civil rights complaint under 42 U.S.C § 1983. (Doc. No. 1). Thomas 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(17) (E.D. 28 Ca. 2022). 1 proceeds on his second amended complaint. (Doc. No. 20, “SAC”). The Court screened the SAC 2 and found it stated cognizable Eighth Amendment conditions of confinement claims against 3 Defendants Salas, Medina, Flores and an unnamed “C/O #1 Third Watch.” (Doc. No. 21 at 8). 4 According to the SAC, on June 22, 2019, Plaintiff moved into building A1-126 at North 5 Kern State Prison (“NKSP”). (Doc. No. 20 at 5). Plaintiff immediately noticed a “strong odor” 6 coming from his cell. (Id. at 5-6). There was mold and mildew on the walls, the cell was filled 7 with rust, leaking “filthy stinking” water puddled on the floor, and the improperly installed light 8 switch shocked Plaintiff when he turned the light on or off. (Id. at 6-9). Plaintiff complained 9 about the cell’s conditions and requested Flores, Salas, Medina, and C/O #1 Third Watch to 10 inspect his cell, but they refused. (Id. at 6). Soon after moving into his cell, Plaintiff developed 11 an excruciating cough, a sore throat, and experienced pain when breathing. (Id. at 6-7). Plaintiff 12 also had trouble sleeping over an extended period because he would wake up from coughing. (Id. 13 at 6). Plaintiff continued to complain about the conditions of his cell to these four Defendants 14 and made them each aware that his health was deteriorating due to the cell’s condition. (Id.). But 15 each of the Defendants laughed and refused to move Plaintiff. (Id.). Plaintiff continued to make 16 requests to the four named Defendants to move him, and even undertook his own search for a 17 new cell, but the Defendants refused to transfer Plaintiff to another cell. (Id.). Plaintiff also 18 requested, but was denied, cleaning supplies by Defendants. (Id.). 19 On August 7, 2019, 48 days after he first moved into the cell, Plaintiff was moved to a 20 different cell. (Id. at 9). But Plaintiff’s physical condition continued to deteriorate, and 21 approximately five to six months after he first developed his cough, he was sent to a hospital 22 outside of North Kern State Prison. (Id. at 10). Plaintiff was diagnosed with Valley Fever and 23 pneumonia. (Id.). As relief, Plaintiff seeks $50,000 in punitive and $50,000 in compensatory 24 damages from each Defendant. (Id. at 12). 25 B. Defendants’ Exhaustion-Based Motion for Summary Judgment 26 Defendants filed the instant exhaustion based MSJ on June 9, 2023. (Doc. No. 40). In 27 support, Defendants submit a memorandum of points and authorities (Doc. No. 40-1); a statement 28 of undisputed material facts (Doc. No. 40-3); the Declaration of B. Johnson (Doc. No. 40-4); the 1 Declaration of Howard Moseley (Doc. No. 40-5), and the Declaration of Joseph J. Railey (Doc 2 No. 40-6). Defendants contend the uncontroverted evidence proves Plaintiff did not exhaust his 3 available administrative remedies regarding his Eighth Amendment claims against any named 4 Defendant because he never filed a grievance regarding the conditions of his cell but instead 5 directly filed a civil rights complaint in federal court. (Doc. No. 40-1 at 5). 6 Plaintiff’s Opposition to Exhaustion-Based MSJ 7 On August 31, 2023, Plaintiff filed an Opposition. (Doc. No. 46). In support, Plaintiff 8 submits a memorandum of points and authorities. (See id.). Plaintiff does not dispute that he did 9 not exhaust his administrative remedies but explains because he was on the verge of dying, he 10 “decided that he needed to file his 1983 before his demise so that his family would know what 11 had happened to him.” (Id. at 4). Plaintiff implies that the Court should find an exception to the 12 PLRA’s exhaustion requirement considering his exigent circumstances. (Id.). In the alternative, 13 Plaintiff contends that because most of the grievances he filed as a CDCR inmate were denied, 14 the administrative grievance process was effectively unavailable to him, excusing him from 15 compliance with the PLRA. (Id. at 5-6). 16 II. APPLICABLE LAW 17 A. Summary Judgment Standard 18 Summary judgment is appropriate when there is “no genuine dispute as to any material 19 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 20 material where it is (1) relevant to an element of a claim or a defense under the substantive law 21 and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 22 247 (1987). 23 The party moving for summary judgment bears the initial burden of proving the absence 24 of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When 25 the moving party has met this burden, the nonmoving party must go beyond the pleadings and set 26 forth specific facts by affidavits, deposition testimony, documents, or discovery responses, 27 showing there is a genuine issue that must be resolved by trial. See Fed. R. Civ. P. 56(c)(1); 28 Pacific Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 1 2021). A mere “scintilla of evidence” in support of the nonmoving party’s position is 2 insufficient. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Rather, the 3 evidence must allow a reasonable juror, drawing all inferences in favor of the nonmoving party, 4 to return a verdict in that party’s favor. Id. 5 In an exhaustion-based summary judgment motion, the defendant bears the initial burden 6 of establishing “that there was an available administrative remedy, and that the prisoner did not 7 exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the 8 defendant carries that burden, “the burden shifts to the prisoner to come forward with evidence 9 showing that there is something in his particular case that made the existing and generally 10 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 11 persuasion remains, however, with defendant. Id.
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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 ALBERT EUGENE THOMAS, Case No. 1:19-cv-01185-ADA-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS’ EXHAUSTION- 13 v. BASED MOTION FOR SUMMARY JUDGMENT1 14 SALAS, MEDINA, FLORES, and C/O #1 THIRD WATCH, (Doc. No. 40) 15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16
17 18 Pending before the Court is the Motion for Summary Judgment filed by Defendants Salas, 19 Medina, and Flores on June 9, 2023. (Doc. No. 40, “MSJ”). Plaintiff filed an Opposition, (Doc. 20 No. 46), and Defendants filed a Reply. (Doc. No. 47). The Court, finding no dispute of material 21 fact recommends the district court grant Defendants’ MSJ. 22 I. BACKGROUND 23 A. Summary of Plaintiff’s Complaint 24 Plaintiff Albert Eugene Thomas (“Plaintiff” or “Thomas”), a state prisoner, initiated this 25 action by filing a pro se civil rights complaint under 42 U.S.C § 1983. (Doc. No. 1). Thomas 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(17) (E.D. 28 Ca. 2022). 1 proceeds on his second amended complaint. (Doc. No. 20, “SAC”). The Court screened the SAC 2 and found it stated cognizable Eighth Amendment conditions of confinement claims against 3 Defendants Salas, Medina, Flores and an unnamed “C/O #1 Third Watch.” (Doc. No. 21 at 8). 4 According to the SAC, on June 22, 2019, Plaintiff moved into building A1-126 at North 5 Kern State Prison (“NKSP”). (Doc. No. 20 at 5). Plaintiff immediately noticed a “strong odor” 6 coming from his cell. (Id. at 5-6). There was mold and mildew on the walls, the cell was filled 7 with rust, leaking “filthy stinking” water puddled on the floor, and the improperly installed light 8 switch shocked Plaintiff when he turned the light on or off. (Id. at 6-9). Plaintiff complained 9 about the cell’s conditions and requested Flores, Salas, Medina, and C/O #1 Third Watch to 10 inspect his cell, but they refused. (Id. at 6). Soon after moving into his cell, Plaintiff developed 11 an excruciating cough, a sore throat, and experienced pain when breathing. (Id. at 6-7). Plaintiff 12 also had trouble sleeping over an extended period because he would wake up from coughing. (Id. 13 at 6). Plaintiff continued to complain about the conditions of his cell to these four Defendants 14 and made them each aware that his health was deteriorating due to the cell’s condition. (Id.). But 15 each of the Defendants laughed and refused to move Plaintiff. (Id.). Plaintiff continued to make 16 requests to the four named Defendants to move him, and even undertook his own search for a 17 new cell, but the Defendants refused to transfer Plaintiff to another cell. (Id.). Plaintiff also 18 requested, but was denied, cleaning supplies by Defendants. (Id.). 19 On August 7, 2019, 48 days after he first moved into the cell, Plaintiff was moved to a 20 different cell. (Id. at 9). But Plaintiff’s physical condition continued to deteriorate, and 21 approximately five to six months after he first developed his cough, he was sent to a hospital 22 outside of North Kern State Prison. (Id. at 10). Plaintiff was diagnosed with Valley Fever and 23 pneumonia. (Id.). As relief, Plaintiff seeks $50,000 in punitive and $50,000 in compensatory 24 damages from each Defendant. (Id. at 12). 25 B. Defendants’ Exhaustion-Based Motion for Summary Judgment 26 Defendants filed the instant exhaustion based MSJ on June 9, 2023. (Doc. No. 40). In 27 support, Defendants submit a memorandum of points and authorities (Doc. No. 40-1); a statement 28 of undisputed material facts (Doc. No. 40-3); the Declaration of B. Johnson (Doc. No. 40-4); the 1 Declaration of Howard Moseley (Doc. No. 40-5), and the Declaration of Joseph J. Railey (Doc 2 No. 40-6). Defendants contend the uncontroverted evidence proves Plaintiff did not exhaust his 3 available administrative remedies regarding his Eighth Amendment claims against any named 4 Defendant because he never filed a grievance regarding the conditions of his cell but instead 5 directly filed a civil rights complaint in federal court. (Doc. No. 40-1 at 5). 6 Plaintiff’s Opposition to Exhaustion-Based MSJ 7 On August 31, 2023, Plaintiff filed an Opposition. (Doc. No. 46). In support, Plaintiff 8 submits a memorandum of points and authorities. (See id.). Plaintiff does not dispute that he did 9 not exhaust his administrative remedies but explains because he was on the verge of dying, he 10 “decided that he needed to file his 1983 before his demise so that his family would know what 11 had happened to him.” (Id. at 4). Plaintiff implies that the Court should find an exception to the 12 PLRA’s exhaustion requirement considering his exigent circumstances. (Id.). In the alternative, 13 Plaintiff contends that because most of the grievances he filed as a CDCR inmate were denied, 14 the administrative grievance process was effectively unavailable to him, excusing him from 15 compliance with the PLRA. (Id. at 5-6). 16 II. APPLICABLE LAW 17 A. Summary Judgment Standard 18 Summary judgment is appropriate when there is “no genuine dispute as to any material 19 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 20 material where it is (1) relevant to an element of a claim or a defense under the substantive law 21 and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 22 247 (1987). 23 The party moving for summary judgment bears the initial burden of proving the absence 24 of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When 25 the moving party has met this burden, the nonmoving party must go beyond the pleadings and set 26 forth specific facts by affidavits, deposition testimony, documents, or discovery responses, 27 showing there is a genuine issue that must be resolved by trial. See Fed. R. Civ. P. 56(c)(1); 28 Pacific Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 1 2021). A mere “scintilla of evidence” in support of the nonmoving party’s position is 2 insufficient. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Rather, the 3 evidence must allow a reasonable juror, drawing all inferences in favor of the nonmoving party, 4 to return a verdict in that party’s favor. Id. 5 In an exhaustion-based summary judgment motion, the defendant bears the initial burden 6 of establishing “that there was an available administrative remedy, and that the prisoner did not 7 exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the 8 defendant carries that burden, “the burden shifts to the prisoner to come forward with evidence 9 showing that there is something in his particular case that made the existing and generally 10 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 11 persuasion remains, however, with defendant. Id. 12 The Court has carefully reviewed and considered all arguments, points and authorities, 13 declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and 14 other papers filed by the parties. The omission to an argument, document, paper, or objection is 15 not to be construed that the Court did not consider the argument, document, paper, or objection. 16 Instead, the Court thoroughly reviewed and considered the evidence it deemed admissible, 17 material, and appropriate for purposes of this Order. 18 B. Exhaustion Under the PLRA 19 Under the PLRA, “[n]o action shall be brought with respect to prison conditions under [42 20 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other 21 correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 22 § 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life,” including 23 Bivens claims. Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). Exhaustion is a condition 24 precedent to filing a civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006). 25 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 26 recognize a new exception, even in “special circumstances.” Ross v. Blake, 578 U.S. 632, 648 27 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the 28 prisoner.” Id. at 639. There are three circumstances where remedies are deemed unavailable: 1 (1) the “administrative procedure . . . operates as a simple dead end with officers unable or consistently unwilling to provide any relief to 2 aggrieved inmates;” (2) the “administrative scheme . . . [is] so opaque that it becomes, practically speaking, incapable of use . . . so that no 3 ordinary prisoner can make sense of what it demands;” and (3) “prison administrators thwart inmates from taking advantage of a 4 grievance process through machination, misrepresentation, or intimidation.” 5 Ross, 578 U.S. at 643-44. A prison’s internal grievance process controls whether the grievance 6 satisfies the PLRA exhaustion requirement. Jones v. Bock, 549 U.S. 199, 218 (2007). 7 An inmate must exhaust available remedies but is not required to exhaust unavailable 8 remedies. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). “To be available, a 9 remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Id. 10 (quoting Brown v. Valoff, 422 F.3d 926, 936–37 (9th Cir. 2005)). “Accordingly, an inmate is 11 required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain 12 ‘some relief for the action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) 13 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001) ). 14 Failure to exhaust under the PLRA is “an affirmative defense the defendant must plead 15 and prove.” Jones, 549 U.S. at 204. It is the defendant’s burden to prove that there was an 16 available administrative remedy, and that the prisoner failed to exhaust that remedy. Albino, 747 17 F.3d at 1172. “Once the defendant has carried that burden, the prisoner has the burden of 18 production. That is, the burden shifts to the prisoner to come forward with evidence showing that 19 there is something in his particular case that made the existing and generally available 20 administrative remedies effectively unavailable to him.” Id. If the court concludes that the 21 prisoner failed to exhaust available administrative remedies, the proper remedy is dismissal 22 without prejudice. See Jones, 549 U.S. at 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th 23 Cir. 2005). 24 C. CDCR’s Inmate Grievance Process 25 During the relevant time period, the CDCR provided inmates with the administrative 26 grievance process set forth in the version of Cal. Code regs. tit. 15 §§ 3084-3086 in effect at that 27 28 1 time.2 See Willis v. Taylor, 2023 WL 4410937, at *1 (N.D. Cal. July 7, 2023). The CDCR 2 provided its inmates “an administrative mechanism for review of departmental policies, decisions, 3 actions, conditions, or omissions that have a material adverse effect upon the welfare of inmates 4 . . .” Cal. Code Regs. tit. 15 § 3084.1(a) (2019). The grievance process required a prisoner to use 5 a CDCR Form 602 “to describe the specific issue under appeal and the relief requested” by 6 stating all facts known and available regarding the issue, and by listing all staff member(s) 7 involved and describing their involvement in the issue. Cal. Code Regs. tit. 15 8 § 3084.2(a) (2019). A grievance was reviewed at three different levels: (1) a first formal level 9 filed with one of the institution’s appeal coordinators, (2) a second formal level filed with the 10 institution head or designee, and (3) a third formal level filed with the CDCR’s Office of Appeals 11 (“OOA”). Cal. Code Regs. tit. 15 § 3084.7 (2019). Pursuing a grievance through the third and 12 final level satisfied the exhaustion requirement set forth in 42 U.S.C. § 1997e(a). Cal. Code Regs. 13 tit. 15 § 3084.1(b) (2019). 14 III. ANALYSIS 15 A. Material Facts Regarding Exhaustion of Administrative Remedies 16 Following a thorough review of the evidence submitted, the Court finds these material 17 facts are deemed undisputed, unless otherwise indicated: 18 • During the events giving rise to this action, Plaintiff Thomas was incarcerated at North 19 Kern State Prison. (Doc. No. 20). 20 • An inmate appeal or administrative remedy process is available at North Kern State 21 Prison. (Doc. No. 20; Doc. No. 40-4 ¶ 3). 22 • Plaintiff pursued two administrative grievances at NKSP not related to the conditions 23 of his cell to the final level of review between June 22, 2019, and August 30, 2021. 24 (Doc. No. 40-5 ¶ 8 n.1). 25
26 2 The regulations that establish the administrative remedies process for California prisoners underwent a substantial restructuring in 2020. On March 25, 2020, and effective June 1, 2020, Cal. Code Regs. tit. 15 27 §§ 3084–3084.9 were repealed and replaced with renumbered and amended provisions at sections 3480 through 3487. Because the relevant events took place in 2019, the current administrative grievance process 28 does not apply to Plaintiff’s claim. All the citations in this order to the California regulations are to the 1 • Plaintiff’s fully exhausted grievances which addressed the food served at his 2 institution and loss of property during a mass cell search. (Doc. No. 40-5 ¶ 8 n.1). 3 • In addition to the fully exhausted grievances, Plaintiff also filed two other grievances 4 with the NKSP grievance office between June 22, 2019, and August 30, 2021. (Doc. 5 No. 40-4 ¶ 11). 6 • Plaintiff’s two additional grievances dealt with an Americans with Disabilities Act 7 matter involving Plaintiff’s request for diabetic socks and a complaint involving 8 Covid-19. (Doc. No. 40-4 ¶ 11). 9 • Plaintiff did not file an administrative grievance regarding the allegations in the SAC. 10 (Doc. No. 40-5 ¶¶ 8-9; Doc. No. 40-6 at 4, 10; Doc. No. 40-4 ¶ 11). 11 • In response to an interrogatory asking why Plaintiff did not submit a CDCR-602, 12 Plaintiff indicated he failed to do so because he feared he would die before the inmate 13 appeal process was complete. (Doc. No. 40-6 at 10, 23). 14 • On June 24, 2019, Plaintiff submitted a CDCR-22 form to the Program Sergeant 15 documenting issues with his cell. (Doc. No. 40-6 at 14). 16 • Plaintiff stated that he could not file a 602 until after he had completed the “22-form 17 process, or [the grievance office] can just reject [the 602] for cause.” (Doc. No. 40-6 18 at 4). 19 • CDCR policy clearly indicates that the formal administrative grievance process and 20 the Inmate/Parolee Request for Interview, Item or Service process are separate and can 21 be used at the same time to address the same issue. (Doc. No. 40-4 ¶ 12, Doc. No. 40- 22 4 at 9-12 [Cal. Code Regs. tit. 15, § 3086 (2019)]; Doc. No. 40-4 at 14-15 [CDCR 23 Dept. Operations Manual, Art. 52 (2023)]; Cal. Code Regs. tit. 15 § 3086(e)(2) (2019); 24 CDCR Dept. Operations Manual, § 54090.4.2 (2023)). 25 • CDCR policy does not require an inmate to submit a Form 22 and receive a response 26 before submitting a formal grievance. Cal. Code Regs. tit. 15 § 3084. 27 B. Plaintiff Did Not Exhaust His Administrative Remedies 28 The uncontroverted evidence in this case shows that Plaintiff did not exhaust his 1 administrative remedies. Indeed, Plaintiff admits he did not even attempt to file a prison 2 grievance regarding the conditions of his cell. (Doc. No. 46 at 4). Plaintiff asserts this was 3 justified because he believed he would die before it could be processed. (Id.). Plaintiff also 4 asserts he believed the grievance process was futile because prison officials consistently rejected 5 or denied his grievances. (Id. at 5). Thus, there is no genuine dispute of material fact that 6 Plaintiff did not complete the prison administrative grievance process as required by the PLRA. 7 C. Plaintiff Does Not Set Forth Circumstances That Constitute an Exception to the 8 PLRA’s Exhaustion Requirement 9 Plaintiff nevertheless argues that he should be excused from the PLRA’s exhaustion 10 requirement for two reasons: (1) he was facing what he believed was his imminent death, which 11 constituted exigent circumstances permitting him to skip the grievance process; and (2) prison 12 officials’ repeated denial of his grievances rendered the grievance process effectively unavailable 13 to him. (Id. at 4-5). As set forth below, the Court is not persuaded by either claim. 14 1. Plaintiff’s Health Problems Did Not Constitute An Exception to the 15 Exhaustion Requirement 16 Plaintiff contends that his failure to exhaust his administrative remedies is excused 17 because he feared that he would die before a grievance was resolved. (Doc. No. 46 at 4.) Thus, 18 he was justified in skipping directly to filing a complaint in Federal Court rather than filing a 19 prison grievance. (Id.). 20 As noted above, there are three circumstances in which an administrative remedy, 21 “although officially on the books, is not capable of use to obtain relief.” Booth v. Newsom, 2020 22 WL 6741730, at *3 n.3 (E.D. Cal. Nov. 17, 2020) (quoting Ross v. Blake, 578 U.S. 632, 643–44 23 (2016), report and recommendation adopted, 2020 WL 7632211 (E.D. Cal. Dec. 22, 2020):
24 (1) the “administrative procedure . . . operates as a simple dead end with officers unable or consistently unwilling to provide any relief to 25 aggrieved inmates;” (2) the “administrative scheme . . . [is] so opaque that it becomes, practically speaking, incapable of use . . . so that no 26 ordinary prisoner can make sense of what it demands;” and (3) “prison administrators thwart inmates from taking advantage of a 27 grievance process through machination, misrepresentation, or intimidation.” 28 1 Id. (quoting Ross, 578 U.S. at 643–44) (alteration in original). Plaintiff does not allege that he 2 failed to exhaust because of one of the circumstances described by the Supreme Court. Instead, 3 Plaintiff decided to circumvent the administrative grievance process because he believed he 4 would not live long enough to exhaust his administrative remedies. (Doc. No. 46 at 4). Plaintiff’s 5 belief that he was at imminent risk of dying is not a valid basis for avoiding the exhaustion 6 requirement of 42 U.S.C. § 1997e(a). 7 In Booth v. Newsom, as in this case, the inmate plaintiff pointed to an emergency that he 8 believed required that he bypass the administrative grievance process and immediately file suit. 9 Booth, 2020 WL 6741730, at *3, n. 2. The Court determined that Plaintiff’s claimed emergency 10 did not excuse compliance with the PLRA’s exhaustion requirement. Id. at *3; see also Sapp v. 11 Kimbrell, 623 F.3d 818, 827 (9th Cir. 2010) (finding that inmate did not qualify for any equitable 12 exception that may exist to the exhaustion requirement when the inmate did not file any grievance 13 challenging a denial of medical care despite being informed to do so); Ross v. Blake, 578 U.S. 14 632, 640–41 (2016) (holding that there is not a “special circumstances” exception to the PLRA’s 15 mandatory exhaustion requirement). In addition to being unsupported by law, Plaintiff’s 16 argument that his health condition justified an exception to the exhaustion requirement is 17 unsupported by the facts. Plaintiff states that he began to develop a dry cough shortly after he 18 moved into the allegedly uninhabitable cell on June 22, 2019. (Doc No. 20 at 6.) Plaintiff was 19 not hospitalized six months later. (Id. at 10). These facts do not establish that Plaintiff was too ill 20 to submit a grievance prior to bringing this lawsuit. 21 Because Plaintiff does not set forth facts showing that NKSP’s administrative grievance 22 process was unavailable, the undersigned finds no genuine dispute of material facts as to his 23 failure to exhaust his administrative remedies. See Albino, 747 F.3d at 1166. 24 2. Plaintiff Does Not Establish That Repeated Denial of His Grievances Made the 25 Prison Grievance Process Unavailable 26 Plaintiff next argues in his Opposition that “the Prison Litigation Reform Act/exhaustion 27 of administrative remedies . . . is unavailable when . . . it operates as a simple dead-end with 28 prison officers unable or consistently unwilling to provide any relief to aggrieved inmates.” 1 (Doc. No. 46 at 6). He contends that in his more than 20 years in CDCR custody, he has filed “a 2 number of grievances” and has been granted relief in “no more than three of them.” (Id. at 5). 3 First, Plaintiff’s claim in his Opposition, that most of his grievances at CDCR have been denied, 4 does not meet the requirements of Rule 56(c)(1)(A) for establishing a genuine dispute of material 5 fact. To do so, Plaintiff must 6 cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits 7 or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other 8 materials. 9 Fed. R. Civ. P. 56(c)(1)(A). Plaintiff’s conclusory assertions in his Opposition, which do not cite 10 to any competent evidence, are insufficient to set forth a genuine dispute of material fact. See 11 Deutsche Bank Nat'l Tr. Co. v. SFR Invs. Pool 1, LLC, 382 F. Supp. 3d 1114, 1118 (D. Nev. 12 2019) (“the nonmoving party cannot avoid summary judgment by relying solely on conclusory 13 allegations that are unsupported by factual data.”). 14 Moreover, the mere fact that an unspecified number of Plaintiff’s grievances were denied 15 at unspecified CDCR facilities does not establish that the grievance process was unavailable at 16 NKSP. Indeed, Plaintiff has no constitutional right to have his grievances granted. See Jenkins v. 17 Bernatene, 2012 WL 3764035, at *5 (E.D. Cal. Aug. 29, 2012) (“Plaintiff has a First Amendment 18 right to file prison grievances but does not have a right to any particular response.”); Norman v. 19 Walker, 2011 WL 6153274, at *4 (E.D. Cal. Dec. 12, 2011) (“While plaintiff may have a 20 constitutional right to access established prison grievance procedures, that right protects his 21 ability to file the grievance, but does not protect him as to how prison officials process and/or 22 decide the grievance.”). 23 Even if true, the fact that many of Plaintiff’s grievances have been denied does not 24 establish that the grievance process was effectively unavailable to him. The Court therefore finds 25 Plaintiff does not set forth a basis to deny Defendant’s motion for summary judgment. 26 FINDINGS AND RECOMMENDATION 27 As set forth above, Plaintiff admits he did not attempt to exhaust his administrative 28 remedies as required by 42 U.S.C. § 1997e(a). Plaintiff does not set forth circumstances that 1 | show his administrative remedies at NKSP were effectively unavailable. Therefore, Defendants 2 | are entitled to summary judgment. 3 Accordingly, it is RECOMMENDED: 4 Defendants’ motion for summary judgment (Doc. No. 40) be GRANTED in full. 5 NOTICE TO PARTIES 6 These findings and recommendations will be submitted to the United States district judge 7 | assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 8 || days after being served with these findings and recommendations, a party may file written 9 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 | Findings and Recommendations.” 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 | 838-39 (9th Cir. 2014) (citing Baxter y. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 | Dated: _ September 27. 2023 Mihaw. Wh. foareh Zaskth 15 HELENA M. BARCH-KUCHTA 6 UNITED STATES MAGISTRATE JUDGE
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