Romaine L. Nevels v. Debbie Ascunion et al

Filing 134

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge James V. Selna for MOTION to AMEND Amended Complaint 122 , MOTION for Summary Judgment 113 , Report and Recommendation 130 . IT IS ORDERED that (1) Defendants' Motion for Summary J udgment is GRANTED IN PART AND DENIED IN PART, as follows: (a) the Motion is GRANTED to the extent that Plaintiff's claims against Defendant Im are DISMISSED with prejudice; (b) the Motion is otherwise DENIED; and (3) the filing construed as Plaintiff's Motion to Amend the Third Amended Complaint (Dkt. No. 122) is DENIED AS MOOT. (see document for further details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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ROMAINE L. NEVELS,
Plaintiff,

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ORDER ACCEPTING FINDINGS,
v.

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CASE NO. CV 17-6434-JVS (AS)

CONCLUSIONS AND RECOMMENDATIONS
DEBBIE ASCUNION, et al.,
OF UNITED STATES MAGISTRATE
Defendants.

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JUDGE

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Pursuant to 28 U.S.C. section 636, the Court has reviewed the
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Third Amended Complaint, all of the records herein, and the Report
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and Recommendation of a United States Magistrate Judge.

After

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having made a de novo determination of the portions of the Report
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and Recommendation to which the parties’ Objections were directed,
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the

Court

finds

that

Defendants’

and

Plaintiff’s

respective

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Objections to the Report and Recommendation are without merit and
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do not cause the Court to reconsider its decision to accept the
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Magistrate Judge’s conclusions and recommendations.
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Defendants argue in their Objections that Plaintiff failed to

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exhaust administrative remedies as to any Defendant, including

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Avalos, because he never received a third-level decision on the

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merits of his appeal.

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acknowledge, this argument directly contradicts their own Motion

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for Summary Judgment (“Motion”), in which they asserted, multiple

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times,

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Avalos, even though the third-level decision merely affirmed the

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prior appeal’s cancellation for untimeliness.

that

(Defs.’ Objections at 1-4).

Plaintiff

exhausted

his

remedies

as

As Defendants

to

Defendant

(Motion at 3, 8)

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(citing Defs.’ SUF ¶ 16).

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statements in their own Motion were based on a mistake of law,

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which they now wish to correct.

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contend that Plaintiff’s claims are in fact unexhausted because a

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third-level decision affirming the cancellation of an inmate’s

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prior

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requirements.

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new argument based on facts that were already in the record.

appeal

does

not

According to Defendants, these clear

(Defs.’ Objections at 3-4).

satisfy

the

administrative

(Defs.’ Objections at 2).

They

exhaustion

Defendants present this

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The Court has discretion to consider arguments raised for the
first time in a party’s objections.1

See Brown v. Roe, 279 F.3d

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Defendants contend, incorrectly, that the Court is required
to consider their argument because their Motion raised the issue
of exhaustion on other grounds, and the underlying facts were
already in the record. (Defs.’ Objections at 4). On this point,
they rely on cases from the Fourth Circuit, despite that the Fourth
and Ninth Circuits differ on this issue. See Brown v. Roe, 279
F.3d 742, 745-46 (“[W]e do not go as far as the Fourth Circuit,
which has held that a district court must consider new arguments
raised for the first time in an objection to a magistrate judge’s
findings and recommendation.”) (citation omitted). In the Ninth
Circuit, the matter is clearly within the Court’s discretion. Id.
at 744-46.
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742, 744 (2002); United States v. Howell, 231 F.3d 615, 621 (9th

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Cir. 2000).

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particularly as they have no excuse for failing to assert the

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argument before.

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conceded

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remedies against Avalos, they arguably waived this issue.

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v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005) (PLRA’s exhaustion

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requirement is waived if not raised by defendant); cf. Ross v.

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Davis, 2019 WL 5459604, at *4 (C.D. Cal. Sept. 16, 2019) (in habeas

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action, government’s “express waiver was not rendered invalid by

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the

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incorrect”), report and recommendation adopted,

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(C.D. Cal. Oct. 24, 2019) (citing Eichwedel v. Chandler, 696 F.3d

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660, 671 (7th Cir. 2012)).

that

Defendants do not merit such consideration here,

Indeed, because Defendants’ Motion expressly

the

possibility

third-level

that

decision

its

position

exhausted

on

Plaintiff’s
See Lira

exhaustion

was

2019 WL 5455715

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Moreover,

even

if

the

Court

considered

Defendants’

new

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argument and agreed that the third-level decision on Plaintiff’s

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appeal did not qualify for exhaustion under applicable regulations,

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dismissal still would not be warranted.

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that Plaintiff’s appeal did not suffice, Defendants cite Gil v.

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Spaulding, 2017 WL 6594637 (E.D. Cal. Dec. 26, 2017), in which the

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district court dismissed an inmate’s civil rights claims for lack

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of

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appeal had been cancelled as untimely, and he failed to demonstrate

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that the cancellation was improper.

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8.

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submit the appeal because his second-level response arrived after

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the appeal deadline.

exhaustion

because

the

inmate’s

To support their claim

administrative

third-level

Gil, 2017 WL 6594637, at *5-

The plaintiff in Gil argued that he had been unable to timely

The court rejected this argument in part
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because the defendants provided declarations from appeals examiners

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which described the procedures used to ensure timely processing

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and delivery of appeal responses, and averred that there was no

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record of delay in the inmate’s case.

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in contrast to other district court cases – specifically, Thorns

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v. Ryan, 2008 WL 544398 (S.D. Cal. Feb. 26, 2008), and Sanchez v.

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Penner, 2008 WL 544591 (E.D. Cal. Feb. 26, 2008) – the plaintiff

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in Gil had not been transferred when the second-level response was

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issued, and he had not inquired into the status the response or

The court also noted that

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noted its delay in his belated third-level appeal.

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6594637, at *6-7; see Thorns, 2008 WL 544398, at *3-4 (dismissal

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for lack of exhaustion due to cancelled third-level appeal was not

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warranted where plaintiff asserted that he had received the second-

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level decision late, and he offered supporting evidence showing

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that he had been transferred to another facility after the decision

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was purportedly issued, had made several unsuccessful attempts to

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obtain a copy of the decision, and had explained within his late

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third-level appeal that he had only recently received the second-

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level decision); Sanchez, 2008 WL 544591, at *6 (defendant failed

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to rebut prisoner’s evidence that his appeal was late due to his

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transfer to a different prison).

Gil, 2017 WL

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Here, as in Gil, Plaintiff has argued that he was unable to

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timely submit his third-level appeal because his second-level

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response

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Defendants have neglected even to address this argument.

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unlike in Gil, Plaintiff has provided evidence, in the form of his

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deposition testimony and signed statements, attesting that he was

was

delivered

to

him

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after

the

appeal

deadline.
Moreover,

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transferred

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response, and that he submitted several inquiries regarding the

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status of the response.

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No. 119 at 2-4; Pl.’s Depo. at 101-02).

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in the record also reflect that Plaintiff raised this issue in his

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late

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cancellation.

multiple

third-level

times

while

awaiting

the

second-level

(See Opposition to Motion at 4-10; Dkt.

appeal

and

in

his

Administrative documents

subsequent

appeal

of

the

(See Jung Decl. ¶ 6, Exh. B at 9, 55-57, 68).

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Defendants have offered nothing to rebut Plaintiff’s evidence

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here.

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their argument would fail.

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has satisfied his burden under the applicable standard to show that

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further

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unavailable.

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2010)

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administrative

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omitted); Thorns, 2008 WL 544398, at *3-4 (denying motion to

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dismiss); Sanchez, 2008 WL 544591, at *6 (denying motion for

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summary

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(distinguishing Thorns and Sanchez and granting summary judgment

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for lack of exhaustion).

Accordingly, even if Defendants had not waived this issue,

administrative

As in Sanchez and Thorns, Plaintiff

remedies

were

rendered

effectively

See Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir.

(exhaustion

is

not

remedies

judgment);

see

required

“when

effectively

also

Gil,

circumstances

unavailable”)

2017

WL

render

(citation

6594637,

at

*7-8

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Defendants’ other arguments were addressed in the Report and

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Recommendation

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dispute the Magistrate Judge’s conclusion that Plaintiff’s appeals

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regarding the incident with Defendant Avalos also sufficed to

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exhaust

and

merit

administrative

little

remedies

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discussion

for

his

here.

Defendants

excessive-force

claim

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against Defendant Barbato.2

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the appeals did not mention that Plaintiff was struck by any officer

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other than Avalos, the appeals did allege that Officers Barbato

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and Im maliciously wielded their batons against the inmates in the

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incident.

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to the third level also referenced the officers’ incident reports,

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in which Barbato and others attested that Barbato himself struck

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Plaintiff with his baton (albeit just once in the knee) while

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Avalos and Im were striking the other two inmates with whom

(Defs.’ Objections at 5-10).

(Jung Decl. ¶ 6, Exh. B at 10-11).

Although

Plaintiff’s appeal

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Plaintiff had been struggling.

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facts, regarding a fast-moving incident in which multiple officers

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were using force against several inmates in a struggle, Plaintiff’s

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appeals gave prison officials at least “enough information” to

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allow

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responsive measures” regarding Defendant Barbato’s involvement.

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See Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009); see

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also Washington v. Guerra, 2017 WL 1197861, at *5 (C.D. Cal. Jan.

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31, 2017) (prisoner exhausted remedies with respect to claims

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against

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administrative appeals, because the appeals alleged excessive force

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on particular date and referenced incident reports that identified

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the defendant officers’ involvement, so that “prison officials

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plainly knew” defendants were involved in the alleged excessive-

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force incident), report and recommendation adopted, 2017 WL 1197667

them

to

investigate

defendants,

(Id. at 11, 21-36).

the

including

matter

some

and

Based on these

“take

officers

not

appropriate

named

in

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The Magistrate Judge determined that Plaintiff exhausted
available remedies regarding all three Defendants, but the claim
against Defendant Im need not be addressed because it fails on the
merits, for the reasons stated in the Report and Recommendation.
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(C.D. Cal. Mar. 29, 2017) (citing Reyes v. Smith, 810 F.3d 654,

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659 (9th Cir. 2016)).

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Defendants have therefore failed to demonstrate any basis for

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dismissal on exhaustion grounds.

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contend

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“equivocal” and “contradictory.”

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However,

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statements consistently attest that Avalos and Barbato continued

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striking him multiple times even after he was subdued, creating a

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genuine dispute of material fact as to whether Defendants used

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excessive

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rights.

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Complaint at 4; Pl.’s Depo. at 53-54).

that

evidence

construed

force

in

of

under

the

As for the merits, Defendants
officers’

the

violation

intent

is

(Defs.’ Objections at 11-14).
proper

of

malicious

standard,

Plaintiff’s

Plaintiff’s

Eighth

Amendment

(See Pl.’s Opposition to Motion at 6, 27; Third Amended

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Plaintiff’s Objections similarly fail to identify any basis

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to depart from the Magistrate Judge’s recommendations.

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he opposes the dismissal of his claim against Defendant Im, he

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remains unable to point to any plausible facts showing that Im had

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a realistic opportunity to intervene and protect Plaintiff from

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any alleged excessive force during the incident.

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at

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recommendation to deny as moot the filing construed as Plaintiff’s

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Motion to Amend his Third Amended Complaint.

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3-4).

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had intended merely to give notice of the exhibits attached to it.

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(Id.).

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and do not affect the Court’s analysis of the issues presented in

6-9).

Otherwise,

Plaintiff

Although

(Pl.’s Objections

apparently

disputes

the

(Pl.’s Objections at

Plaintiff contends that he “mislabeled” the document, and

Regardless, these exhibits were already part of the record,

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Defendants’ Motion.

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further discussion.3

Plaintiff’s remaining objections do not merit

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IT IS ORDERED that (1) Defendants’ Motion for Summary Judgment

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is GRANTED IN PART AND DENIED IN PART, as follows: (a) the Motion

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is GRANTED to the extent that Plaintiff’s claims against Defendant

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Im are DISMISSED with prejudice; (b) the Motion is otherwise

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DENIED; and (3) the filing construed as Plaintiff’s Motion to Amend

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the Third Amended Complaint (Dkt. No. 122) is DENIED AS MOOT.

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IT IS FURTHER ORDERED that the Clerk serve copies of this
Order on Plaintiff and counsel for Defendants.

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LET JUDGMENT BE ENTERED ACCORDINGLY.
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DATED: February 19, 2021

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___________
__________ ___
JAMES V. SELNA
UNITED STATES DISTRICT JUDGE

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Along with his Objections, Plaintiff filed a Motion for
Appointment of Counsel. (Dkt. No. 133). The Court has previously
denied several motions to appoint counsel for Plaintiff in this
case (see Dkt. Nos. 12, 44, 50, 83), but a separate order will
issue to address whether this relief is now warranted going
forward. The Court observes, however, that Plaintiff appears to
have handled the issues in the case adequately thus far without
counsel, and all filings have been construed in light of
Plaintiff’s status as a pro se inmate.
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