Hearns v. Gonzales

Filing 81

FINDINGS and RECOMMENDATIONS to Grant Defendants' Motion for Summary Judgment and Dismiss Action for Lack of Exhaustion, signed by Magistrate Judge Michael J. Seng on 6/15/17. Objections to F&R Due Within Fourteen. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMAR HEARNS,

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Plaintiff,
v.
R. GONZALES, et al.,
Defendants.

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CASE NO. 1:14-cv-01177-DAD-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO GRANT DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND DISMISS
ACTION FOR LACK OF EXHAUSTION
FOURTEEN (14) DAY OBJECTION
DEADLINE

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Plaintiff is a parolee proceeding pro se in this civil rights action brought pursuant

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to 42 U.S.C. § 1983. The action proceeds against Defendants Rosa Gonzales and

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Sergeant Olsen on Plaintiff’s First Amendment retaliation, Fourteenth Amendment Equal

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Protection, and state tort conversion claims.

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Defendants filed a motion for summary judgment based on Plaintiff’s failure to

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exhaust administrative remedies. (ECF No. 38.) It is undisputed that Plaintiff did not

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properly exhaust his administrative remedies before filing his lawsuit. There was a

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dispute of fact, however, over whether circumstances beyond Plaintiff’s control rendered

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the administrative remedies effectively unavailable to Plaintiff. Accordingly, the

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Magistrate Judge recommended that Summary judgment be denied. (ECF No. 49.) On

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March 10, 2017, the District Court adopted the Magistrate Judge’s Findings and

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Recommendations to deny the motion. (ECF No. 67.) The matter was referred back to

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the Magistrate Judge for further proceedings on the issue of exhaustion. On May 26,

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2017, an evidentiary hearing was held before the undersigned to resolve disputed issues

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of fact. Plaintiff represented himself. Deputy Attorney General Lucas Hennes and

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Supervising Deputy Attorney General Christopher Becker appeared on behalf of

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Defendants. Plaintiff testified on his own behalf; three witnesses testified on behalf of

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Defendants. The matter was deemed submitted at the conclusion of the hearing

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I.

Legal Standard

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The Court should decide disputed factual questions relevant to exhaustion “in the

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same manner a judge rather than a jury decides disputed factual questions relevant to

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jurisdiction and venue.” Albino v. Baca, 747 F.3d 1162, 1169-71 (9th Cir. 2014). “If the

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district judge holds that the prisoner has exhausted available administrative remedies,

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that administrative remedies are not available, or that a prisoner's failure to exhaust

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available remedies should be excused, the case may proceed to the merits.” Id. at 1171.

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The defendant bears the burden of raising and proving the absence of

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exhaustion. Id. at 1169; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003).

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Exhaustion may be excused where administrative procedures were effectively

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unavailable, prison officials obstructed attempts to exhaust, or the plaintiff was prevented

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from exhausting because procedures for processing grievances were not followed. See

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Sapp v. Kimbrell, 623 F.3d 813, 822-24 (9th Cir. 2010). Where a Plaintiff alleges that a

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grievance or appeal was improperly screened, the inmate must establish “(1) that he

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actually filed a grievance or grievances that, if pursued through all levels of

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administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue

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in federal court, and (2) that prison officials screened his grievance or grievances for

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reasons inconsistent with or unsupported by applicable regulations.” Id. at 823-24.

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Alternatively, a plaintiff may show that officials failed to respond to a properly filed

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grievance in a timely manner. Vlasich v. Reynoso, No. CV F 01 5197 AWI LJO P, 2006

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WL 3762055, at *3 (E.D. Cal. Dec. 20, 2006) (citing Circuit Court decisions holding that a
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prisoner’s administrative remedies are exhausted when prison officials fail to timely

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respond to a properly filed grievance.)

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II.

Summary of Allegations

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At all times relevant to this suit, Plaintiff was housed at Valley State Prison
(“VSP”) in Chowchilla, California. His factual allegations may be summarized as follows:

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On September 13, 2013, Defendant Gonzales stated that Plaintiff and other

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African-American inmates were being too loud in the Facility D dayroom. Inmates of

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other ethnicities were also being loud, but Defendant Gonzales did not address them.

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Defendant Gonzales announced she was going to search the cells of all African-

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American inmates on the B hallway. During the search, Defendant Gonzales seized

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family photographs from Plaintiff’s cell. She did not give Plaintiff or the other inmates a

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cell search slip and refused to return Plaintiff’s photographs.

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Plaintiff submitted several CDCR Request Form 22s (“Form 22”) to the D-Yard

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program Sergeant, Defendant Olsen, complaining about Defendant Gonzales’ conduct.

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Defendant Olsen refused to intervene.

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III.

Summary of Evidence Presented

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At the hearing, Plaintiff testified as follows with regards to his attempts to appeal
Defendants’ actions:
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On September 13, 2013, Plaintiff filed a complaint with Internal Affairs regarding
the search.

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Plaintiff also filed an inmate appeal (“602”) on behalf of himself and other inmates

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affected by the search. On September 30, 2013, Plaintiff received notification that

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the 602 had been cancelled because a staff complaint such as it was could only

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be filed by and on behalf of an individual. Plaintiff was directed to resubmit his

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grievance on behalf of himself individually.

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On October 1, 2013, Plaintiff resubmitted his 602 as an individual. He sent it

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through institutional mail rather than using the appeals drop box. He never

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received a response to it.
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On October 27, 2013, Plaintiff filled out and filed a Form 22 inquiring about the

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status of his October 1, 2013, 602. When he did not receive a response, Plaintiff

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submitted a second Form 22 on November 24, 2013. Plaintiff received no

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response to the latter Form 22 either. Both forms were submitted to Correctional

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Officer T. Pronold, the unit officer, in accordance with a procedure whereby

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Officer Pronold was to sign and return the Form 22s to the inmate to place in the

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institutional mail.

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On March 25, 2014, after six months without a response to his 602, Form 22s, or
Internal Affairs complaint, Plaintiff filed another 602. It was properly cancelled as

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untimely. Plaintiff then filed a Government Tort Claim and the instant lawsuit.

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On cross-examination, Plaintiff maintained that he had received the September

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30, 2013 cancellation letter prior to October 1, 2013, notwithstanding his deposition

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testimony suggesting that he did not receive it until it was mailed to him by Defense

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counsel in July 2016:

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Q: . . . Now, can you confirm that this is the screen-out letter that you received

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with respect to this grievance?

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A: Thing is, I never received—I never received anything from the situation. I

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never—when I sent the 602, we didn’t receive paperwork back. So that’s—it

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was—it got real conflicting there, that—

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Q: So—sorry. So for this, what’s previously been marked as Exhibit B, your

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[September 27, 2013] grievance?

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A: Yes.

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Q: You’re saying you did not receive this letter telling you that it had been

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cancelled?

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A: No. I just—I have just received these letters from some paperwork from your

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office, I would guess. And you guys sent this to us, and I end up getting this letter.

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And I don’t know how you guys found that letter—well, I know how you guys

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found it, but I never—it was never sent to us.
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Q: So you did not receive this letter until my office sent it to you in July 2016?

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A: That is correct.

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Mr. Hennes: Okay. I’d like to mark this as Exhibit C. (Whereupon, Defendants’

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Exhibit C was marked for identification.)

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Q: So Exhibit C does talk about this appeal that you filed?

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A: Uh-huh.

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Q: And it cancelled it because of it being presented as a group appeal; is that

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correct?

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A: Yes . . . .

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(Hearns Dep. (Def.’s Ex. E) 62:20-64:2.)1

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In response to the suggestion implicit in the above-quoted dialogue, that Plaintiff

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could not have submitted his individual grievance on October 1, 2013 in response to the

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September 30, 2013 cancellation letter because he did not receive the cancellation letter

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until months later, Plaintiff testified that he was confused on the day of deposition as a

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result of being questioned about a number of different papers and dates. He maintained

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that he had in fact received the notification of cancellation prior to October 1, 2013, and

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resubmitted his grievance as an individual on October 1, 2013. He also acknowledged

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that he had been given, and he took, the opportunity to review and correct his deposition

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transcript and in fact made several corrections to it, but did not catch the apparent error

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in the above-quoted exchange.

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In response to questioning by the Court, Plaintiff insisted that he never noticed

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that the above-cited portion of his deposition could be read as stating that he did not

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learn of cancellation of the September 27, 2013 grievance until July 2016. He also

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acknowledged that he had nothing to corroborate his claim that he submitted an

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individual 602 on October 1, 2013, noting that once a 602 was put in the drop box or

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institutional mail, there was no way to prove it had been filed. Plaintiff did not start

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At another point, Plaintiff seems to say that he received the rejection a few months after it was issued.
(Hearn’s Dep. (Def.’s Ex. E) 63:22-65:10.

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making copies of his grievance forms until 2014, “after this situation.” (Hearns Dep.

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20:11-14.) Plaintiff did tell other inmates about the individual 602, but he had no means

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of contacting them or discovering their locations to ask them to testify in his behalf at the

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evidentiary hearing.

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Finally, Plaintiff testified that he gave a copy of the October 1, 2013 602 to

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defense counsel at his December 8, 2016 deposition (but has since lost his copy). The

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deposition transcript makes no reference to any such exchange. Subsequent to the

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evidentiary hearing, defense counsel submitted a declaration averring that Plaintiff never

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gave him a copy of that 602. (Decl. of L. Hennes (ECF No. 80) ¶ 4). As noted above,

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Plaintiff testified that he did not start making copies until much later. (Hearns Dep. 20:11-

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14.)

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Defense witness Keith L. Dixon identified himself as a former VSP Appeals

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Coordinator whose duties included managing the appeals office and collecting and

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processing appeals. In response to complaints that grievance forms were being

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tampered with, Dixon complied with an Inspector General recommendation and, prior to

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September 30, 2013, installed appeals drop boxes in all housing units at VSP. His office

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collected all appeals submitted via the drop box. Appeals office records do not reflect

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any appeal being filed by Plaintiff at any time between September 30, 2013 and

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February 1, 2014.

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Defendants’ witness Mark Jeffrey Wilson, Associate Government Program

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Analyst at VSP, was charged with collecting, reviewing, and screening inmate appeals.

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He confirmed that the appeals drop box was in use in September 2013, but he

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acknowledged that some inmates continued to use the institutional mail for grievances.

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Wilson testified that he signed the September 30, 2013 letter cancelling Plaintiff’s

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September 27, 2013 group appeal as well as the April 21, 2014 letter cancelling

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Plaintiff’s March 25, 2014 602 as untimely. The procedure was for him to sign such

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documents, move them to the Secretary’s desk and the Secretary was to mail them to

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the affected inmates. Wilson also is responsible for processing Form 22s submitted to
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the appeals office, but he had no indication of either of Plaintiff’s Form 22s ever having

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been received by the appeals office. Wilson pointed out that the September 27, 2013

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group appeal is the first item on the Inmate Appeals Tracking form (Def.’s Ex. K), even

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though the entry is undated. 2

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Defendants’ final witness was Correctional Officer Theodore J. Pronold. Officer

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Pronold testified that he was the housing officer in Building C-2 in 2013 and was familiar

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with the process for submitting Form 22s at that time. Officer Pronold confirmed his

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signature on Plaintiff’s October 27, 2013 and November 24, 2013 Form 22s.

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IV.

Discussion

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The determinative question at this stage of the case is whether Plaintiff did in fact

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resubmit, as an individual, a 602 on October 1, 2013, but never received a response to

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it. If the Court finds Plaintiff’s testimony sufficiently credible to support his contention, a

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finding that his administrative remedies had been “effectively unavailable” to him could

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follow.

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The evidence is far from clear.

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But for the testimony of Defense witnesses, the Court is unable to see how

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Defendants’ Exhibit K documents the existence of a response to the September 27,

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2013, 602. However, there seems to be no real dispute that such a response existed

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and was issued on the dates referenced. (See Def.’s Exs. A and B.)

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There is ambiguity in Defense counsel’s deposition questioning of Plaintiff

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regarding Plaintiff’s allegedly delayed receipt of the September 30, 2013, cancellation

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notice. Perhaps that ambiguity could justify genuine confusion on the part of Plaintiff as

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to which document was the subject of the questioning. Perhaps Plaintiff, having been

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asked about a number of different forms and dates, intended his “never heard back”

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response to refer to the follow-up 602 he claims to have filed October 1, 2013.

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Defendants’ questioning and argument suggest that Plaintiff may not have

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Perhaps because of the missing date, Dixon had indicated that Exhibit K did not reflect the September
27, 2013 group appeal Plaintiff filed.

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received notification of cancellation of the September 27, 2013, 602 until several years

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later, far beyond the time in which Plaintiff could have filed a timely new claim. If that

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were true, it could be argued that Plaintiff’s administrative remedies were rendered

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unavailable by reason of the prison’s failure to timely respond to the original grievance.

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However, Plaintiff’s testimony refutes that suggestion.

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Compounding the foregoing, we are here looking with hindsight at how the parties

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maneuvered through a system which, though presumably designed to protect both of

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them, actually creates a less than perfectly clear series of administrative obstacles

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which can be challenging to navigate.

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The court finds it less than perfectly comfortable to make a decision in the face of
such circumstances. Yet the facts and law enable such a decision.

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The Defense has the burden to show Plaintiff did not exhaust. That he did not is

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undisputed. Thus, the burden shifted to Plaintiff to show he tried, but was effectively

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denied the ability, to exhaust by reason of Defendants’ failure to act on his October 1,

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2013, 602. If there were any real shred of independent corroboration of Plaintiff’s claim

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that he filed that 602 or if Plaintiff’s testimony was otherwise fully consistent and credible,

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the Court might be able to find he presented the greater weight of the evidence on this

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point. However:

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Plaintiff provides no corroboration whatsoever. He has no copy of the October 1,

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2013 Form 602. He has nothing but his own testimony that he prepared and filed a 602

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on October 1, 2013.

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It does not help that for Plaintiff’s claims to be accepted, the Court must assume

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the September 30, 2103 rejection was delivered to him the next day and Plaintiff

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immediately turned around, obtained a 602 form and completed and filed it that day. Far

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from impossible; perhaps not terribly unlikely; but enough to raise a question.

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He does refer to his own follow-up inquiries into the status of the October 1, 2013

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602 as corroboration that the 602 existed, particularly since the follow-ups were

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admittedly signed by Officer Pronold before being returned to Plaintiff for mailing via
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institutional mail. However, the follow-ups are, regrettably, self-serving. And we have no

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evidence they were ever actually filed. They do not show up in the prison tracking

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system.

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It does not appear Plaintiff ever tried to find a corroborating witness (such as one

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of the other subjects of the rejected group appeal) to confirm he stated an intent to file

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alone and/or suggested that they do likewise.

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The ambiguity in his testimony as to when he actually first received a copy of the

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rejection of the initial 602 does not help his case. The clarity with which he seems to say

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he did not get it until months or years after is rather compelling even when the ambiguity

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of the questioning is factored in.

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Plaintiff’s later claim that he provided a copy of the 602 to Defense counsel during

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his own deposition is, on balance, not credible, especially in light of Plaintiff’s testimony

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that he did not start making copies of filed documents until after the October 1, 2013,

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602 was supposedly filed. We also have Defense counsel’s sworn declaration to the

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contrary, and one would not expect an attorney risking his license and career by

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perjuring himself simply to defeat an exhaustion claim.

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On balance, the Court finds that Plaintiff has failed to meet his burden of

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demonstrating with credible evidence that administrative remedies were effectively

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unavailable to him.

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V.

Conclusion

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For the foregoing reasons, IT IS HEREBY RECOMMENDED THAT:

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Defendants’ motion for summary judgment on exhaustion grounds (ECF No. 38)

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be GRANTED, and the action be dismissed for failure to exhaust administrative

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remedies.

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These Findings and Recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, any

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party may file written objections with the Court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 15, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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