Glass v. Gregory et al

Filing 49

ORDER GRANTING Defendants' 25 Motion for Summary Judgment, signed by District Judge Ralph R. Beistline on 4/12/16. CASE CLOSED. (Marrujo, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DONALD GLASS,
Case No. 1:14-cv-01703-RRB
Plaintiff,
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
[DOCKET 25]

vs.
A. GREGORY, et al.,
Defendants.

At Docket 25 Defendants A. Gregory and S. Duran have moved for summary
judgment on the issue of whether Plaintiff exhausted his administrative remedies. Plaintiff
Donald Glass has opposed the motion and cross-moved for summary judgment,1 and
Defendants have replied and opposed the cross-motion.2 Glass has also requested that the
Court take judicial notice of various documents related to the issue of exhaustion.3 The Court
having determined that oral argument would not materially assist the Court in resolving the
issue presented, the matter is submitted for decision on the moving and opposing papers
without oral argument.4
/////
/////

1

Docket 36.

2

Docket 45.

3

Docket 39.

4

LR 230(I).

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 1

I.

STANDARD
Summary judgment is appropriate if, when viewing the evidence in the light most

favorable to the non-moving party, there are no genuine issues of material fact and the moving
party is entitled to judgment in its favor as a matter of law.5 Support and opposition to a motion
for summary judgment is made by affidavit made on personal knowledge of the affiant,
depositions, answers to interrogatories, setting forth such facts as may be admissible in
evidence.6 In response to a properly supported motion for summary judgment, the opposing
party must set forth specific facts showing that there is a genuine issue of material fact for
trial.7 The issue of material fact required to be present to entitle a party to proceed to trial is
not required to be resolved conclusively in favor of the party asserting its existence; all that
is required is that sufficient evidence supporting the claimed factual dispute be shown to
require a jury or judge to resolve the parties' differing versions of the truth at trial. In order to
show that a genuine issue of material fact exists a nonmoving plaintiff must introduce
probative evidence that establishes the elements of the complaint.8 Material facts are those
that may affect the outcome of the case.9 A dispute as to a material fact is genuine if there
is sufficient evidence for a reasonable jury to return a verdict for the non-moving party.10
"Credibility determinations, the weighing of the evidence, and the drawing of legitimate

5

Fed. R. Civ. P. 56(c); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc); Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989).
6

Fed. R. Civ. P. 56(e).

7

Id.; Henderson v. City of Simi Valley, 305 F.3d 1052, 1055–56 (9th Cir. 2002).

8

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

9

Id.

10

Id.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 2

inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a
motion for summary judgment."11 The evidence of the non-moving party is to be believed and
all justifiable inferences are drawn in his favor.12 The moving party has the burden of showing
there is no genuine issue of material fact; therefore, he or she bears the burden of both
production and persuasion.13 The moving party, however, has no burden to negate or disprove
matters on which the non-moving party will have the burden of proof at trial. The moving party
need only point out to the Court that there is an absence of evidence to support the nonmoving party's case.14 There is no genuine issue of fact if, on the record taken as a whole,
a rational trier of fact could not find in favor of the party opposing the motion.15
In general, in ruling on a motion for summary judgment, a court may not weigh the
evidence or judge the credibility of witnesses.16 Instead, it generally accepts as true
statements made under oath.17 However, this rule does not apply to conclusory statements

11

Id. at 255.

12

Id.

13

Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).

14

Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010); see Celotex, 477 U.S.

15

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

16

Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).

at 325.

17

Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005); see Williams v. Calderon,
48 F.Supp.2d 979, 989 (C.D. Cal. 1998) (noting in the context of a habeas claim “[t]he Court
is not to determine issues of credibility on a motion for summary judgment; instead, the truth
of each party's affidavits is assumed”), aff'd sub nom. Williams v. Woodford, 384 F.3d 567
(9th Cir. 2004).
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 3

unsupported by underlying facts,18 nor may the court draw unreasonable inferences from the
evidence.19 “To survive summary judgment, a plaintiff must set forth non-speculative facts,
not sweeping conclusory statements.”20
II.

ISSUE PRESENTED/APPLICABLE LAW
This action arises out of an October 28, 2010, cell extraction in which oleoresin

capsicum (“OC pepper spray”) was used on Glass. In screening the Complaint the Court
permitted Glass to proceed on his excessive force claims against Duran and Gregory.21 The
motion before the Court presents a very narrow issue of law: whether Glass was prevented
by circumstances beyond his control from properly exhausting his available administrative
remedies before filing the instant lawsuit.
Exhaustion of administrative remedies prior to bringing suit is required irrespective of
the relief sought by the prisoner and regardless of the relief provided by the process.22
Although not jurisdictional, exhaustion is nonetheless mandatory, and there is no discretion
to excuse it.23 “Proper exhaustion” means “complet[ing] the administrative review process in

18

Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990).

19

See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
McLaughlin v. Liu, 849 F.2d 1205, 1207–1209 (9th Cir. 1988).
20

Calfasso, U.S. ex rel. v. Gen Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th
Cir. 2011).
21

Docket 8.

22

42 U.S.C. § 1997e(a) (mandating that “[n]o action shall be brought . . . until [the
prisoner’s] administrative remedies . . . are exhausted.”); Woodford v. Ngo, 548 U.S. 81, 85
(2006); Booth v. Churner, 532 U.S. 731, 742 (2001).
23

Porter v. Nussle, 534 U.S. 516, 524 (2002).

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 4

accordance with the applicable rules.”24 “The level of detail necessary in a grievance to
comply with the grievance procedures will vary from system to system and claim to claim, but
it is the prison's requirements, and not the PLRA, that define the boundaries of proper
exhaustion.”25 Although all available remedies must be exhausted, “those remedies need not
meet federal standards, nor need they be plain, speedy and effective.”26 “For prisons, . . ., that
do not instruct prisoners on what precise facts must be alleged in a grievance, a grievance
suffices if it alerts the prison to the nature of the wrong for which redress is sought.”27
However, a prisoner is only required to exhaust available remedies.28 “To be available,
a remedy must be available as a practical matter, i.e., capable of use; at hand.”29 A defendant
has the initial burden to prove “that a grievance procedure existed, and the prisoner did not
exhaust that available remedy.”30 Once a defendant has met this burden, the burden shifts
to the plaintiff to demonstrate that the grievance procedure was inadequate, ineffective,

24

Jones v. Bock, 549 U.S. 199, 218 (2007).

25

Id.

26

Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739) (internal quotation marks

omitted)).
27

Akhtar v. Mesa, 698 F.3d 1202, 1211 (9th Cir. 2012) (internal citations and
quotation marks omitted).
28

Booth, 532 U.S. at 736.

29

Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (internal citation and
quotation marks omitted).
30

Id. at 1172.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 5

unobtainable, unduly prolonged, inadequate, or futile.31 If a court finds that a plaintiff has
failed to exhaust, “the proper remedy is dismissal of the claim without prejudice.”32
III.

DISCUSSION
California provides for three levels of review, the third level conducted by the Secretary

of the California Department of Corrections and Rehabilitation, or by a designated
representative.33 It is undisputed that Glass did not complete the administrative process
through the Director’s level. Glass relies on two administrative appeals as evidencing that he
was prevented by circumstances beyond his control from properly exhausting his
administrative remedies: Inmate/Parolee Appeal CDCR 602 Log KVSP-0-10-02369, dated
November 22, 2010; and CDCR 602 Log KVSP-0-12-01339, dated April 15, 2012. In his
opposition, Glass contends that administrative remedies were unavailable due to: (1) the
intentional destruction or loss of Appeal No. KVSP-0-10-0369 at second level review (SLR);
and (2) improper screening of Appeal No. KVSP-0-10–1339.34 The Court addresses them
in inverse order.

31

Id.

32

Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citing Ritza v. Int’l
Longshoremen’s & Warehousemen’s Union, 837 F.3d 365, 368 & n.3 (9th Cir. 1988) (per
curiam)).
33

Cal. Code Regs. tit. 15, § 3084.1(b) (“Unless otherwise stated in these regulations,
all appeals are subject to a third level of review, as described in section 3084.7, before
administrative remedies are deemed exhausted. All lower level reviews are subject to
modification at the third level of review.”). See Brown v. Valoff, 422 F.3d 926, 929–30 (9th
Cir. 2005)
34

Docket 36, p. 1. The Court notes that the reference to KVSP-0-10-01339 was an
inadvertent error and was clearly intended to be to KVSP-0-12-01339.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 6

KVSP-0-12-01339.35 This CDCR 602 involved an appeal from the disciplinary action
taken in connection with a Rules Violation Report (“RVR”), FBAS No. 10-10-018, arising out
of the OC pepper spray incident in which Glass was found guilty of a rules violation. In that
CDC Glass alleged that his rights were violated in several respects and the RVR was
prosecuted to cover up the actions of C/O Gregory. Glass requested that the RVR conviction
be expunged. Glass’ reliance on his challenge to the disciplinary proceeding as satisfying the
exhaustion requirement in this case is misplaced.
As noted above, in screening the Complaint Glass was permitted to proceed on his
Complaint solely with respect to his excessive force claims against Duran and Gregory. Glass
was not permitted to proceed on his claims with respect to the disciplinary proceeding. Thus,
evidence with respect to exhaustion of remedies addressing the disciplinary proceeding is
irrelevant to any issue properly before the court in this case.
KVSP-0-10-02369.36 In this CDCR 602, dated November 22, 2010, Glass did allege
an excessive force claim against various correctional officers. The records submitted by
Defendants show that this appeal was processed as a staff complaint, an inquiry conducted,
and a determination made at the second level of review that staff did not violate CDCR policy
on January 20, 2011.37 The records do not show any further actions taken by Glass with
respect to that appeal.

35

Plaintiff’s Request for Judicial Notice, Exhibits 11 and 12 (Docket 39, pp. 35–67).

36

Id., Exhibits 2 through 10 (Docket 39, pp. 8–34); Tallerico Declaration, Exhibit C
(Docket 25-7, pp. 32–38).
37

Tallerico Declaration, Exhibit A (Docket 25-7, p. 3); Exhibit C (Docket 25-7, pp.

32–38).
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 7

In opposing the motion Glass submitted several documents relevant to the issues
presented.
(1) What appears to be a CDCR 602 addressing the OC pepper spray incident dated
October 31, 2010, that was returned to him and resubmitted on November 16, 2010. Glass
also includes an informal screen out indicating that the it was returned to him on November
29, 2010, as untimely.38
(2) A copy of Appeal KVSP-0-10-02369 dated November 22, 2010, including the
January 20, 2011, second-level response.39
(3) Three Inmate/Parolee Requests (CDCR 22) in which he inquires about the status
of his November 22, 2010, CDCR 602, KVSP-0-10-02369:

February 15, 2011;40

February 28, 2011;41 and March 2, 2011.42 Glass also attached an undated, handwritten note
from the Appeals Coordinator apparently in response to his February 15 CDCR 22 advising
Glass that if he had not received a copy to contact his CCI.43 What further action, if any, was
taken with respect to those Inmate/Parolee Requests is not apparent from the record before
the Court.

38

Plaintiff’s Request for Judicial Notice, Exhibit 1 (Docket 39, pp. 4–7).

39

Id., Exhibit 2 (Docket 39, pp. 8–14).

40

Id., Exhibit 4 (Docket 39, pp. 18–19) (addressed to Appeals Coordinator D. Tarnoff).

41

Id., Exhibit 5 (Docket 39, pp. 20–21) (addressed to Cpt. Teesdale/Appeals).

42

Id., Exhibit 8 (Docket 39, pp. 28–29) (addressed to Appeals Coordinator D. Tarnoff).

43

Id., Exhibit 6 (Docket 39, pp. 22–23).

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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Glass submitted four additional exhibits addressing this issue. Review of these exhibits
reveals that they provide no facts relevant to the narrow issue before the Court.44
As relevant to the issue before the Court, in his Declaration Glass states:
11. The second of four CDCR Form 22 mentioned in paragraph No. 10
above was returned on or about March 9, 2011 by (A/C) Tarnoff who instead
of completing section “B”: Staff Response as the January 26, 2011
Memorandum mandates (A/C) Tarnoff attached a sticky (tag) label stating: You
should received a “copy” of this appeal on 1/20/11. If you need a copy of this
of this appeal contact your (CCI) for assistance Quote which signed by (A/C)
Tarnoff CSDF No. 5, 6; RFJN Nos. 5, 6.
12. Upon receiving the second of four CDCR Form 22 back from (A/C)
Tarnoff, I resubmitted stating: I am requesting the original of Appeal No. KVSP0-10-02369 and not a copy. However, if the original is lost then send me a
copy stamped in “red ink” (on each page) “treat as original” CSDF No. 5, 6:
RFJN Exh No. 5 & 6)45
In his second (February 28) CDCR 22 Glass specifically requested: “I am requesting
that you contact (CCII) Tarnoff and instruct her to issue a true copy of Appeal No. K.V.S.P.-010-2369 stamped with red ink: stating treat as original pursuant to (CDCR) policy or procedure
and returned to me to allow me to appeal to Director’s Third Level.”46 What is not clear from
the papers and documents Glass submitted in opposition to the motion is just when did Glass

44

Exhibit 3 (Docket 39, pp. 15-17) is a Staff Memo related to the internal processing
of CDCR Form 22. Exhibit 7 (Docket 39, pp. 24–27) is a CDCR 602 citizens complaint
against several correctional officers that was rejected for failure to separate the issues. It does
not appear that Glass took any further action with respect to that matter. Exhibit 9 (Docket 39,
pp. 30–32), the Declaration of Eddie Howard, relates solely to a separate disciplinary action,
RVR No. FBAS-10-10-022. Exhibit 10 (Docket 39, pp. 33–34) a March 15, 2011, CDCR 22
addressed to Health Care Appeals Coordinator J. Todd inquiring about both KVSP-0-1002369 and an unrelated health care appeal. In the response Glass was informed that Todd
didn’t know anything about KVSP-0-10-02369.
45

Docket 42, p.3.

46

Plaintiff’s Request for Judicial Notice, Exhibit 5 (Docket 39, p. 21).

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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receive a copy of the Second Level Response to Appeal KVSP-0-10-02369. It appears to
the Court from the opposition that Glass is in some way contending he was entitled to receive
the original, not a copy. Therefore, Glass argues that he was not required to exhaust his
administrative remedies by seeking review at the Director’s Level. The Court disagrees.
The issue before the Court is whether or not Glass took reasonable and appropriate
steps to exhaust his administrative remedies, but was precluded from exhausting his
remedies, not through his own fault but by the mistake of the prison authorities in processing
his appeal.47 In ruling on the pending motion the Court assumes that Glass did not receive
the original of the January 20, 2011, second-level response in KVSP-0-10-02369 as required
by the regulations.48 The Court also holds that because the delivery of internal mail is
controlled by prison authorities, the effect of the failure to deliver the original second-level
response is borne by the Defendants. As noted above, it is unclear when Glass actually
received a copy that the record before the Court clearly shows Glass received at some point.
The record clearly establishes that Glass was informed of the procedure to follow in order to
obtain a copy and that he did, in fact, a some point receive a copy. The record further shows
that Glass deliberately pursued a course of action that was futile—instead of requesting
review at the third level using a copy, Glass sought a copy that clearly delineated on its face
that it was a substitute for the original. Inferentially, when he did not receive the requested

47

See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (Warden’s mistake).

48

See Cal. Code Reg. § 3084.7(h). The Court agrees with Defendants that the
conclusory allegation that his appeal was intentionally lost or destroyed is unsupported by his
own admission, i.e., the documents Glass himself has filed with the Court.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 10

certified copy, Glass did not further pursue his appeal. The question before the Court is:
does that excuse Glass from seeking review at the third level?
As the Ninth Circuit has clearly indicated to excuse compliance, a prisoner must show
“that administrative procedures were unavailable, that prison officials obstructed his attempt
to exhaust or that he was prevented from exhausting because procedures for processing
grievances weren’t followed.”49 Glass does not dispute that California has administrative
procedures available for prisoner grievances. The facts presented do not fall neatly within
either one of the other two: obstruction or failure to follow procedures. While the loss of the
original second level decision is attributable to prison officials, nothing in the facts presented
to the Court even remotely establishes that this “obstructed” Glass’s attempts to exhaust his
administrative remedies. On the other hand, the failure to return the original constituted at
least a technical violation of the procedures for processing grievances. The critical question
is whether this prevented Glass from exhausting his administrative remedy. The Court holds
that it did not.
Once Glass received the copy of the second level decision he could have filed his
appeal to the third level. At that point, the Secretary, or designee, could have taken one of two
actions: (1) rejected the appeal on procedural grounds, either as untimely or because Glass
did not submit the original; or (2) have determined the appeal on the merits. Glass, by his own
actions precluded either action by the Secretary. While seeking further review at the third
level may not have afforded Glass the relief he sought, that does not equate to making third

49

Nunez, 591 F.3d at 1224 (quoting Ngo v. Woodford, 539 F.3d 1108, 1110 (9th Cir.

2008)).
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 11

level review futile. Thus, Glass did not properly exhaust his administrative remedies and the
complaint must be dismissed.
IV.

ORDER
Plaintiff’s Request for Judicial Notice in Support of His Opposition and Cross Motion

for Summary Judgment at Docket 39 is hereby GRANTED.
Defendants’ Motion for Summary Judgment at Docket 25 is hereby GRANTED.
Plaintiff’s Cross-Motion for Summary Judgment at Docket 36 is hereby DENIED.
The Complaint on file herein is hereby DISMISSED without prejudice for failure to
exhaust administrative remedies.
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED this 12th day of April, 2016.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Glass v. Gregory, 1:14-cv-01703-RRB – 12