McCoy v. Tate et al

Filing 44

ORDER DISMISSING Action for Failure to Exhaust Administrative Remedies, signed by Magistrate Judge Michael J. Seng on 8/10/17. (CASE CLOSED)(Hellings, J)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12
DAVON ELIMU MCCOY,

CASE NO. 1:15-cv-01428-MJS (PC)

Plaintiff,

ORDER DISMISSING ACTION FOR
FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

13
14
v.

15
16

DR. H. TATE, et al.,
Defendants.

17
18
19

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

20

rights action brought pursuant to 42 U.S.C. § 1983. The parties have consented to

21

magistrate judge jurisdiction.

22

An evidentiary hearing was held July 7, 2017, to address whether Plaintiff

23

exhausted his administrative remedies as necessary to proceed against Defendant

24

Correctional Officers (“COs”) Lenker, Twitty, Holland, and Lundy1. For the reasons set

25

forth below, the Court finds he did not exhaust those remedies, and that this action

26

therefore must be dismissed.

27
28

1

At the July 7, 2017, evidentiary hearing, Plaintiff dismissed all claims against Defendant Lundy with prejudice.

1

I.

2

A.

3
4
5
6
7
8

Amended Complaint (“FAC”) filed November 4, 2015. The FAC has been found to state
Eighth Amendment deliberate indifference claims against Defendants Dr. Tate, Nurse De
Lunda, and COs Lenker, Hill, Twitty, Holland, and Lundy. (ECF No. 11.) Service was
ordered on all of the Defendants, and all have now appeared but for CO Hill. (See ECF
Nos. 13, 15, 16.)
B.

10

12
13

16
17
18

he asked California Correctional Institution (“CCI”) COs Holland, Hill, Lenker, Twitty, and
Lundy multiple times for a cellmate who might be able to alert staff if Plaintiff had a
seizure. Defendants dismissed his requests as medical issues.
On October 16, 2012, Plaintiff, still without a cellmate, requested help from COs
Holland and Twitty because he felt he was going to have a seizure. Neither took any
precautions. Plaintiff then had a seizure. No one responded for some six hours even
though a neighboring inmate made “man “down” calls and Defendants necessarily
passed Plaintiff’s cell multiple times.

19

C.

20
21
22

25
26

Defendants’ Motion for Summary Judgment

On November 8, 2016, Defendants filed a motion for summary judgment on the
ground that Plaintiff had failed to exhaust his administrative remedies as required prior to
initiating this suit. (ECF No. 20.) Plaintiff opposed the motion. (ECF No. 24.)

23
24

Plaintiff’s Relevant Allegations2

Plaintiff suffers from a seizure disorder. He alleges that beginning in June 2012

14
15

Introduction

Plaintiff initiated this action on September 16, 2015, and it proceeds on a First

9

11

Procedural History

On February 28, 2017, the undersigned issued findings and recommendations to
grant the motion as to Nurse De Luna and Dr. Tate and to deny the motion as to COs
Lenker, Twitty, Holland and Lundy (“the CO Defendants”). (ECF No. 27.) The Court
determined that the CO Defendants had established that administrative remedies were

27
2

28

Only allegations against the correctional officer Defendants are included here.

2

1
2
3
4
5
6

available to Plaintiff and that Plaintiff had not exhausted those remedies by submitting
his appeal to the third and highest level of review. Summary judgment nevertheless was
denied because Plaintiff had raised an issue as to whether administrative remedies were
effectively unavailable to him. He claimed he had submitted a timely grievance on
October 30, 2012, and followed up with two written inquiries, but prison officials failed to
respond.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

The CO Defendants requested an evidentiary hearing pursuant to Albino v. Baca,
747 F.3d 1162 (9th Cir. 2014). (ECF No. 32.) They also filed their notice of consent to
magistrate judge jurisdiction. Plaintiff previously having consented, the findings and
recommendations were converted to an Order and an evidentiary hearing was set for
and held on July 7, 2017. (ECF No. 34.)
II.

Legal Standards
“The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate

exhaust ‘such administrative remedies as are available’ before bringing suit to challenge
prison conditions.” Ross v. Blake, 136 S. Ct. 1850, 1854-55 (June 6, 2016) (quoting 42
U.S.C. § 1997e(a)). “There is no question that exhaustion is mandatory under the
PLRA[.]” Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted) (cited with approval
in Ross, 136 S. Ct. at 1856). The PLRA also requires that prisoners, when grieving their
appeal, adhere to CDCR’s “critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 91
(2006). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries
of proper exhaustion.” Jones, 549 at 218.
The exhaustion requirement is based on the important policy concern that prison
officials should have “an opportunity to resolve disputes concerning the exercise of their
responsibilities before being haled into court.” Jones, 549 U.S. at 204. The “exhaustion
requirement does not allow a prisoner to file a complaint addressing non-exhausted
claims.” Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010); McKinney v. Carey,
311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (“a prisoner does not comply with [the

28
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

exhaustion] requirement by exhausting available remedies during the course of the
litigation”).
The California Department of Corrections and Rehabilitation (“CDCR”) has an
administrative grievance system for prisoners to appeal any departmental decision,
action, condition, or policy having an adverse effect on prisoners' welfare. Cal. Code
Regs. tit. 15, § 3084.1. The administrative grievance process is initiated upon an inmate
filing an Inmate/Parolee Appeal Form 602. Id. The administrative grievance process has
three levels of review. Id. at § 3084.7. The first formal level of the inmate grievance
process is usually conducted by the prison's Appeals Coordinator. Id. at § 3-8045(b).
Since January 28, 2011, an inmate must file his administrative appeal at the first level
within thirty calendar days after an alleged incident and must list all staff members
involved. Cal. Code Regs. tit. 15, §§ 3084.2(a)(3), 3084.8(b). If the grievance is not
resolved at the first level, the inmate may seek review at the second level. Id. §§
3084.7(b), 3084.7(d)(2). If the inmate remains dissatisfied with the second level decision,
he may seek a decision at the third and final level of review by the CDCR's Director or
the Director's designee. Id. §§ 3084.7(c), 3084.7(d)(3). In order to exhaust available
remedies, a prisoner must generally proceed through the available levels of review to
and including the director's level (i.e., third level). Id. § 3084.1(b).
Regardless of the relief sought, a prisoner must pursue an appeal through all
levels of a prison’s grievance process as long as some remedy remains available. “The
obligation to exhaust ‘available’ remedies persists as long as some remedy remains
‘available.’ Once that is no longer the case, then there are no ‘remedies . . . available,’
and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926,
935 (9th Cir. 2005) (original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739
(2001)). “The only limit to § 1997e(a)’s mandate is the one baked into its text: An
inmate need exhaust only such administrative remedies as are ‘available.’” Ross, 136
S. Ct. at 1862.

28
4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Thus, “an inmate is required to exhaust those, but only those, grievance
procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’”
Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738). The United States Supreme
Court has made clear that The Supreme Court has clarified that there are only “three
kinds of circumstances in which an administrative remedy, although officially on the
books, is not capable of use to obtain relief.” Ross, 136 S. Ct. at 1859. These
circumstances are as follows: (1) the “administrative procedure . . . operates as a simple
dead end – with officers unable or consistently unwilling to provide any relief to
aggrieved inmates;” (2) the “administrative scheme . . . [is] so opaque that it becomes,
practically speaking, incapable of use . . . so that no ordinary prisoner can make sense
of what it demands;” and (3) “prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or intimidation.” Id. at
1859-60 (citations omitted). Other than these circumstances demonstrating the
unavailability of an administrative remedy, the mandatory language of 42 U.S.C. §
1997e(a) “foreclose[es] judicial discretion,” which “means a court may not excuse a
failure to exhaust, even to take [special] circumstances into account.” Id., at 1856-57.
Failure to exhaust administrative remedies is an affirmative defense that must be
raised by defendants and proven on a motion for summary judgment. See Albino v.
Baca, 747 F.3d 1162, 1172 (9th Cir. 2014), cert. denied sub nom. Scott v. Albino, 135 S.
Ct. 403 (2014).
The Ninth Circuit has laid out the analytical approach to be taken by district courts
in assessing the merits of a motion for summary judgment based on the alleged failure of
a prisoner to exhaust his administrative remedies. As set forth in Albino, 747 F.3d at
1172 (citation and internal quotations omitted):
[T]he defendant’s burden is to prove that there was an
available administrative remedy, and that the prisoner did not
exhaust that available remedy. . . . Once the defendant has
carried that burden, the prisoner has the burden of
production. That is, the burden shifts to the prisoner to come
forward with evidence showing that there is something in his
5

1

particular case that made the existing and generally available
administrative remedies effectively unavailable to him.
However, ... the ultimate burden of proof remains with the
defendant.

2
3
4
5

If a court concludes that a prisoner failed to exhaust his available administrative
remedies, the proper remedy is dismissal without prejudice. See Jones, 549 U.S. at
223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

“If ‘summary judgment is not appropriate,’ as to the issue of exhaustion, ‘the
district judge may decide disputed questions of fact in a preliminary proceeding.’”
Hamilton v. Hart, 2016 WL 1090109, at *4 (E.D. Cal. March 21, 2016) (citing Albino, 747
F.3d at 1168). “[W]hile parties may be expected to simply reiterate their positions as
stated in their briefs, ‘one of the purposes of an evidentiary hearing is to enable [ ] the
finder of fact to see the witness's physical reactions to the questions, to assess the
witness's demeanor, and to hear the tone of the witness's voice.’” Hamilton, 2016 WL
1090109, at *4 (quoting U.S. v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995)). “All of this
assists the finder of fact in evaluating the witness' credibility.” Hamilton, 2016 WL
1090109, at *4.
III.

Discussion
As noted, the undersigned held an evidentiary hearing on July 7, 2017, on the

question of whether Plaintiff had exhausted his administrative remedies. The inquiry
focused on the veracity of Plaintiff’s claim that he had in fact filed a timely grievance and
that Defendants failed or refused to process it. Defendants claim that Plaintiff filed no
valid grievance until long after the deadline for doing so had expired.
Plaintiff appeared in pro per at the hearing and Deputy Attorney General David
Carrasco appeared for Defendants. The issue was deemed submitted at the close of the
hearing.

25
26
27
28
6

1

A.

2

1.

3
4
5
6
7
8

11
12
13

a copy of a grievance dated October 30, 2012; (c) three CDCR 22 forms
(“Inmate/Parolee Request for Interview, Item or Service”)—one submitted October 28,
2012; the second submitted January 23, 2013; and the third June 30, 20133; (d) a July
14, 2013, letter addressed to “To Whomever it May Concern;” and (e) the July 26, 2013,
cancelation of Plaintiff’s grievance.
Plaintiff testified that the administrative grievance dated October 30, 2012, and
assigned Log Number CCI-0-13-01539 was submitted on that date and complained of
Defendants’ failures to assign Plaintiff a cellmate, to take other precautions against injury
from seizure, and to check in on him after he informed several officers, on October 16,
2012, that he felt ill.

14
15
16
17

Plaintiff testified he received no response to his grievance, and so on January 27,
2013 and again on June 30, 2013, submitted CDCR 22 forms complaining of the nonresponse and inquiring regarding its status. He did not submit a copy of the October 30,
2012 grievance with either of these forms.

18
19
20
21

Next, Plaintiff wrote a letter dated July 14, 2013, “To Whomever it May Concern”,
again complaining that he had not yet received a response to his October 30, 2012,
grievance. Attached to this letter were copies of the October 30, 2012, grievance, and
the two CDCR 22 forms.

22
23

On July 26, 2013, Plaintiff’s grievance, stamped “received” July 18, 2013, was
canceled as untimely at the second level of review.

24

2.

25
26

Plaintiff

Plaintiff’s evidence in support of his claim consisted of: (a) his own testimony; (b)

9
10

The Parties’ Evidence

Defendants

Defendants presented in evidence the following at the hearing: (a) Plaintiff’s
testimony; (b) Plaintiff’s CCI appeal log; (c) a January 23, 2013, letter Plaintiff wrote to

27
3

28

There had been a question raised as to the authenticity of the January 27, 2013, and the June 30, 2013, CDCR 22
forms, but Defendants stipulated to their authenticity at the hearing.

7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Captain Lundy; (d) Captain Lundy’s January 28, 2013, response to Plaintiff’s letter; (e)
Plaintiff’s inmate grievances dating July 23, 2012, Log Number CCI HC 1203-4053
(medical claim against Dr. Tate); November 30, 2012, Log Number CCI-0-12-2751
(missing inmate property); and November 30, 2012, Log Number CCI-0-12-2949
(retaliation by COs Holland, Lenker, Hill, and Twitty); (f) testimony from witness Jerry
Wood; and (g) testimony from witness James Lundy.
Witness Wood, the Appeals Coordinator at CCI since a point in time subsequent
to October 2012, testified as to currently existing appeals procedures he knows had
been in place at CCI since before he began. A computer-generated notice of assignment
is always automatically produced and provided to an inmate within no more than seven
days after an appeal is received. An inmate may inquire about the status of a grievance
by filing a CDCR 22 form as Plaintiff did, but the mere inquiry is not evidence that a
grievance was in fact filed; it could be used to suggest the existence of something that
had never occurred. The best way to document the earlier filing of the grievance is to
attach a copy of it to the Form 22 inquiry. Plaintiff did not attach a copy of the purported
October 30, 2012, grievance to either of his CDCR 22 forms. Finally, Wood
acknowledged that an appeal could be lost, but that is “very out of the ordinary”. In an
average year he receives about 4-6 inmate complaints that an appeal has been lost, but
he has only verified three lost appeals in three years.
Captain Lundy had been employed at CCI from 1987 to 2016. On January 28,
2013, he received Plaintiff’s January 23, 2013, letter inquiring about the status of two
pending appeals, neither of which related to an October 30, 2012 appeal. He reviewed
Plaintiff’s appeal log and found that there were two, and only two, pending at that time—
neither was an October 30, 2012 appeal. Lundy informed Plaintiff that the two appeals
he inquired about had been assigned to institutional staff for a response. Captain Lundy
added that he had “never seen proof” of an appeal being lost.

27
28
8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Defendants elicited testimony from Plaintiff to the effect that he had filed and
diligently followed up on other grievances pending during late 2012 and early 2013 -- a
medical claim against Dr. Tate, a property claim, and a retaliation claim. Plaintiff
acknowledged receiving at least one assignment notice on one of those other claims, but
none on the October 30, 2012, grievance. That is why he informally asked Captain
Lundy about it. (Plaintiff’s suggested he had asked Lundy about his “medical situation”
during a classification hearing, and that it was at Captain Lundy’s suggestion, in
response, that he later filed the CDCR 22 form inquiry about that grievance.) Captain
Lundy denied any recollection of any such conversation with Plaintiff at any time.
B.

Analysis

The Court finds that the testimony and evidence presented by Plaintiff
insufficiently corroborated or credible to refute persuasive evidence that an adequate
administrative remedy system was available to Plaintiff but not timely pursued.
In support of his position that he filed a timely grievance, Plaintiff refers to the two
CDCR 22 forms that he filed—one on January 23, 2013, and the second on June 30,
2013—and a July 14, 2013, letter addressed to “To Whomever it May Concern,” each of
which internally references the October 30, 2012, grievance; the last of these inquiries
included a copy of the October 30, grievance. These documents evidence that Plaintiff
claimed on those dates that he had filed a grievance dated October 30, 2012; these
inquiries in and of themselves provide some support that he did file such a grievance.
But it is also possible that the CDCR 22 form inquiries and the July 2013 letter were
designed to suggest, falsely, that such a grievance had been filed when it had not, and
that Plaintiff took that approach upon realizing that the time for filing a grievance about
events on October 16, 2012, had expired. Thus, the Court must determine the credibility
of Plaintiff’s claims in light of all the evidence.
First, the Court cannot disregard the adverse credibility inferences derivable from
Plaintiff’s felony conviction and the fact that as a prisoner sentenced to an indeterminate

28
9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

life term, he may not have the same fear of committing perjury as a free citizen or an
inmate facing a reduced sentence.
Second, while an inmate’s use of the CDCR 22 form can bolster his claim that he
filed a timely grievance, the form is not persuasive by itself. As Appeals Coordinator
Wood testified, a CDCR Form 22 inquiry form may evidence an earlier grievance when a
copy of the grievance itself is attached. No copy of the purported October 30, 2012,
grievance was attached to either of Plaintiff’s CDCR 22 inquiries.
Third, Plaintiff admits that he did not receive an automatically-generated
assignment notice following his submission of the grievance, though he has
acknowledged receiving similar notices in the past. Rather than immediately submit a
CDCR 22 form inquiring about the grievance’s status, he claims to have informally asked
Captain Lundy about it. The latter allegedly said he would look into it, but never got back
to Plaintiff. As a result, Plaintiff submitted the January 2013 CDCR 22 Form, nearly three
months after first submitting his grievance.
The Court is unable to credit this claim. First, Captain Lundy denied having had
any conversation with Plaintiff regarding the status of such an appeal.
Next, during his cross-examination of Captain Lundy, Plaintiff claimed that this
informal conversation followed a classification committee hearing and prompted Plaintiff
to write a CDCR 22 form. But the form referenced is dated October 28, 2012. Plaintiff did
not explain how he could have discussed the October 30, 2012, grievance during a
conversation that occurred on or before October 28, 2012.
The October 28, 2012, CDCR 22 form itself is a request for “a cellie” and does
discuss the claims underlying this case. See Pl.’s Ex. C (ECF No. 39 at 7). There,
Plaintiff wrote that he had a seizure on October 16, 2012, that there was a delay before
he received medical care, and that he was hospitalized as a result of the seizure.
Captain Lundy responded on November 1, 2012, noting that Plaintiff had since been
assigned a cellmate. A Form 22 inquiry is insufficient to exhaust administrative remedies

28
10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

under the prison’s grievance process. See Jones v. Bock, 549 U.S. 199, 218 (2006). It
also fails to corroborate Plaintiff’s claim that he filed a 602 inmate grievance two days
later.
Further, the evidence before the Court is that the inmate appeal tracking system
automatically produces a receipt “every time” a grievance is filed and does so within
seven days of it being filed. Plaintiff admits he received no such acknowledgement in
response to his purported October 30, 2012, grievance. That is some evidence no such
grievance was filed. In addition, since Plaintiff had received such an acknowledgement
earlier, he should have expected one and, not receiving same, taken prompt and
documented steps to follow up. He did nothing beyond allegedly inquiring verbally of
Captain Lundy and then inquired about the grievance either before he filed it or three
months later.
Even assuming Plaintiff spoke to Captain Lundy at some point in time after he
filed the grievance, Plaintiff’s delay in following up on an alleged October 30, 2012
grievance until three, and then eight months, later reflects a profound lack of diligence. It
further raises credibility issues in light of Plaintiff’s prompt follow-up on two other
grievances pending in the same time frame. Why would Plaintiff follow up on two but not
the third? There is documented follow-up on those claims (one for a property loss,
another for retaliation) which, as the defense argues, would be expected to be of lesser
import to Plaintiff than the life-threatening risk of an undetected seizure, and yet there is
no such prompt documented follow-up on the latter.
Plaintiff makes additional arguments. He argues, first, that the July 26, 2013,
cancelation notice’s reference to an “appeal dated 10/30/12” is an acknowledgement by
CDCR that the grievance was filed on that date. The defense responds that the
cancellation simply uses the same date that Plaintiff used and di so only for purposes of
consistency in reference and identification. That is logical. This is not evidence of the
filing of a timely grievance.

28
11

1
2
3
4
5
6

Next, Plaintiff refers to a notation on the October 30, 2012, grievance indicating
that the appeal was bypassed at the first level of review. He argues this is definitive proof
that someone accepted this grievance on the date filed and simply failed to follow proper
procedures. The more plausible interpretation is that the notation—“Bypassed at the
First Level of Review. Go to Section E.”—was made when the form was received by CCI
in July 2013, and sent to the second level of review for screening.

7
8
9
10
11
12
13
14
15
16

Lastly, Plaintiff argues that he did not submit copies of the October 30 grievance
or earlier Form 22 inquiries with his July 18, 2013, “To Whom It May Concern” letter. He
claims he submitted them much earlier on the dates shown on each. This, Plaintiff
argues, is evidence that someone was holding onto his paperwork until Plaintiff wrote
the July 2013 letter; when they found it then, they simply dated both of the documents
with the July date. Contrary to this concluding argument, though, Plaintiff testified that he
submitted the grievance (his personal copy) with the July 2013 letter. Additionally,
Plaintiff wrote in the letter itself that he included copies of his CDCR 22 forms. This, is
consistent with Defendants’ rebuttal argument that all three documents were received
with the July 2013 letter and stamped “received” at that time.

17
18
19
20
21

For all the reasons described above, including the fact that Plaintiff produced no
evidence that anyone in the Appeals office had any motivation whatsoever to dispose of
Plaintiff’s non-extraordinary claim, the Court cannot credit Plaintiff’s assertion that he
timely submitted a grievance which Defendants either lost or refused to process,
thereby frustrating Plaintiff’s ability to timely exhaust his administrative remedies.

22
23
24

There being insufficient evidence that Plaintiff filed a timely grievance, the Court
finds that Plaintiff did not exhaust his administrative remedies prior to initiating this
action.

25
26
27
28
12

1
2
3
4

IV.

Conclusion

For the above reasons, IT IS HEREBY ORDERED that this action is dismissed in its
entirely for Plaintiff’s failure to exhaust his administrative remedies. The Clerk of Court
shall terminate all pending motions and close this case.

5
6

IT IS SO ORDERED.

7
8

Dated:

August 10, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13