Hamilton v. Hart et al

Filing 75

FINDINGS and RECOMMENDATIONS recommending that Defendants' Motion for Summary Judgment on the issue of Failure to Exhaust, filed on April 29, 2014, be DENIED; Plaintiff be deemed to have satisfied his exhaustion requirement; Plaintiff's claim be permitted to proceed on the merits re 41 MOTION for SUMMARY JUDGMENT ; referred to Judge Drozd,signed by Magistrate Judge Erica P. Grosjean on 03/21/2016. Objections to F&R due by 4/25/2016 (Martin-Gill, S)

1
2
3
4
5
6
7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

Plaintiff,

13
14

1:10-cv-00272-LJO-EPG-PC

DENNIS L. HAMILTON,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT MOTION FOR
SUMMARY JUDGMENT FOR FAILURE
TO EXHAUST REMEDIES BE DENIED
AND PLAINTIFF BE FOUND TO HAVE
SATISFIED
HIS
EXHAUSTION
REQUIREMENTS
(ECF No. 41.)

vs.
JOHN HART, et al.,

15

Defendants.

16

OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

17
18
19
20
21
22

23
24
25
26

I.

BACKGROUND
Dennis Hamilton (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on
February 18, 2010. (ECF No. 1.) This action now proceeds with the original Complaint, on
Plaintiff‟s Eighth Amendment claims for (1) excessive force, against defendants Correctional
Officers (“C/Os”) Hart, Doe Lieutenant,1 Castro, Llamas, Prouty, Phillips, and Ronquillo; (2)
inadequate medical care, against defendants C/Os Hart, Phillips, Bogle, Prouty, Ronquillo,
Trupe and Ocampo; and (3) failure to protect Plaintiff, against defendants C/Os Phillips and

27
28

1

Plaintiff has not sufficiently identified the Doe Lieutenant to initiate service of process.

1

1

Ronquillo.2 (Id.)

2

On April 29, 2014, defendants C/Os Hart, Castro, Llamas, Prouty, Phillips, Ronquillo,

3

Bogle, Trupe, and Ocampo (“Defendants”) filed a Rule 56 motion for summary judgment on

4

the ground that Plaintiff failed to exhaust his available administrative remedies with respect to

5

his § 1983 claims against them in this action. 3 (ECF No. 41.) On May 26, 2015, Plaintiff filed

6

an opposition to the motion declaring that he had filed an appeal within the requisite time limit

7

to exhaust his remedies. (ECF No. 56.) On June 2, 2015, Defendants filed a reply to the

8

opposition. (ECF No. 57.)

9

On December 17, 2015, after reviewing the motion for summary judgment papers, the

10

Court issued an order setting the matter for an evidentiary hearing on the issue of exhaustion of

11

the administrative remedies to determine whether Plaintiff should be allowed to proceed with

12

his case. (ECF No. 62.) The Court limited the issues to: (1) whether Plaintiff properly

13

submitted a timely and sufficient prison appeal concerning the events at issue in this case, to

14

which he never received a response; (2) whether Plaintiff‟s CDC Form 602 (“Form 602”)

15

appeal log number KVSP-0-06-03835, which was decided at the final level of review

16

concerned the events at issue and satisfied the exhaustion requirement for the case herein; and

17

(3) whether tolling of the deadline to file an appeal should apply to Plaintiff‟s Form 602 appeal

18

submitted on April 6, 2006. (Id.)

19

On January 26, 2016, an evidentiary hearing was held before Magistrate Judge

20

Grosjean. Defendants called the following witnesses to testify: (1) Plaintiff Dennis Hamilton,

21

(2) C/O Gerardo Gomez, (3) Defendant C/O John Hart, (4) Correctional Counselor Mike

22

Seaman, and (4) Correctional Counselor Belinda Gricewich.

Plaintiff conducted cross-

23
24
25
26
27

2

On April 30, 2013, the Court issued an order dismissing Plaintiff‟s retaliation claim from this action for
failure to state a claim, and dismissing defendants Scott, Durden, Perez, Gonzalez, and Massey from this action,
for Plaintiff‟s failure to state any claims against them upon which relief may be granted under 1983. (ECF No.
19.)
3
Concurrently with their motion for summary judgment, Defendants served Plaintiff with the requisite
notice of the requirements for opposing the motion. Woods v. Carey, 684 F.3d 934, 939-41 (9th Cir. 2012); Rand
v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 41 at 2-3.)

28

2

1

examination and called himself as a witness. The Court admitted the following exhibits into

2

evidence: (1) DX A; (2) DX B; (3) DX E; (4) DX F; (5) DX J; (6) DX M; (7) N; (8) DX R.

3

After closing arguments, the Court took the matter under submission and now makes findings

4

and recommendations. (ECF No. 70.)

5

II.

PLAINTIFF’S ALLEGATIONS

6

The following are Plaintiff‟s allegations as presented in his Complaint. Note that

7

Defendants‟ motion and the evidentiary hearing did not cover the substance of these

8

allegations; it only concerned the question of whether Plaintiff properly exhausted his

9

administrative remedies before filing this lawsuit.

10

Plaintiff is presently incarcerated at Ironwood State Prison, in Blythe, California. The

11

events at issue in the Complaint allegedly occurred at Kern Valley State Prison (“KVSP”) in

12

Delano, California, when Plaintiff was incarcerated there. Plaintiff‟s factual allegations follow.

13

Plaintiff was housed in administrative segregation (“Ad-Seg”) for refusing to be housed

14

with a cell mate on three occasions. On February 16, 2006, Plaintiff was videotaped by

15

television reporters from MSNBC Lock Up refusing to accept a cell mate.

16

On February 21, 2006, Sergeant Harden (not a defendant) approached Plaintiff in Ad-

17

Seg and told him he would be moving. Plaintiff told him “so long as I don‟t have a cell mate.”

18

A short time later, five officers came to Plaintiff‟s cell door and told him to pack up his things.

19

Plaintiff told the Lieutenant that he was going to refuse all cell mates. The Lieutenant told

20

Plaintiff to cuff up. Plaintiff was escorted to a cell that already had an inmate. Plaintiff refused

21

to enter, and he was forced into the cell.

22

A short while later, Plaintiff told Building C/O Castro he refused to have a cell mate.

23

Defendant Castro told Plaintiff to talk to the Lieutenant who had put him there. Shortly

24

afterward, Plaintiff also told Building C/O Llamas he was not compatible with his cell mate and

25

needed to move. The cell mate also said they were incompatible. Defendant Llamas said he

26

could not override the decision of the Lieutenant. Plaintiff asked for a mattress, and when

27

Llamas returned with the mattress and told Tower Officer Scott to open the door, Plaintiff

28

3

1

stepped out of the door before Llamas could give him the mattress. Llamas told Plaintiff to

2

wait in the shower while he called the Sergeant.

3

About ten minutes later, C/Os Hart, Phillips, Prouty, and Ronquillo approached the

4

shower. Defendant Hart told Plaintiff to return to his cell, but Plaintiff refused, stating that he

5

had safety concerns about having a cell mate. Hart told C/O Scott to open the shower door, and

6

Hart pulled out his pepper spray and told Plaintiff he was going back in his cell wet or dry.

7

Plaintiff put his hands up to protect his face, and Hart sprayed him. Plaintiff was afraid he was

8

going to be beaten, so he struggled with the officers. Plaintiff was placed in handcuffs, and one

9

of the officers started to twist his wrist, trying to break it. Plaintiff was taken outside, where his

10

wrist was twisted, and he was kicked and stomped on.

11

Approximately twenty minutes later, Nurse Bogle came and asked if Plaintiff had any

12

injuries. Plaintiff said no and was taken back to Ad-Seg without being decontaminated.

13

Plaintiff‟s entire body, especially his eyes and face, burned. He tried to wash off the spray but

14

only spread it further. Plaintiff began choking and gagging, and feared he would have an

15

asthma attack. For thirty seconds at a time, Plaintiff could not breathe. Two ISU Officers

16

came to take Plaintiff‟s photograph, and he told them he was having trouble breathing and

17

asked them to call the nurse to decontaminate him. The Officers said he had already been

18

decontaminated and placed him back in the cell.

19

Plaintiff was left in the contaminated cell for two days without a shower, and he

20

continued to feel extreme burning sensations and experience asthma-like attacks. On the

21

second day, Plaintiff was again interviewed by the reporters, who also coughed and choked due

22

to the contamination.

23

Plaintiff alleges that defendants C/Os Hart, Prouty, Phillips, Ronquillo, and the Doe

24

Lieutenant forced him into the cell because he made a video for reporters and because he

25

continued to refuse a cell mate. Plaintiff alleges that defendants C/Os Hart, Prouty, Phillips,

26

Ronquillo, Castro, and Llamas kicked and stomped on him while twisting his wrist. Plaintiff

27

also alleges that C/Os Hart, Prouty, Phillips, Ronquillo, Castro, Llamas, Scott, Gonzalez, Perez,

28

Durden, Massey, Bogle, Trupe, and Ocampo should have properly decontaminated him after he
4

1

was pepper sprayed, and that they knew or should have known that if they did not

2

decontaminate him, they would cause him wanton and unnecessary pain. Plaintiff claims that

3

the officers did not follow the proper procedures pursuant to California Department of

4

Corrections and Rehabilitation (“CDCR”) Policy to decontaminate him.

5

III.

LEGAL STANDARDS

6

A.

7

Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that

8

A[n]o action shall be brought with respect to prison conditions under [42 U.S.C. ' 1983], or any

9

other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

10

such administrative remedies as are available are exhausted.@ 42 U.S.C. ' 1997e(a). Prisoners

11

are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock,

12

549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).

13

Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief

14

offered by the process.

15

requirement applies to all prisoner suits relating to prison life. Porter v. Nussle, 534 U.S. 516,

16

532 (2002).

Statutory Exhaustion Requirement

Booth v. Churner, 532 U.S. 731, 741 (2001).

The exhaustion

17

An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion

18

requirement. Woodford v. Ngo, 548 U.S. 81, 90 (2006). When an inmate's administrative

19

appeal is improperly rejected on procedural grounds, however, exhaustion may be excused as

20

“effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); see also,

21

Nunez v. Duncan, 591 F.3d 1217, 1224–26 (9th Cir. 2010) (warden's mistake rendered

22

prisoner's administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042,

23

1044-45 (9th Cir. 2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940

24

(9th Cir. 2005) (plaintiff not required to proceed to third level where appeal granted at second

25

level and no further relief was available.)

26

In deciding a motion for summary judgment “for failure to exhaust nonjudicial remedies

27

under the PLRA, a district court may look beyond the pleading and decide disputed issues of

28

5

1

fact.” Prison Litigation Reform Act of 1995, § 101(a), 42 U.S.C.A. § 1997e(a). Morton v. Hall,

2

599 F. 3d 942 (9th Cir. 2010).

3

B.

4

The failure to exhaust in compliance with section 1997e(a) of the PLRA is an

5

affirmative defense under which Defendants have the burden of raising and proving. Jones,

6

549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the

7

United States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt with

8

respect to the proper procedural device for raising the affirmative defense of exhaustion under

9

section 1997e(a). Albino v. Baca (“Albino II”), 747 F.3d 1162, 1168–69 (9th Cir. 2014) (en

10

banc). Following the decision in Albino II, defendants may raise exhaustion deficiencies as an

11

affirmative defense under section 1997e(a) in either (1) a motion to dismiss pursuant to Rule

12

12(b)(6)4 or (2) a motion for summary judgment under Rule 56. Id. If the Court concludes that

13

Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice of the portions

14

of the complaint barred by section 1997e(e). Jones, 549 U.S. at 223–24; Lira v. Herrera, 427

15

F.3d 1164, 1175–76 (9th Cir. 2005).

Motion for Summary Judgment for Failure to Exhaust

16

Summary judgment is appropriate when it is demonstrated that there “is no genuine

17

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

18

R. Civ. P. 56(a); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts,

19

summary judgment will not be granted”). A party asserting that a fact cannot be disputed must

20

support the assertion by “citing to particular parts of materials in the record, including

21

depositions, documents, electronically stored information, affidavits or declarations,

22

stipulations (including those made for purposes of the motion only), admissions, interrogatory

23

answers, or other materials, or showing that the materials cited do not establish the absence or

24

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

25

support the fact.” Fed. R. Civ. P. 56(c)(1). The Court may consider other materials in the

26

record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen

27
28

4

Motions to dismiss under Rule 12(b)(6) are only appropriate “[i]n the rare event a failure to exhaust is
clear on the face of the complaint.” Albino II, 747 F.3d at 1162.

6

1

v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v.

2

Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). In judging the evidence at the

3

summary judgment stage, the Court “must draw all reasonable inferences in the light most

4

favorable to the nonmoving party.” Comite de Jornaleros de Redondo Beach v. City of

5

Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011).

6

Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th

7

Cir. 2010) (quotation marks and citations omitted).

The Court must liberally construe

8

In a summary judgment motion for failure to exhaust, the defendants have the initial

9

burden to prove “that there was an available administrative remedy, and that the prisoner did

10

not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that

11

burden, “the burden shifts to the prisoner to come forward with evidence showing that there is

12

something in his particular case that made the existing and generally available administrative

13

remedies effectively unavailable to him.” Id. The ultimate burden of proof remains with

14

defendants, however. Id. “If material facts are disputed, summary judgment should be denied,

15

and the district judge rather than a jury should determine the facts.” Id. at 1166.

16

C.

17

If “summary judgment is not appropriate,” as to the issue of exhaustion “the district

18

judge may decide disputed questions of fact in a preliminary proceeding.” Albino II, at 1168.

19

When feasible, such questions of fact should be decided before addressing the merits of the

20

claim.

21

administrative remedies, that administrative remedies are not available, or that a prisoner's

22

failure to exhaust available remedies should be excused, the case may proceed to the merits.”

23

Id. at 1171.

Evidentiary Hearing

Id. at 1170. “If the district judge holds that the prisoner has exhausted available

24

Furthermore, while parties may be expected to simply reiterate their positions as stated

25

in their briefs, “one of the purposes of an evidentiary hearing is to „enable [ ] the finder of fact

26

to see the witness's physical reactions to questions, to assess the witness's demeanor, and to

27

hear the tone of the witness's voice.‟ ” United States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995).

28

All of this assists the finder of fact in evaluating the witness' credibility. Id. It is only in “rare
7

1

instances . . . that credibility may be determined without an evidentiary hearing.” Earp v.

2

Ornoski, 431 F.3d 1158, 1169–70 (9th Cir. 2005).

3

IV.

4

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

A. Parties’ Positions as Presented in Motion for Summary Judgment Papers

5

In their motion for summary judgment, Defendants argue that Plaintiff failed to exhaust

6

his administrative remedies concerning his allegations that the named Defendants used

7

excessive force against him, failed to protect him from excessive force, or were deliberately

8

indifferent to his serious medical need. Plaintiff‟s complaint stems from an incident which

9

occurred at KVSP on February 21, 2006. (ECF No. 41-1, Defendants Statement of Undisputed

10

Facts (“DUF”) 1.) As a result of the incident, Plaintiff received a Rules Violation for Battery

11

on a Peace Officer. (DUF 2.) After the hearing on the Rules Violation, Plaintiff submitted

12

Form 602 appeal log number KVSP-0-06-03835, of which Plaintiff submitted a copy with the

13

Complaint. (DUF 3.) That appeal was reviewed at the First Second, and Third Levels, and was

14

denied at the Third Level. (DUF 4.) Defendants however, assert that the appeal concerned a

15

due process claim, and did not concern claims that Plaintiff was subjected to excessive force,

16

was not adequately protected from excessive force, or that his medical needs were ignored.

17

(DUF 3 and 5.) Defendants, furthermore, claim that the appeal did not give CDCR any

18

opportunity to resolve such a claim before the filing of suit. (ECF No. 41-2, Defendants Points

19

and Authorities (“Def. P&As”) at 5:13-16.)

20

Defendants also assert that Plaintiff did submit a separate CDC Form 602 appeal which

21

referred to an incident which occurred on February 21, 2006. (DUF 6.) Defendants however

22

claim that the appeal was received on April 6, 20065, and was therefore untimely. (DUF 7.)

23

Defendants assert that there is no record at KVSP of Plaintiff submitting a timely Form 602

24
25
26
27
28

5

The date of this submission is in dispute. Defendants‟ briefs state that this appeal was received April
6, 2006. (DUF 7; Def. P&As at 2:25-27.) However, at the evidentiary hearing, testimony and evidence presented
by Defendants asserted that this Form 602 appeal was actually submitted on April 16, 2006 and received April 27,
2006, not April 6, 2006. (Defendants‟ Evidentiary Hearing Exhibit DX R (“DX R”) at 1; Evidentiary Hearing
Transcript (“Transcript”) at 71:5-9.) Plaintiff, on the other hand, contends he submitted his first duplicate Form
602 appeal to the Appeals Office on April 1, 2006. (ECF No. 56 at 3¶5; Transcript at 29:7-13, 115:1-6, 118:20119:1; ECF No. 56 at 3.) However, as will be discussed, the Court need not resolve this dispute.

8

1

appeal, which was accepted, referring to an incident at KVSP on February 21, 2006, involving

2

any of the defendants in this action. (DUF 8.)

3

Plaintiff argues that he has exhausted his administrative remedies, or in the alternative,

4

that he was precluded from doing so. He contends that he timely submitted a Form 602 appeal

5

addressed to defendant C/O Hart on February 26, 2006, as part of the prison‟s informal level

6

appeal process, by placing the form inside an envelope addressed to defendant Hart, and

7

placing that envelope in his cell door at mail call for staff pick-up. (ECF No. 56 at 3¶4.) In

8

support of his opposition to Defendants‟ motion, Plaintiff submitted a Declaration on his own

9

behalf, stating that he submitted a timely Form 602 appeal on February 26, 2006 and attaching

10

an authenticated documented purporting to be a copy of the timely submitted form 602 appeal

11

covering this incident.

12

B. Analysis of Summary Judgment Motion

13

The Court finds that Defendants are not entitled to summary judgment as a matter of

14

law based on the submissions in the motion for summary judgment briefs.

15

inferences in favor of Plaintiff, the non-moving party, the Court determined it could not grant

16

Defendants‟ summary judgment motion based on the undisputed facts and that resolution

17

required an evidentiary hearing to assess the credibility of the parties.

18

Plaintiff‟s version of events were true, then Plaintiff timely submitted a 602 grievance.

19

Plaintiff submitted his own declaration and a copy of what Plaintiff claimed was the timely

20

grievance in support of his opposition to Defendants‟ motion for summary judgment.

21

Summary judgment on the papers is thus inappropriate.

Drawing all

In particular, if

22

Taking direction from the Ninth Circuit in Albino II, the Court went on to hold an

23

evidentiary hearing to make findings of fact in order to fully resolve the question of exhaustion

24

and decide the disputed facts. Albino II, 747 F.3d at 1166, 1168 (“If material facts are disputed

25

. . . the district judge rather than a jury should determine the facts,” and may do so through “a

26

preliminary proceeding”).

27

//

28

//
9

1

V.

2

On January 26, 2016, the Court held an evidentiary hearing on the question of

3
4
5
6

FINDINGS OF FACTS AND CONCLUSIONS OF LAW BASED ON
EVIDENTIARY HEARING ON EXHAUSTION

exhaustion. It thus provides the following recommended findings of fact and conclusions of
law.
A.

Findings Regarding California Department of
Rehabilitation (CDCR) Administrative Appeal System

Corrections

and

7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

23
24
25
26
27
28

The Court heard testimony and evidence regarding the applicable grievance process and
makes the following factual findings. The State of California provides its prisoners and
parolees the right to appeal administratively “any departmental decision, action, condition, or
policy which they can demonstrate as having an adverse effect upon their welfare.” Cal. Code
Regs. tit. 15 § 3084.1(a)(2006). The process is initiated by submitting a CDC Form 602 (rev.
12-87). Id. at § 3084.2(a).
At the time of the events giving rise to the present action, California prisoners were
required to submit appeals within fifteen working days of the event being appealed.6 Id. at §§
3084.2(b), 3084.5(a), 3084.6(c) (2006). Four levels of appeal were involved, including the
informal level, first formal level, second formal level, and third formal level. Id. at ' 3084.5
(2006). A final decision at the third level7 of review satisfied the exhaustion requirement under
42 U.S.C. § 1997e(a). Id. at § 3084.5(d); see, Lira, 427 F.3d at 1166. In order to satisfy '
1997e(a), California state prisoners are required to use this process to exhaust their claims prior
to filing suit. Woodford, 548 U.S. at 85 (2006); McKinney, 311 F.3d. at 1199-1201.
In the instant matter, there was some dispute as to whether mailing a Form 602 appeal
to a correctional officer, as part of the informal level of the appeals process, would commence
6

There was some dispute as to when Plaintiff was required to submit the CDC Form 602. Both parties‟
briefs stated that the form was to be submitted within 30 days of the incident. (DUF 7; Def. P&As at 2:25-27,
5:19-21; ECF No. 56 at 5¶2.) However, 15 CCR § 3084.6(c), as current through December 29, 2006, provides that
“appellants must submit within 15 workings days of the event or decision being appealed, or of receiving an
unacceptable lower level appeal decision.” At the evidentiary hearing, testimony of the parties and witnesses
established the 15 day deadline. (Transcript at 4:19-5:15, 85:22-25, 93:9-10.)
7

The third level is sometimes known as the Director‟s level.

10

1

the appeal process. Witnesses at the evidentiary hearing testified that a prisoner may start the

2

informal process by mailing or handing the Form 602 appeal to the guard the appeal relates to.

3

(Transcript at 14:7-12, 15:4-11, 73:22-25, 85:22, 102:24-103:1, 110:11-111:3.) However, there

4

was also testimony that where an appeal relates to officer misconduct, the informal process

5

may be bypassed or waived. (Transcript at 14:13-15:3, 17:2-5, 83:3-6, 85:11-14.) Indeed, title

6

15, section 3084.5 of the California Code of Regulations effective in 2006, provided that the

7

informal process may be waived. §3084.5(a)(3). Those regulations provide that “[t]he informal

8

level shall be waived for appeal of . . . [a]ny action, which the appeals coordinator determines,

9

cannot be resolved informally.” §3084.5(a)(3)(F). Such wording suggests that the appeals

10

coordinator is the one who waives the informal process, and thus that a prisoner can begin a

11

grievance through the informal process even if it is the sort of grievance where the informal

12

process may be waived.

13

Although Defendants refer to section 3084.5(a)(3)(G), to show that Plaintiff should

14

have known that the informal level was waived for appeals alleging correctional officer

15

misconduct (Transcript at 105:21-106:7), there is no evidence that a prisoner could unilaterally

16

bypass the informal level.

17

testified that the waiver would have to come from the Appeals Office. (Transcript at 15:24-

18

16:2, 111:17-20.) Ms. Gricewich also testified that if a prisoner mails a Form 602 appeal to an

19

officer, and that appeal relates to a situation that would properly bypass the informal level

20

under the Regulations, the officer should send the appeal to the Appeals Office. (Transcript at

21

103:17-24.) Furthermore, copies of Plaintiff‟s other Form 602 appeals submitted in 2006

22

which were admitted into evidence, as well as Plaintiff‟s testimony, show that the appeal form

23

available to Plaintiff in 2006 (CDC 602(12/87)) specifically required that:

24
25
26
27
28

At the evidentiary hearing, both Plaintiff and Ms. Gricewich

“[w]ith the exception of Serious CDC 115s, classification
committee actions, and classification and staff representative
decision, [prisoners] must first informally seek relief through
discussion with the appropriate staff member, who will sign [the]
form and state what action was taken.”
(Transcript at 105:10-106:6, DX E-H.) Thus, it appears that whether or not the Appeals Office
11

1

could be expected to waive the informal process, the inmate could not unilaterally do so and

2

could begin the Form 602 appeal process by informally presenting the grievance to the relevant

3

officer. Thus, starting the informal process by mailing or handing a Form 602 appeal to an

4

officer would commence the appeal process.

5

B.

6

At the hearing, Plaintiff testified that he mailed a Form 602 appeal to officer Hart on

7

8
9
10
11
12
13
14

Findings on Exhaustion of Administrative Remedies

February 26, 2006, within 15 days of the incident.
“MR. HAMILTON: Well that‟s what the declaration was,
but I informally sent a 602 to J. Hart on February 26th, 2006.
He never responded. Being that he didn‟t respond, I sent him
two requests for interviews. He didn‟t respond to those.
So on April 1st I sent the 602 to the appeals coordinator. They
responded with you can‟t bypass the first -- the informal level.
I then -- we went back and forth two or three times stating I‟ve
already told you that this person won‟t respond. And that‟s the
end of this 602 process that I understand.”
(Transcript at 114:22-115:6.) Plaintiff explained that he was unable to make a copy of his

15

initial Form 602 appeal addressed to defendant Hart because he was being housed in
16

Administrative Segregation after the February 21, 2006, incident, so he instead made a hand
17

written copy for his records. (ECF No. 56 at 3¶4-5; DX B) at 24; Transcript at 24:14-23, 28:518

29:5, 118:23-119:1.) Plaintiff also explained that he did not submit the form on February 26,
19

2006 to the Appeals Office directly because he was required as part of the appeal process to
20

engage the correctional officer that was involved in the incident at the informal level first.
21

(ECF No. 56 at 3¶5; Transcript at 26:22-28:7, 29:21-30:4, 39:2-10, 114:23-115:6, 118:2-19.)
22

Defendant Hart however failed to respond within the allotted time period. (ECF No. 56 at 3;
23

Transcript at 28:22-24, 29:16-20, 39:2-10, 114:22-25.)

Plaintiff thereafter submitted two

24

requests for interview to defendant Hart, requesting a response to the previously submitted
25

appeal, to no avail. (ECF No. 56 at 3¶4; Transcript at 114:4-13, 114:22-25, 117:7-118:1.)
26

Plaintiff testified that he filed a duplicate appeal directly with the Appeals Office on
27

April 1, 2006, adding to this appeal the facts of defendant Hart‟s failure to respond to his

28

12

1

February 26, 2006, Form 602 appeal. (ECF No. 56 at 3¶5; Transcript at 29:7-13, 115:1-6,

2

118:20-119:1.) Plaintiff explained that he did not file a duplicate appeal earlier because he was

3

waiting for a response on his initial appeal and two subsequent requests for interview, all

4

submitted to defendant Hart. (Transcript at 114:22-115:3) Plaintiff also testified that given

5

that he had submitted a timely Form 602 to defendant Hart as part of the informal level, and

6

given that the deadline had already expired when he did not receive an initial response from

7

Hart, the date of his duplicate appeal was irrelevant. (Transcript at 119:2-11, 126:12-21,

8

129:15-21.)

9

According to Plaintiff‟s testimony, his April 1, 2006, duplicate appeal was “screened

10

out” (rejected) on April 11, 2006, for an improper attempt to bypass the informal level. (ECF

11

No. 56 at 4¶6; Transcript at 29:21-30:1, 115:2-3.) He also testified to having submitted various

12

communications to the Appeals Office asserting that he had not improperly bypassed the

13

informal level because it was defendant Hart that had failed to respond to his appeal.

14

(Transcript at 38:16-22, 97:7-19 115:1-6, 116:2-5, 129:2-14.)

15

subsequently submitted Form 602 appeal log number KVSP-0-06-03835 (DX B at 17-20),

16

where he again addressed the February 21, 2006 incident and related claims. (ECF No. 56 at

17

4¶7; Transcript at 44:17-45:5, 115:7-13.)

18

Defendants precluded him from presenting evidence of his Eighth Amendment claims by

19

failing to interview him. (ECF No. 56 at 4¶7; Transcript at 45:6-9, 50:3-51:19.)

Plaintiff explained that he

However, according to Plaintiff‟s testimony,

20

At the evidentiary hearing, Defendants admitted that Plaintiff filed multiple Form 602

21

appeals related to the February 21, 2006, incident and his claims in this case. (Transcript at

22

66:21-25, 97:7-19.) Indeed, Defendants‟ own records summarize these appeals as being related

23

to the February 21, 2006 incident. (DX R.) However, Defendants claim - - based on these

24

records - - that Plaintiff‟s first related filing was on April 16, 2006, not February 26, 2006, and

25

that it was therefore untimely. (Transcript at 92:19-93:23; DX R at 2.) It is their position that

26

Plaintiff is lying when he claims to have submitted an earlier Form 602 appeal to Defendant

27

Hart as part of the informal process. (ECF No. 57 at 2.)

28

13

1

After hearing all of the witness testimony and evaluating the evidence, the Court finds

2

that Plaintiff exhausted his remedies by timely filing a Form 602 appeal addressing the claims

3

in his case. The Court finds Plaintiff‟s testimony at the evidentiary hearing regarding his

4

submission of the Form 602 appeal on February 26, 2006 was credible, based in part on the

5

Court‟s evaluation of Plaintiff‟s demeanor at the hearing. See, Mejia, 69 F.3d at 315. Plaintiff

6

also submitted into evidence a handwritten duplicate copy of the Form 602 appeal he contends

7

was submitted on February 26, 2006, which corroborates his account. (DX B at 24.) While the

8

duplicate copy of the Form 602 appeal is undated, this is not dispositive. In fact, it is worth

9

noting that Plaintiff did not attempt to date the appeal after the fact to artificially support his

10

case. Moreover, Defendants‟ records of Plaintiff‟s multiple appeals indicate that Plaintiff

11

consistently maintained in April 2006 that he had already submitted a Form 602 appeal

12

regarding the incident to defendant Hart before his first related submission to the Appeals

13

Office. (DX R at 2) (“The Appeals Office did not receive the appeal you claim you filed on an

14

earlier date”). There is also substantial evidence that Plaintiff understood and regularly used

15

this appeal process correctly during that time period. (Transcript at 8:9-9:15, 27:8-15, 115:24-

16

116:2.)

17

In contrast, while defendant Hart and Officer Gerardo Gomez were both generally

18

credible8, neither could specifically remember the events that took place at that time.

19

(Transcript at 52:20-54:1, 55:1-9, 61:20-21.) Additionally, defendant Hart seemed unclear as

20

to what he would have done or was supposed to have done had he received Plaintiff‟s (or any

21

other prisoner‟s) Form 602 appeal through prison mail. (Transcript at 60:6-12.) According to

22

testimony by Ms. Gricewich, a correctional officer who received a Form 602 appeal regarding

23
24
25
26
27
28

8

While testimony offered by Defendants‟ witnesses was generally credible, Defendants briefs and
evidence proved to be somewhat unreliable at various instances. As an example, in their briefs, Defendants assert
that Plaintiff first submitted an appeal related to the February 21, 2006 incident on April 6, 2006. (DUF 7, Def.
P&As at 2:25-27.) The Declaration of Mike Seaman attests to the same. (DX D at 2¶4.) However Defendants‟
Appeals Tracking System shows both an April 16, 2006, and April 16, 2005 date. (DX R at 2.) Furthermore,
Defendants‟ witnesses at the evidentiary hearing - - including Mr. Seaman - - testified to an April 16, 2006 date.
(Transcript at 71:5-9, 92:19-24.) As second example, in their briefs Defendants asserted that the Regulations gave
Plaintiff 30 days to submit his appeal. (DUF 7, Def. P&As at 2:25-27.) The Declaration of Mike Seaman also
supported this contention. (DX D at 2¶4.) However, oral testimony at the hearing, and Cal. Code Reg. tit. 15 §
3084.7(c), as updated through July 12, 2006, specified 15 days. (Transcript at 5:11-14.)

14

1

officer misconduct should have delivered the form to the Appeal‟s Office for processing and

2

waiver of the informal level (Transcript at 103:17-20); although she expressed doubt that the

3

Appeals Office would actually receive it. (Transcript at 103:21-24.) Defendant Hart seemed

4

unfamiliar with the required process. (Transcript at 59:24-60:12.) This evidence indicates that

5

even if Defendants‟ witnesses testified truthfully, they did not negate Plaintiff‟s version of

6

events. The appeal mailed to Officer Hart through prison mail may have been forgotten or

7

misplaced so as not to reach the Appeals Office even if Plaintiff submitted it as he testified.

8

Indeed, no evidence directly refuted Plaintiff‟s testimony that he placed a Form 602

9

appeal addressed to defendant Hart for mail pick-up by staff as part of the informal process on

10

February 26, 2006. The closest Defendants came to refuting this account was evidence that the

11

February 26, 2006, appeal was not processed and/or accepted by the Appeal‟s office. (DX D;

12

Transcript at 67:5-68:16, 99:12-14; 112:18-113:1). The Court is not persuaded that Plaintiff

13

failed to submit a timely Form 602 appeal solely because it did not appear in CDCR‟s records.

14

It is worth noting that CDCR did not keep copies of either the Form 602 appeals that were

15

rejected or their corresponding screening memoranda during this time period. (Transcript at

16

105:2-9, 112:18-113:1.) It also remains unclear whether, and how, CDCR kept notes on or

17

otherwise tracked appeals not assigned log numbers in their tracking system. (Transcript at

18

88:13-90:8.) Testimony, however, did establish that CDCR kept brief summaries - - and

19

nothing more - - of those appeals that were rejected but nonetheless assigned log numbers due

20

to their referral to the KVSP hiring authority. (Transcript at 91:15-92:3; DX R at 2.) It seems

21

possible that Plaintiff‟s February 26, 2006 Form 602 appeal simply did not reach defendant

22

Hart or the Appeals Office, and therefore, was not processed or logged into the system. Thus,

23

the fact that it does not appear in CDCR‟s records does not fully refute Plaintiff‟s testimony.

24

The Seventh Circuit case of Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006), while not

25

governing, is instructive.

26

complaining of excessive force. Id. at 807.

27

case it was “lost” by prison authorities, but lacking access to a copy machine, he copied the

28

complaint by hand. Id. After being told that the grievance had to be submitted directly to the

In Dole, the plaintiff, a prisoner, completed a grievance form
He wished to retain a copy of his complaint in

15

1

“ARB”, the plaintiff “placed his complaint in an envelope addressed to the ARB . . . [and]

2

placed the envelope in the „chuckhole‟ of his cell for the guard to pick up and mail.” Id.

3

Eventually after not receiving a response and inquiring on the status of his grievance, the

4

plaintiff in Dole was informed that the “ARB had no record of the grievance.” Id.

5

given instructions on how to proceed and by the time he learned that the grievance was lost,

6

“the sixty day period for filing a timely grievance had passed.” Id. at 807-808. In overturning

7

the district court‟s order granting summary judgment for failure to exhaust, the Seventh Circuit

8

rejected the defendant‟s argument that the goals of the PLRA would be betrayed by permitting

9

Dole to proceed with his claim, reasoning that those goals would have been achieved had

10

Dole‟s complaint “not been misplaced by the very system that, under defendants‟ theory, the

11

PLRA was designed to benefit.” Id. at 813. The court there thus held that because “Dole took

12

all steps necessary to exhaust one line of administrative review, and did not receive instructions

13

on how to proceed once his attempts at review were foiled in the factual context of this case, he

14

ha[d] exhausted his administrative remedies under the PLRA.” Id.

He was not

15

While not precedential, this Court agrees with the reasoning in Dole, whose facts are

16

substantially on point. Therefore, given the credible testimony by Plaintiff at the evidentiary

17

hearing, as well as Ms. Gricewich‟s testimony that a prisoner could commence the informal

18

level appeal process by handing or mailing a Form 602 appeal to an officer, the Court finds that

19

Plaintiff‟s February 26, 2006 informal level submission, addressed to defendant Hart, was

20

sufficient to commence the appeal process, and was thus timely and sufficient to exhaust his

21

administrative remedies. Given Defendants‟ failure to identify a remedy for lost or misplaced

22

appeals, and given that Plaintiff submitted various appeals related to the February 21, 2006,

23

incident, this Court finds that Plaintiff - -like the plaintiff in Dole - - did all he could do to

24

exhaust his remedies, and that if he did not, it was only because CDCR lacked an adequate

25

administrative process that permitted him to do so. See, Dole, 438 F.3d at 813; see also,

26

Nunez, 591 F.3d at 1224–26.

27

It is also worth remembering that the issue of exhaustion is one that can have the effect

28

of preventing a meritorious claim from being heard, which is why it is Defendants‟ burden to
16

1

prove that a prisoner suit should be dismissed for failure to satisfy the exhaustion requirement.

2

Here, given that Defendants have not met their burden of proof, dismissal would be

3

inappropriate and counter to the PLRA‟s provisions and policy.

4

The Court does not make findings on the two remaining issues addressed by the

5

evidentiary hearing because they are moot based on the Court‟s findings on this first issue.

6

VII.

CONCLUSION AND RECOMMENDATIONS

7

The Court finds that given the evidence, starting the informal grievance process by

8

mailing or handing a Form 602 appeal to an officer commences the appeal process. Thus, the

9

Court also find that based on Plaintiff‟s credible testimony, his February 26, 2016, informal

10

level submission, addressed to defendant Hart, was sufficient to commence the appeal process,

11

and was thus timely and sufficient to exhaust his administrative remedies. Based on this

12

finding and the reasons outlined above Defendants have failed to meet their burden of

13

demonstrating that Plaintiff failed to exhaust his remedies prior to filing the instant suit, in

14

compliance with section 1997e(a).

15
16
17

Based upon these Findings of Fact and Conclusions of Law, IT IS HEREBY
RECOMMENDED that:
1.

18

Defendants‟ motion for summary judgment on the issue of failure to exhaust,
filed on April 29, 2014, be DENIED;

19

2.

Plaintiff be deemed to have satisfied his exhaustion requirement; and

20

3.

Plaintiff‟s claim be permitted to proceed on the merits.

21

These findings and recommendations are submitted to the United States District Judge

22

assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

23

(30) days after being served with these findings and recommendations, any party may file

24

written objections with the court.

25

Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be

26

served and filed within ten days after service of the objections. The parties are advised that

27

failure to file objections within the specified time may result in the waiver of rights on appeal.

Such a document should be captioned "Objections to

28

17

1

Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

2

F.2d 1391, 1394 (9th Cir. 1991)).

3
4
5

IT IS SO ORDERED.
Dated:

March 21, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

23
24
25
26
27
28

18