Guzman v. Marshall et al

Filing 41

FINDINGS and RECOMMENDATIONS Regarding Defendants' 29 Motion for Summary Judgment, signed by Magistrate Judge Stanley A. Boone on 3/16/2015, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAFAEL GUZMAN,

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Plaintiff,
v.

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JOHN MARSHALL, et al.,

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Defendants.

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Case No.: 1:12-cv-00828-LJO-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
[ECF No. 29]

Plaintiff Rafael Guzman is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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On September 19, 2014, Defendants filed a motion for summary judgment. Pursuant to court

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order, Plaintiff filed an opposition on December 12, 2014, and Defendants filed a reply on December

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22, 2014. On January 26, 2015, Plaintiff filed a request to file a surreply, along with a copy of the

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surreply. (ECF Nos. 37, 38.)

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I.

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DISCUSSION
Plaintiff’s Motion to File a Surreply

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A.

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Plaintiff has filed a request to file a surreply, along with a copy of his surreply. The filing of a

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surreply is not authorized by the Federal Rules of Civil Procedure and Local Rules. The Court

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generally views motions for leave to file a surreply with disfavor. Hill v. England, No. CV F 05869
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REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA, LLC,

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366 F.Supp.2d 1190, 1197 (N.D. Ga. 2005). However, district courts have discretion to either permit

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or preclude a surreply. See U.S. ex. rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir.

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2000).
In this instance, the Court has reviewed Plaintiff’s surreply and finds it is not necessary to

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resolution of Defendants’ motion for summary judgment and does not advance further arguments not

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already presented to the Court. Accordingly, Plaintiff’s motion to file a surreply is DENIED.

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B.

Motion for Summary Judgment Standard

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Any party may move for summary judgment, and the Court shall grant summary judgment if

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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mutual Inc.

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v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is

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disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record,

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including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the

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materials cited do not establish the presence or absence of a genuine dispute or that the opposing party

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cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks

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omitted). The Court may consider other materials in the record not cited to by the parties, but it is not

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required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d

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1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir.

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2010).

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If Defendants meet their initial burden, the burden then shifts to Plaintiff “to designate specific

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facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp., 627 F.3d at 387

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(citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show more than the mere existence

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of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, (1986)).

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However, in judging the evidence at the summary judgment stage, the Court may not make

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credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d

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978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the

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light most favorable to the nonmoving party and determine whether a genuine issue of material fact
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precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657

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F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). The Court determines only

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whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff’s filings

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because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation

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marks and citations omitted).

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C.

Exhaustion under the Prisoner Litigation Reform Act

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Pursuant to the Prison Litigation Reform Act of 1996, “[n]o action shall be brought with

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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined

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in any jail, prison, or other correctional facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative

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remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d

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1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner

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and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and

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the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516,

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532 (2002).

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The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under

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which Defendant has the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at

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216; Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014); Wyatt v. Terhune, 315 F.3d 1108, 1119

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(9th Cir. 2003). The failure to exhaust nonjudicial administrative remedies is subject to a motion for

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summary judgment in which the Court may look beyond the pleadings. Albino, 747 F.3d at 1170. If

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the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without

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prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

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The California Department of Corrections and Rehabilitation (CDCR) has an administrative

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grievance system for prisoners to appeal any departmental decision, action, condition, or policy having

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an adverse effect on prisoners’ welfare. Cal. Code Regs. tit. 15, § 3084.1. Prior to 2011, the process

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was initiated by submitting a CDC Form 602 describing the problem and the action requested, tit. 15,

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§ 3084.2(a), and the appeal had to be submitted within fifteen working days of the event being

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appealed or of the receipt of the unacceptable lower level decision, tit. 15, § 3084.6(c). Up to four
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levels of appeal may be involved, including the informal level, first formal level, second formal level,

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and third formal level, also known as the Director’s Level. Tit. 15, § 3084.5. In order to satisfy

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section 1997e(a), California state prisoners are required to use this process to exhaust their claims

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prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201.

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On January 28, 2011, the inmate appeals process was modified and limited to three level of review

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with provisions allowing the first level to be bypassed under specific circumstances. Cal. Code Regs.

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tit. 15, § 3084.7.

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D.

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On January 29, 2011, at approximately 8:20 a.m., officer Frazier approached Plaintiff and

Allegations of Complaint

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informed him he was allowed to go out to the yard. Plaintiff exited his cell, and officer Snyder

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searched him in the holding cages. Plaintiff was then led down a hallway out of the cell block.
Plaintiff proceeded to make a right turn which would have placed him in the proper exercise

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yard; however, at that point officer Snyder ordered him to make a left turn to the group yard. Plaintiff

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immediately informed officer Snyder that he was a member of the Southern Group and his life would

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be in danger if he was placed in the Northern yard group.
Officer Snyder told Plaintiff that she was going to “see what he was made of and thereafter

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shoved [Plaintiff] out into the Northern group yard.” Plaintiff alleges officer Snyder knowingly and

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deliberately placed his life in jeopardy. Immediately after Plaintiff was forced onto the Northern yard

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he was attacked and shot in the back by a big block gun.
Prior to Plaintiff’s placement into the inmate population, the committee interviews an inmate

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under California Department of Corrections and Rehabilitation (“CDCR”) 128G report which takes

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into consideration certain relevant information to prevent certain civil rights violations.

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E.

Statement of Undisputed Facts1

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At the time of the alleged incidents at issue in this action, Plaintiff was a state prisoner
incarcerated within the CDCR.

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On February 16, 2011, Plaintiff filed administrative appeal log number CCI-0-11-

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00223 complaining that Defendant Officer Snyder led Plaintiff into the Northern Group

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Yard where Plaintiff was shot by a nonlethal gun.
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On February 25, 2011, Plaintiff was paroled from CCI to Region Three Immigration.

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Subsequently, on March 19, 2012, Plaintiff was discharged from CDCR to Federal

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Prison.
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On April 1, 2011, Plaintiff’s Appeal Log No. CCI-0-11-00223 was partially granted at
the second level of review, in that an investigation was conducted.

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5.

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Plaintiff learned of the second level decision on Appeal Log No. CCI-0-11-00223 by
April 16, 2011.

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Plaintiff submitted an appeal to the third level of review.

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On June 7, 2011, the third level of review screened out Plaintiff’s appeal at the third
level of review for bypassing the first and second levels of review.

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Plaintiff commenced this action on May 21, 2012.

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On October 16, 2013, the third level of review received a letter from Plaintiff
requesting an update on the status of a 602 appeal.

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10.

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On October 17, 2013, the third level of review sent Plaintiff a response to his October

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16, 2013 letter, providing Plaintiff with a summary of the status of all received appeals

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at the third level of review.
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Plaintiff has not submitted any other appeals that have been accepted or screened out
regarding the incident at issue in the action or these Defendants.

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Plaintiff neither filed his own separate statement of disputed facts nor admitted or denied the facts set forth by defendant
as undisputed. Local Rule 56-260(b). Therefore, defendant’s statement of undisputed facts is accepted except where
brought into dispute by Plaintiff’s verified complaint and opposition. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004);
Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998).

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Aside from Plaintiff’s October 16, 2013, correspondence, Plaintiff did not submit any
requests inquiring about the status of his inmate appeal, Log No. CCI-0-11-00223.

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F.

Parties’ Positions

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1.

Defendants’ Argument in Support of Motion for Summary Judgment

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Defendants argue that Plaintiff failed to properly exhaust his administrative remedies with

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respect to his failure to protect claim against Defendants Snyder and Frazier because he failed to

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receive a third level decision on his inmate appeal.
Plaintiff’s Position

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2.

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Plaintiff argues that he did not have access to the administrative remedy process and therefore

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should not be required to have exhausted his administrative remedies before commencing this action.

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More specifically, Plaintiff contends that shortly after he submitted his Appeal Log No. CCI-0-11-

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00223, he was transferred to federal custody and never received the second level review response.

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Plaintiff further contends that after his transfer, he wrote CCI’s appeals coordinator requesting the

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status of his appeal and on April 11, 2011, he received a response informing him that his appeal had

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been partially granted and the formal response was being mailed to him.

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Plaintiff further contends that after receiving the April 11, 2011, correspondence from the CCI

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appeals coordinator, Plaintiff submitted something to the “Director of Corrections” in Sacramento,

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California. Plaintiff submits that he never received a response to this submission and therefore wrote

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the “Director” an inquiry letter on October 8, 2013.
Defendants’ Reply

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3.

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Defendants argue that despite Plaintiff’s claim that he did not have access to the administrative

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remedy process, the evidence clearly demonstrates otherwise.

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4.

Findings

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Defendants argue that Plaintiff timely submitted an appeal concerning the alleged January 29,

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2011, incident, Appeal Log No. CCI-0-11-00223. That appeal was categorized as a staff complaint

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and therefore bypassed the first level of review. On April 1, 2011, a second level decision was issued

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on the appeal, partially granting the appeal in that an investigation was conducted. Plaintiff learned of

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the disposition of his appeal on April 16, 2011, at the latest. Plaintiff, however, never submitted

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Appeal Log No. CCI-0-11-00223 for third level review.

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Rather, on May 17, 2011, Plaintiff submitted an incomplete CDC 602 inmate appeal for third

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level review. It was noted that Plaintiff’s appeal had not gone through first or second level review, as

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evidenced by the fact that it did not have an institutional log number on it; rather, third level review

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assigned it a third level appeal log number for tracking purposes. (Briggs Decl. ¶ 3.) In addition,

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based on the content of Plaintiff’s May 17, 2011 appeal, it was categorized as a “disciplinary” issue,

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indicating the appeal concerned a CDC 115 Rules Violation Report. (Id. at ¶ 7.)

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Defendants have met their initial burden of showing Plaintiff failed to exhaust the

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administrative remedies. To defeat Defendants’ motion, Plaintiff must demonstrate that there is a

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genuine dispute over a material issue of fact as to whether he actually exhausted available remedies, or

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as to whether he should be excused from the exhaustion requirement.

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Compliance with the exhaustion requirement requires prisoners to adhere to the deadlines and

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other critical procedural rules, Woodford, 548 U.S. 81, 90 (2006), and the exhaustion requirement may

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not be satisfied by filing an untimely or otherwise procedurally defective appeal, Woodford, 548 U.S.

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at 83-84. However, in this Circuit the failure to exhaust may be excused where the administrative

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remedies are rendered effectively unavailable. Sapp v. Kimbrell, 623 F.3d 813, 822-823 (9th Cir.

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2010); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010); Brown v. Valoff, 422 F.3d 926, 939-

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940 (9th Cir. 2005). The regulations governing administrative remedy procedures apply with equal

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force to inmates and prison officials, and thus, if an inmate complies with the procedural rules, but

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prison officials fail to respond in compliance with the rules or otherwise thwart the process, it becomes

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unavailable. Sapp, 623 F.3d at 822-823; Nunez, 591 F.3d at 1224.

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This exception applies if Plaintiff can show “(1) that he actually filed a grievance or grievances

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that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim

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that he seeks to pursue in federal court, and (2) that prison officials screened his grievance or

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grievances for reasons inconsistent with or unsupported by applicable regulations.” Sapp, 623 F.3d at

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823-824.

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There is no dispute that Appeal Log No. CCI-0-11-00223, if appropriately exhausted,

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sufficiently placed prison officials on notice of the claims set forth in the instant action. However, the

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issue revolves on whether Plaintiff properly exhausted this grievance or is excused from doing so.

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(Id.)

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In his opposition, Plaintiff contends that immediately after receiving the April 11, 2011, notice,

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he filed an appeal to the third level of review, dated April 16, 2011. Plaintiff claims he did not receive

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a response from the third level of review, until after his inquiry letter dated October 8, 2013. Plaintiff

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has demonstrated that his efforts were thwarted by prison officials who improperly screened his

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inmate appeal and rejected it for failure to seek first and second review, despite the fact that the former

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appeal number was on the inmate appeal. Contrary to Defendants’ argument, Plaintiff submits a copy

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the appeal submitted for third level review on April 16, 2011 (which referenced CDC Appeal Number

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CCI-0-11-00223), and Defendants fail to address this fact in their motion and reply. The April 16,

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2011, date is consistent with the inmate request for interview response, dated April 11, 2011, by J.

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Zanchi in which Plaintiff was informed that CDC Appeal Number CCI-0-11-00223 was completed

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and partially granted at the second level and mailed to Plaintiff on April 1, 2011.

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While the third level appeal may not have been on the original 602 form, that is consistent with

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Plaintiff’s contention the original 602 appeal form was not returned to him, and Plaintiff appealed by

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reference to the relevant Log Number CCI-0-11-00223 to the third level of review. Thus, contrary to

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the third level review response, Plaintiff did not bypass review, rather informal review was

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automatically bypassed and Plaintiff’s appeal was partially granted at the second level. Defendants do

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not submit the third level appeal referenced as Log No. 1021322, received May 17, 2011 (categorized

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as a disciplinary appeal) or the rejection notice by the third level; rather, Defendants submit only the

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log which references code R15-not authorized to bypass any level. In addition, Defendants’ argument

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that any third level appeal submitted by Plaintiff was untimely is not meritorious. As just stated,

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Plaintiff has submitted evidence that his third level appeal was submitted and dated April 16, 2011-

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within 15 days after the denial of the second level of review on April 1, 2011. Plaintiff did all that was

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required of him to exhaust the administrative remedies, and Defendants have failed to carry their

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ultimate burden of proving that summary judgment is warranted and their motion should be denied.
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II.

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RECOMMENDATION

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Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants’ motion for

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summary judgment for failure to exhaust the administrative remedies be DENIED.

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This Findings and Recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with this Findings and Recommendation, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” The parties are advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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March 16, 2015
UNITED STATES MAGISTRATE JUDGE

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