(PC) Tran v. Smith

• Court: District Court, E.D. California
• Decided: February 28, 2022
• Docket: 1:19-cv-00148
• Status: Unknown

Opinion

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

11 BINH CUONG TRAN, ) Case No.: 1:19-cv-00148-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 S. SMITH, et al., ) ) (ECF No. 85) 15 ) Defendants. ) 16 )

17 Plaintiff Binh Cuoung Tran is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983. 19 Currently before the Court is Defendants’ motion for summary judgment for failure to exhaust 20 the administrative remedies, filed September 30, 2021. (ECF No. 85.) 21 I. 22 PROCEDURAL BACKGROUND 23 This action is proceeding against Defendants J. Garcia and A. Brown, Jericoff and Munsel for 24 deliberate indifference to a serious medical need in violation of the Eighth Amendment. 25 On July 22, 2021, Defendants filed an answer to the first amended complaint. (ECF No. 79.) 26 On July 23, 2021, the Court issued an amended scheduling order. (ECF No. 80.) 27 On September 30, 2021, Defendants filed the instant motion for summary judgment. (ECF No. 28 85.) 1 On October 15, 2021, Plaintiff filed an opposition, and Defendants filed a reply on October 22, 2 2021. (ECF Nos. 86, 87.) 3 II. 4 LEGAL STANDARD 5 A. Statutory Exhaustion Requirement 6 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o 7 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 8 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 9 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is 10 mandatory unless unavailable. Exhaustion is required regardless of the relief sought by the prisoner 11 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and 12 the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 13 U.S. 516, 532 (2002). 14 Section 1997e(a) also requires “proper exhaustion of administrative remedies, which ‘means 15 using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues 16 on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citation omitted). “Proper exhaustion 17 demands compliance with an agency’s deadlines and other critical procedural rules because no 18 adjudicative system can function effective without imposing some orderly structure on the course of 19 its proceedings.” Id. at 90-91. “[I]t is the prison’s requirements, and not the PLRA, that define the 20 boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The obligation to 21 exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no 22 longer the case, then there are no ‘remedies … available,’ and the prisoner need not further pursue the 23 grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth 24 v. Churner, 532 U.S. 731, 739 (2001)). 25 The failure to exhaust is an affirmative defense, and the defendant or defendants bear the 26 burden of raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. at 216; Albino v. 27 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear on the 28 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1 1166. Otherwise, the defendant or defendants must produce evidence proving the failure to exhaust, 2 and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in 3 the light most favorable to the plaintiff, shows the plaintiff failed to exhaust. Id. 4 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 5 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1862 6 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the prisoner.” 7 Id. at 1856. The Supreme Court has explained when an administrative procedure is unavailable: 8 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently 9 unwilling to provide any relief to aggrieved inmates.... Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.... And finally, the same is 10 true when prison administrators thwart inmates from taking advantage of a grievance process 11 through machination, misrepresentation, or intimidation.... [S]uch interference with an inmate's pursuit of relief renders the administrative process unavailable. And then, once again, § 12 1997e(a) poses no bar.

13 Id. at 1859-60 (citations omitted 14 B. Summary Judgment Standard 15 Any party may move for summary judgment, and the Court shall grant summary judgment if 16 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 17 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 18 c1166; Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 19 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of 20 materials in the record, including but not limited to depositions, documents, declarations, or discovery; 21 or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or 22 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 23 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to 24 by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified 25 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 26 1011, 1017 (9th Cir. 2010). “The evidence must be viewed in the light most favorable to the 27 nonmoving party.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2014). 28 1 Initially, “the defendant’s burden is to prove that there was an available administrative remedy, 2 and that the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the 3 defendant meets that burden, the burden of production then shifts to the plaintiff to “come forward 4 with evidence showing that there is something in his particular case that made the existing and 5 generally available administrative remedies effectively unavailable to him.” Id. However, the 6 ultimate burden of proof on the issue of administrative exhaustion remains with the defendant. Id. “If 7 undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a 8 defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts 9 are disputed, summary judgment should be denied, and the district judge rather than a jury should 10 determine the facts.” Id. 11 III. 12 DISCUSSION 13 A. Summary of CDCR’s Administrative Appeal Process1 14 A prisoner in the custody of the California Department of Corrections and Rehabilitation 15 (“CDCR”) satisfies the administrative exhaustion requirement for a non-medical appeal or grievance 16 by following the procedures set forth in California Code of Regulations, title 15, §§ 3084-3084.9. 17 California Code of Regulations, title 15, § 3084.1(a) provides that “[a]ny inmate … under 18 [CDCR’s] jurisdiction may appeal any policy, decision, action, condition, or omission by the 19 department or its staff that the inmate … can demonstrate as having a material adverse effect upon his 20 or her health, safety, or welfare.” An inmate is required to use a CDCR Form 602 to “describe the 21 specific issue under appeal and the relief requested.” Cal. Code Regs. tit. 15, § 3084.2(a). An inmate 22 is limited to one issue, or related set of issues, per each CDCR Form 602 and the inmate “shall state all 23 facts known and available to [them] regarding the issue being appealed at the time of submitting” the 24 CDCR Form 602. Cal. Code Regs. tit. 15, § 3084.2(a)(1) & (a)(4). Further, the inmate “shall list all 25 staff member(s) involved and … describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 26

27 1 On March 25, 2020, the grievance procedure outlined in § 3084.1, et seq., was repealed effective June 1, 2020, as an emergency by the CDCR pursuant to Penal Code § 5058.3. See CCR, tit. 15, § 3084.1, ¶ 13 (June 26, 2020). However, 28 1 3084.2(a)(3). If known, the inmate must include the staff member’s last name, first initial, title or 2 position, and the dates of the staff member’s involvement in the issue being appealed. Id. If the 3 inmate does not know the staff member’s identifying information, the inmate is required to “provide 4 any other available information that would assist the appeals coordinator in making a reasonable 5 attempt to identify the staff member(s) in question.” Id. 6 Unless the inmate grievance falls within one of the exceptions stated in California Code of 7 Regulations, title 15, §§ 3084.7(b)(1)-(2) and 3084.9, all inmate grievances are subject to a three-step 8 administrative review process: (1) the first level of review; (2) the second level appeal to the Warden 9 of the prison or their designee; and (3) the third level appeal to the Secretary of CDCR, which is 10 conducted by the Secretary’s designated representative under the supervision of the third level 11 Appeals Chief. Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.7(a)-(d). Unless the inmate grievance 12 deals with allegations of sexual violence or staff sexual misconduct, an inmate must submit the CDCR 13 Form 602 and all supporting documentation to each the three levels of review within 30 calendar days 14 of the occurrence of the event or decision being appealed, of the inmate first discovering the action or 15 decision being appealed, or of the inmate receiving an unsatisfactory departmental response to a 16 submitted administrative appeal. Cal. Code Regs. tit. 15, §§ 3084.2(b)-(e), 3084.3, 3084.6(a)(2), 17 3084.8(b). When an inmate submits an administrative appeal at any of the three levels of review, the 18 reviewer is required to reject the appeal, cancel the appeal, or issue a decision on the merits of the 19 appeal within the applicable time limits. Cal. Code Regs. tit. 15, §§ 3084.6(a)-(c), 3084.8(c)-(e). If an 20 inmate’s administrative appeal is rejected, the inmate is to be provided clear instructions about how to 21 cure the appeal’s defects. Cal. Code Regs. tit. 15, §§ 3084.5(b)(3), 3084.6(a)(1). If an inmate’s 22 administrative appeal is cancelled, the inmate can separately appeal the cancellation decision. Cal. 23 Code Regs. tit. 15, § 3084.6(a)(3) & (e). 24 /// 25 /// 26 /// 27 /// 28 /// 1 B. Summary of Relevant Factual Allegations of Plaintiff’s Complaint 2 On April 13, 2018, Plaintiff, who is Asian, was diagnosed with a broken rib and was provided 3 with a medical chrono for a lower bunk by Dr. Smith. (Compl. 4, 6, 8,2 ECF No. 1.) On April 25, 2018, 4 Correctional Officers E. Munsel and M. Jericoff informed Plaintiff that he would be moving to the 5 second tier because his cell was needed for another inmate. (Comp. 4.) Plaintiff informed them of his 6 broken rib, that he had a medical chrono, and that he could not move cells. (Id.) Plaintiff could barely 7 talk due to the pain from the broken rib. (Id.) The officers ignored Plaintiff’s medical needs and told 8 him that he would have to move cells. (Id.) Plaintiff refused to move and informed Officer Jericoff that 9 he could not carry his stuff up the fourteen stairs to the second tier. (Id.) Officer Jericoff told Plaintiff 10 to find someone to help him carry his stuff up the stairs. (Id.) Plaintiff asked Officer Munsel to stop 11 the cell move, and he responded, “it’s prison, and you have to deal with it.” (Id.) Plaintiff refused to 12 move several more times before Officer Jericoff made an ultimatum that Plaintiff had to either move to 13 the second tier or he would be moved out of building 5. (Id.) Officer Jericoff told Plaintiff that an 14 inmate was returning from court and needed to be housed on the lower tier. (Id.) Plaintiff had to move 15 to the second tier. (Id.) 16 The inmate who returned from court was Hispanic and he was healthy. (Id. at 5.) Plaintiff later 17 found out that the inmate was supposed to be housed in cell 132 but Officers Munsel and Jericoff wanted 18 him to be housed in Plaintiff’s cell because it is a little bigger and they give preferential treatment to 19 Hispanic inmates. (Id.) There were numerous other cells in which inmates having no physical 20 limitations or disabilities were housed and they were not selected to move to the upper tier. (Id. at 6.) 21 There were fifty inmates housed on the bottom tier and four of them were Asian. (Id.) 22 C. Statement of Undisputed Facts3 23 1. Plaintiff is an inmate of the California Department of Corrections of Rehabilitation 24 (CDCR) and was when he filed this action on February 4, 2019. (First Am. Compl. (FAC) at 1.) 25 26 2 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 27 CM/ECF electronic court docketing system.

28 3 1 2. Plaintiff was an inmate at Sierra Conservation Center (SCC) from August 18, 2017 until 2 June 12, 2019. (Declaration of T. Williams (Williams Decl.) ¶ 7.) 3 3. CDCR has an administrative appeal process whereby inmates, such as Plaintiff, may 4 appeal any policy, decision, action, condition, or omission by CDCR or CDCR staff that has a material 5 adverse effect upon the inmate’s health, safety or welfare. (Cal. Code Regs. tit. 15, §§ 3084-3084.9; 6 Declaration of Howard E. Moseley (Moseley Decl.) ¶¶ 2-6; Williams Decl. ¶¶ 3-4.) 7 4. CDCR’s inmate appeals process was available to Plaintiff when he was an inmate at SCC 8 And he utilized that process. (Pl.’s Resp. to Defs.’ Req. for Admiss. Nos. 2-3 (Declaration of Arthur B. 9 Mark III (Mark Decl.) Ex. 1; Williams Decl. ¶ 4.) 10 5. Plaintiff alleges that sergeants Brown and Garcia violated his constitutional rights on 11 April 25, 2018, when they allegedly approved a cell move placing Plaintiff in an upper tier cell. (FAC 12 at 9-10.) 13 6. In 2018, to exhaust CDCR’s administrative appeal process, inmates were required to 14 proceed through three levels of review and had to receive a review of their appeal and a decision from 15 CDCR’s Office of Appeals (OOA) (final level of review). (Cal. Code Regs. tit. 15, §§ 3084.1(b); 16 3084.7 (2018); Moseley Decl. ¶¶ 4-6.) 17 7. In 2018, regulations governing CDCR’s inmate appeals process required inmates to “list 18 all staff member(s) involved and . .. describe their involvement in the issue. To assist in the 19 identification of staff members, the inmate or parolee shall include the staff member’s last name, first 20 initial, title or position, if known, and the dates of the staff member’s involvement in the issue under 21 appeal. If the inmate or parolee does not have the requested identifying information about the staff 22 member(s), he or she shall provide any other available information that would assist the appeals 23 coordinator in making a reasonable attempt to identify the staff member(s) in question.” Cal. Code 24 Regs. tit. 15, § 3084.2(a)(3); Moseley Decl. ¶ 6.) 25 8. Between April 25, 2018 and February 4, 2019, Plaintiff submitted only one inmate 26 Appeal, Log No. SCC-18-X-00745; OOA Log No. 1809284. (T. Williams Decl. ¶¶ 8-9, Exs. 1-3; H. 27 Moseley Decl. ¶¶ 7-8, Exs. 1-3; Pl.’s Resp. to Interrogatories, Nos. 1-2 (Mark Decl. Exs. 2 and 3.) 28 1 9. Appeal Log No. 18-00745 complained about officers Munsel and Jericoff only and did 2 not identify sergeants Brown or Garcia. (Moseley Decl. Ex. 3; Williams Decl. ¶ 9, Ex. 3; Mark Decl. 3 Ex. 4 (letter from Plaintiff with untimely 2021 inmate grievance concerning Brown and Garcia). 4 10. Appeal Log No. 18-0045 did not allege that Brown and Garcia or any unidentified 5 Sergeants or other unidentified SCC staff, violated Plaintiff’s rights with respect to the April 25, 2018 6 bed move. (Moseley Decl. Ex. 3; Williams Decl. ¶ 9, Ex. 3; Mark Decl. Ex. 4.) 7 11. On February 28, 2021, Plaintiff attempted to submit a grievance concerning the April 25, 8 2018 bed move that named Garcia and Brown, but it was rejected as untimely. (Mark Decl. Ex. 4.) 9 D. Analysis of Defendants’ Motion 10 Defendants argue that although Plaintiff filed a grievance with respect to the bed move in 2018, 11 it did not mention Defendants Brown or Garcia, nor did it suggest that any unidentified staff were 12 responsible for the alleged violations of his rights. 13 In opposition, Plaintiff argues that he was unaware of Defendants Garcia and Brown’s 14 Involvement in April 2018 and could not list or name them in his grievance. Plaintiff also argues that 15 he was not provided a “staff assistant” or “investigative employee” to assist him in filing an appeal. 16 Plaintiff further contends that he was not provided the “confidential inquiry report” to assist in filing an 17 inmate grievance. 18 In response, Defendants argue Plaintiff has offered no evidence to create a dispute of material 19 fact that he failed to exhaust his available administrative remedies for his claims against Defendants 20 Brown and Garcia. Defendants further argue that Plaintiff presents no evidence that prison officials 21 thwarted him from using his available remedies. 22 Here, it is undisputed that Plaintiff is an inmate of the California Department of Corrections 23 of Rehabilitation (CDCR) and was when he filed this action on February 4, 2019. (UF 1.) Plaintiff 24 was an inmate at Sierra Conservation Center (SCC) from August 18, 2017 until June 12, 2019. (UF 2.) 25 CDCR has an administrative appeal process whereby inmates, such as Plaintiff, may appeal any policy, 26 decision, action, condition, or omission by CDCR or CDCR staff that has a material adverse effect upon 27 the inmate’s health, safety or welfare. (UF 3.) CDCR’s inmate appeals process was available to 28 1 Plaintiff when he was an inmate at SCC and he utilized that process. (UF 4.) Plaintiff alleges that 2 sergeants Brown and Garcia violated his constitutional rights on April 25, 2018, when they allegedly 3 approved a cell move placing Plaintiff in an upper tier cell. (UF 5.) In 2018, to exhaust CDCR’s 4 administrative appeal process, inmates were required to proceed through three levels of review and had 5 to receive a review of their appeal and a decision from CDCR’s Office of Appeals (OOA) (final level 6 of review). (UF 6.) In 2018, regulations governing CDCR’s inmate appeals process required inmates 7 to “list all staff member(s) involved and . .. describe their involvement in the issue. To assist in the 8 identification of staff members, the inmate or parolee shall include the staff member’s last name, first 9 initial, title or position, if known, and the dates of the staff member’s involvement in the issue under 10 appeal. If the inmate or parolee does not have the requested identifying information about the staff 11 member(s), he or she shall provide any other available information that would assist the appeals 12 coordinator in making a reasonable attempt to identify the staff member(s) in question.” (UF 7.) 13 Between April 25, 2018 and February 4, 2019, Plaintiff submitted only one inmate Appeal, Log 14 No. SCC-18-X-00745; OOA Log No. 1809284. (UF 8.) Appeal Log No. 18-00745 complained about 15 officers Munsel and Jericoff only and did not identify sergeants Brown or Garcia. (UF 9.) Appeal Log 16 No. 18-0045 did not allege that Brown and Garcia or any unidentified sergeants or other unidentified 17 SCC staff, violated Plaintiff’s rights with respect to the April 25, 2018 bed move. (UF 10.) On 18 February 28, 2021, Plaintiff attempted to submit a grievance concerning the April 25, 2018 bed move 19 that named Garcia and Brown, but it was rejected as untimely. (UF 11.) However, Plaintiff could not 20 have initially grieved about the actions of Defendants Garcia and Brown because he was unaware of 21 their identity and/or involvement at that time, and Defendants present no evidence to the contrary.4 22 When Plaintiff learned of the identify of Defendants Garcia and Brown and their involvement, he 23 24 25 4 Indeed, on February 10, 2021, the Court issued Findings and Recommendations recommending that Plaintiff’s motion to 26 amend be granted to add the claims against Defendants Garcia and Brown, noting “Plaintiff filed his motion to amend timely under the scheduling order and he only became aware of Sergeants Brown and Garcia’s involvement by way of 27 discovery response from Defendants.” (ECF No. 42 at 3; see also ECF No. 86, Ex. E.) The Findings and Recommendations were adopted in full, and Plaintiff filed an amended complaint on April 9, 2021. (ECF Nos. 49, 53.) 28 1 filed a grievance but it was rejected as untimely.5 2 Under the specific circumstances of this case, the Court finds that Defendants have not 3 shown that there was an available remedy for Plaintiff to use to complain about the actions of 4 Defendants Garcia and Brown in approving the cell move decision made by Defendants Munsel and 5 Jericoff who were specifically named in Plaintiff’s original and timely appeal. See Albino, 747 F.3d 6 at 1172 (Plaintiff has “come forward with evidence showing that there is something in his particular 7 case that made the existing and generally available administrative remedies effectively unavailable to 8 him.”).6 This is particularly so because the grievance sufficiently alerted prison officials to the nature 9 of the alleged wrong, i.e., inappropriately approving a cell move placing Plaintiff in an upper tier cell. 10 See Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (noting “[t]he grievance process is only 11 required to ‘alert prison officials to a problem, not to provide personal notice to a particular official 12 that he may be sued.’ ”). Thus, dismissing Plaintiff's claim for failure to exhaust under these 13 circumstances “does not advance the statutory goal of avoiding unnecessary interference in prison 14 administration,” but instead “prevents the courts from considering a claim that has already been fully 15 vetted within the prison system.” Reyes, 810 F.3d at 658. 16 IV. 17 RECOMMENDATION 18 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion for 19 summary judgment be denied. 20 This Findings and Recommendation will be submitted to the United States District Judge 21

22 5 In this grievance, Plaintiff stated, in pertinent part, “I recently discovered the action, omission, and involvement of sergeants Brown and Garcia, from the officers Jericoff and Munsel testimony.” (ECF No. 86, Ex. F.) 23 6 Defendants cite Bruister v. Asuncion, No. 2:17-cv-05106-PSG-RAO, 2019 WL 1744215, at *6 (C.D. Cal. Mar. 6, 2019), 24 report and recommendation adopted, No. 2:17-cv-05106-PSG-RAO, 2019 WL 6655388 (C.D. Cal. Sept. 10, 2019), in which the plaintiff's inmate grievance named three specific correctional officers involved in an excessive force incident, 25 and Plaintiff brought a civil rights action not only against those three officers but also against other officers who he had not named in his inmate grievance. The Court found that the Plaintiff had not exhausted his administrative remedies against the 26 officers not named in his grievance because it did “not appear that prison officials ignored Plaintiff's violation of this procedural rule as there is nothing in Plaintiff's grievance to alert the prison that he was complaining about any unnamed 27 officers” and “the appeals examiners did not reference these [other] Defendants or consider any excessive force claims against any unnamed officers in their decisions.” Id. However, Bruister is distinguishable because there was no claim that 28 1 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21) da 2 || after being served with this Findings and Recommendation, the parties may file written objections wi 3 || the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 4 || Recommendation.” The parties are advised that failure to file objections within the specified time □□ 5 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 6 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 IT IS SO ORDERED. □□ (ee 9 ll Dated: _ February 25, 2022 IF 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11