Guerra v. Kern County Sheriff's Department et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Defendants' 37 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Barbara A. McAuliffe on 3/7/16. Referred to Judge Ishii; 14-Day Deadline. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOAQUIN GUERRA,
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Plaintiff,
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v.
KERN COUNTY SHERIFF‘S
DEPARTMENT, et al.,
Defendants.
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Case No.: 1:13-cv-01077-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS‘ MOTION FOR
SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES
(ECF No. 37)
FOURTEEN (14) DAY DEADLINE
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FINDINGS AND RECOMMENDATIONS
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I.
Background
Plaintiff Joaquin Guerra (―Plaintiff‖) is proceeding pro se and in forma pauperis in this civil
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rights action pursuant to 42 U.S.C. §1983. This action proceeds on Plaintiff‘s first amended complaint
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against Defendants Sweeney and Feely for deliberate indifference to serious medical needs in
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violation of the Fourteenth Amendment. These claims arise out of Plaintiff‘s allegations that
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Defendants were aware of but indifferent to Plaintiff‘s need for medical attention for his eye in May
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2012 while he was in the custody of the Kern County Sheriff. (ECF No. 11.)
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On May 22, 2015, Defendants filed a motion for summary judgment pursuant to Federal Rule
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of Civil Procedure 56, arguing Plaintiff has failed to exhaust his administrative remedies. Fed. R. Civ.
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P. 56(c); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 403
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(2014). (ECF No. 37.) On May 27, 2015, the Court issued a second informational order, providing
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Plaintiff with notice of the requirements for opposing a motion for summary judgment. Woods v.
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Carey, 684 F.3d 934 (9th Cir.2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.1988); Klingele v.
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Eikenberry, 849 F.2d 409, 411–12 (9th Cir.1988). (ECF No. 39.) On June 5, 2015, Plaintiff filed a
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declaration and brief. (ECF No. 40.) Defendants did not file any reply, but on August 13, 2015, they
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filed a notice of non-opposition, discussed further below. (ECF No. 41.) At this time, Defendants‘
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motion for summary judgment is deemed submitted. Local Rule 230(l).
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II.
Legal Standard
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A.
Statutory Exhaustion Requirement
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Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that ―[n]o action shall
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be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a
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prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as
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are available are exhausted.‖ 42 U.S.C. § 1997e(a). Exhaustion is required regardless of the relief
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sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S.
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731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life,
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Porter v. Nussle, 534 U.S. 516, 532 (2002).
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The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising
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and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 921 (2007);
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Albino, 747 F.3d at 1166. ―In the rare event that a failure to exhaust is clear on the face of the
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complaint, a defendant may move for dismissal under Rule 12(b)(6).‖ Albino, 747 F.3d at 1166.
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Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are entitled
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to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most
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favorable to the plaintiff, shows he failed to exhaust. Id.
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B.
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); Albino, 747 F.3d at
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1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party‘s position,
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whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of
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materials in the record, including but not limited to depositions, documents, declarations, or discovery;
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or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or
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that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.
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56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to
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by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco
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Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609
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F.3d 1011, 1017 (9th Cir. 2010).
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The defendants bear the burden of proof in moving for summary judgment for failure to
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exhaust, Albino, 747 F.3d at 1166, and they must ―prove that there was an available administrative
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remedy, and that the prisoner did not exhaust that available remedy,‖ id. at 1172. If the defendants
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carry their burden, the burden of production shifts to the plaintiff ―to come forward with evidence
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showing that there is something in his particular case that made the existing and generally available
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administrative remedies effectively unavailable to him.‖ Id. ―If undisputed evidence viewed in the
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light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary
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judgment under Rule 56.‖ Id. at 1166. However, ―[i]f material facts are disputed, summary judgment
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should be denied, and the district judge rather than a jury should determine the facts.‖ Id.
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III.
Discussion
Summary of CDCR’s Administrative Review Process
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A.
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The California Department of Corrections and Rehabilitation (CDCR) has an administrative
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grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. The process is initiated by
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submitting a CDCR Form 602 describing the issue and the relief requested. Id. at § 3084.2(a). Three
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levels of review are involved—a first level review, a second level review and a third level review. Id.
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at § 3084.7. Bypassing a level of review may result in rejection of the appeal. Id. at § 3084.6(b)(15).
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Under § 1997e, a prisoner has exhausted his administrative remedies when he receives a decision at
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the third level. See Barry v. Ratelle, 985 F. Supp. 1235, 1237-38 (S.D. Cal. 1997).
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Plaintiff’s Allegations in First Amended Complaint
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B.
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In Plaintiff‘s first amended complaint, he alleges as follows:
On May 28-2012 after being booked into the Kern County Jail I asked
both the Arresting Officer Chris Sweeney & Booking Officer Feely if I
could get medical attention for a bad eye. At that time one of the officers
asked the Jane Doe #1 nurse if she would see me she looked my way and
denied me even though I told Jane Doe #1 nurse and Officer Sweeney &
Feely that I was in servier pain. Just by looking at me I needed medical
attention my eye was chut and it was dischargeing liquid it was obvious I
need to go to the hospital because Officer Feely said that (Jane Doe #1)
nurse never sends anyone to the (Hospital and/or KMC). Right after he
said this all of them Officer Sweeney & Feely, (Jane Doe #1 nurse) started
laughing and jokeing.
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(ECF No. 11, pp. 3-4) (errors in original).
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C.
Statement of Defendants’ Relevant Facts1
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1.
Plaintiff stated in his First Amended Complaint that there is an inmate appeal or
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administrative remedy process available at his institution, and he did not file an appeal or grievance
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concerning the facts contained in the First Amended Complaint. (FAC, ECF No. 11, p. 2.)
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2.
At the time plaintiff was a prisoner in the Kern County Jail in May of 2012, there was a
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grievance procedure in place for prisoners regarding treatment at Kern County Jail. (Decl. of Michael
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Mahoney (―Mahoney Decl.‖), ECF No. 38-1, ¶¶ 4-6; see also Kern County Sheriff‘s Department
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Detentions Bureau Policies and Procedures, ECF No. 38-1, pp. 15-20.)2
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3.
Plaintiff testified at his deposition that there was a grievance procedure in place for
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prisoners regarding treatment at the Kern County Jail. (Pl.‘s Dep., ECF No. 38-1, pp. 46:10-18, 47:14-
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Defendants‘ Separate Statement of Undisputed Material Facts in Support of Motion for Summary
Judgment, ECF No. 38.
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It is unclear exactly what facility Plaintiff means by ―Kern County Jail‖ in his first amended complaint.
Consequently, Defendants have submitted a declaration by a declarant who states he is familiar with the Kern
County Sherriff‘s Department generally, (Mahoney Decl. ¶ 3), and that the inmate grievance procedure ―applies
to all Kern County Detention Facilities, including the Central Receiving Facility, Lerdo Pre-Trial Facility,
Lerdo Max-Med Facility and the Lerdo Minimum Security Facility,‖ (Id. ¶ 4). As noted below, in the
declaration Plaintiff submitted in opposition to Defendants‘ motion, Plaintiff declares that he was held at the
Lerdo Pre-trial Facility at the time of the incident. (Declaration of Joaquin Guerra, ECF No. 40, p.1.)
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4.
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Plaintiff testified at his deposition that he did not see the need to continue with the
grievance process. (Id.)
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There is no record of any grievance filed by the plaintiff with regards to his treatment in
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the Kern County Jail in May of 2012. (Decl. of Sergeant Anthony Gordon (―Gordon Decl.‖), ECF No.
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38-1, ¶ 3; Decl. of Lieutenant Adam Plugge (―Plugge Decl.‖), ECF No. 38-1, ¶ 4.)3
Summary of Plaintiff’s Relevant Facts4
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D.
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The affiant [Plaintiff] swears that administrative tort claim was filed by mail with the County
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of Kern, Clerk of the Board of Supervisors (Government Code 910, 910.2 & 910.4) on the date of July
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24, 2012, address 1115 Truxtun Ave 5th floor Bakersfield, CA 93301 and never received any kind of
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response from the Board of Supervisors.
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Also Plaintiff Guerra declares that any/all legal advice and/or legal forms filed were given to
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Plaintiff Guerra by the legal research associates at Lerdo Pre-trial Facilitie where Plaintiff Guerra was
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being detained at the time of this incident.
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Plaintiff Guerra being a layman not having sufficient knowledge of the law could only follow
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the instructions given to Plaintiff Guerra by the Kern County Pre-Trial Legal Research Associates
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governed by the County of Kern.
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Plaintiff Guerra declares that in a memo Plaintiff Guerra Received from Legal Research
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Associates stated in bod black lettering, (you must first have exhausted the administrative procedures.
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This means filing an administrative tort claim with the city, county, and/or state in question)
Which Plaintiff Guerra did, with this said all Plaintiff Guerra did was follow instructions with
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the understanding that, that was the procedure needed to exhaust administrative remedies.
Plaintiff Guerra was never instructed that he must file a grievance first nor was Plaintiff Guerra
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ever given a grievance form to file.
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Declarant Plugge states in his declaration that Plaintiff has never filed a grievance while incarcerated at
the Central Receiving Facility/Downtown Jail. (Plugge Decl. ¶ 4). Declarant Gordon states in his declaration
that there is no record of a grievance filed by Plaintiff at the Central Receiving Facility, or the Lerdo Pre-trial or
Lerdo Maximum-Medium facilities, and that the relevant records do not show Plaintiff was housed at the Lerdo
Minimum facility. (Gordon Decl. ¶ 3.)
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Guerra Decl. (all errors in original).
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E.
Analysis
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Defendants’ Notice of No Opposition Filed
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Before addressing the issue of Plaintiff‘s exhaustion of his administrative remedies, the Court
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must first address Defendants‘ notice of no opposition. (ECF No. 41.) In that notice, Defendants
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request that the Court dismiss Plaintiff‘s action with prejudice for failure to prosecute. Defendants cite
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in support the Court‘s May 27, 2015 second information order informing Plaintiff that his failure to
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respond to their motion for summary judgment could result in such a dismissal. (ECF No. 39 ¶ 2.)
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They argue that although Plaintiff filed and served a declaration on June 5, 2015, he did not serve
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them with an opposition, and therefore dismissal with prejudice for failure to prosecute is proper here.
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On June 5, 2015, Plaintiff filed and served a declaration from himself, signed under penalty of
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perjury, (ECF No. 40, pp. 1-2), accompanied by separately signed and dated ―brief‖ addressing
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Defendants‘ motion for summary judgment, (Id. at 3.) His filings do not fully comply with the Local
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Rules or the Court‘s second informational order setting forth instructions for the procedure for
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opposing Defendants‘ motion. However, it is well-established that the pleadings of pro se litigants are
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held to ―less stringent standards than formal pleadings drafted by lawyers.‖ Haines v. Kerner, 404 U.S.
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519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam). Inmate litigants, therefore, should not
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be held to a standard of ―strict literalness‖ with respect to the requirements of the summary judgment
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rule. Jacobsen v. Filler, 790 F.2d 1362, 1364–65 & n. 4 (9th Cir. 1986).
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In this instance, Plaintiff has filed a one-page ―brief‖ discussing his reasons for opposing
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Defendants‘ motion for summary judgment. (ECF No. 40, p. 3.) Defendants do not discuss this brief in
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their notice, but it was attached to the declaration filed with this Court that Defendants acknowledge
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Plaintiff served upon them. Plaintiff‘s declaration was also separately signed under penalty of perjury,
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and contains facts in support of his position in his brief. (Id. at pp. 1-2.) A declaration that is based
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upon personal knowledge, and which sets forth facts admissible into evidence to which the declarant is
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competent to testify, is appropriate evidence to consider at the summary judgment stage. See Moran v.
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Selig, 447 F.3d 748, 759–60 (9th Cir. 2006); Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004);
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Lopez v. Smith, 203 F.3d 1122, 1132 n. 14 (9th Cir. 2000). See also 28 U.S.C. § 1746. Plaintiff also
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attached a relevant exhibit to this filing, which is discussed in his declaration. (ECF No. 40, pp. 4-5.)
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Although Plaintiff‘s brief is not artfully presented, the Court will not construe Plaintiff‘s
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submissions as if he failed to submit any opposition to Defendants‘ motion whatsoever. To the extent
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Plaintiff‘s declaration sets forth admissible evidence, it should be considered in opposition to
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Defendants‘ motion, along with his arguments. Thus, in these circumstances it is not appropriate to
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dismiss Plaintiff‘s action with prejudice for failure to prosecute, and Defendants‘ request should be
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denied.
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2.
Exhaustion of Administrative Remedies
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Turning to Defendants‘ motion for summary judgment, the Court finds that Defendants
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Sweeney and Feely have carried their initial burden of showing the absence of exhaustion here. As
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Defendants argue, Plaintiff does not dispute that there was a grievance procedure in place at his
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institution at the time of the incident he complains about. Plaintiff also does not dispute that he did not
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file any inmate appeal or grievance through the institution‘s procedures.
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The burden therefore shifts to Plaintiff, ―who must show that there is something particular in
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his case that made the existing and generally available administrative remedies effectively unavailable
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to him by ‗showing that the local remedies were ineffective, unobtainable, unduly prolonged,
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inadequate, or obviously futile.‘‖ Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting
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Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014)). Acts by prison officials that prevent the
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exhaustion of administrative remedies may make administrative remedies effectively unavailable. See
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Nunez v. Duncan, 591 F.3d 1217, 1224–25 (9th Cir. 2010). ―The ultimate burden of proof, however,
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remains with the defendants,‖ and the evidence must be viewed in the light most favorable to Plaintiff.
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Paramo, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172).
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In this case Plaintiff contends, albeit inartfully, that he was mislead, either mistakenly or
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intentionally, by the jail‘s officials regarding the procedure for exhausting his administrative remedies,
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making those remedies effectively unavailable to him. (ECF No. 40, p. 3.) In support, Plaintiff submits
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a declaration under penalty of perjury explaining that he was instructed by the legal research
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associates at the Lerdo Pre-trial Facility (where he was being held at the time of the incident) that he
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needed to file an administrative claim form with Kern County to exhaust his administrative remedies.
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(ECF No. 40, pp. 1-2.) Attached to Plaintiff‘s declaration is a hand-written copy of the claim form he
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declares he was instructed to file, which is completed, signed, and dated July 24, 2012. (ECF No. 4-5.)
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The form references the California Government Code, and is a form used for exhausting
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administrative remedies with respect to a state tort claim under the California Government Claims Act.
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See Cal. Gov‘t Code §§ 905.2, 910, 911.2, 945.4, 950, 950.2 (West 2011). See also Shirk v. Vista
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Unified Sch. Dist., 42 Cal. 4th 201, 208-09 (2007) (presentation of a written claim and action on or
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rejection of the claim are conditions precedent to a suit under the California Government Claims Act);
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State v. Superior Court of Kings Cnty. (Bodde), 32 Cal. 4th 1234, 1239, 13 Cal. Rptr. 3d 534 (2004)
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(same). Plaintiff declares that in following the instructions from the legal research assistants to
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complete and file this form, he understood that this was all that was needed to do to exhaust his
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administrative remedies. (ECF No. 40, p. 2.) Plaintiff further declares that he was not otherwise
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instructed to file a grievance form or given any grievance form to file. (Id.)
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Upon shifting the burden to Plaintiff, the Court, viewing the evidence in the light most
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favorable to Plaintiff, finds that he has sufficiently demonstrated that the prison‘s administrative
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remedies were ―effectively unavailable‖ to him. Paramo, 775 F.3d at 1191. He has proffered evidence
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showing that he took reasonable steps in attempting to exhaust his administrative remedies, but was
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prevented from properly exhausting his federal claims by misleading information from the jail‘s legal
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staff. The jail‘s legal research associates, Plaintiff admits, may have acted based on an innocent
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mistake or misunderstanding. Based on Plaintiff‘s testimony in his declaration, however, the staff‘s
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instructions were the cause of Plaintiff‘s failure to exhaust his administrative remedies, regardless of
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whether they acted in bad faith or not. Nunez 591 F.3d at 1226 (plaintiff excused from exhaustion
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based on warden‘s ―innocent mistake‖ in misinforming plaintiff about information related to claim). A
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reasonable, rational inmate in Plaintiff‘s position cannot be expected to discern that the staff‘s legal
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advice only related to exhausting the administrative remedies for a state law tort claim and not for
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federal constitutional claims.
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In these circumstances, Plaintiff has sufficiently rebutted Defendants‘ evidence in support of
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their motion, and they have not carried their ultimate burden of proof for their affirmative defense.
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Accordingly, Defendants are not entitled to summary judgment based on the failure to exhaust
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administrative remedies at this time.
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V.
Conclusion and Recommendation
For the reasons stated, IT IS HEREBY RECOMMENDED that Defendants‘ motion for
summary judgment for failure to exhaust administrative remedies (ECF No. 37) be DENIED.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)
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days after being served with these Findings and Recommendations, the parties may file written
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objections with the Court. The document should be captioned ―Objections to Magistrate Judge‘s
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Findings and Recommendations.‖ The parties are advised that failure to file objections within the
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specified time may result in the waiver of the ―right to challenge the magistrate‘s factual findings‖ on
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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
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1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
March 7, 2016
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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