Hamilton v. Wasco State Prison, et al.

Filing 90

FINDINGS and RECOMMENDATIONS recommending that Defenant's Motion for Summary Judgment be Granted; and the instant action be DISMISSED, without prejudice, for failure to exhaust the administrative remedies re 71 MOTION for SUMMARY JUDGMENT and 72 MOTION for Protective Order ; referred to Judge Ishii,signed by Magistrate Judge Stanley A. Boone on 05/1/17. Objections to F&R : 30-Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALBERT J. HAMILTON,

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Plaintiff,

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v.

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CLENDENEN,

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Defendant.

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST THE ADMINISTRATIVE REMEDIES
BE GRANTED AND DEFENDANT’S MOTION
FOR PROTECTIVE ORDER BE DENIED AS
MOOT
[ECF Nos. 71, 72]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendant’s motion for summary judgment, filed February 14,

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Case No.: 1:15-cv-00661-AWI-SAB (PC)

Plaintiff Albert J. Hamilton is appearing pro se and in forma pauperis in this civil rights action

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2017.

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I.

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RELEVANT HISTORY

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This action proceeds on Plaintiff’s failure to protect claim against Defendant Clendehen.

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On October 19, 2015, Defendant filed a motion to dismiss pursuant to Rule 12(b)(6) of the

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Federal Rules of Civil Procedure and argued that Plaintiff failed to exhaust the administrative

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remedies. (ECF No. 28.) Plaintiff filed an opposition on November 25, 2015, and Defendant filed a

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reply on December 2, 2015. (ECF Nos. 29, 30.) Plaintiff subsequently filed a second opposition and

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objection on December 17, 2015 and February 2, 2016, respectively. (ECF Nos. 31, 34.)
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On February 26, 2016, the undersigned issued Findings and Recommendations recommending

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that Defendant’s motion to dismiss be granted in part and denied in part. It was specifically

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recommended that the motion to dismiss for failure to exhaust the administrative remedies be denied,

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and granted, with leave to amend, for failure to request a demand for relief. (ECF No. 37.) The

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Findings and Recommendations were adopted in full on April 7, 2016. (ECF No. 40.) Plaintiff was

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granted thirty days to file a second amended complaint. (Id.)
On April 18, 2016, Plaintiff filed second amended complaint. (ECF No. 41.) Because the

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second amended complaint was not complete within itself, the Court granted Plaintiff leave to file a

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third amended complaint. (ECF No. 42.) Plaintiff filed a third amended complaint on May 4, 2016,

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which is the operative complaint in this action. (ECF No. 43.)

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On May 19, 2016, Defendant filed a motion to dismiss the third amended complaint. (ECF No.

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46.) Plaintiff filed an opposition on June 2, 2016, and Defendant filed a reply on this same date. (ECF

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Nos. 48, 50.) On June 16, 2016, Plaintiff filed a surreply. (ECF No. 51.)
On November 7, 2016, the undersigned issued Findings and Recommendations recommending

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that Defendant’s motion to dismiss the third amended complaint be denied. (ECF No. 60.) The

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Findings and Recommendations were adopted in full on January 6, 2017. (ECF No. 66.)
As previously stated, Defendant filed the instant motion for summary judgment for failure to

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exhaust the administrative remedies on February 14, 2017. (ECF No. 71.) On February 17, 2017,

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Defendant filed a motion for a protective order staying all merits-based discovery. (ECF No. 72.)

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After receiving an extension of time, Plaintiff filed oppositions to Defendant’s motion on March 27,

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2017 and March 29, 2017, respectively. (ECF Nos. 85, 86.) Defendant filed a reply on April 3, 2017.

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(ECF No. 87.)

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II.

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LEGAL STANDARD

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A.

Statutory Exhaustion Requirement

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The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such

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administrative remedies as are available” before commencing a suit challenging prison conditions.”

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42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __ 136 S.Ct. 1850 (June 6, 2016) (“An inmate need

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exhaust only such administrative remedies that are ‘available.’”). Exhaustion is mandatory unless

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unavailable. “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains

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‘available.’ Once that is no longer the case, then there are no ‘remedies … available,’ and the prisoner

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need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis

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in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).

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This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v.

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Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the

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prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and

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

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Porter, 534 U.S. at 524).

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The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising

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and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. “In the rare

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event that a failure to exhaust is clear from the face of the complaint, a defendant may move for

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dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce

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evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only

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if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to

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exhaust. Id.

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B.

Summary Judgment Standard

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Any party may move for summary judgment, and the Court shall grant summary judgment if

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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at

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1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,
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whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of

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materials in the record, including but not limited to depositions, documents, declarations, or discovery;

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or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or

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that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.

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56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to

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by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco

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Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609

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F.3d 1011, 1017 (9th Cir. 2010).

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The 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 administrative

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

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carry their burden, the burden of production shifts to the plaintiff “to come forward with evidence

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

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administrative remedies effectively unavailable to him.” Id. “If the undisputed evidence viewed in

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the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary

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judgment under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary judgment

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

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III.

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DISCUSSION
Description of CDCR’s Administrative Remedy Process

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A.

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Plaintiff is a state prisoner in the custody of the California Department of Corrections and

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Rehabilitation (“CDCR”), and CDCR has an administrative remedy process for inmate grievances.

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Cal. Code Regs. tit. 15, § 3084.1 (2014). Compliance with section 1997e(a) is mandatory and state

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prisoners are required to exhaust CDCR’s administrative remedy process prior to filing suit in federal

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court. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir.

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2010). CDCR’s administrative grievance process for non-medical appeals consists of three levels of

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review: (1) first level formal written appeals; (2) second level appeal to the Warden or designees; and

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(3) third level appeal to the Office of Appeals (OOA). Inmates are required to submit appeals on a
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standardized form (CDCR Form 602), attach necessary supporting documentation, and submit the

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appeal within thirty days of the disputed event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a),

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3084.8(b).

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B.

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On or about September 7, 2014, a riot took place at Wasco State Prison, while Defendant

Summary of Allegations Underlying Plaintiff’s Constitutional Claims

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Clendenen was working the gun-tower. Plaintiff was attacked by two Hispanic inmates when

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Clendenen opened cell #108. Clendenen shot his CDCR-block gun five times during the riot.

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C.

Statement of Undisputed Facts1

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At all times relevant to this lawsuit, Plaintiff was an inmate in the custody of the

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California Department of Corrections and Rehabilitation (CDCR). (Third Am. Compl., ECF No. 43 at

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4-5.)
2.

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On October 31, 2014, Plaintiff submitted an inmate grievance (CDCR Form 602), log

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no. ISP-D-14-01286, alleging that a riot had occurred at Wasco State Prison on September 7, 2014,

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and that he had been attacked by two Hispanic inmates after the correctional officer in the gun tower

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opened their cell instead of his. (McCullough Decl., ¶ 7; Ex. A.)
3.

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In ISP-D-14-01286, Plaintiff also alleged that he was being transferred to an out-of-

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state prison, and he asked that he be removed from the out-of-state transfer list. (McCullough Decl., ¶

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7; Ex. A.)

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4.

On November 25, 2014, Ironwood State Prison (ISP) Appeals Coordinator W.

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McCullough interviewed Plaintiff regarding the allegations in ISP-D-14-01286, and Plaintiff informed

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him that his issues had been resolved. (McCullough Decl., ¶ 8.)
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On November 25, 2014, ISP Appeals Coordinator McCullough sent Plaintiff a letter

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notifying him that ISP-D-14-01286 had been cancelled. In his letter, McCullough cited California

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Code of Regulations, Title 15, Section 3084.6(c)(11), noting that Plaintiff had expressed that his

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appeal issues had been resolved. (McCullough Decl., ¶ 9; Ex. B.)
6.

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Plaintiff filed his original complaint in this matter on April 30, 2015. (ECF No. 1.)

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The Court has omitted the facts submitted by Plaintiff because all of the facts are not relevant to the instant motion. (See
Def’s Reply, ECF No. 87-1.)

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On June 1, 2015, Plaintiff sent a copy of ISP-D-14-01286 to the CDCR Office of

Appeals in Sacramento, California. (Voong Decl., ¶ 5; Ex. B.)
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On July 2, 2015, CDCR Office of Appeals Chief M. Voong sent Plaintiff a letter

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rejecting ISP-D-14-01286 because it had been submitted at an inappropriate level, bypassing required

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lower levels of review. (Voong Decl. ¶ 5; Ex. B.)
Findings on Defendant’s Motion

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D.

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Defendant moves for summary judgment based on Plaintiff’s failure to exhaust the

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administrative remedies because Plaintiff filed an appeal regarding his claim, but it was cancelled after

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he informed the appeals coordinator that his issues had been fully resolved. Plaintiff never submitted

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a new appeal regarding the issues, and he only attempted to re-submit his cancelled appeal a month

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after filing this lawsuit.

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In support of his motion, Defendant submits the declaration of McCullough, Appeals

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Coordinator at ISP, who declares that Plaintiff filed only one inmate appeal relating to the riot on

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September 7, 2014, and assault on Plaintiff by two Hispanic inmates-at issue in this action.

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(McCullough Decl., ¶ 7.) The appeal was submitted on October 31, 2014, and assigned log number

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ISP-D-14-01286. (McCullough Decl., ¶ 7; Ex. A.)

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On November 25, 2014, McCullough interviewed Plaintiff regarding the allegations in ISP-D-

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14-01286, and Plaintiff informed him that his issues had been resolved. (McCullough Decl., ¶ 8.) On

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this same date, Plaintiff’s appeal was cancelled by McCullough stating:

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Your appeal has been cancelled pursuant to the California Code of Regulations, Title 15,
Section (CCR) 3084.6(c)(11). The issue under appeal has been resolved at a previous level.
As per our interview, you expressed that your appeal issue(s) had been resolved. This appeal is
being returned to you as requested.

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(McCullough Decl., Ex. B.)
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Every CDCR institution has a designated Appeals Coordinator responsible for screening and
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categorizing all inmate appeals. Cal. Code Regs. tit. 15, § 3084.5(a). The Appeals Coordinator may
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cancel appeals pursuant to screening criteria, but in so doing must provide clear and sufficient reasons
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for the cancellation of the appeal and the steps the inmate must take to qualify the appeal for
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processing. Id. at § 3084.5(b)(3). A cancelled appeal does not serve to exhaust the administrative

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remedies under California regulations. Id. at § 3084.1(b). An inmate who has not resubmitted a

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cancelled appeal or who has not appealed the cancellation decision therefore does not satisfy the

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exhaustion requirement. Woodford, 548 U.S. at 83-84. Therefore, Plaintiff’s appeal was properly

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cancelled at the first level of review based on Plaintiff’s assertion that the issue(s) had been resolved.

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Cal. Code Regs. tit. 15, § 3084.6(c)(11). Plaintiff did not appeal the cancellation of ISP-D-14-01286

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on November 25, 2014, despite the fact the cancellation letter specifically stated “a separate appeal

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can be filed on the cancellation decision.” (McCullough Decl., ¶ 10; Ex B.) The instant action was

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filed on April 30, 2015. (ECF No. 1.)

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Approximately a month after filing the instant action, Plaintiff attempted to revive his

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administrative appeal by improperly sending it directly to the third level of review. (Voong Decl., ¶ 5,

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Ex. B.) On July 2, 105, the CDCR Office of Appeals Chief M. Voong sent Plaintiff a letter rejecting

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ISP-D-14-01286 because it had been submitted at an inappropriate level, bypassing required lower

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levels of review. (Id.)

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Defendant has met his initial burden of demonstrating that Plaintiff failed to exhaust the

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administrative remedies as to the Eighth Amendment claim against him. The burden now shifts to

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Plaintiff “to come forward with evidence showing that there is something in his particular case that

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made the existing and generally available administrative remedies effectively unavailable to him.”

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Albino, 747 F.3d at 1172.

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In his opposition, Plaintiff focuses primarily on the merits of his claim which is not relevant to

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the determination as to whether he exhausted the administrative remedies, at issue in the present

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motion. However, Plaintiff contends that because he attempted to re-submit his appeal, albeit

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unsuccessfully, to the third level of review he satisfied the exhaustion requirement. Not so. Plaintiff

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is obligated to properly exhaust the administrative remedies prior to filing the action. See McKinney

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v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Therefore, any attempt to exhaust after the instant

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action was filed is not relevant to the instant motion.

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Plaintiff also contends that he never told the Appeals Coordinator that the riot was resolved
and references Exhibit E, a CDCR Form 22 (request for interview), dated December 1, 2014, claiming
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that his appeal issues were not resolved until he had a copy of the incident report for the riot. (Pl.

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Opp’n at 44, ECF No. 86.) However, such request is not relevant to the determination of whether

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Plaintiff exhausted the applicable administrative remedies. Plaintiff was required to submit a CDCR

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Form 602 and proceed through all applicable levels of review, and submission of Form 22 request for

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interview does not exhaust the administrative remedies for purposes of court actions. See Cal. Code

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Regs. tit. 15, §§ 3084.2(a), 3084.7, 3084.8(b); 3086(i). Furthermore, Plaintiff’s only relevant appeal

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did not mention the incident report, therefore, the Form 22 request for interview is unrelated to the

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cancellation of the appeal. (ECF No. 71-4 at 6-8.) Moreover, even if the Form 22 has some relevancy

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to the instant motion, it was responded to by staff within two days after it was submitted on December

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1, 2014, i.e. December 3, 2014. (Pl. Opp’n at 44, ECF No. 86.)
Lastly, Plaintiff contends that the exhaustion requirement does not apply in this case because it

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“is a PC §§ 245(a)” and “is not a prison condition complaint for one, this is a criminal U.S. (1983)

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(ADA) complaint.” (Pl. Opp’n at 9, 70, ECF No. 85.) Plaintiff’s argument lacks merit. There is no

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support for Plaintiff’s contention that this action is somehow exempt from the PLRA exhaustion

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requirement. This action is proceeding solely under 42 U.S.C. § 1983, on Plaintiff’s Eighth

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Amendment claim for failure to protect against Defendant Clendenen. The action is not proceeding

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under the California Penal Code or the Americans with Disabilities Act. Indeed, the Court has

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previously explained that Plaintiff is not and cannot proceed with claims under the California Penal

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Code. (ECF Nos. 60, 66.) Therefore, Plaintiff was required to exhaust the administrative remedies

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prior to filing the instant action.

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Plaintiff has failed to meet his burden in demonstrating that there is something in his particular

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case that made the existing and generally available administrative remedies effectively unavailable to

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him. Albino, 747 F.3d at 1172. Accordingly, Defendant Clendenen’s motion for summary judgment

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should be granted and the instant action should be dismissed for failure to exhaust the administrative

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remedies. Because the undersigned has recommended that Defendant’s motion for judgment be

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granted for failure to exhaust the administrative remedies, Defendant’s motion for protective order to

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stay all merits-based discovery has been rendered moot and shall be denied.

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IV.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Defendant’s motion for summary judgment be granted; and

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The instant action be dismissed, without prejudice, for failure to exhaust the

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administrative remedies.
These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with these Findings and Recommendations, the parties may file written objections with

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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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May 1, 2017
UNITED STATES MAGISTRATE JUDGE

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