Anderson v. Gonzales et al
Filing
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ORDER ADOPTING IN PART AND DECLINING IN PART 45 FINDINGS AND RECOMMENDATIONS and ORDER GRANTING 36 Defendants' Motion for Summary Judgment signed by District Judge Anthony W. Ishii on 9/29/2017. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOSEPH E. ANDERSON,
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Plaintiff,
v.
Case No. 1:14-cv-00362-AWI-BAM (PC)
ORDER ON FINDINGS AND
RECOMMENDATIONS AND ON
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
A. GONZALES, et al.,
(ECF No. 36, 45)
Defendants.
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Plaintiff Joseph E. Anderson is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges violations of the Eighth
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Amendment against Defendant Laita for excessive force, against Defendant A. Gonzales for
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failure to intervene in Laita’s use of excessive force, and against Gonzales failure to protect
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Plaintiff from assault at the hands of another inmate
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On November 28, 2016, Laita and Gonzales filed a motion for summary judgment. See
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Doc. No. 36-2. Defendants’ contend that Anderson did not exhaust available administrative
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remedies with respect to the excessive force and failure to intervene claims. See id. There is no
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exhaustion challenge to the failure to protect claim. See id.
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On July 31, 2017, the Magistrate Judge issued Findings and Recommendations (“F&R”)
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that recommended that the motion for summary judgment: (1) be granted with respect to the
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failure to intervene claim against Gonzales; and (2) be denied with respect to the excessive force
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claim against Defendant Laita. The F&R was served on the parties and contained notice that any
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objections were to be filed within fourteen (14) days after service. See Doc. No. 45. Defendant
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Laita filed objections on August 14, 2017. See Doc. No. 46. No other objections or responses
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were filed.
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In his objections, Laita argues inter alia that the Magistrate Judge erred by determining
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that CDCR was on notice of the excessive force claim alleged against him based on Anderson’s
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grievance. Further, Laita argues that, without notice of the excessive force claim in the notice,
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CDCR could not have enforced any procedural bars against that claim.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. The Court respectfully disagrees with the F&R that CDCR was put
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on notice of the excessive force claim against Laita.
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Relevant Facts
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In the Second Amended Complaint, Anderson makes alleges: “When I refused to go in
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the cell I was handcuffed and dragged to the cell, I know that’s [sic] when the injury to my wrist
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occurred . . . . Officer Laita inflicted that. Sergeant Gonzales stood by and did nothing.” Doc.
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No. 11 at p. 3. Anderson also alleged that Laita violated the Constitution “by using excessive
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force to handcuff me and drag me to my cell, just to be assaulted by an inmate.” Id. at p.5.
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Anderson filed a grievance related to this incident. In appeal log number PVSP-11-01623
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(“1623 Grievance”), under the “explain your issue” section, Anderson wrote: “Sgt. Gonzales
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physically forced me into my cell after I told him the cellie they were trying to house me with was
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not compatible, they pushed me in the cell. I was assaulted.” Doc. No. 36-5 at ECF p. 10.
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The first level response identified Gonzales and Laita as “accused staff members,” stated
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that Gonzales and Laita were interviewed, and determined that no violation of CDCR policy had
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occurred. Doc. No. 36-5 at ECF pp. 14-15. Anderson appealed to the second level.
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The second level denied the appeal and noted that it addressed allegations of “staff
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misconduct” against Laita and Gonzales. Doc. NO. 36-5 at ECF p. 16. No violation of CDCR
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policy was found at the second level of review following an inquiry. Id. at p. 17.
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Anderson appealed to the third and final level of review. Doc. No. 36-5 at ECF p. 11. As
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part of the appeal to the third level, Anderson indicated that the was not satisfied with the second
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level response because “(1) the misconduct of the named-prison guards isn’t addressed; and (2)
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the named-prison guards did in fact violate my state and federal rights.” Id. Anderson further
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complained that the second level response “merely consists of a cookie-cutter or form-response
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indicating that the named prison guards did nothing wrong. There’s simply no accountability. I
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was seriously injured by both the named-guards and an inmate.” Id. at 11.
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The third level review denied Anderson’s appeal and agreed with the response of the
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second level review. Id. at pp. 8-9. Under the “Appellant’s Argument” section, the third level
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review stated: “It is the appellant’s position that on [sic] Correctional Sergeant A. Gonzales
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inappropriately forced him to live with another inmate which resulted in him being assaulted.
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The appellant alleges that Sgt. Gonzales physically forced him back into the cell after he
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informed staff he could not live with his new cell partner. The appellant contends that Sgt.
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Gonzales’s action constitute staff misconduct.” Id. at p. 8.
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Legal Standard
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The Prison Litigation Reform Act mandates that a prisoner must exhaust administrative
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prison remedies prior to filing a § 1983 lawsuit that challenges prison conditions. 42 U.S.C. §
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1997e; Porter v. Nussle, 534 U.S. 516, 524 (2002); Draper v. Rosario, 836 F.3d 1072, 1078 (9th
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Cir. 2016). The exhaustion requirement “requires compliance with both procedural and
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substantive requirements set forth by prison grievance processes in order to ensure that the prison
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receives the ‘opportunity to correct its own mistakes . . . before it is haled into federal court.’”
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Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017) (quoting Woodford v. Ngo, 548 U.S. 81, 89
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(2006)). A grievance will suffice “if it alerts the prison to the nature of the wrong for which
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redress is sought.” Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010); see Morton v. Hall, 599
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F.3d 942, 946 (9th Cir. 2010). “The grievance ‘need not include legal terminology or legal
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theories,’ because ‘the primary purpose of a grievance is to alert the prison to a problem and
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facilitate its resolution, not to lay groundwork for litigation.’” Reyes v. Smith, 810 F.3d 654, 659
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(9th Cir. 2016) (quoting Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009)). “The grievance
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process is only required to ‘alert prison officials to a problem, not to provide personal notice to a
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particular official that he may be sued.’” Reyes, 810 F.3d at 659 (quoting Jones v. Bock, 549
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U.S. 199, 219 (2007)).
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Discussion
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There is no dispute that the 1623 Grievance was fully exhausted because Anderson
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received a decision from the third and final level of review. See Draper, 836 F.3d at 1077 n.2.
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From Laita’s objections, the issue is whether the 1623 Grievance provided sufficient notice to
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CDCR that Anderson was attempting to make a complaint of excessive force against Laita.
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As noted above, the excessive force alleged in the Complaint is being handcuffed and
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dragged to the cell, which allegedly caused injury to Anderson’s wrists. However, the Court
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agrees with Laita that this claim is not fairly reflected in the 1623 Grievance. Objectively, the
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1623 Grievance is complaining that Anderson was forced to be in a cell by guards, despite his
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protestations and warnings, with someone with whom he was not compatible. This is a failure a
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protect claim. See Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015) (“The Eighth Amendment
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imposes a duty on prison officials to protect inmates from violence at the hands of other
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inmates.”).1
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It is true that Anderson stated that he was pushed and physically forced into the cell.
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However, there is no description of how Anderson was pushed or physically forced into the cell.
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Significantly, there is no indication that Anderson was handcuffed by any guard. The natural
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focus of Anderson’s description of his issue with the guards is not how he was placed into the
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cell, it was that he was placed in the cell despite his protestations of incompatibility and then
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assaulted by the other inmate. See Doc. No. 36-5 at ECF p. 10.
It is also true that the decisions at the first, second, and third level refer to the guards’
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“misconduct” or “the accused,” see id. at ECF pp. 8,9, 16, 17, and Anderson’s appeal to the third
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level states his dissatisfaction with the first level review because the guard’s “misconduct” was
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not addressed, that the guards violated his rights, and that he was injured by both the named-
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guards and an inmate. See Doc. id. at ECF p. 11. However, the language of Anderson’s appeal
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and the appeals’ decisions are consistent with a failure to protect claim. Under a failure to protect
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claim, a guard’s failure to protect will result in physical injury and violate the Constitution, even
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Again, the Court notes that Anderson is pursuing a failure to protect claim in this case. However, that claim is not
at issue for purposes of Defendants’ motion.
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if the guard did not personally assault the inmate. E.g. Cortez, 776 F.3d at 1050-53. In such a
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claim, the guard’s failure to protect is culpable conduct or “misconduct” that violates the Eighth
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Amendment right to be free from violence at the hands of other inmates. See id. That is, the
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guards’ failure to protect is culpable conduct that leads to a physical injury at the hands of a third
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party. Both the guard’s conduct and the assaulting inmate’s conduct are causes of injury. See id.
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Anderson’s language does not describe or state that he was physically injured by the guards. At
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best, Anderson’s language in his third level appeal is ambiguous. It does not appear that the third
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level review was aware that Anderson was trying to grieve excessive force by a guard. The third
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level response described Anderson’s argument in part as: “It is the appellant’s position that on
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[sic] Correctional Sergeant A. Gonzales inappropriately forced him to live with another inmate
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which resulted in him being assaulted. The appellant alleges that Sgt. Gonzales physically forced
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him back into the cell after he informed staff he could not live with his new cell partner.” Doc.
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No. 36-5 at ECF p. 8 (emphasis added). The focus is on housing. The third level response does
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not indicate that excessive force by any guard was considered.
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In sum, the 1623 Grievance fairly alerted the prison that there was a problem with the
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guards housing Anderson with an incompatible cellmate, but it did not fairly alert the prison that
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there was a problem with the force used by the guards against Anderson, or that Anderson was
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injured by the guards in a manner other than being forced to share a cell with an incompatible
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inmate.2 See Sapp, 623 F.3d at 824; Morton, 599 F.3d at 946; Griffin, 557 F.3d at 1120-21.
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Additionally, although the F&R did not address the specific point, the Court agrees with
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Laita that the grievance’s failure to give adequate notice was not waived. A prison’s decision to
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overlook a procedural failure, and instead address a grievance on the merits, will result in the
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waiver of the procedural failure. See Reyes, 810 F.3d at 658. However, there was not fair notice
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of the excessive force claim in the 1623 Grievance. One cannot apply a procedural bar if one
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does not fairly know that there is a claim to which the bar applies.
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The Court emphasizes that Anderson’s grievance did not clearly contain an excessive force claim. If Anderson had
grieved not only the housing, but expressly stated that a guard cuffed him and injured his wrist, a different result
would be warranted.
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Therefore, having carefully reviewed the entire file, the Court finds Anderson did not
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exhaust his excessive force claim against Laita because the 1623 Grievance did not provide the
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prison fair notice of that problem/claim. Because the F&R reached a contrary conclusion, the
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Court respectfully declines to adopt that aspect of the F&R.
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ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations issued on July 31, 2017, (Doc. No. 45), are adopted
in part and declined in part as discussed above;
2. Defendants’ motion for summary judgment, filed on November 28, 2016, (Doc. No. 36),
is GRANTED; and
3. This matter is referred back to the Magistrate Judge for further proceedings consistent
with this order.
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IT IS SO ORDERED.
Dated: September 29, 2017
SENIOR DISTRICT JUDGE
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