Briones v. Frauenhein et al

Filing 43

ORDER GRANTING Defendants' Motion for Partial Summary Judgment 27 ; ORDER Setting Discover and Dispositive Motion Deadline, signed by Magistrate Judge Dennis L. Beck on 8/26/2016. K. Gonzales, Jericoff (PVSP), K. Walker, Arrequin (PVSP) and Catlett (PVSP) terminated.Discovery due: 10/24/2016 Dispositive motion due 12/21/2016 (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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JOHNNY G. BRIONES,

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Plaintiff,

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v.

No. 1:14-cv-01479 DLB PC
ORDER GRANTING DEFENDANTS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT
(Document 27)

S. FLORES, et al.,

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Defendants.

ORDER SETTING DISCOVERY AND
DISPOSITIVE MOTION DEADLINES

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This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Johnny G. Briones

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(“Plaintiff”), a state prisoner proceeding pro se and in forma pauperis. The action is proceeding

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on his First Amended Complaint for (1) the use of excessive force in violation of the Eighth

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Amendment against Defendant Flores; and (2) failure to protect in violation of the Eighth

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Amendment against Defendants Walker, Jericoff, Catlett, Arrequin and Gonzales.1
On May 25, 2016, the Court granted Defendants’ motion to modify the Discovery and

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Scheduling Order, and extended the time for filing motions based on exhaustion to June 23, 2016.

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The Court ruled that discovery shall be completed sixty (60) days after a ruling on a motion, and

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dispositive motions would be due one hundred-twenty (120) days after a ruling on a motion.

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The parties consented to the jurisdiction of the United States Magistrate Judge.

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Defendants Walker, Jericoff, Catlett, Arrequin and Gonzales filed the instant motion for

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summary judgment for failure to exhaust on June 23, 2016.2 Plaintiff filed a statement of non-

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opposition on July 11, 2016, conceding that his claims against these five Defendants are not

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exhausted. The motion is ready for decision pursuant to Local Rule 230(l).

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A.

PLAINTIFF’S ALLEGATIONS
Plaintiff alleges that on September 25, 2013,3 he was assaulted by Defendant Flores, while

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Defendant Walker, a correctional officer, was present inside the holding cell in the Facility D

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Medical Clinic. Plaintiff contends that Defendant Walker failed to protect him from the assault,

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and that he knew that Plaintiff was mobility impaired and in handcuffs.

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Defendants Jericoff, Catlett, Arrequin and Gonzales, also correctional officers, watched

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the incident from outside the holding cell, but made no attempt to stop the assault.

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B.

LEGAL STANDARD

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The failure to exhaust is subject to a motion for summary judgment in which the court

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may look beyond the pleadings. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). If the

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Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without

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prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

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Defendants bear the burden of proof in moving for summary judgment for failure to

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exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available

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administrative remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172.

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If Defendants carry this burden, the burden of production shifts to Plaintiff “to come forward with

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evidence showing that there is something in his particular case that made the existing and

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generally available administrative remedies effectively unavailable to him.” Id. This requires

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Plaintiff to “show more than the mere existence of a scintilla of evidence.” In re Oracle Corp.

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Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 252, 106 S.Ct. 2505 (1986)). “If the undisputed evidence viewed in the light most favorable

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The motion does not involve the claims against Defendant Flores.

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The appeal indicates that the incident occurred on September 26, 2013.

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to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under

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Rule 56.” Albino, 747 F.3d at 1166. However, “[i]f material facts are disputed, summary

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judgment should be denied, and the district judge rather than a jury should determine the facts.”

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Id.

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C.

DISCUSSION

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1.

Exhaustion Requirement

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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with

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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all

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inmate suits about prison life, Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983 (2002)

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(quotation marks omitted), regardless of the relief sought by the prisoner or the relief offered by

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the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and unexhausted claims

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may not be brought to court, Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007) (citing

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Porter, 534 U.S. at 524).

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The California Department of Corrections and Rehabilitation (“CDCR”) has an

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administrative grievance system for prisoners to appeal any departmental decision, action,

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condition, or policy having an adverse effect on prisoners’ welfare. Cal. Code Regs. tit. 15, §

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3084.1. During the relevant times, a prisoner must proceed through an initial informal level and

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three formal levels of review, culminating in a third-level decision. Cal. Code Regs. tit. 15, §

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3084.5. In order to satisfy section 1997e(a), California state prisoners are required to use this

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process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86, 126

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S.Ct. 2378 (2006); McKinney, 311 F.3d at 1199-1201.

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2.

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As indicated above, Plaintiff has conceded that he did not exhaust his claims against

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Analysis

Defendants Walker, Jericoff, Catlett, Arrequin and Gonzales.
It is undisputed that Plaintiff filed a grievance related to the incident, contending that
Defendant Flores assaulted him, and that “medical staff” knew that he suffered from seizures but
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did not stop the assault. The appeal did not identify any staff members or indicate that

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correctional officers were involved in the failure to protect. ECF No. 12, at 9-11.

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The appeal bypassed the First Level and was denied at the Second Level. The Second

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Level response also notified Plaintiff that he was not exhausting his claims against any staff

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member not identified in the appeal, and that he could ask for assistance in identifying unknown

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staff members. ECF No. 12, at 14.

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In responding to the Second Level, Plaintiff identified Defendant Jericoff, though he was

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not permitted to raise new issues at this stage, Woodford v. Ngo, 548 U.S. 81, 90-91 (2006), and,

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in any event, he alleged only that Defendant Jericoff lied about the incident. ECF No. 12, at 12.

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The appeal was denied at the Third Level on March 12, 2014. ECF No. 12, at 17-18.

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As Defendants note, these facts are distinguishable from those in the recent Ninth Circuit

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case Reyes v. Smith, 810 F.3d 654, 659 (2016), where the Ninth Circuit found that claims against

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individuals not named in a grievance were exhausted. In Reyes, the Court found that the prison

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had adequate notice of the claims because it overlooked the procedural deficiency and issued a

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decision on the merits nonetheless. Reyes, 810 F. 3d at 658.

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Here, Plaintiff was specifically informed that his appeal would not exhaust claims against

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any unnamed staff members, and the prison did not render a decision on the merits against anyone

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other than Defendant Flores.
Therefore, based on Plaintiff’s concession and the undisputed facts, Plaintiff has failed to

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exhaust his claims against Defendants Walker, Jericoff, Catlett, Arrequin and Gonzales.

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D.

ORDER
Defendants’ motion for partial summary judgment is GRANTED and Plaintiff’s claims

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against Defendants Walker, Jericoff, Catlett, Arrequin and Gonzales are DISMISSED WITHOUT

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PREJUDICE for failure to exhaust. Defendants Walker, Jericoff, Catlett, Arrequin and Gonzales

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are DISMISSED from this action.

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It is FURTHER ORDERED that discovery on the remaining claim against Defendant

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Flores shall be completed by October 24, 2016, and dispositive motions must be filed by

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December 21, 2016.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

August 26, 2016

L. Beck

UNITED STATES MAGISTRATE JUDGE

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