Johnson v. Sandoval et al
Filing
23
ORDER DENYING 19 Motion for Summary Judgment signed by Chief Judge Ralph R. Beistline on 12/16/2013. (Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DONTAY JOHNSON,
Case No. 1:12-cv-00018-RRB
Plaintiff,
vs.
ORDER REGARDING
MOTION AT DOCKET 19
C. LOPEZ, et al.,
Defendants.
I.
BACKGROUND/PENDING MOTION
Dontay Davion Johnson, a state prisoner appearing pro se and in forma pauperis,
filed a civil rights action under 42 U.S.C. § 1983. After screening, this Court ordered service
of the Complaint on C. Lopez.1 Defendant Lopez has answered the Complaint.2 At
Docket 19 Lopez moved for summary judgment alleging that Johnson has not exhausted
his administrative remedies. At Docket 21 Johnson has opposed the motion, and at
Docket 22 Lopez has replied. The Court having determined that oral argument would not
materially assist in the determination of the pending motion and neither party having
requested oral argument, the matter is submitted for decision on the moving and opposing
papers.
1
Docket 14.
2
Docket 16.
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As relevant to the pending motion Johnson contends that in conducting a strip
search Defendant C. Lopez digitally invaded Johnson’s anus causing him severe pain.
Johnson further alleges that Lopez used unnecessarily excessive force in conducting the
search. Johnson contends that in conducting the physically invasive search Lopez violated
Johnson’s rights under the Fourth (unreasonable search) and Eighth (intentional infliction
of pain) Amendments, as well as the common law tort of assault and battery.
II.
APPLICABLE LAW
A.
Standard
Summary judgment is appropriate if, when viewing the evidence in the light most
favorable to the non-moving party, there are no genuine issues of material fact and the
moving party is entitled to judgment in its favor as a matter of law.3 Support and opposition
to a motion for summary judgment is made by affidavit made on personal knowledge of the
affiant, depositions, answers to interrogatories, setting forth such facts as may be
admissible in evidence.4 In response to a properly supported motion for summary judgment,
the opposing party must set forth specific facts showing that there is a genuine issue for
trial.5 The issue of material fact required to be present to entitle a party to proceed to trial
is not required to be resolved conclusively in favor of the party asserting its existence; all
3
Fed. R. Civ. P. 56(c); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc); Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989).
4
Fed. R. Civ. P. 56(e).
5
Id.; Henderson v. City of Simi Valley, 305 F.3d 1052, 1055–56 (9th Cir. 2002).
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that is required is that sufficient evidence supporting the claimed factual dispute be shown
to require a jury or judge to resolve the parties' differing versions of the truth at trial. In order
to show that a genuine issue of material fact exists a nonmoving plaintiff must introduce
probative evidence that establishes the elements of the complaint.6 Material facts are those
which may affect the outcome of the case.7 A dispute as to a material fact is genuine if
there is sufficient evidence for a reasonable jury to return a verdict for the non-moving
party.8 "Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge, [when] he is
ruling on a motion for summary judgment."9 The evidence of the non-moving party is to be
believed and all justifiable inferences are drawn in his favor.10 The moving party has the
burden of showing there is no genuine issue of material fact; therefore, he bears the burden
of both production and persuasion.11 The moving party, however, has no burden to negate
or disprove matters on which the non-moving party will have the burden of proof at trial.
The moving party need only point out to the Court that there is an absence of evidence to
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
7
Id.
8
Id.
9
Id. at 255.
10
Id.
11
Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).
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support the non-moving party's case.12 There is no genuine issue of fact if, on the record
taken as a whole, a rational trier of fact could not find in favor of the party opposing the
motion.13
B.
Exhaustion
Under the Prison Litigation Reform Act (“PLRA”), a prisoner must exhaust his
administrative remedies prior to filing suit, not during the pendency of the suit.14 A prisoner
is not required to affirmatively plead exhaustion. Instead, exhaustion is an affirmative
defense to be raised and proven by the defense.15 California procedure provides for three
levels of review of prisoner grievances, the third level conducted by the Secretary of the
California Department of Corrections and Rehabilitation (“CDCR”), or by a designated
representative.16
12
Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010); see Celotex, 477
U.S. at 325.
13
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
14
42 U.S.C. § 1997e(a) (mandating that “[n]o action shall be brought . . . until
[the prisoner’s] administrative remedies . . . are exhausted.”); McKinney v. Carey, 311 F.3d
1198, 1199 (9th Cir. 2002) (per curiam).
15
Jones v. Bock, 549 U.S. 199, 212–17 (2007); Wyatt v. Terhune, 315 F.3d
1108, 1119 (9th Cir. 2003).
16
Cal. Code Regs. tit. 15, § 3084.7; § 3084.1(b) (“Unless otherwise stated in
these regulations, all appeals are subject to a third level of review, as described in section
3084.7, before administrative remedies are deemed exhausted. All lower level reviews are
subject to modification at the third level of review.”).
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III.
ADMINISTRATIVE PROCEEDINGS
The administrative proceedings before the CDCR officials followed a somewhat
tortuous and convoluted bifurcated process. The prison records show that in pursuing his
administrative remedies Johnson pursued at least two separate avenues: KVSP-0-1100265 and KVSP-0-11-00693.
KVSP-0-11-00265: In this proceeding, the Chief Deputy Warden, processing the
CDC 602, Inmate/Parolee Appeal Form, as a staff complaint conducted a confidential
inquiry and denied Johnson relief at the second level, stating the issue as:
APPEAL ISSUE: You state on January 21, 2011, you were sexually
assaulted by Correctional Officer C. Lopez. You state Correctional Lieutenant
C. Sandoval and Correctional Sergeant J. Lomeli tried to cover up the
incident.
You request to be released from Administrative Segregation (Ad Seg) or
request to be transferred to Corcoran Slate Prison at Corcoran.
A confidential inquiry was conducted in which Lt. C. Sandoval and Officers M. King, M.
Mendoza, and Lopez were interviewed. The reviewing official also reviewed the CDC 602,
the California Code of Regulations and the Departmental Operations Manual. At the
conclusion of the inquiry, without making any factual findings or explanation, the reviewing
official simply held:
Staff did not violate CDCR policy.
Allegations of staff misconduct do not limit or restrict the availability of further
relief via the inmate appeals process. If you wish to appeal the decision, you
must submit your staff complaint appeal through all levels of appeal review
up to, and including, the Director's Level of Review. Once a decision has
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been rendered at the Director's Level of Review, your administrative remedies
will be considered exhausted.17
It does not appear from the official prison records that the matter was ever considered and
ruled upon at the Director’s Level.
KVSP-0-11-00693: On May 8, 2011, Johnson filed a new CDC Form 602 in which,
as relevant to this case, he alleged a sexual assault by Officer Lopez and specifically
alleged the facts underlying his complaint to this Court.18 This grievance was screened out
as a duplicate of KVSP-0-11-00265.18 Johnson appealed that determination and was denied
relief at the Director’s Level:
I
APPELLANT 'S ARGUMENT : It is the appellant's position that his CDC
Form 602, Inmate/Parolee Appeal Form dated May 8, 2011, should not have
been cancelled as a duplicate appeal of the February 7, 2011, appeal Log
#KVSP-0-11-00265. The appellant alleges that the officers switched the
appeal Log #KVSP-0-11-00265 from False Imprisonment to Sexual Assault.
The appellant stated that the Log #KVSP-0-11-00265 appeal investigated the
cover up, not the actual sexual assault. The appellant added that the
cancelled appeal dated May 8, 2011, should be reviewed in order to
investigate the sexual assault allegation. The appellant requests that the
appeal dated May 8, 2011, be processed and that the appeals coordinator
read the evidence and exhibits on the May 8, 2011, appeal.
II
SECOND LEVEL'S DECISION : The reviewer found that KVSP Inmate
Appeals Office (IAO) received the appellant's appeal dated May 8, 2011,
which was cancelled as a duplicate to an appeal dated February 7, 2011, Log
#KVSP-0-11-00265 which was answered at the Second Level of Review
(SLR) on March 23, 2011. The reviewer noted that the appellant's allegations
that KVSP Officers switched his appeal from False Imprisonment to Sexual
17
Docket 19-3 at 26–27.
18
Docket 19-3 at 14–18.
18
Docket 19-3 at 19–20.
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Assault. The reviewer stated that appellant contends he wrote a CDC Form
602 dated January 27, 2011, in reference to a sexual assault that occurred.
The reviewer noted that there is no mention of the appeal in the Inmate
Appeals Tracking System and the appellant has not produced the alleged
original appeal with a date stamp to confirm he submitted such an appeal.
The reviewer found that the appellant submitted an appeal on February 7,
2011, noting an alleged sexual assault incident that occurred on January 21,
2011, by correctional officers. The reviewer noted that this appeal was
accepted, given the Log #KVSP-0-11-00265 and was investigated and
concluded on March 25, 2011, indicating that staff did not violate CDCR
policy. The reviewer added that the appellant was informed that allegations
of staff misconduct did not restrict the availability of further relief via the
inmate process. The reviewer stated that the appellant was released from the
Administrative Segregation Unit on March 8, 201 l; and his appeal was sent
back to him on March 28, 2011.
The reviewer noted that over 40 days passed after the appellant received the
conclusion of the staff complaint, the appellant submitted an appeal dated
May 8, 2011, noting his request for an Office of Internal Affairs investigation
into the January 21, 2011, incident that referred to the sexual assault
involving the correctional officers. The reviewer stated that on May 20, 2011,
the appellant appealed the cancellation of the May 8, 2011, appeal alleging
that the KVSP officers switched the appeal dated February 27 [sic], 2011,
and referring to a cover up. The reviewer noted that there is no evidence to
suggest the KVSP Officers switched any appeal forms. The reviewer stated
that the appellant's evidence and exhibits were reviewed. Based upon the
above information, the appellant's appeal was granted in part at the SLR.
III
THIRD LEVEL DECISION : Appeal is denied.
A.
FINDINGS: The Third Level of Review (TLR) reviewed the issues of the
appellant's appeal and reaffirms the institution's examination and conclusions
as addressed within the SLR. Based upon a review of the submitted
documents, the examiner found that the appellant's original appeal Log
#KVSP-0-11-00265 was addressed based upon a staff complaint in which it
was determined that staff did not violate policy. The examiner finds no
evidence that staff switched the appellant's appeals to cover up alleged staff
misconduct. The examiner notes that the KVSP IAO appropriately rejected
the appellant's appeal dated May 8, 2011, as a duplicate appeal to a previous
issue. The examiner refers the appellant to the California Code of
Regulations, Title 15, Section (CCR) 3084.6(c)(2) which states, "The appeal
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duplicates an inmate or parolee's previous appeal upon which a decision has
been rendered or is pending." The documentation and arguments presented
are persuasive that the appellant has failed to support his appeal issue with
sufficient evidence or facts to warrant modification of the previous levels of
review. The appellant's appeal issue was appropriately addressed by the
institution. No evidence of negligence by staff has been shown. No relief is
warranted at the TLR.
B.
BASIS FOR THE DECISION :
CCR: 3001, 3084, 3084.1, 3084.2, 3084.4, 3084.5, 3084.6
C.
ORDER : No changes or modifications are required by the Institution.
This decision exhausts the administrative remedy available to the appellant
within CDCR.19
IV.
DISCUSSION
If that were the only evidence in this matter, the Court would be inclined to grant
Lopez’s motion. However, that does not constitute the entirety of the evidence presented
to this Court. Attached to Lopez’s Motion as Exhibit A is a copy of the CDC Form 602 in
KVSP-0-11-00265.20 This exhibit contains but two pages. However at the bottom of the
second page in part H (requesting review at the Director’s Level) is a reference to an
Exhibit A (identified as the January 27, 2011, CDC Form 602 alleging sexual assault) and
it ends with “[i]t should be noted that the -.“ This clearly indicates there is a reasonable
probability that there is a continuation sheet that has been omitted showing that Johnson
was dissatisfied by with the second level response and was seeking further review at the
Director’s Level.
19
Docket 19-3 at 63–64.
20
Docket 19-3 at 1–3. An identical copy is also attached as Exhibit 1 to the
Declaration of the Appeals Coordinator. Docket 19-3 at 8–10.
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Attached as Exhibit 2 to Johnson’s opposition is a copy of what appears on its face
to be a copy of CDC 602, KVSP-0-11-00265. Although identical in all other respects to
Defendant’s Exhibit A, unlike the Defendant’s exhibit however, Johnson’s Exhibit 2 contains
two additional pages, including a third page captioned “Director Level Review” that appears
in context to flow from the last sentence on the second page.21 In that third page Johnson
refers to a sexual assault 602 that he alleges was confidentially sent directly to the
warden.22 Johnson further describes the alleged assault by Lopez. Johnson also requested
that the January CDC Form 602 that was allegedly sent directly to the warden be returned
and processed in accordance with Departmental procedures.23
The Supreme Court has made clear that “exhaustion” under the PLRA means
“proper exhaustion,” which § 1997e(a) defines as such administrative remedies as are
available under state law.24 The Supreme Court has noted that exhaustion serves two
goals: (1) it affords corrections officials time and opportunity to address complaints internally
before allowing the initiation of a federal case; and (2) reduces the quantity and improves
the quantity of prisoner suits.25 The Ninth Circuit has held that “[t]o properly exhaust, a
21
Docket 21 at 20–22.
22
A CDC Form 602 dated January 27, 2011, which is also appended to
Johnson’s opposition as Exhibit 1 [Docket 21 at 15–17]. At the top of that grievance is
handwritten “Emergency Appeal - Staff Complaint - Sexual Assault.” In that CDC Form 602
Johnson describes in detail the circumstances and nature of the alleged assault by Lopez.
23
This adequately refutes Defendant’s argument that Johnson fails to provide
any details concerning the submission of this grievance.
24
Woodford v. Ngo, 548 U.S. 81, 84 (2006).
25
Id. at 93–94; Albino v. Baca, 697 F.3d 1023, 1030 (9th Cir. 2012).
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prisoner must comply with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.”26
The burden is on Lopez to show that there is no triable issue of fact and that he is
entitled to judgment as a matter of law. In this case, the very exhibits appended to Lopez’s
motion suggest that at the very least Johnson may have made a good faith attempt to
exhaust his administrative remedies, but was either prevented from so doing,27 or that the
gravamen of his complaint was overlooked by the reviewing official at the third level. What
is clear is that, while it may have been somewhat inept, Johnson attempted to raise the
complaint he raises before this Court within the scope of the administrative remedy provided
under California law. Particularly puzzling is how, if it was not submitted for processing
within the prison system, a copy of the CDC Form 602 in KVSP-0-11-00265 submitted as
an exhibit to the Defendant’s motion containing a partially completed part H (request for
Director’s Level review) came to be part of the prison records.28
Neither the Supreme Court nor the Ninth Circuit have provided definitive guidance
on how strictly a prisoner must comply with the technical requirements of prison grievance
26
Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010) (quoting Ngo, 548 U.S.
at 90–91) (internal quotation marks omitted)).
27
See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (excusing a
prisoner’s failure to exhaust where the prisoner is prevented from doing so).
28
The Court also notes that if the CDC Form 602 were placed in the system and
Director’s Level review not completed, Johnson’s administrative remedies would be deemed
exhausted. Cf. Sapp, 623 F.3d at 822–23. It is also noted, however, that the submission
of the January 27, 2011 CDC Form 602 directly to the Warden did not constitute proper
exhaustion of Johnson’s administrative remedies.
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procedures to exhaust his administrative remedies. In the absence of definitive guidance
from a higher court, in light of the general rule that pro se pleadings are to be liberally
construed,29 and applying that rule to prison grievance procedures, this Court is reluctant
to deny a prisoner relief on the basis of what is essentially at most a technical procedural
error. Particularly in cases where, as here, it appears that the prison officials were more
likely than not given an adequate opportunity to address Johnson’s complaint internally.
While this Court agrees that Johnson has not shown when or to whom he handed the CDC
Form 602 grievance in KVSP-0-11-00265 for delivery to the third level, at most, the record
vis-a-vis the exhaustion issue is unclear.30
V.
CONCLUSION and ORDER
Lopez has failed to carry his burden to establish that there is no triable issue fact and
that he is entitled to judgment as a matter of law. Accordingly, Defendant’s Motion for
Summary Judgment at Docket 19 is DENIED.
IT IS SO ORDERED this 16th day of December, 2013.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
29
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v.
Ollison, 620 F.3d 952, 958 (9th Cir. 2010).
30
In reaching this determination, because it is inherently implausible under the
facts as related by Johnson, the Court gives no credence to Johnson’s “switching appeals”
argument.
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