7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9
10 TRACYE BENARD WASHINGTON, Case No. 22-cv-05831 BLF (PR) 11 Plaintiff, ORDER GRANTING IN PART AND 12 DENYING IN PART DEFENDANTS’ v. MOTION FOR SUMMARY
13 JUDGMENT; TERMINATING
MOTION AS MOOT; SETTING 14 SALINAS VALLEY STATE PRISON, BRIEFING SCHEDULE ON et al., REMAINING CLAIMS 15 Defendants. 16 (Docket Nos. 24, 25)
17 18 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to 19 42 U.S.C. § 1983 on October 7, 2022. Dkt. No. 1.1 The Court dismissed several claims 20 for failure to state a claim for relief and served the cognizable claims on Defendants 21 Guijarro and Serrato. Dkt. No. 14 at 3. Defendants filed a motion for summary judgment 22 on the grounds that Plaintiff failed to exhaust available administrative remedies on the 23 claims against them. Dkt. No. 24. Plaintiff filed opposition, Dkt. No. 26, and Defendants 24 replied, Dkt. No. 33. Defendants also moved to stay any merits-based discovery as 25 unnecessary to the exhaustion issue, pending the outcome of their summary judgment 26 motion. Dkt. No. 25. Plaintiff did not respond to this motion. 27 1 For the reasons set forth below, Defendants’ summary judgment motion is 2 GRANTED IN PART and DENIED IN PART. 3 4 DISCUSSION 5 I. Plaintiff’s Claims 6 Plaintiff’s allegations are based on events that took place on December 24, 2021. 7 Dkt. No. 1 at 4. Plaintiff is permanently confined to a wheelchair and receives assistance 8 under the Americans with Disabilities Act (“ADA”). Id. That morning, Defendant 9 Dominguez, the Unit C-4 Control Booth Officer, opened Plaintiff’s cell door for morning 10 medication release. Id. Plaintiff claims several inmates were standing around or near his 11 cell door, which caused him to be concerned for his safety and health from Covid-19 12 exposure because he has “paralysis, asthma and vision impairments.” Id. at 5. Plaintiff 13 asked the ADA assistant to tell Defendant Dominguez to stop leaving his cell door wide 14 open and allowing other inmates to stand idly nearby. Id. at 6. When he was about to 15 wheeled out of his cell, Defendants Guijarro and Tapia approached and asked Plaintiff 16 “what his problem was.” Id. Plaintiff repeated his concerns at being exposed to other 17 inmates in violation of health and safety protocols. Id. Then at Defendant Guijarro’s 18 prompting, Plaintiff proceeded to Facility “C” clinic to get his medication and returned to 19 his housing unit at approximately 9:30 a.m. Id. at 7. 20 When Plaintiff returned to his housing pod, he saw that Defendants Guijarro and 21 Tapia had begun searches of his cell, No. 111, and the adjacent one, No. 112. Id. Plaintiff 22 believed the cell search was conducted in retaliation for his speaking out about Defendant 23 Dominguez violating safety, security, and healthcare protocols, and he voiced this belief to 24 Defendant Tapia; Plaintiff stated that he was going to report the matter to the sergeant and 25 lieutenant. Id. at 7-8. As he turned his wheelchair to proceed to the exit, Plaintiff heard an 26 alarm go off in the unit. Id. He heard running behind him and a voice yelling, “get down” 1 approached Plaintiff and ordered him to “cuff up,” after which he handcuffed Plaintiff’s 2 wrists in front of his body. Id. Defendant Guijarro then pushed Plaintiff “at a hurried 3 pace” toward the exit. Id. Plaintiff’s feet and pants were on the ground and being dragged 4 underneath the wheelchair’s front wheels. Id. at 10. Plaintiff yelled at Defendant Guijarro 5 to stop pushing him, also asking where they were going. Id. As he was turning back with 6 his neck and shoulders to speak with Defendant Guijarro, Plaintiff was suddenly tipped out 7 of the wheelchair onto the concrete floor of the dayroom. Id. He landed on his shoulder 8 and head hitting the pavement. Id. Plaintiff briefly blacked-out and was disoriented until 9 he heard people around him. Id. Plaintiff remained on the ground for several minutes, in 10 handcuffs and in pain, before any medical staff spoke to him. Id. 11 When a correctional sergeant, Defendant John Doe No. 6, asked Plaintiff if he was 12 ready to get up and return to his cell, Plaintiff responded that he needed medical attention. 13 Id. at 11. Medical staff soon arrived, and John Does No. 4 and 5 spoke to Plaintiff while 14 he was still on the ground in handcuffs. Id. Plaintiff informed them that he was in severe 15 pain in his head, shoulders, and back, and that the “guard had dumped him out of his 16 wheelchair.” Id. Medical staff departed and returned to ask Plaintiff if he was ready to get 17 back into his wheelchair and return to his cell. Id. Plaintiff responded that he needed to 18 see the doctor and that he was in pain; he requested a gurney or ambulance. Id. The 19 medical staff stated that they had neither a gurney nor an ambulance. Id. Medical staff left 20 and returned again to tell Plaintiff that if he got up and into his wheelchair, they would take 21 him to the medical clinic or triage. Id. at 12. Plaintiff again stated that he was in pain and 22 needed a gurney. Id. Seconds later, another alarm went off in the unit and nearly all the 23 custody and medical staff left the pod, leaving Plaintiff on the floor still in handcuffs. Id. 24 When medical and custody staff returned, Plaintiff was informed that “the Nurse or Doctor 25 John Doe No. 7 and John/Jane Doe No. 8 had cleared him to return to his cell.” Id. 26 Plaintiff claims Defendant Serrato and John Does. Nos. 1 and 2, surrounded him, sat him 1 the while, Plaintiff remained in restraints and unable to assist in any manner. Id. at 12-13. 2 While he was being lifted, Defendant John Doe No. 3, a correctional lieutenant who was 3 positioned behind the wheelchair, grabbed locks of Plaintiff’s shoulder length, dread-lock 4 styled hair and pulled Plaintiff’s head backwards towards him. Id. When Plaintiff yelled 5 for him to stop, the officers holding him suddenly dropped Plaintiff back down on the 6 concrete pavement and walked towards the exit. Id. at 13. Defendant Dominguez opened 7 cell no. 117, letting out two inmates who picked up Plaintiff and got him back into his 8 wheelchair. Id. Defendant John Doe No. 2, who was at the pod’s door, then came and 9 removed Plaintiff’s handcuffs. Id. Plaintiff wheeled himself back to his cell, No. 111. Id. 10 Plaintiff was in so much pain after this incident that he was unable to get out his bunk for 11 three days, unable to go to the cell door to get his daily meals or retrieve his daily 12 medications. Id. at 14. 13 Plaintiff filed an inmate grievance regarding the incident and had a video-taped staff 14 misconduct interview with the facility lieutenant, approximately four to five days after the 15 incident. Id. He was informed that the matter would be investigated by the Office of 16 Internal Affairs (“OIA”). Id. Plaintiff was later taken to the prison clinic where the nurse 17 offered him Tylenol or Motrin, which Plaintiff refused due to pre-existing medical 18 conditions, i.e., chronic kidney disease, which prohibited the use of NAIDS per doctor’s 19 advice. Id. Plaintiff also had x-rays taken of his head and upper body, approximately four 20 to five days later. Id. 21 The Court found the complaint stated the following cognizable claims: (1) 22 excessive force claims against Defendants Guijarro and John Doe No. 3 (Lt.); (2) 23 deliberate indifference to serious medical needs against Defendants Serrato and John Does 24 1, 2, 4, 5, 7, and 8; and (3) supervisor liability claim against Defendant Sgt. John Doe No. 25 6. Dkt. No. 8 at 14. The Court dismissed the following claims with leave to amend: (1) 26 ADA and/or RA claim against SVSP; (2) elder abuse claim under state law; (3) retaliation 1 Defendant Tapia; and (5) supervisor liability claim against Defendant Allen. Id. at 15. 2 When Plaintiff failed to file an amended complaint to correct the deficient claims, the 3 Court dismissed them with prejudice, and ordered the matter to proceed on the cognizable 4 claims. Dkt. No. 14. 5 II. Summary Judgment 6 Summary judgment is proper where the pleadings, discovery and affidavits show 7 that there is “no genuine dispute as to any material fact and the movant is entitled to 8 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 9 “against a party who fails to make a showing sufficient to establish the existence of an 10 element essential to that party’s case, and on which that party will bear the burden of proof 11 at trial . . . since a complete failure of proof concerning an essential element of the 12 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 13 Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 14 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 15 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 17 Generally, the moving party bears the initial burden of identifying those portions of 18 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 19 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 20 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 21 than for the moving party. But on an issue for which the opposing party will have the 22 burden of proof at trial, the moving party need only point out “that there is an absence of 23 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 24 to the motion is merely colorable, or is not significantly probative, summary judgment may 25 be granted. See Liberty Lobby, 477 U.S. at 249-50. 26 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 1 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 2 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 3 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 4 The Court’s function on a summary judgment motion is not to make credibility 5 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 6 Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The 7 evidence must be viewed in the light most favorable to the nonmoving party, and the 8 inferences to be drawn from the facts must be viewed in a light most favorable to the 9 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 10 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 11 1996). The nonmoving party has the burden of identifying with reasonable particularity 12 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 13 the district court may properly grant summary judgment in favor of the moving party. See 14 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 15 (9th Cir. 2001). The court’s obligation to view evidence in the light most favorable to the 16 non-movant does not require it to ignore undisputed evidence produced by the movant. 17 L.F. v. Lake Washington School District, 947 F.3d 621, 625 (9th Cir. 2020). 18 A. Exhaustion 19 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to 20 provide that “[n]o action shall be brought with respect to prison conditions under [42 21 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 22 other correctional facility until such administrative remedies as are available are 23 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the 24 discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. 25 Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now exhaust all ‘available’ 26 remedies, not just those that meet federal standards.” Id. at 85. The PLRA’s exhaustion 1 includes compliance with an agency’s critical procedural rules because “no adjudicative 2 system can function effectively without imposing some orderly structure on the courts of 3 its proceedings.” Id. at 90-91, 93. 4 The California Department of Corrections and Rehabilitation (“CDCR”) provides 5 its inmates and parolees the right to appeal administratively “any departmental decision, 6 action, condition, or policy which they can demonstrate as having an adverse effect upon 7 their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right 8 to file administrative appeals alleging misconduct by correctional officers. See id. 9 Compliance with prison grievance procedures is all that is required by the PLRA to 10 “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). The level of detail 11 necessary in a grievance to comply with the grievance procedures will vary from system to 12 system and claim to claim, but it is the prison’s requirements, and not the PLRA, that 13 define the boundaries of proper exhaustion. Id. at 218. Where a prison’s grievance 14 procedures do not specify the requisite level of factual specificity required in the 15 grievance, “‘a grievance suffices if it alerts the prison to the nature of the wrong for which 16 redress is sought.’” Griffin v. Apraio, 557 F.3d 1117, 1120 (9th Cir. 2009). 17 In California, the regulation requires the prisoner “to lodge his administrative 18 complaint on CDC form 602 and ‘to describe the problem and action requested.’” Morton 19 v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (quoting Cal. Code Regs. tit. 15 § 3084.2(a)). 20 The system consists of two levels of appeal: (1) at the first level, the inmate submits a form 21 CDCR 602-1 to the Institutional Office of Grievances (“OOG”) at the prison or other 22 facility where he is housed, Cal. Code Regs. tit. 15 § 3084.2(a), (c) (repealed eff. June 1, 23 2020); and (2) if dissatisfied with the OOG’s decision at the first level, an inmate can 24 submit a form CDCR 602-2 to the CDCR’s Office of Appeals in Sacramento (“OOA”). 25 Id. at §§ 3084.1(a), 3485 (a) (repealed eff. June 1, 2020). To exhaust administrative 26 remedies under these regulations, the inmate must complete the review process by 1 “granted,” “no jurisdiction,” “identified as staff misconduct,” “pending legal matter,” or 2 “time expired” in accordance with 15 Cal. Code Regs. § 3485 (g)(1)-(g)(3), (g)(8)-(g)(10). 3 15 Cal. Code Regs. § 3485(1)(1). Administrative remedies are not exhausted where the 4 review process results in the OOA issuing the following decisions: “redirect,” “reassign,” 5 “reject” or “disallowed,” as defined in 15 Cal. Code Regs. § 3845(g)(4)-(g)(7). 15 Cal. 6 Code Regs. § 3485(1)(2). 7 In Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014), the Ninth Circuit 8 reviewed the district court’s 2008 ruling that plaintiff had failed to exhaust available 9 administrative remedies as to an officer not linked to wrongdoing in plaintiff’s grievance 10 and noted that neither the PLRA itself nor California regulations required an inmate to 11 name the responsible parties who may ultimately be sued. See id. (claim properly 12 exhausted where inmate described nature of the wrong and identified defendant as a 13 responding officer). But as of January 28, 2011, California regulations require that the 14 appeal name “all staff member(s) involved” and “describe their involvement in the issue.” 15 Cal. Code Regs. tit. 15, § 3084.2(a)(3) (repealed eff. June 1, 2020); see also Cal. Code 16 Regs. tit. 15, § 3084.2(c)(2) (eff. June 1, 2020) (grievance shall “describe all information 17 known and available to the claimant regarding the claim, including … names and titles of 18 all involved staff members (or a description of those staff members)”). 19 An action must be dismissed unless the prisoner exhausted his available 20 administrative remedies before he or she filed suit, even if the prisoner fully exhausts 21 while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see 22 Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative remedies 23 are not exhausted before the prisoner sends his complaint to the court it will be dismissed 24 even if exhaustion is completed by the time the complaint is actually filed). 25 Nonexhaustion under § 1997e(a) is an affirmative defense. Jones, 549 U.S. at 211. 26 Defendants have the burden of raising and proving the absence of exhaustion, and inmates 1 215-17. Defendants must produce evidence proving failure to exhaust in a motion for 2 summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Id. If 3 undisputed evidence viewed in the light most favorable to the prisoner shows a failure to 4 exhaust, a defendant is entitled to summary judgment under Rule 56. Id. at 1166. But if 5 material facts are disputed, summary judgment should be denied and the district judge 6 rather than a jury should determine the facts in a preliminary proceeding. Id. 7 A prisoner must provide evidence, not just make conclusory allegations, to meet his 8 burden to show that existing and generally available administrative remedies were 9 effectively unavailable. See Draper v. Rosario, 836 F.3d 1072, 1079-80 (9th Cir. 2016). 10 A prisoner’s “unsupported allegations” regarding impediments to exhaustion are 11 insufficient to create a triable issue of fact. Id. (plaintiff’s statements that prison officials 12 had “engaged in impeding and unethical conduct of obstructing” his inmate appeals “from 13 being exhausted in a timely manner,” and had “prohibited and impeded” his efforts to 14 exhaust were insufficient to create a triable issue because the prisoner did not explain what 15 kinds of impeding and unethical conduct occurred). 16 1. Plaintiff’s Grievance 17 It is undisputed that Plaintiff filed a grievance, Log No. 203073, on the same date of 18 the incident on December 24, 2021. He attached a copy of this grievance to the complaint 19 and identified it as exhausting the claims in this action. Dkt. No. 1 at 1-2, 24-27. With his 20 opposition, Plaintiff provided some of the same (but clearer) copies of the grievance and 21 related appeal papers as supporting exhibits. Dkt. No. 32. Defendants do not object to 22 these exhibits nor contest the authenticity of these documents. These documents are 23 summarized as follows2: 24 Grievance Log No. 203073 (CDCR 602) filed on December 24, 2021: Plaintiff 25 described returning to his cell and finding “two Floor c/o’s” in the neighboring 26 1 cell, the same “c/o’s” he had engaged with about the “tower officer repeatedly 2 opening [his] cell-door at med-line.” He alleged that after an alarm was pressed 3 and additional staff came, “one” placed him in regular handcuffs in his 4 wheelchair and began pushing him quickly toward the section door. Because 5 Plaintiff’s feet were not in the footrest, they went under the wheelchair wheels 6 and caused Plaintiff to fall forward onto the floor, hitting his head and right 7 shoulder. Plaintiff claimed that “med-staff” refused to take him to an ambulance 8 or get a gurney, leaving him on the floor for an hour in pain. Plaintiff also 9 claimed that “c/o’s were taunting and laughing and calling [him] derogatory 10 names,” and “a Lt. pulled [his] dred-locks as c/o’s were putting” him in the 11 wheelchair. Dkt. No. 32 at 16, 18. Plaintiff sought damages for “abuse of 12 disabled, medical indifferent, racial taunting, leaving me on floor and running to 13 another alarm… the [Lieutenant] pulling [his] hair.” Id. at 16. 14 “Claimant Grievance Receipt Acknowledgement” of Log No. 203073, dated 15 January 6, 2022: SVSP’s OOG stated that it received Plaintiff’s grievance on 16 December 28, 2021, and that it had been assigned for review and response. Dkt. 17 No. 32 at 2. 18 “Claimant Grievance Claims Decision Response” from the OOG, dated 19 February 23, 2022: The decision identified 2 claims from Plaintiff’s grievance: 20 Claim # 001 and Claim # 002. Claim # 001 was categorized as “Offender Safety 21 and Security” with sub-category of “Use of Force,” and the decision indicated 22 that it was “Under Investigation.” It also stated that since the investigation was 23 still ongoing and would pass the 60 days allowed for OOA to respond, the 24 OOG’s response at the Institutional level would be the only response on this 25 claim. Claim # 002 was categorized as “General Employee Performance” with 26 sub-category of “Other Staff Misconduct – NOS.” The decision stated that a 1 the floor for an extended amount of time due to his own actions. “Medical staff 2 were attempting to medically evaluate him, but he was being uncooperative… 3 After medical determined [Plaintiff]’s medical needs did not necessitate medical 4 transportation to a higher level of care, [Plaintiff] got up and was escorted to his 5 cell.” Nor were Plaintiff’s allegations of verbal abuse by staff substantiated as 6 Plaintiff himself did not hear staff being verbally abusive, only that an 7 unidentified inmate had told him about it afterward. Id. The grievance was 8 disapproved as the decision concluded that “No department policy violation nor 9 staff misconduct was found during the review.” Id. The grievance was 10 “disapproved.” Plaintiff was advised that he could file an appeal to the OOA. 11 Dkt. No. 32 at 3-4. 12 “Appeal of Grievance” (CDCR 602-2) of Log No. 203073, filed by Plaintiff on 13 March 4, 2022, (received by the OOA on March 9, 2022): In this appeal, 14 Plaintiff alleged that the response was a “cover-up.” He alleged that “C/O 15 Guijarro tripped [him] out of [his] wheelchair.” He claimed that “you cannot 16 abandon an inmate requiring medical attention on the floor in pain just to go to 17 another emergency without medical clearance.” Dkt. No. 32 at 12. 18 “Decision on Appeal – Time Expired”: A response memorandum from the 19 Associate Director stated that the OOA had sixty calendar days to complete a 20 written response to his appeal, but that since the time expired before the OOA 21 was able to do so, the decision by the OOG “serves as the Department’s final 22 response to your allegations.” Dkt. No. 32 at 11; see also id. at 3. 23 “Rejected Response from the Office of Appeals”: A response memorandum 24 from the Associate Director stating that the above appeal was rejected for the 25 reasons stated therein, and that this was the final answer provided by the OOA; 26 “no further action will be taken” and “no appeal of this action is permitted under 1 “Claimant Appeal Claims Decision Response” from the OOA, dated October 14, 2 2022, for Log No. 203073: For Claim # 001, the decision stated that the appeal 3 was “rejected” because the OOG’s decision of “Under Investigation” constituted 4 exhaustion of all administrative remedies for this claim, and therefore no appeal 5 was available. (The OOG decision is described below). The decision for Claim 6 # 002 indicated “time expired.” The appeal was received on March 9, 2022, but 7 the 60 calendar days that the OOA had to complete a response had expired. This 8 response from the OOA would be the only response. Dkt. No. 32 at 10. 9 “Inquiry Completed – Manual Grievance Decision Response” from the OOG, 10 for Log No. 203073, dated November 8, 2022: The decision stated that the 11 grievance was reviewed by the Allegation Inquiry Management Section 12 (“AIMS”). The AIMS Lieutenant conducted “multiple interviews but did not 13 receive any information to reach a reasonable belief that staff misconduct 14 occurred.” “Custody staff denied doing or observing the allegations occur.” 15 The AIMS relied on “testimony by the witnesses, subjects, and claimant.” After 16 reviewing staff interviews, inmate interview, the noted reviewed documents and 17 AIMS inquiry regarding the allegations, “it has been determined there is no 18 reasonable belief that staff violated any policy or procedure.” Therefore, 19 Plaintiff’s grievance was “disapproved.” Dkt. No. 32 at 14-15. 20 Dkt. No. 32. 21 Plaintiff’s opposition papers also included an appeal of a different grievance, Log 22 No. 270800: 23 “Appeal of Grievance” (CDCR 602-2), for Log No. 270800, filed by Plaintiff on 24 July 14, 2022, received by the OOA on July 21, 2022: Plaintiff requested that 25 “this claim also look into C/O Guijarro who was involved in this 6/19/22 use of 26 force.” He alleged that on December 24, 2021, C/O Guijarro “tipped me out of 1 apparently related to the “6/19/22 use of force.” The appeal also mentions 2 Defendant Serrato as one of the responding officers on December 24, 2021, and 3 makes other allegations that are not related to the claims in this action. Dkt. No. 4 32 at 8-9. 5 “Office of Appeals Decision” from the OOA, for Log No. 270800, dated August 6 21, 2022: The decision stated that the appeal was “rejected” because his claim 7 “disputes or contravenes the regulatory framework for the grievance and appeal 8 process which is not permitted under the California Code of Regulations, tit. 15, 9 section 3485(g)(6)(E). Dkt. No. 32 at 5.3 10 2. Parties’ Arguments 11 Defendants assert that grievance Log No. 203073 did not exhaust administrative 12 remedies for Plaintiff’s claims against Defendants Guijarro and Serrato because he did not 13 identify either of them in the grievance. Dkt. No. 24 at 5. They assert that failure to 14 describe defendants in the grievance and describe their involvement in the issue does not 15 exhaust administrative remedies as to the unnamed defendants. Id., citing Cal. Code Regs. 16 tit. 15, § 3842(c)(2). Further, Plaintiff alleges that it was medical personnel that left him 17 on the floor for hours, and not either of the Defendants. Id. 18 In opposition, Plaintiff asserts that all available remedies have been exhausted. Dkt. 19 No. 26 at 1. He asserts that he sufficiently detailed the events from December 24, 2021, 20 and that he did not know the names of any of the officers at the time. Id. at 3. Plaintiff 21 asserts that section 3842(c)(2) only requires that “a grievant provided ‘known and 22 available [information] to him… to the best of his/her knowledge.” Id. He relies on Reyes 23 v. Smith, 810 F.3d 654 (9th Cir. 2010), which held that “a grievance suffices if it alerts the 24 prison to the nature of the wrong for which redress is sought.” Id. at 659. Plaintiff also 25 asserts that “[i]n an attempt to ensure that plaintiff was exhausting his administrative 26 1 remedies, he filed another CDCR-602 asking that additional evidence be reviewed” in a 2 different action involving Defendants based on a separate incident in June 2022, which is 3 the basis for another lawsuit, USDC ND Cal. No. 5:22-cv-5832-BLF. Id. In exhibits filed 4 in support, Plaintiff provides copies of his appeals of the grievance, in which he alleges 5 specifically that Defendant Guijarro “tipped” him out of his wheelchair in C4 on 6 December 24, 2021. Dkt. No. 32 at 8, 12 (dated March 4, 2022, and July 14, 2022). 7 In reply, Defendants point out that Plaintiff confirmed that the grievance attached to 8 his complaint was the same one he alleged satisfied the administrative exhaustion 9 requirement (Log No. 203073), and that he does not argue that it is it not accurate or 10 otherwise inadmissible for the purpose of summary judgment. Dkt. No. 33 at 2. They also 11 point out that Plaintiff does not contest that he did not name any of the Defendants in the 12 grievance. Id. Defendants assert that the grievance did not provide sufficient information 13 for CDCR to identify Defendants as being involved in the alleged wrongdoing. Id. It 14 merely referred to “c/o’s” in general terms, with no attempt to describe them, either by 15 name, rank, or appearance. Id. Defendants also assert that Plaintiff’s reliance on Reyes v. 16 Smith is unavailing because it is distinguishable from this case: the defendants in that case 17 were members of a pain management committee who were “easily identified” despite not 18 being named in the administrative appeals. Id. at 3, citing Reyes, 810 F.3d at 659. 19 Defendants assert that this is not the case here, where Plaintiff did not provide any 20 information that would easily identify the unnamed prison officials. Id. 21 3. Analysis 22 Viewing the evidence in the light most favorable to Plaintiff, the Court finds 23 Defendants have shown there exists no genuine issue of material fact as to whether 24 Plaintiff properly exhausted his medical claim against Defendant Serrato but they have 25 failed to do so with regard to his excessive force claim against Defendant Guijarro. 26 Plaintiff grieved the December 24, 2021 incident in Log No. 203073, and described 1 door. See supra at 9-10. He also described how after an alarm was pressed, “one” staff 2 placed him in regular cuffs and pushing him quickly toward the door. Id. at 10. He 3 described his fall from the wheelchair and hitting his head and right shoulder. Id. As 4 Defendants assert, there is no mention therein of either Defendants Guijarro or Serrato; in 5 fact no staff member is identified by name. Id. Defendants are also correct that California 6 currently requires that a proper grievance name the staff member involved and describe 7 their involvement in the issue. Cal. Code Regs. tit. 15, § 3084.2(a)(3) (repealed June 1, 8 2020); 15 Cal. Code Regs. Tit. 15, § 3084.2(c)(2) (effective June 1, 2020). Moreover, 9 California explicitly prohibits adding new issues, information, or persons at later stages of 10 the grievance process. Cal. Code Regs. tit. 15, § 3084.1(b) (repealed June 1, 2020); Cal. 11 Code Regs. tit. 15, § 3084(d)(4) (effective June 1, 2020). 12 However, the Court finds that Reyes does apply to save Plaintiff’s claim against 13 Defendant Guijarro. If an inmate’s grievance does not comply with a procedural rule but 14 prison officials decide it on the merits anyway at all available levels of administrative 15 review, it is exhausted. Reyes, 810 F.3d at 656, 658. Thus, a California inmate whose 16 grievance failed to name all staff members involved in his case, as required by former 15 17 Cal. Code Regs. § 3084.2(a)(3) (repealed eff. June 1, 2020), nevertheless exhausted his 18 claim of deliberate indifference to his serious medical needs because that claim was 19 decided on its merits at all levels of review. See id. at 656-57. Similarly, Plaintiff’s 20 grievance was decided on its merits at all available levels of review, with the decision of 21 the OOG being the final response despite the failure to name staff members involved. See 22 supra at 11. Although Defendants assert that Plaintiff’s case is distinguishable from 23 Reyes, the Court disagrees. Plaintiff’s grievance provided sufficient information to 24 indicate that specific staff could be identified through an investigation, namely the officers 25 who were searching the cells just prior to the incident and the specific staff member who 26 pushed Plaintiff’s wheelchair, causing him to fall. The grievance decision from the OOG 1 the “testimony of witnesses, subjects, and claimant,” to arrive at the conclusion that “there 2 [was] no reasonable belief that staff violated any policy or procedure.” See supra at 12. 3 Accordingly, the Court finds that Plaintiff exhausted his claim against Defendant Guijarro 4 for excessive force. 5 On the other hand, Plaintiff’s grievance does not contain sufficient information to 6 exhaust his medical indifference claim against Defendant Serrato. With regard to this 7 claim, Grievance Log No. 203073 only alleges that “med-staff” refused to take Plaintiff to 8 an ambulance or get a gurney, and then left him on the floor for an hour in pain. See supra 9 at 10. There is no mention of any specific correctional officer other than a John Doe “Lt.” 10 who pulled his hair as other officers were putting him in the wheelchair. Furthermore, 11 there is no allegation in the grievance that the officers then walked away and left him, 12 acting with deliberate indifference to his serious medical needs. Id. Nor does the decision 13 indicate that anyone other than medical staff were involved in the review. Id. at 10-11. 14 Accordingly, it cannot be said that this grievance alerted prison officials that Plaintiff had a 15 claim against Defendant Serrato. 16 Plaintiff asserts that he exhausted the claim against Defendant Serrato through 17 another grievance, Log No. 270800, in which he mentions Defendant Serrato as one of the 18 responding officers on December 24, 2021. Id. at 12. However, this grievance was not 19 decided on its merits at all levels of review because it was “rejected” on appeal as violating 20 Cal. Code Regs. tit. 15, § 3485(g)(6)(E). Accordingly, the Court finds that the claim 21 against Defendant Serrato was not exhausted under Reyes. 22 For the reasons described above, Defendants have shown that Plaintiff failed to 23 exhaust available remedies with respect to his claim against Defendant Serrato. Albino, 24 747 F.3d at 1172. However, Plaintiff has shown in opposition that he properly exhausted 25 his claims against Defendant Guijarro. Based on the foregoing, the Court grants summary 26 judgment on the claim against Defendant Serrato, but denies it with respect to the claim 1 III. Motion for Stay of Discovery 2 With their motion for summary judgment, Defendants moved for a stay of merits- 3 based discovery, which the Court inadvertently neglected to rule on in a timely manner. 4 Dkt. No. 25. The motion would have been granted in the absence of any objection from 5 Plaintiff. See Albino v. Baca, 747 F.3d 1162, 1170-71 (9th Cir. 2014) (en banc) (court may 6 in its discretion limit discovery to evidence concerning exhaustion, which whenever 7 feasible should be decided at the beginning of litigation, and leave until later, if necessary, 8 discovery directed to the merits of the suit). However, in light of this order, the motion 9 shall be terminated as moot. 10 11 CONCLUSION 12 For the reasons stated above, the Court orders as follows: 13 1. Defendants’ motion for summary judgment is GRANTED in part and 14 DENIED in part. Dkt. No. 24. The claim against Defendant Serrato is DISMISSED for 15 failure to exhaust administrative remedies. The Clerk shall terminate Defendant Serrato 16 from this action. 17 2. This action shall proceed on the merits of the remaining excessive force 18 claim against Defendants Guijarro and John Doe No. 3 (Lt.), if Plaintiff is able to identify 19 this defendant by name as directed in a separate order. No later than fifty-six (56) days 20 from the date this order is filed, Defendants shall file a dispositive motion or notice 21 indicating that the claims against them cannot be resolved by such a motion. 22 If Defendants file a dispositive motion, Plaintiff’s opposition shall be filed with the 23 Court and served on Defendants no later than twenty-eight (28) days from the date 24 Defendants’ motion is filed. 25 3. Defendants shall file a reply no later than fourteen (14) days after the date 26 on which Plaintiff’s opposition is filed. 1 || order. Dkt. No. 25. 2 5. All other relevant portions of the Court’s May 3, 2023, Order of Partial 3 || Dismissal and of Service (Dkt. No. 14) shall remain in effect. 4 This order terminates Docket Nos. 24 and 25. 5 IT IS SO ORDERED. 6 |] Dated: □□□ 21, 2024 hdiinihacicen 7 BETH LABSON FREEMAN United States District Judge 8 9 10 11 g
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O Z 18 19 20 21 22 23 24 25 Order Granting/Denying In Part Defs.” MSJ (exh); Briefing Sched PRO-SE\BLF\CR.22\0583 1 Washington _deny-msj(exh)&brief 26 27