Ivan Lee Matthews v. Liles et al

Filing 67

ORDER ADOPTING IN PART 64 FINDINGS AND RECOMMENDATIONS; ORDER GRANTING IN PART 53 Defendants' Motion for Summary Judgment; and ORDER Directing Plaintiff to File Supplemental Opposition Within Fourteen (14) Days signed by District Judge Anthony W. Ishii on 9/28/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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IVAN LEE MATTHEWS,

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Plaintiff,

ORDER REGARDING FINDINGS AND
RECOMMENDATIONS AND
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

Defendants.

(ECF Nos. 53, 64)

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v.
LILES, et al.,

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Case No. 1:14-cv-00083-AWI-BAM (PC)

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Plaintiff Ivan Lee Matthews (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s fourth amended complaint against Defendants Liles, Sherrett, and Cable for retaliation

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in violation of the First Amendment arising from the denial of Plaintiff’s legal papers. This matter

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was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

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Rule 302.

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On September 6, 2018, the Magistrate Judge issued findings and recommendations that

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Defendants’ motion for summary judgment based on Plaintiff’s failure to exhaust available

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administrative remedies be granted. (ECF No. 64.) The findings and recommendations were

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served on the parties and contained notice that any objections were to be filed within fourteen

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(14) days after service. (Id. at 8–9.) Plaintiff filed objections on September 19, 2018. (ECF No.

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66.) No other objections were filed.

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In his objections, Plaintiff argues that summary judgment is inappropriate because he

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submitted CDCR Form 22 Requests and additional CDCR 602 Appeals, none of which were

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responded to or returned to Plaintiff. In addition, Defendants failed to list those appeals and

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requests in their motion for summary judgment. Plaintiff contends that these missing appeals and

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requests demonstrate that he exhausted all administrative remedies as were available to him, and

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were sufficient to put Defendants on notice of their unconstitutional conduct and retaliation. (Id.)

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First, a CDCR Form 22 is a form that inmates use to request interviews with staff and/or

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request items or services through a written procedure. 15 Cal. Code Regs. § 3086(a); Jones v.

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Lowder, 2018 U.S. Dist. LEXIS 65475, *16 (E.D. Cal. Apr. 18, 2018). A Form 22 is not the

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equivalent of filing an inmate appeal/Form 602 appeal and does not constitute exhaustion of

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administrative remedies. Jones, 2018 U.S. Dist. LEXIS 65475 at *16; Packnett v. Alvarez, 2017

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U.S. Dist. LEXIS 154486, *48-*49 (N.D. Cal. Sept. 21, 2017); Johnson v. Sweeney, 2015 U.S.

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Dist. LEXIS 139305, *16 (E.D. Cal. Oct. 13, 2015); Pelayo v. Hernandez, 2015 U.S. Dist. LEXIS

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105521, *19 (N.D. Cal. Aug. 11, 2015); Coreno v. Armstrong, 2011 U.S. Dist. LEXIS 118313,

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*24 (S.D. Cal. July 29, 2011). Plaintiff’s objections with respect to his submitted Form 22

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requests are overruled.

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Second, Plaintiff identifies a number of Form 602 Appeals that he alleges were submitted

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but were either rejected or the lower level review refused to respond back to Plaintiff or return the

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appeals back, thereby exhausting his remedies. See Doc. No. 66 at pp. 3, 5. Under the

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“Background” section of his objection, Plaintiff identifies three Form 602 appeals dated 7-14-12,

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7-19-12 and 7-25-12 and alleges that the all were “rejected” without further elaboration. See id.

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at p.3. Under the “Discussion” section, Plaintiff identities four different Form 602 Appeals: (1)

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dated 6-26-2012 Log No. CCI-0-12-01607; (2) dated 7-12-2012 Log No. CCI-0-12-01786; (3)

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dated 7-14-2012, no log number provided; and (4) dated 7-25-2012 “third level review - #TLR

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1201298. Id. at p.5. Plaintiff states that these Form 602 Appeals show that he did not bypass the

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lower level of review, rather the lower level of review refused to respond back to him and return
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his appeals, which resulted in exhaustion. Id. Plaintiff’s objections also reference his verified

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complaint. The active complaint is the Fourth Amended Complaint (“FAC”), which is verified.

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In relevant part, the FAC alleges that on May 20, 2012, he filed a Form 602 Appeal against Liles,

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Sherrett, and Able regarding obstruction to access to courts and denial of property without due

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process, but he did not receive a response. See FAC at 6:13-17. Plaintiff then alleges that on or

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about June 16 or 19, 2012, he filed another Form 602 Appeal against Liles, Sherrett, and Cable,

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but that appeal was rejected and screened at the first level on July 12, 2012. See id. at 6:17-20.

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Plaintiff then resubmitted that appeal on July 14, 2012 with the necessary corrective action that

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had been requested. See id. at 6:20-22. On July 26, 2012, Plaintiff states that he received another

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rejection and screening at the first level. See id. at 6:22-23. Also on 7-14-12, Plaintiff submitted

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a Form 602 Appeal against the appeals coordinators for conspiring with Liles, Sherrett, and Cable

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to deprive him of his right to access to courts. See id. at 6:23-26. Plaintiff states that his

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complaints, grievances, and appeals were never answered or resolved, but were lost or destroyed.

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See id. at 7:25-26.

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Initially, the third level appeal dated 7-25-12 does not fulfill the exhaustion requirement.

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As the F&R correctly explained, that appeal improperly bypassed first and second level appeals

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and thus, could not exhaust administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 90

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(2006); 15 Cal. Code Reg. § 3084.6(b)(15). With respect to the remaining Form 602 Appeals, the

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verified FAC and the objections (which were also sworn under penalty of perjury), suggest that

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Plaintiff submitted several Form 602 Appeals that were not processed and those appeals involved

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the actions of Liles, Sherrett, and Cable. However, Plaintiff’s sworn submissions are unclear. As

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described above, for some appeals, he provides a log number, other appeals he does not. Some

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dates for filing the Form 602 Appeals are consistent in both the objections and the FAC, while

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others appear in only one or the other. Some Form 602 Appeals describe the nature of the

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grievance, but most do not. One of the Form 602 Appeals (apparently the June 16 or 19, 2012

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appeal)1 was screened and rejected, but Plaintiff attempted to correct the deficiency. The

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Based on the FAC, it is possible that the 6-26-12 Form 602 Appeal identified in Plaintiff’s objections is the same as
this June 16 or 19, 2012 Form 602 Appeal identified in the FAC.

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corrected appeal resubmitted, but was again screened and rejected. Plaintiff does not explain why

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the resubmitted appeal was screened and rejected, if he attempted to take corrective or other

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appellate actions. In other words, Plaintiff’s submissions are unclear.

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Under the circumstances, the Court concludes that additional information from Plaintiff is

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necessary. Although Plaintiff’s opposition to summary judgment did not cite or rely on any of the

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Form 602 Appeals identified in the FAC or the objections (with the exception of the 7-25-18 third

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level appeal), because of Plaintiff’s pro se status and the verified nature of the FAC and the

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objections, the Court finds that it is appropriate to give Plaintiff one more opportunity to show

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that there is a genuine dispute regarding exhaustion. Plaintiff will be ordered to submit a

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supplemental opposition that addresses exhaustion. In particular, Plaintiff shall separately

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identify each Form 602 Appeal that he claims he submitted in relation to the subject matter of this

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lawsuit. Plaintiff will explain what the appeal grieved, and specifically how it relates to the claim

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of retaliation in this case. If Plaintiff has copies of these Form 602 Appeals, he shall submit

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copies to the Court; if he does not have copies, he shall explain why he does not have copies. For

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each Form 602 Appeal identified, Plaintiff will state how he submitted the appeal, the date he

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submitted the appeal, whether he has a log number for the appeal, and what happened with the

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appeal. For each Form 602 Appeal in which Plaintiff claims that he received a response or

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rejection from the prison/appeals coordinator, Plaintiff shall explain that response and the

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rejection and describe what actions he took following receipt of the response or rejection.

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Plaintiff shall also include copies of the response or rejection. Upon receipt of this information,

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the Defendants will be given the opportunity to file a reply.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations (Doc. No. 64) is ADOPTED in part;

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2.

Defendants’ motion for summary judgment (Doc. No. 53) is GRANTED IN PART and

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partial summary judgment is granted in favor of Defendants on the issues of whether

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Plaintiff’s July 25, 2012 appeal to the third level and Form 602 Appeal No. SVSP-124

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01531 serve to exhaust administrative remedies with respective to the claim at issue;

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3.

At this time, the Court declines to grant full summary judgment to Defendants;

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4.

Within fourteen (14) days of service of this order, Plaintiff shall file a supplemental
opposition to Defendants’ motion for summary judgment, as described above;

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5.

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Within fourteen (14) days of service of Plaintiff’s supplemental opposition, Defendants
shall file a reply; and

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Failure of Plaintiff to timely file a supplemental opposition will result in a full grant of
summary judgment in favor of Defendant and the closure of this case.

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IT IS SO ORDERED.
Dated: September 28, 2018
SENIOR DISTRICT JUDGE

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