4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN WESLEY WILLIAMS, Case No. 1:17-cv-01310-AWI-JLT (PC)
12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS; AND 13 v. (Docs. 54, 55, 63, 69) 14 S. ALFARO, et al.,
15 Defendants. FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR 16 SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 17 AND TO DENY AS MOOT DEFENDANTS’ MOTION FOR JUDGMENT ON THE 18 PLEADINGS 19 (Doc. 49) 20 FOURTEEN-DAY DEADLINE 21 22 Defendants move for summary judgment for failure to exhaust administrative remedies. 23 They also move for judgment on the pleadings on qualified immunity grounds as to one of the 24 claims asserted against Defendants Longoria and Noland. Plaintiff opposes the first motion, but he 25 has not asserted any argument against the latter motion. Plaintiff has also filed several discovery- 26 related motions. Because the undisputed facts demonstrate that Plaintiff did not exhaust his 27 administrative remedies prior to filing suit as to any of his claims, the Court will deny all of 28 P laintiff’s motions, and it will recommend that D efendants’ motion for summary judgment for 1 failure to exhaust administrative remedies be granted and that the motion for judgment on the
2 pleadings be denied as moot.
3 I. Plaintiff’s Federal Rule of Civil Procedure 56(d) and Local Rule 260(b) Motion
4 Plaintiff moves to stay adjudication of D efendants’ motion for summary judgment so that 5 the parties may have an opportunity to conduct discovery before proceeding to the merits of his 6 claims. (Doc. 54.) The Court construes this motion as one brought pursuant to Federal Rule of Civil 7 Procedure 56(d) and Local Rule 260(b). 8 Rule 56(d) provides “a device for litigants to avoid summary judgment when they have not 9 had sufficient time to develop affirmative evidence.” United States v. Kitsap Physicians Serv., 314 10 F.3d 995, 1000 (9th Cir. 2002). A party seeking additional discovery under Rule 56(d) must 11 “explain what further discovery would reveal that is ‘essential to justify [its] opposition’ to the 12 motion[ ] for summary judgment.” Program Eng’g, Inc. v. Triangle Publ’ns, Inc., 634 F.2d 1188, 13 1194 (9th Cir. 1980) (first alteration in original). 14 This showing cannot, of course, predict with accuracy precisely what further discovery will 15 reveal; the whole point of discovery is to learn what a party does not know or, without further 16 information, cannot prove. See, e.g., Pac. Fisheries Inc. v. United States, 484 F.3d 1103, 1111 (9th 17 Cir. 2007) (“[T]he purpose of discovery is to aid a party in the preparation of its case ....”); Fed. R. 18 Civ. P. 26(b) advisory committee’s note to 1946 amendment) (“The purpose of discovery is to 19 allow a broad search for facts ... or any other matters which may aid a party in the preparation or 20 presentation of his case.”). But for purposes of a Rule 56(d) request, the evidence sought must be 21 more than “the object of pure speculation.” California v. Campbell, 138 F.3d 772, 779–80 (9th Cir. 22 1998) (citation omitted). A party seeking to delay summary judgment for further discovery must 23 state “what other specific evidence it hopes to discover [and] the relevance of that evidence to its 24 claims.” Program Eng’g, 634 F.2d at 1194 (emphasis added). In particular, “[t]he requesting party 25 must show [that]: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further 26 discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary 27 judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 28 ( 9th Cir. 2008). 1 Local Rule 260(b), in turn, provides, in relevant part, “If a need for discovery is asserted as
2 a basis for denial of the motion [for summary judgment], the party opposing the motion shall
3 provide a specification of the particular facts on which discovery is to be had or the issues on which
4 discovery is necessary.” E.D. Cal. Local Rule 26 0(b). 5 Plaintiff fails to identify any discovery that he believes is necessary to oppose Defendants’ 6 motion for summary judgment. Instead, he cites to several cases for the proposition that a court 7 should not grant summary judgment against a party who has not yet had an opportunity to pursue 8 discovery. See, e.g., Jones v. Blanas, 393 F.3d 918, 930-31 (9th Cir. 2004). While this is true, the 9 fact remains that a motion for summary judgment for failure to exhaust administrative remedies is 10 not a vehicle through which the merits of a Plaintiff’s claims are reached. Rather, it concerns a 11 preliminary jurisdictional requirement that must be satisfied before the merits may even be reached. 12 Therefore, Plaintiff’s motion will be denied. 13 II. Defendants’ Motion for Summary Judgment for Failure to Exhaust 14 A. Plaintiff’s Allegations and Undisputed Facts 15 The Court found Plaintiff’s complaint to state several cognizable claims stemming from 16 multiple, distinct incidents: 1) a First Amendment retaliation claim against Villarrial, Dollarhide, 17 Longoria, and Noland in their individual capacities; 2) an Eighth Amendment excessive force 18 claims against Campbell, Morelock, Longoria, Noland and Burns in their individual capacities; 3) 19 an Eighth Amendment medical indifference claim against Dollarhide, Longoria, and Burns in their 20 individual capacities; 4) a Fourteenth Amendment Equal Protection claim against Longoria, 21 Noland, and Alvarado in their individual capacities; and 5) Americans with Disabilities Act 22 (“ADA”) claims against Alfaro and Sexton in their official capacities. 23 To facilitate review of Plaintiff’s claims and related administrative grievances, the Court 24 will present each incident separately and include evidence of Plaintiff’s exhaustion efforts. 25 Plaintiff is a state prisoner who suffers from a psychiatric disorder, Self-Injurious Behavior 26 (“SIB”), whereby he cuts himself with sharp objects to relieve anxiety and other mental distress. 27 SIB can lead to dangerous levels of self-harm. In September 2016, Plaintiff arrived at California 28 S tate Prison in Corcoran to participate in the Menta l Health Services Delivery System (“MHSDS”). 1 He describes several incidents in which he was deliberately treated poorly by staff members who
2 were aware of his susceptibility to self-harm. Due to these incidents, Plaintiff did indeed engage in
3 self-harm.
4 1. Incident 1 5 a. Plaintiff’s Allegations 6 Between October and December 2016, Defendants Noland and Longoria openly ridiculed 7 Plaintiff and other MHSDS prisoners who were standing in line for medication. When Plaintiff 8 complained about the treatment to these staff members, Longoria and Noland, along with other 9 officers, hand-cuffed Plaintiff, pushed him into walls while escorting him to a holding cage, locked 10 him in the holding cage for 1-2 hours still handcuffed, and continued to call him names. 11 b. Evidence of Exhaustion 12 There is no evidence that Plaintiff submitted a grievance as to the conduct of thes two 13 Defendants’ from October through December 2016. There is, however, an inmate grievance 14 submitted on January 11, 2017, Log No. 17-0305, alleging misconduct by non-party CO Flores and 15 Defendant Noland on January 10, 2017, in the form of tight handcuffs, shoving Plaintiff into a wall, 16 forcefully pushing Plaintiff into a holding cage, and name calling, but this could not have served to 17 exhaust Plaintiff’s administrative remedies because it related to a January 2017 incident and it 18 involved different individuals. See Decl. of D. Goree in Supp. of Defs.’ Mot. Summ. J. (Doc. 49- 19 5) Ex. V. 20 2. Incident 2 21 a. Plaintiff’s Allegations 22 On or around February 11, 2017, Plaintiff was assigned to a yard crew position as a part of 23 his mental health treatment. However, Defendants Alvarado, Longoria, and Noland refused to call 24 Plaintiff to report to work or to put Plaintiff to work. In late February 2017, Plaintiff asked 25 Alvarado, Longoria, Noland and other officers why he had not been called to work. Longoria stated, 26 “We don’t hire J-cats.” Noland laughed, and Alvarado stated, “Go back to your cell. If we want 27 you, we’ll call you.” Plaintiff was never called to work. 28 b. Evidence of Exhaus tion 1 On March 29, 2017, Plaintiff submitted an inmate grievance, Log No. 17-2955, complaining
2 about the refusal of various yard officers to call Plaintiff to work because of his mental health status.
3 See Goree Decl. Ex. CC (Doc. 49-5 at 177-83). This grievance was lost for a period of time. See
4 id. 5 On May 11, 2017, Plaintiff submitted a Reasonable Modification or Accommodation 6 Request (“RAP”) on a CDCR 1824 form, Log No. 17-2507, complaining about the failure of facility 7 staff to allow Plaintiff to report to work because of his “mental health psychiatric disability.” Goree 8 Decl. Ex. GG (Doc. 49-5 at 215-16). The RAP was denied on June 1, 2017, because Plaintiff’s 9 request did not include any disability discrimination issues. Id. (Doc. 49-5 at 214). Plaintiff was 10 then informed that if he disagreed with the decision, he could submit an inmate grievance. 11 On June 4, 2017, Plaintiff submitted an inmate grievance regarding the RAP denial. Goree 12 Decl. Ex. JJ (Doc. 49-5 at 258-60). This grievance appears to have been related to the earlier-filed 13 grievance, Log No. 17-2955, and construed at the second level of review as a staff complaint. It 14 was partially granted at the second level of review on July 13, 2017, and then denied at the third 15 level of review on November 3, 2017. Decl. of M. Voong in Supp. of Defs.’ Mot. Summ. J. ⁋ 11, 16 Ex. YY (Doc. 49-7 at 85-86, 91-92). This grievance did not exhaust Plaintiff’s administrative 17 remedies as to this incident because the grievance was processed at the final level of review after 18 this case was initiated. 19 3. Incident 3 20 a. Plaintiff’s Allegations 21 On January 23, 2017, there was a gang-related disturbance at CSP-Cor. Although Plaintiff 22 was not involved, he was ordered to lay prone and was shivering in wet grass for two hours. 23 Campbell and Morelock secured Plaintiff’s wrist with excessively tight restraints. They then 24 commented that Plaintiff was an MHSDS inmate as they roughly searched Plaintiff and removed 25 his pants, exposing his buttocks. During the search, Plaintiff’s pubic hairs were forcefully ripped 26 out. Defendants roughly pulled up Plaintiff’s pants and boxer shorts, causing Plaintiff discomfort. 27 As Plaintiff was putting his feet into his shoes, Defendants shoved him forward, preventing Plaintiff 28 f rom putting on one shoe and causing other prison ers to laugh. 1 b. Evidence of Exhaustion
2 On January 23, 2017, Plaintiff filed an inmate grievance, Log No. 17-0465, concerning this
3 incident. Goree Decl. Ex. W (Doc. 49-5 at 102-09). This grievance was converted to a staff
4 complaint and was partially granted at the secon d level of review on July 28, 2017. Plaintiff was 5 informed that he could appeal the decision by submitting an appeal to the Secretary’s/Third Level 6 of Review, but there is no evidence that Plaintiff submitted the appeal for further review. This 7 grievance therefore did not exhaust Plaintiff’s administrative remedies as to this incident. 8 4. Incident 4 9 a. Plaintiff’s Allegations 10 On or about April 12, 2017, Plaintiff’s counselor determined that Plaintiff was eligible for 11 a Level III override referral to a progressive programming facility at California State Prison – Los 12 Angeles (“CSP-LAC”). On May 30, 2017, Plaintiff learned that the referral was not going through. 13 On June 2, 2017, Dollarhide advised Plaintiff that his case needed to be taken back to the committee 14 to be approved. Then, on June 4, Dollarhide said that Villarrial had intervened and stopped the 15 Level III override from going back to the committee because Plaintiff “files a lot of complaints.” 16 Villarrial refused to hold a new committee for Plaintiff’s referral. He also falsified information 17 about Plaintiff not meeting behavioral requirements, using this as a pretense to reject Plaintiff’s 18 referral. 19 b. Evidence of Exhaustion 20 Plaintiff filed several grievances regarding referrals to other institutions. On May 31, 2017, 21 Plaintiff submitted an inmate grievance, Log No. 17-2954, complaining about his exclusion by the 22 Unit Classification Committee (“UCC”) on May 3, 2017, from an override to another facility. 23 Goree Decl. Ex. HH (Doc. 49-5 at 221-23). Plaintiff claimed he met all the requirements for a 24 transfer, but he was denied due to a “bogus” Staff Separation Alert that he claims was planted in 25 his file. Plaintiff’s grievance was denied at the first level of review on June 22, 2017, and then at 26 the second level of review on September 11, 2017. Id. (Doc. 49-5 at 224-28). There is no record of 27 Plaintiff submitting this grievance to the third level of review. 28 On June 11, 2017, Plaintiff submitted an in mate grievance, Log No. 17-3020, regarding a 1 “botch[ed]” UCC action from May 24, 2017. Goree Decl. Ex. KK (Doc. 49-5 at 265-68). This
2 grievance was bypassed at the first level of review and then partially granted at the second level of
3 review on August 1, 2017. Id. (Doc. 49-5 at 269-70). There is no record of Plaintiff submitting this
4 grievance to the third level of review. 5 On June 21, 2017, Plaintiff submitted an inmate grievance, Log No. 17-3177, complaining 6 about Dollarhide and Villarrial’s denial of Plaintiff’s override. Goree Decl. Ex. II (Doc. 49-5 at 7 250-253). The grievance was screened on June 22, 2017, and it was rejected for having exceeded 8 the allowable number of appeals within a 14-day period. Id. (Doc. 49-5 at 249). Presumably upon 9 resubmission, it was screened again at the second level of review on July 3, 2017, and Plaintiff was 10 asked to explain how this grievance was not duplicative of Log No. 17-2954. Id. (Doc. 49-5 at 248). 11 There is no record that Plaintiff pursued this grievance any further. 12 On September 13, 2017, Plaintiff filed an inmate grievance, Log No. 17-4797, regarding a 13 classification review held by Villarrial and Dollarhide on September 6, 2017. See Voong Decl. Ex. 14 AAA (Doc. 49-7 at 125-40). This grievance was granted in part at the first level of review on 15 October 10, 2017; converted to a staff complaint and partially granted at the second level of review 16 on November 6, 2017; and denied at the third level of review on February 14, 2018. This grievance 17 could not have exhausted Plaintiff’s administrative remedies because it was exhausted after this 18 case was initiated. 19 5. Incident 5 20 a. Plaintiff’s Allegations 21 On two to three occasions, Longoria and Noland pushed Plaintiff into walls, put him in a 22 holding cage, and insulted him as he was seeking mental health care. These Defendants were aware 23 of Plaintiff’s susceptibility to psychological injury. 24 b. Evidence of Exhaustion 25 There is no evidence that Plaintiff filed a grievance or otherwise attempted to exhaust his 26 administrative remedies as to this incident. 27 6. Incident 6 28 a. Plaintiff’s Allegatio ns 1 On June 7, 2017, Dr. Amajoyi informed Dollarhide that Plaintiff was using the weekly
2 issued razors to self-harm and recommended Plaintiff be provided a job assignment. On June 20,
3 2017, Dr. Amajoyi again called Dollarhide and said that Plaintiff was using the weekly issued razor
4 to self-harm and to recommend that Plaintiff be g iven a job assignment. Dollarhide took no action, 5 and Plaintiff continued to engage in self-harm. 6 b. Evidence of Exhaustion 7 There is no evidence that Plaintiff filed a grievance or otherwise attempted to exhaust his 8 administrative remedies as to this incident. 9 7. Incident 7 10 a. Plaintiff’s Allegations 11 Plaintiff was prescribed psychotropic medication to take as needed to deter the urge to self- 12 harm. On August 6, 2017, Plaintiff went to pick up this medicine but was prevented from going to 13 the medication window for over an hour because of a disturbance. Plaintiff informed Noland that 14 he needed the medication to prevent his self-harm. Noland replied “Stupid J-cat” while throwing 15 Plaintiff’s medication cup to the ground. Noland moved Plaintiff to sit in the direct sunlight in 16 temperatures above 90 degrees, telling other officers, “This guy is a J-cat, so watch him, and if he 17 moves, shoot him.” Plaintiff was left in the sun for over an hour. 18 b. Evidence of Exhaustion 19 On August 7, 2017, Plaintiff submitted an inmate grievance, Log No. 17-4198, complaining 20 about this incident. Goree Decl. Ex. LL (Doc. 49-5 at 287-94). This grievance was converted to a 21 staff complaint and partially granted at the second level of review on September 28, 2017. The 22 institutional inquiry revealed no wrongdoing on the part of any staff members, and Plaintiff was 23 informed that he could appeal to the third level of review if he wished to exhaust his administrative 24 remedies. Plaintiff, however, did not pursue this appeal any further. Accordingly, Log No. 17-4198 25 did not exhaust Plaintiff’s administrative remedies. 26 8. Incident 8 27 a. Plaintiff’s Allegations 28 On August 29, 2017, Plaintiff was schedul ed to meet with a psychologist. While waiting, 1 he was placed in a holding cage for five hours without food, water, medication or bathroom access.
2 Plaintiff became agitated and manipulated his restraints to engage in self-harm. When Burns saw
3 Plaintiff’s cuts and blood, he opened the holding cage door and said, “Stupid J-cat, you fucked up
4 my cage with all this blood.” He then pushed Pla intiff into walls and pushed his chest into a door 5 causing Plaintiff to fall to his knees. Burns removed the bloodstained handcuffs and challenged 6 Plaintiff to a fight. Plaintiff refused. 7 Burns then secured Plaintiff’s handcuffs from behind, bending Plaintiff’s wrists and 8 forcefully raising his arms, causing pain in Plaintiff’s wrist, neck and shoulders. Burns urged 9 Plaintiff to resist, but again Plaintiff refused. Burns joked that Plaintiff cut because he was, “a 10 mentally retarded crack baby.” Plaintiff felt humiliated. 11 When Plaintiff was released, he asked for medical attention for his wounds. Burns replied, 12 “You only get medical attention after you fight me.” Burns again asked Plaintiff to fight him, and 13 Plaintiff again refused. Burns then ordered the nurse to falsely record that Plaintiff had refused 14 medical aid. Plaintiff was returned to housing without treatment and still bleeding. 15 b. Evidence of Exhaustion 16 On September 5, 2017, Plaintiff submitted a CDCR 602 HC Health Care Appeal 17 complaining about this incident, Log No. CO-SC-17000004. See Decl. of S. Gates in Supp. of 18 Defs.’ Mot. Summ. J. (Doc. 49-4) Ex. N. The grievance was deemed a healthcare staff complaint; 19 it was denied on December 15, 2017, at the institutional level of review; and it was denied again at 20 the Headquarters level on May 9, 2018. Id. (Doc. 49-4 at 211-12). This grievance could not have 21 exhausted Plaintiff’s administrative remedies because the process was completed after this action 22 was initiated. 23 B. Legal Standards 24 1. Summary Judgment Standards 25 The court must grant a motion for summary judgment if the movant shows that there is no 26 genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of 27 law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). 28 M aterial facts are those that may affect the outcom e of the case. Anderson, 477 U.S. at 248. A 1 dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to
2 return a verdict for the non-moving party. Id. at 248-49.
3 The party moving for summary judgment bears the initial burden of informing the court of
4 the basis for the motion, and identifying portions of the pleadings, depositions, answers to 5 interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of 6 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving 7 party must either produce evidence negating an essential element of the nonmoving party's claim 8 or defense or show that the nonmoving party does not have enough evidence of an essential 9 element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. 10 Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 11 1076 (9th Cir. 2001) (“When the nonmoving party has the burden of proof at trial, the moving 12 party need only point out ‘that there is an absence of evidence to support the nonmoving party's 13 case.’”) (quoting Celotex, 477 U.S. at 325). 14 If the moving party meets its initial burden, the burden shifts to the non-moving party to 15 produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins. Co., Ltd., 210 F.3d 16 at 1103. The non-moving party may not rest upon mere allegations or denials of the adverse 17 party's evidence, but instead must produce admissible evidence that shows there is a genuine 18 issue of material fact for trial. See Devereaux, 263 F.3d at 1076. If the non-moving party does not 19 produce evidence to show a genuine issue of material fact, the moving party is entitled to 20 summary judgment. See Celotex, 477 U.S. at 323. 21 Generally, when a Defendant moves for summary judgment on an affirmative defense on 22 which he bears the burden of proof at trial, he must come forward with evidence which would 23 entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. 24 South, 965 F.2d 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an 25 affirmative defense that must be raised in a motion for summary judgment rather than a motion to 26 dismiss. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for 27 summary judgment for nonexhaustion, the Defendant has the initial burden to prove “that there 28 w as an available administrative remedy, and that t he prisoner did not exhaust that available 1 remedy.” Id. at 1172. If the Defendant carries that burden, the “burden shifts to the prisoner to
2 come forward with evidence showing that there is something in his particular case that made the
3 existing and generally available administrative remedies effectively unavailable to him.” Id. The
4 ultimate burden of proof remains with the Defen dant, however. Id. If material facts are disputed, 5 summary judgment should be denied, and the “judge rather than a jury should determine the 6 facts” on the exhaustion question, id. at 1166, “in the same manner a judge rather than a jury 7 decides disputed factual questions relevant to jurisdiction and venue,” id. at 1170-71. 8 In ruling on a motion for summary judgment, inferences drawn from the underlying facts 9 are viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. 10 Zenith Radio Corp., 475 U.S. 574, 587 (1986). 11 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is 12 based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder 13 v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating Plaintiff's verified complaint 14 as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, 15 Plaintiff stated under penalty of perjury that contents were true and correct, and allegations were 16 not based purely on his belief but on his personal knowledge). Plaintiff’s pleading is signed under 17 penalty of perjury and the facts therein are evidence for purposes of evaluating the Defendants' 18 motion for summary judgment. 19 2. California’s Administrative Exhaustion Rules 20 “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or 21 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 22 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion in 23 prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); 24 Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016) (mandatory language of § 1997e(a) forecloses 25 judicial discretion to craft exceptions to the requirement). All available remedies must be 26 exhausted; those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and 27 effective.’” Porter, 534 U.S. at 524. Even when the prisoner seeks relief not available in grievance 28 p roceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. Churner, 1 532 U.S. 731, 741 (2001). Section 1997e(a) requires “proper exhaustion” of available
2 administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion requires
3 using all steps of an administrative process and complying with “deadlines and other critical
4 procedural rules.” Id. at 90. 5 The State of California provides its inmates and parolees the right to appeal administratively 6 “any policy, decision, action, condition, or omission by the department or its staff that the inmate 7 or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or 8 welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). To exhaust available administrative remedies, a 9 prisoner must proceed through three formal levels of appeal and receive a decision from the 10 Secretary of the CDCR or his designee. Id. § 3084.1(b), § 3084.7(d)(3). 11 The amount of detail in an administrative grievance necessary to properly exhaust a claim 12 is determined by the prison's applicable grievance procedures. Jones v. Bock, 549 U.S. 199, 218 13 (2007); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (“To provide adequate notice, 14 the prisoner need only provide the level of detail required by the prison's regulations”). California 15 prisoners are required to lodge their administrative complaint on a CDCR-602 form (or a CDCR- 16 602 HC form for a health-care matter). The level of specificity required in the appeal is described 17 in a regulation:
18 The inmate or parolee shall list all staff member(s) involved and shall 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 initial, title or position, if known, 20 and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested 21 identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals 22 coordinator in making a reasonable attempt to identify the staff member(s) in question. [¶] The inmate or parolee shall state all facts 23 known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if 24 needed, the Inmate/Parolee Appeal Form Attachment. 25 Cal. Code Regs. tit. 15, § 3084.2(a)(3-4).1 26 1 Several Ninth Circuit cases have referred to California prisoners' grievance procedures as not specifying the level of 27 detail necessary and instead requiring only that the grievance “describe the problem and the action requested.” See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Cal. Code Regs. tit. 15, § 3084.2); Sapp, 623 F.3d 28 a t 824 (“California regulations require only that an inmate ‘d escribe the problem and the action requested.’ Cal. Code 1 Exhaustion of administrative remedies may occur if, despite the inmate's failure to comply
2 with a procedural rule, prison officials ignore the procedural problem and render a decision on the
3 merits of the grievance at each available step of the administrative process. Reyes v. Smith, 810
4 F.3d 654, 658 (9th Cir. 2016); e.g., id. at 659 (alt hough inmate failed to identify the specific 5 doctors, his grievance plainly put prison on notice that he was complaining about the denial of 6 pain medication by the Defendant doctors, and prison officials easily identified the role of pain 7 management committee's involvement in the decision-making process). 8 C. Analysis 9 Plaintiff’s claims are premised on conduct occurring between September 2016 and August 10 2017. Because Plaintiff filed his complaint on October 2, 2017, he may proceed only on those 11 claims that were exhausted before this case was initiated. 12 Between September 2016 and October 2017, Plaintiff filed 24 non-healthcare grievances 13 and 15 healthcare grievances. See Goree Decl. ⁋⁋ 12-13, Exs. O-MM; Gates Decl. ⁋⁋ 8-9, Exs. 14 A-M. The Court has examined each of these grievances, noting above only those that can be 15 reasonably construed as relating to the incidents identified in the complaint. Based on this 16 evidence, Defendants have adequately demonstrated that administrative grievances were available 17 to Plaintiff, that Plaintiff was familiar with the administrative process and the need to exhaust his 18 administrative remedies prior to filing a federal civil rights action, and that Plaintiff did not 19 exhaust his administrative remedies as to any of the incidents at issue in this case. 20 Once the Defendants met their initial burden, the burden shifted to Plaintiff to come forward 21 with evidence showing that something in his particular case made the existing administrative 22 do not specify the requisite level of detail, “‘a grievance suffices if it alerts the prison to the nature of the wrong for 23 which redress is sought’”). Those cases are distinguishable because they did not address the regulation as it existed at the time of the events complained of in Plaintiff’s pleading. Section 3084.2 was amended in 2010 (with the 2010 24 amendments becoming operative on January 28, 2011), and those amendments included the addition of subsection (a)(3). See Cal. Code Regs. tit. 15, § 3084.2 (history notes 11-12 providing operative date of amendment). Wilkerson 25 and Sapp used the pre-2011 version of section 3084.2, as evidenced by their statements that the regulation required the inmate to “describe the problem and the action requested” – a phrase that does not exist in the version of the 26 regulation in effect in and after 2011. Griffin is distinguishable because it discussed the Maricopa County Jail administrative remedies rather than the CDCR's administrative remedies. Whatever the former requirements may 27 have been in the CDCR and whatever requirements may still exist in other facilities, since January 28, 2011, the operative regulation has required California prisoners using the CDCR's inmate appeal system to list the name(s) of 28 t he wrongdoer(s) in their administrative appeals. 1 remedies effectively unavailable to him. See Albino, 747 F.3d at 1172. In his opposition, Plaintiff
2 claims that several of his grievances were exhausted because they were either (a) converted into a
3 staff complaint, (b) improperly canceled / rejected, or (c) an improper reviewer was assigned. None
4 of these arguments have merit. 5 1. Grievances Converted to Staff Complaints 6 a. General Arguments 7 As summarized above, the PLRA requires proper exhaustion. In California, that means 8 filing a grievance and following the proper procedures to see that grievance through the third level 9 of review. In his opposition, Plaintiff makes three general arguments regarding those grievances 10 converted to staff complaints. First, he cites to several cases, including Brown v. Valoff, 422 F.3d 11 926 (9th Cir. 2005), for the proposition that the conversions excluded him from the requirement to 12 proceed to the third level of review. In Brown, the Ninth Circuit held that “a prisoner need not press 13 on to exhaust further levels of review once he has either received all ‘available’ remedies at an 14 intermediate level of review or been reliably informed by an administrator that no remedies are 15 available.” 422 F.3d at 935. At the second level response in that case, the inmate’s appeal was 16 partially granted because his allegation of “Staff Complaint” was to be investigated by the Office 17 of Internal Affairs. Id. at 937. The court explained that the inmate could reasonably have understood 18 that no further relief was “available” other than an investigation by the Office of Internal Affairs 19 and concluded that the defendant had not demonstrated that once it ordered an investigation into 20 the alleged misconduct through a separate “staff complaint” process, it had any remaining 21 “authority to act on the subject of the complaint” through the appeals process. Id. at 938. 22 In contrast, the second level responses to Plaintiff’s grievances that were converted to staff 23 complaints specifically informed Plaintiff that he needed to proceed to the third level of review for 24 exhaustion. See, e.g., Goree Decl. Ex. V (second level response to Log No. 17-0305); Goree Decl. 25 Ex. W (second level response to Log No. 17-0465); Goree Decl. Ex. LL (second level response to 26 17-4098); Voong Decl. Ex. YY (second level response to Log No. 17-2955). Further relief as to 27 each of these incidents therefore remained available to Plaintiff, and it is unreasonable for Plaintiff 28 t o have understood that the mere conversion to a st aff complaint excused him from exhausting any 1 further.
2 Plaintiff next argues that staff members reviewing his grievances failed to comply with
3 institutional directives regarding the inclusion of other issues in the grievance. In support, Plaintiff
4 cites to Cal. Code Regs. tit. 15, § 3084.9(i)(2), w hich states only that the inmate must be informed 5 that the converted staff complaint will not address any other issues, and that those other issues must 6 be appealed separately. The basis of Plaintiff’s argument is unclear since it is evident that he was 7 informed of the need to pursue other issues in a separate grievance: 8 All issues unrelated to the allegation of staff misconduct must be grieved separately and will not be addressed in this response. You do 9 not exhaust administrative remedies on any unrelated issue not covered in this response or concerning any staff member not 10 identified by you in this complaint. 11 See, e.g., Gates Decl. Ex. N (Doc. 49-4 at 221 [second level response to Log No. COR SC 12 17000004]); Goree Decl. Ex. LL (Doc. 49-5 at 292 [second level response to Log No. 17-4198]); 13 Voong Decl. Ex. YY (Doc. 49-7 at 91 [second level response to Log No. 17-2955]). To the extent 14 Plaintiff contends that these “other issues” were exhausted simply because his grievances were 15 construed as staff complaints, Plaintiff cites to no authority in support. 16 Lastly, Plaintiff claims his grievances suffice to exhaust his administrative remedies 17 because they allege “an ongoing prison practice of discrimination against a specific class.” But 18 there is no such claim in this case. As the December 21, 2017 Screening Order found, “Plaintiff has 19 failed to allege facts demonstrating that Defendants helped promulgate or ratify any policy or 20 practice that allegedly violated Plaintiff’s rights. Plaintiff’s allegations that Defendants allowed or 21 encouraged … correctional staff to harass Plaintiff appear purely speculative.” (See Doc. 11 at 11.) 22 b. Specific Grievances 23 The Court now turns to the six converted grievances that Plaintiff claims exhausted his 24 administrative remedies: (1) Log No. 17-0305 (Goree Decl. Ex. V), (2) Log No. 17-0465 (Goree 25 Decl. Ex. W), (3) Log No. 17-2955 (Voong Decl. Ex. YY), (4) Log No. 17-4198 (Goree Decl. Ex. 26 LL), (5) Log No. 17-4797 (Voong Decl. Ex. AAA), and (6) Log No. CO-SC-17000004 (Gates 27 Decl. Ex. N). 28 • Log No. 17-0305 1 Plaintiff argues that Log No. 17-0305 satisfies the exhaustion requirement as to the October
2 through December 2016 conduct of Defendants Noland and Longoria. As noted above, though, Log
3 No. 17-0305 concerns a single incident (as opposed to 2-3 incidents), it involves non-party CO
4 Flores and Defendant Noland (not Defendants Lo ngoria and Noland), and it covers a different time 5 (January 10, 2017 versus a period stretching from October through December 2016). Goree Decl. 6 Ex. V. This grievance therefore could not have exhausted Plaintiff’s administrative remedies as to 7 the claims against Noland and Longoria. 8 • Log No. 17-0465 9 Log No. 17-0465 complained of Campbell and Morelock’s conduct on January 23, 2017. 10 Goree Decl. Ex. W. This grievance was converted to a staff complaint and partially granted at the 11 second level of review on July 28, 2017. Plaintiff was then informed that exhaustion required him 12 to proceed to the third level of review, but he did not proceed to that level. Plaintiff’s opposition 13 asserts no argument that would justify his failure to exhaust. 14 • Log No. 17-2955 15 Log No. 17-2955 appealed the denial of a RAP concerning staff members allegedly 16 mistreating Plaintiff and excluding him from a work assignment because of his mental health. 17 Goree Decl. Ex. JJ. Construed as a staff complaint, it was partially granted at the second level of 18 review on July 13, 2017, and it was denied at the third level of review on November 3, 2017. The 19 conversion of this grievance therefore had no bearing on Plaintiff’s ability to proceed through all 20 levels of review. Moreover, this grievance could not serve to exhaust administrative remedies as to 21 any claim in this action because the third level response is dated after the initiation of this case. 22 • Log No. 17-4198 23 Log No. 17-4198 concerned the mistreatment of Plaintiff on August 7, 2017, while he was 24 standing in line to receive pain medication. Goree Decl. Ex. LL. This grievance was partially 25 granted at the second level of review, and Plaintiff did not proceed to the third level of review for 26 exhaustion. Plaintiff’s opposition asserts no argument that would justify his failure to exhaust. 27 • Log No. 17-4797 28 Log No. 17-4797 concerned a September 6, 2017, classification review held by Villarrial 1 and Dollarhide. Voong Decl. Ex. AAA (Doc. 49-7 at 127-29). This grievance was converted to a
2 staff complaint and ultimately denied at the third level of review on February 14, 2018. The
3 conversion of this grievance therefore had no bearing on Plaintiff’s ability to proceed through all
4 levels of review. Moreover, this grievance could not serve to exhaust administrative remedies as to 5 any claim in this action because the third level response is dated after the initiation of this case. 6 • Log No. CO-SC-17000004 7 Health care appeal Log No. CO-SC-17000004 concerned the August 29, 2017, incident in 8 which Burns was upset with Plaintiff for having cut himself in the holding cage. Gates Decl. Ex. 9 N. The grievance was deemed a healthcare staff complaint and ultimately denied at the final level 10 of review on May 9, 2018. This grievance could not have exhausted Plaintiff’s administrative 11 remedies because the process was completed after this action was initiated. 12 2. Improper Cancelations or Rejections 13 Plaintiff also identifies two grievances that he claims were improperly canceled or rejected: 14 (1) Log No. 17-0692 (Goree Decl. Ex. X) and (2) Log No. 17-6129 (Pl.’s Opp’n Ex. G). 15 • Log No. 17-0692 16 On January 10, 2017, Plaintiff submitted a CDCR 1824 RAP, assigned Log No. 17-0224, 17 regarding the “discriminatory ridicule” he has endured from correctional officers between 18 September 2016 and January 2017 because of Plaintiff’s mental health problems and enrollment in 19 MHSDS. See Goree Decl. Ex. X (Doc. 49-5 at 111-23). The RAP was denied on February 3, 2017. 20 Id. (Doc. 49-5 at 116). Plaintiff then appealed the denial of the RAP in a grievance, assigned Log 21 No. 17-0692, which was canceled on February 10, 2017, as duplicative of Log No. 17-03052. Id. 22 (Doc. 49-5 at 128-29). 23 Plaintiff appealed the cancelation of Log No. 17-0692 in a separate grievance that was 24 assigned Log No. 17-1110. Goree Decl. Ex. X. On April 11, 2017, this new grievance was denied 25 at the second level of review after it was determined that the cancelation of Log No. 17-0692 was 26 27 2 As discussed supra, Log No. 17-0305 was submitted on January 11, 2017, accusing non-party CO Flores and 28 D efendant Noland of misconduct in the form of tight handcu ffs, shoving Plaintiff into a wall, forcefully pushing 1 appropriate. Id. The grievance was then denied at the third level of review on July 13, 2017. Voong
2 Decl. Ex. UU (Doc. 49-6 at 162).
3 Plaintiff presents no argument as to why the cancelation of Log No. 17-0692 was improper.
4 In any event, this grievance concerned only ve rbal harassment, which Plaintiff was previously 5 informed is not actionable on the facts alleged. 6 • Log No. 17-6129 7 Log No. 17-6129 was filed on November 28, 2017 and concerns a UCC action dated 8 November 20, 2017. Pl.’s Opp’n Ex. G. This grievance was filed after Plaintiff initiated this case, 9 and therefore it cannot serve to have exhausted Plaintiff’s administrative remedies as to any claim. 10 3. Improper Staff Reviewers 11 Finally, Plaintiff argues that there were improper or biased staff reviewers for three of his 12 grievances: (1) Log No. 2954 (Voong Decl. Ex. BBB), (2) Log No. 17-3020 (Voong Decl. Ex. 13 CCC), and (3) Log No. 17-4797 (Voong Decl. Ex. AAA). Each of these grievances was resolved 14 at the third level of review after this case was initiated. Accordingly, none of them could have 15 served to exhaust Plaintiff’s administrative remedies. 16 D. Summary 17 Plaintiff initiated this federal civil rights action on October 2, 2017, and the Court 18 screened his complaint and found it to state multiple claims based on eight separate incidents. In 19 their moving papers, Defendants have presented evidence showing that administrative remedies 20 were available to Plaintiff, but that he did not exhaust his administrative remedies as to any of his 21 claims. In his opposition, Plaintiff argued that several of his grievances did exhaust his 22 administrative remedies and/or that circumstances rendered such remedies unavailable. For the 23 reasons stated, Plaintiff has not met his burden to show that any of his claims were exhausted or 24 that remedies were unavailable to him. 25 III. Plaintiff’s Discovery Motions 26 On April 12, 2019, discovery in this case was stayed pending resolution of Defendant’s 27 motion for summary judgment. (Doc. 52.) Since then, Plaintiff has filed three discovery-related 28 m otions. (Docs. 55, 63, 69.) Each of these motions will be denied in light of the discovery stay. 1 IV. Conclusion
2 Based on the foregoing, the Court DENIES Plaintiff’s (1) Motion to Compel (Doc. 55), (2)
3 Motion and Request to Clarify (Doc. 63), and (3) Renewed Motion to Compel (Doc. 69).
4 Additionally, the Court RECOMMEND S that Defendants’ motion for summary judgment 5 for failure to exhaust administrative remedies (Doc. 49) be GRANTED, that Defendants’ motion 6 for judgment on the pleadings be DENIED as moot, and that all remaining motions be termed. 7 These findings and recommendations will be submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) 9 days after being served with the findings and recommendations, Plaintiff may file written objections 10 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 11 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 12 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 13 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: September 10, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17
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