Brazier v. Beard et al

Filing 60

FINDINGS and RECOMMENDATIONS to (1) Grant Defendants' Motion for Summary Judgment for Failure to Exhaust Administrative Remedies and (2) Deny as Moot Plaintiff's Motion for Judgment on the Pleadings 1 , 51 , 57 , signed by Magistrate Judge Barry M. Kurren on 1/17/2017: 14-Day Objection Deadline. (Hellings, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

KEVIN DEON BRAZIER,
Plaintiff,
vs.
JEFFREY A. BEARD, ET AL.,
Defendants.

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1:13-cv-00787-LJO-BMK
FINDINGS AND
RECOMMENDATIONS TO
(1) GRANT DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT FOR FAILURE TO
EXHAUST ADMINISTRATIVE
REMEDIES AND (2) DENY AS
MOOT PLAINTIFF’S MOTION FOR
JUDGMENT ON THE PLEADINGS

FINDINGS AND RECOMMENDATIONS TO (1) GRANT DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES AND (2) DENY AS MOOT PLAINTIFF’S
MOTION FOR JUDGMENT ON THE PLEADINGS
Before the Court is Defendants’ Motion for Summary Judgment For
Failure to Exhaust Administrative Remedies (Doc. 51) and Plaintiff Kevin Deon
Brazier’s Motion for Judgment on the Pleadings (Doc. 57). After careful
consideration of the Motions and the supporting and opposing memoranda, the
Court finds and recommends that summary judgment be GRANTED in Defendants’
favor and that Plaintiff’s Motion for Judgment on the Pleadings be DENIED as
moot. As discussed below, the Court finds that Plaintiff failed to fully exhaust
administrative remedies prior to filing this lawsuit.

BACKGROUND
Plaintiff is currently incarcerated at California State Prison – Corcoran.
He brought this lawsuit against nine prison officials at California Correctional
Institution at Tehachapi, where he was previously housed. (Complaint at 3-5.)
Plaintiff asserts that Defendants violated his First and Fourteenth Amendment rights
by denying him a kosher diet in prison. (Screening Order at 9.)
Plaintiff practices the Rastafarian religion. (Complaint at 6.) On
October 4, 2012, Plaintiff submitted Form 22, entitled “Inmate/Parolee Request.”
(Id. at 5, 35.) He requested to speak with a community resource manager in the
prison about his religion and one of his concerns was that he wanted a kosher diet.
(Id. at 35.) When he did not receive a response, he filed a first level appeal using
Form 602. (Id. at 6, 22-23.) His appeal stated that he had requested an interview
with a prison official to discuss his faith. (Id. at 22-23.) Plaintiff also asked for an
outside Rastafarian minister or that he be approved to be a minister in the prison.
(Id. at 23.) Notably, Form 602 makes no mention of his request for a kosher diet.
On December 10, 2012, the first level appeal decision was issued.
(Wood Decl’n Ex. 1.)

The decision partially granted Plaintiff’s requests insofar as

Plaintiff was interviewed by the community resource manager. (Id.)
Additionally, the decision outlined procedures required to establish a Rastafarian

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religious program, including how to elect an inmate leader for the religious group.
(Id.) Although Form 602 did not mention a request for a kosher diet, the decision
informed Plaintiff that any request for a kosher diet must be made to the Jewish
Chaplain using Form 3030. (Id.)
After receiving the first level appeal decision, Plaintiff submitted Form
3030 to the Jewish Chaplain in the prison on December 25, 2012. (Complaint at 8.)
This request was denied on January 15, 2013. (Id.)
On January 9, 2013, prior to receiving the Chaplain’s denial of a kosher
diet, Plaintiff filed a second level appeal. (Wood Decl’n Ex. 1.) Plaintiff argued
that he had already complied with the procedures to establish a Rastafarian religious
program. (Id.) His second level appeal did not mention the denial of his kosher
diet because that request was not denied until after Plaintiff submitted his second
level appeal.
On February 21, 2013, the second level appeal decision was issued.
(Id.) Plaintiff’s request for a kosher diet was not mentioned in the decision because
Plaintiff did not raise that issue in his second level appeal.
On February 27, 2013, Plaintiff submitted the third level appeal.
(Wood Decl’n Ex. 1.) By this date, the Jewish Chaplain had denied his request for a
kosher diet, so Plaintiff raised that issue in his third level appeal. (Id.) On May 3,

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2013, the third level appeal decision was issued. Regarding his newly raised
challenge to the denial of a kosher diet, the decision noted:
[Plaintiff] has added new issues and requests to this appeal
for inclusion into the Jewish Kosher Diet Program. The
additional requested action is not addressed herein as it is
not appropriate to expand the appeal beyond the initial
problem and the initially requested action (CDC Form
602). This request must be submitted separately in order
to allow the institution the ability to respond.
(Wood Decl’n Ex. 1.) The third level of review declined to address the kosher diet
issue, which was not raised in the first or second levels of review. (Id.)
On May 24, 2013, Plaintiff filed the present action against various
prison officials. (Complaint at 1-5.) Upon screening the Complaint, the Court
found the only viable claims to be First and Fourteenth Amendment claims based on
the denial of kosher meals. (Screening Order at 9.) After receiving the Screening
Order, Plaintiff informed the Court that he would proceed only on those claims.
(Doc. 8 at 1.) Plaintiff prays for declaratory and injunctive relief, as well as
compensatory and punitive damages. (Complaint at 12-14.)
After Defendants filed a Motion to Dismiss on November 18, 2013, the
Court dismissed the case, holding that Plaintiff did not exhaust his administrative
remedies because he did not raise the kosher diet issue in the second level of appeal.
(Doc. 31 at 6.) On appeal, the Ninth Circuit remanded the case, concluding that “it

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is not clear . . . whether [Plaintiff] failed to exhaust available administrative
remedies because his Second Level Appeal is not included in the record.” (Opp. at
Ex. C.)
Upon remand, Defendants filed the instant Motion for Summary
Judgment and attached all of Plaintiff’s appeals as well as the appeal decisions.
(Doc. 51.) Defendants argue that their exhibits conclusively establish that Plaintiff
did not exhaust his administrative remedies with respect to his request for a kosher
diet because that issue was not raised in the first and second levels of appeal. After
briefing on the exhaustion issue was complete, Plaintiff filed a Motion for Judgment
on the Pleadings (Doc. 57), arguing that he should prevail on the merits of his
claims.
STANDARD OF REVIEW
A motion for summary judgment may not be granted unless the court
determines that there is no genuine issue of material fact, and that the undisputed
facts warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P.
56(c). In assessing whether a genuine issue of material fact exists, courts must
resolve all ambiguities and draw all factual inferences in favor of the non-moving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also
Cline v. Indus. Maint. Eng’g & Contracting Co., 200 F.3d 1223, 1228 (9th Cir.

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2000).
In deciding a motion for summary judgment, the court’s function is not
to try issues of fact, but rather, it is only to determine whether there are issues to be
tried. Anderson, 477 U.S. at 249. If there is any evidence in the record from
which a reasonable inference could be drawn in favor of the non-moving party on a
material issue of fact, summary judgment is improper.

See T.W. Elec. Serv., Inc.

v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).
DISCUSSION
Defendants move for summary judgment on the ground that Plaintiff
did not exhaust the denial of his kosher diet request through all available
administrative remedies. The Prison Litigation Reform Act (“PLRA”) provides
that “[n]o action shall be brought with respect to prison conditions under section
1983 of this title, 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.” 42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement
is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002).
California provides its inmates the right to administratively appeal “any
policy, decision, action, condition, or omission by the department or its staff that the
inmate or parolee can demonstrate as having a material adverse effect upon his or

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her health, safety, or welfare.” 15 Cal. Code Reg. § 3084.1(a). In order to exhaust
available administrative remedies within this system, “a prisoner must proceed
through several levels of review: (1) a first level appeal on a CDC 602 inmate
appeal form to the Appeals Coordinator, (2) second level appeal to the ‘hiring
authority or designee at a level no lower than Chief Deputy Warden,’ and (3) third
level appeal to the Director of the California Department of Corrections and
Rehabilitation.” Cotton v. Cate, Civ. No. 13-3744 WHA-PR, 2015 WL 1246114,
at *2 (N.D. Cal. March 17, 2015) (citing 15 Cal. Code Reg. § 3084.7). To be clear,
administrative remedies are deemed exhausted only after a decision at the third level
of review is made. 15 Cal. Code Reg. § 3084.1(b) (“all appeals are subject to a third
level of review . . . before administrative remedies are deemed exhausted”).
“Administrative remedies shall not be considered exhausted relative to
any new issue . . . later named by the appellant that was not included in the originally
submitted CDCR Form 602 . . . and addressed through all required levels of
administrative review up to an including the third level.” 15 Cal. Code Reg. §
3084.1(b). In this case, Plaintiff did not raise the kosher diet issue on Form 602
during the first level of appeal or during the second level of appeal. (Wood Decl’n
Ex. 1.) The first time he raised the kosher diet issue during the appeal process was
in his third level appeal. (Id.) However, the third level appeal refused to address

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the issue, noting “it is not appropriate to expand the appeal beyond the initial
problem and the initially requested action (CDC Form 602).” (Id.) The Court
therefore finds that Plaintiff did not exhaust this issue, as it was “not included in the
originally submitted CDCR Form 602” and was not “addressed through all required
levels of administrative review.” 15 Cal. Code Reg. § 3084.1(b).
Plaintiff argues that he did raise the kosher diet issue prior to the third
level of appeal. (Opp. at 1, 4.) The Court acknowledges that the dietary issue was
mentioned on Form 22 and in his request to the Jewish Chaplain. (See Complaint at
8, 35.) However, Plaintiff omitted any mention of the kosher diet during his first
and second level appeals. (Wood Decl’n Ex. 1.) In fact, his kosher diet request
was not denied until after Plaintiff filed his second level review.
In sum, the Court finds that Plaintiff did not raise the denial of his
kosher diet request in his first and second level appeals and, therefore, he failed to
exhaust administrative remedies prior to filing this lawsuit. See 15 Cal. Code Reg.
§ 3084.1(b). Accordingly, the Court recommends summary judgment be entered in
Defendants’ favor. Townes v. Paule, 407 F. Supp. 2d 1210, 1219 (S.D. Cal.
Dec. 13, 2005). In light of that recommendation, the Court further recommends
that Plaintiff’s Motion for Judgment on the Pleadings (Doc. 57), which seeks a
determination of the merits of this case, be denied as moot.

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CONCLUSION
The Court finds that Plaintiff failed to exhaust the claims asserted in
this case and recommends that Defendants’ Motion for Summary Judgment For
Failure to Exhaust Administrative Remedies (Doc. 51) be GRANTED. The Court
also recommends that Plaintiff’s Motion for Judgment on the Pleadings (Doc. 57) be
DENIED as moot.
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. Local
Rule 304(b). The document shall be captioned “Objections to Magistrate Judge’s
Findings and Recommendation.” Responses, if any, are due within fourteen (14)
days after being served with the objections. Local Rule 304(d). 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).

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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 17, 2017.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Kevin Deon Brazier v. Jeffrey A. Beard, et al., 1:13-cv-00787-LJO-BMK, FINDINGS AND
RECOMMENDATIONS TO (1) GRANT DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND (2)
DENY AS MOOT PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS.
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