Polk v. Lattimore et al

Filing 174

ORDER ADOPTING 161 Findings and Recommendations and Granting 147 Motion for Summary Judgment signed by District Judge Ana de Alba on 10/12/2022. CASE CLOSED. (Lawrence, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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No. 1:12-cv-01156-ADA-BAM (PC)

Plaintiff,
v.
LATTIMORE, et al.,
Defendants.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
(ECF Nos. 147, 161)

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Plaintiff Susan Mae Polk is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s fifth

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amended complaint against Defendant Baron for retaliation in violation of the First Amendment

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and deliberate indifference in violation of the Eighth Amendment, arising from allegations that he

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placed a “snitch jacket” on Plaintiff by informing another inmate that Plaintiff had reported that

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inmate’s threats on Plaintiff’s life.

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On February 25, 2022, the Magistrate Judge issued findings and recommendations

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suggesting that Defendant’s motion for summary judgment for failure to exhaust be granted.

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(ECF No. 161.) The findings and recommendations were served on the parties and contained

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notice that any objections were to be filed within fourteen days after service. (Id. at 15.)

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Following several extensions of time, plaintiff timely filed objections on May 23, 2022. (ECF
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No. 170.) Defendant filed a response to Plaintiff’s objections on June 9, 2022. (Doc. No. 172.)

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The Court will adopt the Magistrate Judge’s findings in full but will make two observations in

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response to Plaintiff’s objections to the findings and recommendations.

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A.

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Availability of the grievance process
In arguing that Officer Brown rendered the prison grievance process unavailable, Plaintiff

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refers to Exhibit C of her opposition to Defendant’s motion for summary judgment. (See ECF

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No. 159 at 27–28.) Exhibit C is a statement, dated March 6, 2008, regarding a warning Plaintiff

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received from Brown about abusing the grievance process. (Id.) In that statement, Plaintiff

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writes that Brown “issued a warning to me that I was abusing the appeals process by filing, she

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claimed, more than one non-emergency appeal per week.” (Id. at 27.) If Plaintiff continued to

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file non-emergency appeals, she would be “limited to one 602 per every six months.” (Id.)

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Plaintiff goes on to disagree with Brown’s description of Plaintiff’s grievances as duplicative or

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non-emergency. (Id. at 28.) At the end of the statement, Plaintiff writes: “On 2/21/08, Brown

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screened out my 602 re her failure to process my 602s, and threatened to destroy my paperwork if

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I resubmitted it. On 2/28/08, she warned that I was abusing the process.”

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Plaintiff argues that her description of Brown’s conduct is similar to that of the officers in

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Williams v. Paramo, 775 F.3d 1182 (9th Cir. 2014). There, the plaintiff alleged that when

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reporting a grievance, a prison official responded by saying “So what! That is not my problem!

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That is your problem!” Id. at 1191–92. When the plaintiff attempted to file a formal grievance,

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an officer rejected it and refused to file the appeal. Id. at 1192. The Court of Appeals held that

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this conduct rendered the grievance process unavailable for that particular complaint. Id.

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Plaintiff’s statement regarding Brown differs significantly from the facts in Williams.

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First, the threats that Plaintiff alleges in the statement concern restrictions on Plaintiff’s filing of

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non-emergency grievances. Under the regulations as they existed in 2008, prisoners were limited

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to filing one non-emergency appeal every seven calendar days. Cal. Code Regs., tit. 15 §

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3084.4(a) (2008). If an appeal coordinator determined that a prisoner was filing excessive non-

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emergency appeals, they were required to extend the restriction on filing non-emergency appeals

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to six months. Id. at 3084.4(a)(4). As the Magistrate Judge discussed, Plaintiff filed a grievance
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regarding Brown’s rejections of Plaintiff’s grievances as duplicative and non-emergency that was

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handled at least at a second level of review. (ECF No. 161 at 14.) The fact that Plaintiff disputes

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the determination of her grievances as non-emergency does not make the process itself

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unavailable to her. Nor does it make Brown’s threat to limit Plaintiff’s non-emergency

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grievances to one every six months inappropriate. In fact, Brown was required to do just that

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under the then-applicable regulations, if Plaintiff continued to file non-emergency grievances.
Additionally, Plaintiff’s statement does not allege threats against filing all grievances, but

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rather against filing grievances that are duplicative or non-emergency. The allegations in

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Plaintiff’s March 6, 2008 statement about Brown provide no grounds for this Court to believe that

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the grievance process was unavailable to Plaintiff at the time of the August 5, 2008 grievance at

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issue in this case. This situation differs significantly from that in Williams, where prison officials

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refused to process Plaintiff’s grievance without regard for its validity.

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B.

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Sufficiency of information in Plaintiff’s August 5, 2008 grievance
The Court agrees with Plaintiff that the relevant regulations at the time of the incident

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only required Plaintiff to “describe the problem and action requested.” Cal. Code Regs., tit. 15 §

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3084.2(a) (2008). The findings and recommendations state, as an undisputed fact, that CDCR

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regulations in 2008 required “inmates to identify by name, title, or position each staff member

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alleged to be involved in the action or decision being appealed.” (ECF No. 161 at 6.) This rule,

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however, is taken from the same regulation as it was amended in 2011. Cal. Code Regs., tit. 15 §

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3084.2(a)(3) (2011). Plaintiff is correct that, in 2008, she was not under an obligation to list the

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name, title, and position of each staff member involved in the alleged incident.

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If the Magistrate Judge had recommended granting summary judgment based solely on

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the existence of this regulation, the Court would be inclined to decline to adopt the findings and

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recommendations. Despite Plaintiffs arguments to the contrary, however, this is not the case. In

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fact, apart from the statement of undisputed facts, the Magistrate Judge does not mention the 2011

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regulation. Rather, the Magistrate Judge considered grievance CCWF-C-08-0126, as well as the

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letters to Captain Schoonard and Warden Lattimore that Plaintiff submitted, to determine whether

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“the grievance itself or the attachments submitted by Plaintiff would place prison officials on
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notice that Plaintiff was requesting any action [to] be taken with respect to Defendant Baron

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specifically.” (ECF No. 161 at 10.) So, while the findings and recommendations cite to the

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wrong regulation, the Magistrate Judge’s analysis nevertheless comports with the requirements of

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the 2008 regulation and case law holding that “a grievance ‘suffices if it alerts the prison to the

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nature of the wrong for which redress is sought.’” (Id. at 12 (quoting Sapp v. Kimbrell, 623 F.3d

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813, 824 (9th Cir. 2010).) Even though California regulations did not require Plaintiff to list each

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defendant by name or separate her claims into different grievances, she was still required to

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describe the problem and the action requested in such a way as to put the prison on notice of the

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particular issue. The Court agrees with the Magistrate Judge that neither Plaintiff’s grievance,

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nor the letters to Captain Schoonard and Warden Lattimore, were sufficient in this regard.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

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de novo review of this case, including Plaintiff’s objections and Defendant’s response. Having

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carefully reviewed the entire file, the court finds the findings and recommendations to be

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supported by the record and by proper analysis.

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Accordingly,
1. The findings and recommendations issued on February 25, 2022, (ECF No. 161), are
adopted in full;
2. Defendant’s motion for summary judgment for failure to exhaust administrative remedies,
(ECF No. 147), is granted;
3. This action is dismissed, without prejudice, for the failure to exhaust available
administrative remedies; and
4. The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

October 12, 2022
UNITED STATES DISTRICT JUDGE

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