Brown v. Gipson et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Defendant's Motion for Summary Judgment for the Failure to Exhaust Administrative Remedies 61 is Granted ; referred to Judge Ishii, signed by Magistrate Judge Barbara A. McAuliffe on 8/23/2018. Objections to F&R due 14-Day Deadline(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WILLIAM BROWN,
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Plaintiff,
FINDINGS AND RECOMMENDATIONS
RECOMMENDING GRANTING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT FOR THE FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES
Defendant.
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Case No. 1:13-cv-02084-AWI-BAM (PC)
[Doc No. 61]
v.
W. RASLEY,
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FOURTEEN-DAY DEADLINE
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I.
Introduction
Plaintiff William Brown is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff’s claims against
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Defendant Rasley for retaliation in violation of the First Amendment, excessive force in violation
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of the Eighth Amendment, and conversion under state law.
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Plaintiff’s claims arise out of allegations concerning events occurring at CSP-Corcoran on
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November 7, 2013. Plaintiff alleges that while he was housed in ASU, Defendant Rasley threw a
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smoke grenade into Plaintiff’s cell because of complaints and grievances that Plaintiff made
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regarding prison conditions, and took his television and other items in retaliation for the same
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complaints and protesting. (See Ex. to Compl., Rules Violation Report (“RVR”) #3A04-13-11-
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002, Doc. No. 1, at 72-73.)
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Currently before the Court is Defendant’s motion for summary judgment for the failure to
exhaust administrative remedies pursuant to Federal Rule of Civil Procedure 56, filed on
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December 28, 2017. (Doc. No. 61.) Plaintiff filed opposition papers on February 5, 2018,
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including a declaration. (Doc. Nos. 66, 67, 71, 72.) Defendant filed a reply on February 12,
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2018, (Doc. No. 75), with a declaration in support, (Doc. No. 76). The motion is now deemed
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submitted. Local Rule 230(l).
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II.
Motion for Summary Judgment
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A.
Legal Standard
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Any party may move for summary judgment, and the Court shall grant summary judgment
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if the movant shows that there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino,
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747 F.3d 1162, 1166 (9th Cir. 2014); Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir.
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2011). Each party’s position, whether it be that a fact is disputed or undisputed, must be
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supported by (1) citing to particular parts of materials in the record, including but not limited to
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depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not
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establish the presence or absence of a genuine dispute or that the opposing party cannot produce
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admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted).
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The failure to exhaust is an affirmative defense, and Defendant bears the burden of raising
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and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino, 747
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F.3d at 1166. Defendant must “prove that there was an available administrative remedy, and that
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the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the Defendant
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carries this burden, the burden of production shifts to 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
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available administrative remedies effectively unavailable to him.” Id.
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“If undisputed evidence viewed in the light most favorable to the prisoner shows a failure
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to exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. “If material
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facts are disputed, summary judgment should be denied, and the district judge rather than a jury
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should determine the facts.” Id.
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B.
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Defendant argues that although Plaintiff filed a few appeals around the time of the
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incidents in question, none of them exhausted the federal claims at issue in this case, including an
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appeal filed after he began this lawsuit. Further, as to the conversion claim, Plaintiff failed to file
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a claim with the California Government Claims Program as required by state law. Therefore,
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summary judgment is appropriate as to all claims in this action.
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Parties Arguments
In opposition, Plaintiff relies upon an appeal he filed to overturn findings in a disciplinary
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proceeding, arguing that this staff complaint was directed at the events at issue in this case.
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Plaintiff further asserts in the alternative that administrative remedies were not available here.
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In reply, Defendant argues that Plaintiff does not address his failure to file a claim with
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the California Government Claims Program, and therefore he has conceded that he failed to
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exhaust his state law claim. As to the exhaustion of Plaintiff’s federal claims, Defendant argues
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that Plaintiff’s assertions have no merit, and that there is no material dispute that remedies were
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available here but he failed to exhaust those remedies.
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C.
Analysis
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1.
Exhaustion of First and Eighth Amendment Claims
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The Court will first address Defendant’s argument that Plaintiff failed to exhaust his First
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and Eighth Amendment claims.
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Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that
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“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any
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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion
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is required regardless of the relief sought by the prisoner and regardless of the relief offered by
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the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies
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to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).
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The California Department of Corrections and Rehabilitation (“CDCR”) has an
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administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. The
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process is initiated by submitting a CDCR Form 602 describing the issue and the relief requested.
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Id. at § 3084.2(a). Three levels of review are involved—a first level review, a second level
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review and a third level review. Id. at § 3084.7. Bypassing a level of review may result in
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rejection of the appeal. Id. at § 3084.6(b)(15). Under § 1997e, a prisoner has exhausted his
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administrative remedies when he receives a decision at the third level. See Barry v. Ratelle, 985
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F. Supp. 1235, 1237-38 (S.D. Cal. 1997).
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The PLRA requires that a prisoner exhaust available administrative remedies before
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bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter,
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534 U.S. at 524 (“Even when the prisoner seeks relief not available in grievance proceedings,
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notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.”
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Woodford v. Ngo, 548 U.S. 81, 93 (2006). This means that a grievant must use all steps the
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prison holds out, enabling the prison to reach the merits of the issue. Id. at 90.
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The facts regarding exhaustion are undisputed here. As noted above, Defendant used a
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chemical agent on Plaintiff’s cell on November 7, 2013. The parties dispute the reasons why and
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whether the use of force was excessive. They do not dispute that Plaintiff was issued an RVR on
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November 7, 2013 charging him with obstructing a peace officer resulting in the use of chemical
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agents (cell extraction). (RVR #3A-04-13-11-002, Compl. 71-72.) The correctional officers
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essentially contend that Plaintiff refused multiple orders to submit to restraints and re-housing
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following disruptive behavior, eventually requiring the use of chemical agents to gain Plaintiff’s
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compliance.
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It is further undisputed that Plaintiff entered a plea of not guilty to the RVR charge, and
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provided a written statement declaring that the RVR was fabricated, and that Defendant had
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violated his First Amendment rights and Plaintiff’s rights as a “Whistle Blower.” (RVR #3A-04-
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13-11-002, Part C, Doc. No. 61-5, Ex. D, at 24-36.) Plaintiff further declared that Defendant was
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“attempting to use every effort to cover his ass” by issuing the RVR to shield the violation of
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Plaintiff’s rights, because Plaintiff had been “speaking out” for prisoner rights. (Id. at 29.)
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Plaintiff indicated that he had “been face with several Act of reprisal,” including the fabricated
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RVR. (Id. (errors in original).) The report goes on to state that Plaintiff refused to attend his
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November 28, 2013 hearing, and thus his plea and statement was entered on his behalf. (Id.)
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An investigation was conducted by Correctional Officer J. Tienda regarding the RVR, and
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Plaintiff accepted Officer Tienda’s role as the investigative employee, although he refused to sign
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documentation.
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According to the investigation, three inmate witnesses were asked whether on the day before the
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use of force, November 6, 2013, Plaintiff was seen attempting to flag down and speak to the
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Attorney General and grand jury investigator about prison rights. (Id. at 32-33.) All of the
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inmates responded that they did witness this, and that Plaintiff was being retaliated against. (Id.)
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One inmate stated that the retaliation was what was being alleged against Plaintiff, another stated
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that it was moving Plaintiff from his cell, and another responded that the retaliation was for
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speaking up about his rights. (Id.) Plaintiff was subsequently found guilty of the RVR on
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November 28, 2013. (Loss of Privileges Chrono, Doc. No. 61-5, Ex. D, at 35.)
(Id. at 32.)
Plaintiff provided questions to be asked of inmate witnesses.
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Plaintiff appealed that finding, asserting that he was inappropriately found guilty of the
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RVR, that Defendant used excessive and unnecessary force, and that there were due process
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violations, among other issues. (Inmate Appeal Log No. COR-14-01131/PBSP-14-01002, Doc.
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No. 61-7, Ex. H, at 13-16.) Plaintiff filed his original complaint in this case on December 23,
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2013, and the claims brought in this case were alleged in that original complaint. (Compl., Doc.
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No. 1, 22-23.) Plaintiff’s appeal of his RVR charge was submitted on or about February 2, 2014,
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after he initiated this lawsuit by filing the original complaint. (Inmate Appeal Log No. COR-14-
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01131/PBSP-14-01002.)
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Plaintiff’s retaliation claim brought in this suit. The second level reviewer reviewed the evidence
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considered by the hearing officer, and found that a preponderance of the evidence supported
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finding that Plaintiff refused orders to exit his cell, that it was necessary to use force to extract
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him, and that his property was properly confiscated.
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Decision, Doc. No. 61-7, Ex. H, at 11-12.) Thus, his appeal was denied at the second level. (Id.)
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Plaintiff’s appeal was subsequently denied at the third level on September 19, 2014, when
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the third-level examiner again found that Plaintiff was properly found guilty. (Id.) Plaintiff was
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then notified that the third level denial exhausted his available administrative remedies.
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The reviewers of Plaintiff’s appeal addressed the substance of
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(Sept. 19, 2014 Third Level Appeal
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Plaintiff’s appeal of the disciplinary findings against him was directed at the claim at issue
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in this case, and his allegations of retaliation were investigated and considered by prison officials
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against the evidence in support of the RVR charges. Further, Plaintiff fully exhausted the appeal
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to the third level. However, the appeal process was not begun until around February 2, 2014,
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more than a month after Plaintiff initiated this lawsuit. The appeal was not fully exhausted until
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several months later, during this litigation.
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The Ninth Circuit has repeatedly held that a prisoner may not litigate claims that were not
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exhausted prior to filing suit. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (A
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prisoner “may initiate litigation in federal court only after the administrative process ends and
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leaves his grievances unredressed.”). See also McKinney v. Carey, 311 F.3d 1198, 1199-1201
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(9th Cir. 2002) (prisoner does not comply with the exhaustion requirement by exhausting
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available remedies during course of the litigation); Giles v. Felker, 689 F. App’x 526, 527 (9th
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Cir. 2017) (“Contrary to Giles’s contention, exhaustion of administrative remedies before filing
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an amended complaint alleging the same claims does not constitute proper exhaustion.”). As
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explained above, Plaintiff did not begin the exhaustion process until after his original complaint
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containing the claims at issue in this case was filed, and therefore he did not properly exhaust his
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administrative remedies here.
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Based on the foregoing, Defendant has carried the initial burden of showing that there was
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an available administrative remedy and that Plaintiff did not exhaust that remedy. Albino, 747
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F.3d at 1172. The burden now shifts to Plaintiff to show that something about the circumstances
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made the existing and generally available administrative remedies effectively unavailable to him.
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Id.
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Plaintiff’s main argument is that remedies were unavailable because he was obstructed
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from exhausting due to the threat of retaliation. (Pl.’s Decl., Doc. No. 71, ¶ 16.4(d) (citing Tighe
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v. Wall, 100 F.3d 41, 43 (5th Cir. 1996) (discussion claim of retaliation), Bart v. Telford, 677 F.2d
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622 (7th Cir. 1982) (same)). “[A] prisoner is excused from the exhaustion requirement in
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circumstances where administrative remedies are effectively unavailable, including circumstances
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in which a prisoner has reason to fear retaliation for reporting an incident.” Rodriguez v. Cty. of
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Los Angeles, 891 F.3d 776, 792 (9th Cir. 2018) (citing McBride v. Lopez, 807 F.3d 982, 987 (9th
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Cir. 2015)). “In order for a fear of retaliation to excuse the PLRA’s exhaustion requirement, the
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prisoner must show that (1) ‘he actually believed prison officials would retaliate against him if he
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filed a grievance’; and (2) ‘a reasonable prisoner of ordinary firmness would have believed that
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the prison official’s action communicated a threat not to use the prison’s grievance procedure and
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that the threatened retaliation was of sufficient severity to deter a reasonable prisoner from filing
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a grievance.’” Id. (quoting McBride, 807 F.3d at 987).
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Plaintiff’s argument that he would have filed a grievance but for the threat of retaliation
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does not have support from the record. Plaintiff was no stranger to the formal appeals process at
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his institution, as it is undisputed that he filed multiple appeals between early November 2013 and
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the date he initiated this lawsuit. (Goree Decl., Doc. No. 61-5, ¶¶ 14-16, Ex. B, C; Lewis Decl.,
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Doc. No. 61-6, ¶ 9, Ex. F; Voong Decl., Doc. No. 61-7, ¶¶ 10, Ex. G.) Also, as discussed above,
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from the time of his RVR charge shortly after the incident, Plaintiff made repeated statements to
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prison officials that he was a whistleblower, that he was going to stand up for prisoner rights, and
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that Defendant had retaliated against him for his complaints and protests.
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statement in writing that Defendant had retaliated against him in defense of the RVR charge, as
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discussed above. Plaintiff has not presented evidence that he was deterred here from filing any
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grievance.
Plaintiff put a
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Plaintiff also argues that various repeated failures by prison officials to provide timely
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responses to his CDCR Form 22s, Form 602s, and “K.A.G.E. Demands” rendered administrative
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remedies effectively unavailable. (Pl.’s Opp’n, Doc. No. 66, at 8; Pl.’s Decl., Doc. No. 71, ¶
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16.11(k)). Plaintiff has not created any genuinely disputed material issue of fact in support of this
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argument. Plaintiff cites to no timely filed appeal regarding the claim at issue in this case that
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was time-sensitive, and to which a response was never received or unjustifiably delayed.
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Next, Plaintiff argues that there is no available administrative remedy here because the
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grievance process at CDCR “leads to nowhere with a 100% denial rate.” (Pl.’s Opp’n 10-11.)
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The United States Supreme Court has held that an administrative procedure is unavailable when
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“officers [are] unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross
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v. Blake, — F.3d —, 136 S. Ct. 1850, 1859 (2016) (citing Booth v. Churner, 532 U.S. 731, 736
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(2001)). Thus, when the facts demonstrate that administrative officials have apparent authority to
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grant relief, but decline ever to exercise it, then there is no possibility of some relief from the
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administrative procedure, and a prisoner has no obligation to exhaust the remedy. Id. Here
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Plaintiff has failed to present evidence that there is no relief available from the administrative
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procedures here. Although he contends that prison officials deny all appeals, he provides no
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evidence in support of this assertion, and a review of his own appeals belies this contention.
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Plaintiff’s own grievances have sometimes been granted or partially granted. (See Goree Decl.
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Ex. A; Lewis Decl. Ex. E.) Therefore, Plaintiff has not created a genuine issue of material fact in
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support of this argument.
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Finally, Plaintiff argues that Defendant failed to respond to discovery. Earlier in this case,
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Defendant moved for a protective order staying discovery here. (Doc. No. 62.) On February 7,
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2018, the Court granted the motion in part, but ordered Defendants to respond to any discovery
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requests by Plaintiff that were relevant to matters of the exhaustion of administrative remedies or
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government claim presentation. (Doc. No. 74.) This included any discovery propounded prior to
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that order. (Id. at 3.) Defense counsel declares that all such discovery has been provided to
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Plaintiff. (Doc. No. 76.) Defendant does not cite any exhaustion-related discovery which was not
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provided. Therefore, to the extent Plaintiff is raising an argument that the Court should defer or
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deny Defendant’s summary judgment motion some relevant discovery was not provided, the
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Court finds that Plaintiff has not supported that argument.
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For the reasons explained, the Court finds that Defendant has shown that Plaintiff failed to
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exhaust available administrative remedies for his First and Eighth Amendment claim based on the
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undisputed evidence. Plaintiff has not raised any material dispute of fact that the remedies were
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unavailable under the circumstances.
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Defendant’s favor on those claims.
Therefore, summary judgment should be granted in
The Court next turns to Defendant’s argument that Plaintiff also failed to exhaust
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available administrative remedies for his state law conversion claim.
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2.
Exhaustion of Conversion Claim Under State Law
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Defendant argues that Plaintiff has failed to comply with the claim presentation
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requirements for his state law conversion claim in this case. Under the California Government
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Claims Act, a plaintiff may not bring an action for damages against a public employee or entity
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unless he first presents a written claim to the local governmental entity within six months of the
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accrual of the incident. See Mabe v. San Bernardino County, Dept. of Public Social Services, 237
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F.3d 1101, 1111 (9th Cir. 2001) (Government Claims Act requires the “timely presentation of a
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written claim and the rejection of the claim in whole or in part” as a condition precedent to filing
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suit); see also Cal. Gov’t Code § 945.4 (“[N]o suit for money or damages may be brought against
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a public entity ... until a written claim therefor has been presented to the public entity and has
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been acted upon by the board, or has been deemed to have been rejected by the board ...”).
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Furthermore, a plaintiff must affirmatively allege compliance with the Government Claims Act’s
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claims presentation requirement, or explain why compliance should be excused. Mangold v. Cal.
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Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). The failure to comply with the
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Government Claims Act is a jurisdictional defect. See Miller v. United Airlines, Inc., 174 Cal.
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App. 3d 878, 890 (1985); see also Cornejo v. Lightbourne, 220 Cal. App. 4th 932, 938 (2013)
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(“Ordinarily, filing a claim with a public entity pursuant to the Claims Act is a jurisdictional
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element of any cause of action for damages against the public entity ...”).
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Defendant submits a declaration from the Associate Governmental Program Analyst of the
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California Government Claims Unit showing that their system has no record of any claim
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presented by Plaintiff regarding this incident. (Salias Decl., Doc. No. 61-4.) Plaintiff has also not
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pleaded any presentation of a claim nor any facts stating why such a claim could not be brought.
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Plaintiff also does not address this issue in his opposition, apparently conceding that no claim was
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properly presented for his state law conversion claim. Therefore, Defendant has shown that
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Plaintiff has failed to comply with the Government Claims Act, and his state law claim must be
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dismissed.
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IV.
Conclusion and Recommendations
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Based on the foregoing, IT IS HEREBY RECOMMENDED that:
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1.
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Defendant’s motion for summary judgment for the failure to exhaust
administrative remedies (Doc. No. 61) be granted;
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Plaintiff’s First and Eighth Amendment claims be dismissed, without prejudice,
for Plaintiff’s failure to exhaust available administrative remedies; and
Plaintiff’s state law conversion claim be dismissed for the failure to state a
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3.
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cognizable claim.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these Findings and Recommendations, the parties may
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file written objections with the Court.
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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file
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objections within the specified time may result in the waiver of the “right to challenge the
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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
The document should be captioned “Objections to
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IT IS SO ORDERED.
Dated:
/s/ Barbara
August 23, 2018
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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