Warner v. Cate et al
Filing
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FINDINGS and RECOMMENDATIONS to Deny Defendants' 41 Motion for Summary Judgment signed by Magistrate Judge Michael J. Seng on 05/18/2015. Referred to Judge O'Neill; Objections to F&R due by 6/8/2015. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EARL WARNER,
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Plaintiff,
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v.
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M. CATE, et al.,
Defendants.
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Case No. 1:12-cv-01146-LJO-MJS (PC)
FINDINGS AND RECOMMENDATION TO
DENY DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
(ECF No. 41.)
FOURTEEN (14) DAY OBJECTION
DEADLINE
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16 I.
PROCEDURAL HISTORY
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
18 rights action brought pursuant to 28 U.S.C. § 1983. (ECF No. 1 & 7.) The action
19 proceeds on an Eighth Amendment failure to protect claim against Defendants Walker,
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20 Davis , Prokop, Spralding, and Fellows. (ECF No. 12.)
Before the Court is Defendants’ August 18, 2014 motion for summary judgment
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22 on exhaustion grounds. (ECF No. 41.) Plaintiff opposes the motion. (ECF No. 57.)
23 Defendants filed a reply (ECF No. 58.). The matter is deemed submitted. Local Rule
24 230(l).
25 II.
LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT
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Any party may move for summary judgment, and “[t]he [C]ourt shall grant
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Formerly Defendant D. McGaha.
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summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Each party’s position, whether it be that a fact is disputed or undisputed, must be
supported by (1) citing to particular parts of materials in the record, including but not
limited to depositions, documents, declarations, or discovery; or (2) “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.” Fed R. Civ.
P. 56(c)(1).
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“Where the moving party will have the burden of proof on an issue at trial, the
movant must affirmatively demonstrate that no reasonable trier of fact could find other
than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007). If the burden of proof at trial rests with the nonmoving party, then the
moving party need only point to “an absence of evidence to support the nonmoving
party’s case.” Id. Once the moving party has met its burden, the nonmoving party must
point to "specific facts showing that there is a genuine issue for trial." Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
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In evaluating the evidence, “the [C]ourt does not make credibility determinations
or weigh conflicting evidence,” and “it draws all inferences in the light most favorable to
the nonmoving party.” Id.
III.
PLAINTIFF’S CLAIMS
Plaintiff complains in his First Amended Complaint (“FAC”) that on January 19,
2011 at his initial classification hearing, he informed Defendants of his concerns about
threats from the Northern Riders gang and their leader at Pleasant Valley State Prison
(“PVSP”), inmate Sordia. (ECF No. 10.) Defendants acted with hostility and deliberate
indifference towards Plaintiff and informed Plaintiff “he was out of places to go.” (ECF
No. 10.) Defendant Walker placed Plaintiff in an adjacent holding cell to Sordia. Sordia
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denied any animosity, and Defendants approved Plaintiff for general population housing
in the same unit as inmate Sordia.
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Prisoners affiliated with Sordia loitered outside Plaintiff’s cell during meal breaks.
Eventually, Plaintiff suffered a nervous breakdown and was transferred because of selfinflicted lacerations to his wrists.
IV.
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A.
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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
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42 U.S.C. § 1997e(a).
Therefore, prisoners are required to exhaust all available administrative remedies prior
to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007).
“The primary purpose of a [prisoner’s administrative] grievance is to alert the
prison to a problem and facilitate its resolution, not to lay groundwork for litigation.”
Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). “A grievance need not include
legal terminology or legal theories unless they are in some way needed to provide
notice of the harm being grieved.
A grievance also need not contain every fact
necessary to prove each element of an eventual legal claim.” Id. Instead, the grievance
must alert “‘the prison to the nature of the wrong for which redress is sought,’” id. at
1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)), and must give the
prison an opportunity “to reach the merits of the issue.” Id. at 1119.
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Legal Standard -- Exhaustion
The Prison Litigation Reform Act (“PLRA”) stipulates, “No action shall be brought
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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A motion for summary judgment is the proper means to raise a prisoner's failure
to exhaust administrative remedies. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.
2014).
Defendants have the burden of proving Plaintiff failed to exhaust available
administrative remedies. Id. A defendant's burden of establishing an inmate's failure to
exhaust administrative remedies has been characterized by the Ninth Circuit as “very
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low.” Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012). The “defendant need only
show the existence of . . . [a grievance procedure] that the plaintiff did not use.” Id.
(citing Hilao v. Estate of Marcos, 103 F.3d 767, 778, n.5 (9th Cir. 1996)).
“If undisputed evidence viewed in the light most favorable to the prisoner shows
a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.”
Albino, 747 F.3d at 1166. If material facts are disputed, summary judgment should be
denied, and the district court should decide “disputed factual questions relevant to
exhaustion . . . in the same manner a judge rather than a jury decides disputed factual
questions relevant to jurisdiction and venue.” Id. at 1170-71.
B.
Factual Background
The event which gave rise to the Eighth Amendment claim in Plaintiff’s FAC
occurred on January 19, 2011. Plaintiff filed his original complaint on July 12, 2012, and
his FAC on May 10, 2013. (ECF Nos. 1 & 10.) Plaintiff filed three prison appeals
relevant to exhaustion of the claims raised in his FAC: PVSP-O-12-00872, RJD-B-1200796, and RJD-B-12-01098.
While housed at PVSP, Plaintiff submitted appeal PVSP-O-12-00872 on
December 12, 2011. On January 30, 2012, the appeal was rejected at the first level on
the basis that Plaintiff failed to demonstrate a material adverse effect on his welfare
pursuant to 15 C.C.R. § 3084.6(b)(2). Plaintiff resubmitted the appeal. A letter dated
April 13, 2012 was sent to Plaintiff informing him to resubmit his appeal to the
appropriate California Department of Corrections and Rehabilitation (“CDCR”) unit
because PVSP no longer had jurisdiction over Plaintiff when he was transferred to
Richard J. Donovan Correctional Facility (“RJD”).
The parties dispute when Plaintiff received the April 13, 2012 letter and how
appeal RJD-B-12-00796 was initiated.
Defendants contend that the appeal was
received in the appeals office at RJD on April 20, 2012, it was screened and cancelled
as untimely pursuant to 15 C.C.R. § 3084.6(c)(4), and a letter was sent to the Plaintiff
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May 11, 2012, informing him of the cancellation and the process for appealing the
cancellation decision. Plaintiff contends that he had not received the April 13, 2012
letter by May 3, 2012, when he sent a letter to the PVSP Appeals Office inquiring on the
status of his appeal. He subsequently received the April 13, 2012 letter and notification
that his PVSP-O-12-00872 had been assigned appeal number RJD-B-12-00796 and
rejected as untimely.
Plaintiff appealed the cancellation of RJD-B-12-00796 by submitting appeal RJDB-12-01098. In a letter dated May 24, 2012, the appeal was cancelled pursuant to 15
C.C.R. § 3084.6(c)(4) as untimely.
C.
Parties’ Arguments
Defendants argue that Plaintiff did not exhaust his administrative remedies
because he did not obtain a third level decision on any of the three appeals. Appeal
PVSP-O-12-00872 concluded when Plaintiff was no longer housed at PVSP. Although
he then resubmitted the appeal as RJD-B-12-00796 on April 20, 2012, it was properly
cancelled as untimely. Plaintiff properly appealed that cancellation in RJD-B-12-01098.
While RJD-B-12-01098 may have been improperly cancelled, Plaintiff failed to appeal
the cancellation decision, and therefore, he failed to exhaust his administrative
remedies.
Plaintiff contends the prison prevented him from exhausting his administrative
remedies and that appeal of RJD-B-12-01098 would have been futile. PVSP-O-1200872 was erroneously cancelled; Plaintiff alleged a material adverse effect on his
welfare when he claimed that the incident caused him to have a nervous breakdown
and slit his wrists.
Plaintiff resubmitted PVSP-O-12-00872, and it was re-assigned
appeal number RJD-B-12-00796 when Plaintiff transferred to RJD. RJD-B-12-00796
was erroneously cancelled as untimely. The appeal was erroneously treated as though
it was submitted for the first time, and the Appeals Office never characterized it as
untimely when it was first submitted at PVSP. When Plaintiff attempted to appeal the
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cancellation and complained about the above issues with the appeals process via
appeal RJD-B-12-01098, this appeal was again erroneously cancelled as untimely even
though he had submitted it well within thirty days of receiving notice of the cancellation
as required under the California Code of Regulations.
D.
Analysis
There is a genuine issue of material fact as to whether the administrative
remedies were effectively unavailable to Plaintiff.
Defendants contend that the
cancellation of RJD-B-12-01098 may have been a mistake, but that Plaintiff should have
still appealed that cancellation because all of Plaintiff’s prior appeals were properly
screened out. However, Plaintiff presents evidence that his initial appeal PVSP-O-1200872 was improperly screened out because he had alleged a material adverse effect
on his welfare, that he properly resubmitted that appeal and it was instead cancelled as
untimely, and when he attempted to appeal the cancellation again, he was given the
same response -- that his appeal was untimely.
A Plaintiff can demonstrate that administrative remedies were effectively
unavailable to him when he attempts to comply with the process, but is “thwarted by
improper screening.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In order to
demonstrate this exception applies, the plaintiff “must establish (1) that he actually filed
a grievance or grievances that, if pursued through all levels of administrative appeals,
would have sufficed to exhaust the claim that he seeks to pursue in federal court, and
(2) that prison officials screened his grievance or grievances for reasons inconsistent
with or unsupported by applicable regulations.” Id. at 823-24. Alternatively, exhaustion
may “be excused where repeated rejections of an inmate's grievances at the screening
stage give rise to a reasonable good faith belief that administrative remedies are
effectively unavailable.” Id. at 826.
Defendants effectively concede that Plaintiff’s appeal RJD-B-12-01098 was
cancelled “for reasons inconsistent with or unsupported by applicable regulations.” Id.
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at 823-24. And, without examining all the facts and claims and weighing the evidence,
the Court cannot resolve whether or not Plaintiff had a reasonable good faith belief that
the administrative remedies were effectively unavailable to him.
determinations cannot be made on a motion for summary judgment, the Court must
recommend that Defendants’ motion for summary be DENIED. See Soremekun, 509
F.3d at 984.
VI.
CONCLUSION AND RECOMMENDATION
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The Court finds there are disputed issues of material fact regarding exhaustion,
precluding summary judgment. Accordingly, the Court HEREBY RECOMMENDS that
Defendants’ motion for summary judgment (ECF No. 41.) be DENIED.
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In light of
Defendants’ request for an evidentiary hearing in the event that their motion is denied, it
is FURTHER RECOMMENDED that an evidentiary hearing be conducted to resolve the
issue of exhaustion.
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Because such
These Findings and Recommendations are submitted to the United States
District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).
Within
fourteen
(14)
days
after
being
served
with
these
Findings
and
Recommendations, any party may file written objections with the Court and serve a
copy on all parties. Such a document should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” Any reply to the objections shall be served
and filed within fourteen (14) days after service of the objections. The parties are
advised that failure to file objections within the specified time may result in the waiver of
rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter
v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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25 IT IS SO ORDERED.
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Dated:
May 18, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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