Corena v. Holland et al

Filing 89

FINDINGS and RECOMMENDATIONS Recommending that Defendant's 51 Motion for Summary Judgment be Granted in Part, and that Plaintiff be Deemed to have Exhausted his Available Administrative Remedies as to One Claim; Objections, if any, Due within Fourteen (14) Days signed by Magistrate Judge Erica P. Grosjean on 4/17/2019. Referred to Judge Lawrence J. O'Neill. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JORGE CORENA,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
BE GRANTED IN PART, AND THAT
PLAINTIFF BE DEEMED TO HAVE
EXHAUSTED HIS AVAILABLE
ADMINISTRATIVE REMEDIES AS TO
ONE CLAIM

v.

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Case No. 1:16-cv-01025-LJO-EPG (PC)

RODRIGUEZ, et al.,
Defendants.

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(ECF NOS. 51 & 87)

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OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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I.

BACKGROUND
Jorge Corena (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s claims “against defendants Rodriguez, Cerveza, and Doe for excessive force in

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violation of the Eighth Amendment, against the Doe defendant for failure to protect in violation

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of the Eighth Amendment, and against defendants Rodriguez and Doe for retaliation in

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violation of the First Amendment.” (ECF No. 26, p. 2).

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On October 26, 2018, Defendant Rodriguez filed a motion for summary judgment based

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on the alleged failure of Plaintiff to exhaust available administrative remedies prior to filing

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suit, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (ECF
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No. 51). Plaintiff filed a declaration opposing the motion for summary judgment on November

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19, 2018, (ECF No. 59), along with a request for judicial notice with various exhibits attached

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(ECF. No. 58). Defendant Rodriguez filed a reply on November 26, 2018. (ECF No. 61).

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Plaintiff, without first seeking Court approval, filed a response to the reply on December 6,

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2018. (ECF No. 63). The Court held a hearing on the motion on December 19, 2018. (ECF

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No. 67). The Court then set an evidentiary hearing to determine certain disputes of fact (ECF

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Nos. 69 & 72). On February 27, 2019, Plaintiff filed another request for judicial notice. (ECF

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No. 82). The Court held the evidentiary hearing on March 27, 2019. (ECF No. 87).

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After careful consideration of the record, the Court recommends granting summary

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judgment based on a failure to exhaust administrative remedies as to Plaintiff’s claims against

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Defendant Rodriguez stemming from alleged actions taking place on or about July 15, 2014,1

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which gave rise to claims for excessive force and retaliation against Defendant Rodriguez. The

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Court finds that Plaintiff never filed a grievance addressing Defendant Rodriguez’s alleged

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second use of force, alleged to have taken place on or about July 15, 2014.
However, Plaintiff filed a grievance regarding Defendant Rodriguez’s alleged use of

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excessive force on July 9, 2014. As described below, Plaintiff did not appeal this grievance to

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the third level, and the Court held an Albino evidentiary hearing regarding the circumstances

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related to the processing of that grievance. For the reasons described below, the Court

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recommends denying summary judgment regarding the July 9, 2014 excessive force claim and

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finding that Plaintiff exhausted all available administrative remedies as to this claim because

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the preponderance of evidence supports that Plaintiff did not receive a copy of the response to

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his grievance or a copy of his original 602, and thus could not appeal the denial of that

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grievance to the third level.

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The date of the alleged second excessive force incident is unclear. In Plaintiff’s original complaint,
Plaintiff alleged that the incident occurred on July 17, 2014. However, in the Second Amended Complaint
Plaintiff appears to allege that the incident occurred on July 15, 2014. For purposes of these findings and
recommendations, the Court will refer to the incident as having occurred on July 15, 2014.

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I.

PROCEDURAL BACKGROUND
a. Plaintiff’s Allegations

Plaintiff filed his original complaint on July 15, 2016. (ECF. No. 1). The case now

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proceeds on his Second Amended Complaint, filed on June 19, 2017. (ECF No. 14). Plaintiff

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alleges as follows:

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On July 9, 2014, Plaintiff was incarcerated at California Correctional Institute (“CCI”),

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which is located in Tehachapi. That day, Defendant Rodriguez told Plaintiff to get ready for

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church, where Plaintiff worked as chaplain’s assistant. Defendant Rodriguez then told

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Plaintiff: “‘you think you’re slick motherfucker; I got you.’” Plaintiff then exited his cell, went

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downstairs, and entered the sally port. In the sally port, Plaintiff saw that Defendant Cerveza

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had taken off his green correctional officer shirt. When Plaintiff attempted to exit the sally

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port, his exit was blocked by Defendant Rodriguez and Defendant Doe.

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Defendant Cerveza told Plaintiff to turn around and cuff up. Plaintiff complied. Once

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Plaintiff was in handcuffs, Defendant Cerveza assaulted Plaintiff by striking Plaintiff on his

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face. Defendant Rodriguez joined in, hitting Plaintiff on his back. Defendant Rodriguez then

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pulled out his baton and started jabbing Plaintiff in the back while Defendant Doe struck him

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on his face and torso. Either Defendant Rodriguez or Defendant Doe then dragged Plaintiff to

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the floor. Once Plaintiff was on the floor, Defendants Rodriguez, Cerveza, and Doe began

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kicking him, punching him, and stomping on him.

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On July 10, 2014, Plaintiff went to medical to report the severe back pain he suffered as

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a result of the beating. The medical staff gave Plaintiff a shot to relieve the pain and prescribed

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Tylenol with codeine.

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On July 15, 2014, Plaintiff reported the beating to Defendant Fiddler. Defendant
Fiddler told Plaintiff he would look into it, but never got back to Plaintiff.
Defendant Rodriguez went into Plaintiff’s cell while Defendant Doe held the door and

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acted as Defendant Rodriguez’s lookout. Defendant Rodriguez again beat Plaintiff with his

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fists, kicked him, and told him “‘if you keep on snitching it will keep happening to you.’”

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When Plaintiff went to medical following this assault, the medical staff told Plaintiff to just
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take his pills. Plaintiff did not report the incident to medical staff because he was afraid of

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being beaten again.

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Plaintiff then returned to his building. He was in so much pain he could not eat or
sleep.

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After Plaintiff entered the building on July 17, 2014, he started walking up the stairs to

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his cell. Plaintiff next remembers waking up on the floor face down. Plaintiff could not move

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his legs. Defendant Rodriguez and another officer were debating who would hit the alarm,

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because the correctional officer who hits the alarm is required to write the incident report.

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Plaintiff was placed on a gurney and taken to medical. At medical, Defendant Smith

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asked what happened, but Plaintiff could not respond because Defendants Rodriguez and

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Cerveza were present. Although it was clear that Plaintiff had just suffered a beating,

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Defendant Smith told Plaintiff “to take it like a man walk back and take it like a man.” Plaintiff

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could not feel or move his legs. Plaintiff remained silent for fear of retaliation.
The medical staff then examined Plaintiff’s legs. Plaintiff informed the medical staff

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that he could not feel his legs. Medical staff then waited two hours, debating whether to

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transport Plaintiff to a hospital in Bakersfield by Air-Vac or simply call a local ambulance.

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After one to four hours, Plaintiff was taken by ambulance to Desert Valley Hospital in

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Tehachapi where the staff did x-rays and physical tests. Plaintiff was then transported to Mercy

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Hospital.

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At Mercy Hospital, medical staff inserted a catheter, but Plaintiff could not feel it.

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Mercy Hospital medical staff did more x-rays and an MRI. Plaintiff was then taken to a

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holding cell and admitted to the hospital. At the hospital, three doctors examined Plaintiff and

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approved him for surgery the next day. Plaintiff suffered “‘essentially complete paralysis of his

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bilateral lower extremities . . . with complete loss of both motor and sensory function.’”

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After surgery, Plaintiff was returned to CCI. Within 24 hours or so, Plaintiff was sent to

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a California Department of Corrections and Rehabilitation (“CDCR”) treatment facility, where

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he stayed for 90 days while recovering from surgery. Afterwards, Plaintiff was returned to

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CCI.
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On December 8, 2014, Plaintiff was transported to California Substance Abuse

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Treatment Facility (“SATF”) as a layover stop en route to R.J. Donovan State Prison, which is

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designated as an institution for inmates with high risk medical needs.

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Following several screening orders and amendments, District Judge Dale A. Drozd held

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that this action shall “proceed only on plaintiff’s claims against defendants Rodriguez, Cerveza,

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and Doe for excessive force in violation of the Eighth Amendment, against the Doe defendant

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for failure to protect in violation of the Eighth Amendment, and against defendants Rodriguez

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and Doe for retaliation in violation of the First Amendment.” (ECF No. 26, p. 2)

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b. Defendant Rodriguez’ Motion for Summary Judgment
Defendant Rodriguez filed a motion for summary judgment based on the alleged failure

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of Plaintiff to exhaust available administrative remedies prior to filing suit. (ECF No. 51).

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Defendant Rodriguez argues in his motion:

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Because this action has been brought by a prisoner incarcerated by the
California Department of Corrections and Rehabilitation (“CDCR”) with respect
to prison conditions under federal law, Plaintiff is required to exhaust his
administrative remedies under the PLRA before bringing suit in court.
The CDCR has an administrative process whereby an inmate under the CDCR’s
jurisdiction may appeal any policy, decision, action, condition, or omission by
the CDCR or its staff that the inmate can demonstrate has a material adverse
effect upon the inmate’s health, safety, or welfare. (SUF No. 9.) With limited
exceptions, an appeal must be reviewed at the Third Level and a decision must
be issued in order for administrative remedies to be deemed exhausted. (SUF
No. 10.)
On or about August 20, 2014, Plaintiff filed an administrative appeal
complaining about Defendant Rodriguez’s and the unserved co-defendants’
actions, alleging excessive force, retaliation, and deliberate indifference to
serious medical needs. (SUF Nos. 11, 25.) The CDCR Appeals Coordinator
bypassed the First Level of Appeal, and sent Plaintiff’s appeal directly to the
Second Level of Review. (SUF No. 12.) Pursuant to California regulations, an
investigative sergeant interviewed Plaintiff regarding his appeal; Plaintiff was
interviewed on October 8, 2014 and provided no additional information or
evidence during the interview. (SUF No. 14.) Plaintiff did, however, note that he
wished to be “transferred to a medical facility, to be away from the officers that
attacked [him]” and that “this matter be investigated by an outside agency.” (Id.)
On October 16, 2014, Plaintiff was issued a Second Level Response with the
finding that “no violation of California Department of Corrections and
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Rehabilitation policy.” (SUF No. 12.)
Following the denial of Plaintiff’s appeal at the Second Level of Review,
Plaintiff did not make any further submissions to pursue his appeal to the Third
Level of Review. (SUF No. 26.)
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Therefore, Plaintiff was provided the opportunity to submit an administrative
appeal to the Third Level of Review, but chose not to pursue his appeal beyond
the Second Level of Review. Consequently, Plaintiff’s administrative appeal
never completed the Third Level of Review, and he did not exhaust
administrative remedies with respect to his claims in this action. (SUF No. 30.)
(ECF No. 51, at pgs. 8-9).

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In the alternative, Defendant Rodriguez argues that claims related to the second

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excessive force incident should be dismissed because they were not described in the grievance.

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(ECF No. 51, at p. 15 (“Specifically, the administrative appeal Plaintiff filed only mentions the

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alleged July 9, 2014 incident; there is no mention of a second incident on July 15, 2014. (SUF

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No. 35.) Thus, Plaintiff failed to exhaust any claims arising from and give fair notice relating to

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the alleged July 15, 2014 incident.”)).

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Plaintiff submitted a “Declaration,” and “Request for Judicial Notice” in opposition to

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Defendant’s motion. In the declaration, Plaintiff stated that on August 20, 2014, he filed a

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grievance, which was sent to the second level. An interview of Plaintiff was conducted on

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October 8, 2014. On December 8, 2014, Plaintiff arrived at SATF. On January 20, 2015, after

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realizing that his grievance forms were lost during the transfer, he filed a Form 22 requesting a

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copy of his grievance. He filed another Form 22 on March 5, 2015, and on March 20, 2015, he

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filed a grievance for the lost/damaged grievance. Plaintiff never received any responses to his

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requests. As Plaintiff never received a copy of the grievance, he was unable to forward the

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grievance to the third level. Thus, Plaintiff argues that administrative remedies were not

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available to him.

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In the request for judicial notice, Plaintiff attached multiple prison forms dated after the

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incident asking for copies of the grievance and other paperwork related to the grievance. (ECF

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No. 58). For example, in a grievance dated March 20, 2015, Plaintiff claimed that he “arrived
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here from tehachapi [sic] (CCI) and custod [sic] lost or damaged my 602 on custody at (CCI). I

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have filled out (2) two request [sic] at this prison. SATF and my request on 22 Forms have

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been ignored dated 1-20-15 and 3-5-15.” (ECF No. 58, at p. 6). Plaintiff requested “copys

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[sic] of my 602 at Tehachapi (CCI) so I can forward it to the third level.” (Id.).

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c. Court Orders Evidentiary Hearing
Following a hearing on the motion, the Court ordered an evidentiary hearing to resolve
disputes of fact related to Defendant’s motion. The Court explained as follows:
Defendant Rodriguez argues, in part, that Plaintiff failed to exhaust his available
administrative remedies because Plaintiff failed to appeal his second level
response to the third level of review. However, Plaintiff has alleged (and
submitted evidence) that he never received the second level response, and so
was unable to appeal to the third level of review.

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While Defendant Rodriguez argued that it does not matter whether Plaintiff
physically received the second level response (because he was on notice that it
had been issued), Defendant Rodriguez cited to no authority to support this
proposition. Moreover, the California Code of Regulations appears to require
that Plaintiff actually receive a copy of the second level response, and there
appears to be a dispute of fact regarding whether Plaintiff actually received the
second level response. Cal. Code Regs. tit. 15, § 3084.8(b)(3) (emphasis added)
(“Except as described in subsection 3084.8(b)(4), an inmate or parolee must
submit the appeal within 30 calendar days of… receiving an unsatisfactory
departmental response to an appeal filed.”); Cal. Code Regs. tit. 15, § 3084.7(h)
(emphasis added) (“At the first and second level of review, the original
appeal… shall be returned to the appellant with a written response to the appeal
issue providing the reason(s) for each decision.”); Cal. Code Regs. tit. 15, §
3084.2(d) (emphasis added) (“If dissatisfied with the second level response, the
appellant may submit the appeal for a third level review, as described in section
3084.7, provided that the time limits pursuant to section 3084.8 are met. The
appellant shall mail the appeal and supporting documents to the third level
Appeals Chief via the United States mail….”). As discussed at the hearing,
there are disputes of fact regarding whether Plaintiff ever received the second
level response and whether he took efforts to obtain the response in order to
pursue an appeal to the third level. These disputes of fact appear material to the
legal issues presented.

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As there appears to be a genuine dispute of material fact regarding whether
Plaintiff actually received the second level response, as well as his actions after
he was allegedly told about the second level response, the Court will set an
evidentiary hearing to resolve these disputes.

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(ECF No. 69, at pgs. 1-2) (footnote omitted).
II.

LEGAL STANDARDS

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A.

Exhaustion

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“The California prison grievance system has three levels of review; an inmate exhausts

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administrative remedies by obtaining a decision at each level.” Reyes v. Smith, 810 F.3d 654,

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657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (2011) & Harvey v. Jordan, 605

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F.3d 681, 683 (9th Cir. 2010)). See also Cal. Code Regs. tit. 15, § 3084.7(d)(3) (“The third

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level review constitutes the decision of the Secretary of the California Department of

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Corrections and Rehabilitation on an appeal, and shall be conducted by a designated

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representative under the supervision of the third level Appeals Chief or equivalent. The third

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level of review exhausts administrative remedies….”).

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Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that

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“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. ' 1983], or any

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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. ' 1997e(a).

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Prisoners are required to exhaust the available administrative remedies prior to filing

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suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201

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(9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating

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to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of

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the relief sought by the prisoner and regardless of the relief offered by the process, unless “the

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relevant administrative procedure lacks authority to provide any relief or to take any action

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whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001);

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Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016).

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“Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong

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for which redress is sought. The grievance need not include legal terminology or legal theories,

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because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its

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resolution, not to lay groundwork for litigation. The grievance process is only required to alert

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prison officials to a problem, not to provide personal notice to a particular official that he may
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be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks

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omitted).

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As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances”

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exceptions to the exhaustion requirement. The one significant qualifier is that “the remedies

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must indeed be ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this

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qualification as follows:
[A]n administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a
simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates. See 532 U.S., at 736, 738,
121 S.Ct. 1819. . . .

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Next, an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use. . . .

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And finally, the same is true when prison administrators thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation. . . . As all those
courts have recognized, such interference with an inmate's pursuit
of relief renders the administrative process unavailable. And then,
once again, § 1997e(a) poses no bar.

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Id. at 1859–60.
“When prison officials improperly fail to process a prisoner's grievance, the prisoner is

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deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d

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1076, 1079 (9th Cir. 2017).

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If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal

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without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S.

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at 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 2005).

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B.

Summary Judgment

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Summary judgment is appropriate when it is demonstrated that there “is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

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R. Civ. P. 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc)

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(“If there is a genuine dispute about material facts, summary judgment will not be granted.”).

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A party asserting that a fact cannot be disputed must support the assertion by “citing to
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particular parts of materials in the record, including depositions, documents, electronically

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stored information, affidavits or declarations, stipulations (including those made for purposes

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of the motion only), admissions, interrogatory answers, or other materials, or showing that the

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materials cited do not establish the absence or presence of a genuine dispute, or that an adverse

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party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
A party moving for summary judgment “bears the initial responsibility of informing the

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district court of the basis for its motion, and identifying those portions of ‘the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

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any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party

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moves for summary judgment on the basis that a material fact lacks any proof, the Court must

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determine whether a fair-minded fact-finder could reasonably find for the non-moving party.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla

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of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on

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which the [fact-finder] could reasonably find for the plaintiff.”). “[A] complete failure of proof

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concerning an essential element of the nonmoving party’s case necessarily renders all other

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facts immaterial.” Celotex, 477 U.S. at 322. “[C]onclusory allegations unsupported by factual

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data” are not enough to rebut a summary judgment motion. Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989), citing Angel v. Seattle-First Nat’l Bank, 653 F.2d 1293, 1299 (9th Cir.

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1981).

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In reviewing a summary judgment motion, the Court may consider other materials in

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the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3);

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Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). In

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judging the evidence at the summary judgment stage, the Court “must draw all reasonable

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inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros de

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Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only

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draw inferences, however, where there is “evidence in the record… from which a reasonable

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inference… may be drawn”; the court need not entertain inferences that are unsupported by
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fact. Celotex, 477 U.S. at 330 n. 2 (quoting In re Japanese Electronic Products Antitrust

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Litigation, 723 F.2d 238, 258 (1983)).

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In a summary judgment motion for failure to exhaust, the defendants have the initial

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burden to prove “that there was an available administrative remedy, and that the prisoner did

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not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that

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burden, “the burden shifts to the prisoner to come forward with evidence showing that there is

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something in his particular case that made the existing and generally available administrative

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remedies effectively unavailable to him.” Id. However, “the ultimate burden of proof remains

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with the defendant.” Id. “If material facts are disputed, summary judgment should be denied,

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and the district judge rather than a jury should determine the facts.” Id. at 1166.

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While parties may be expected to simply reiterate their positions as stated in their briefs,

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one of the purposes of an evidentiary hearing is to “enable [ ] the finder of fact to see the

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witness's physical reactions to questions, to assess the witness's demeanor, and to hear the tone

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of the witness's voice. . . .’” United States v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995). All of

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this assists the finder of fact in evaluating the witness' credibility. Id. It is only in “rare

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instances” that “credibility may be determined without an evidentiary hearing. . . .” Earp v.

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Ornoski, 431 F.3d 1158, 1169–70 (9th Cir. 2005).

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III.

ANALYSIS OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant’s motion for summary judgment is based on two arguments. First, that

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Plaintiff failed to submit his grievance to the third level. Second, that the scope of the

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grievance failed to include the second excessive force incident, which took place on July 15,

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2014.

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The Court recommends denying Defendant’s motion for summary judgment as to the

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first ground because there is a material dispute of fact. Defendant claims that the result of the

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second level review was delivered to Plaintiff on October 16, 2014, and that Plaintiff failed to

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appeal the response to the third level. Defendant submitted evidence in support of its

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contention, including the response from the second level dated October 10, 2014. (ECF No.

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51-3, at p. 8). Plaintiff, in contrast, claims that he failed to receive the second level response
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and submitted evidence in support of his contention, including forms he allegedly submitted

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requesting a copy of the grievance. (ECF No. 58 & 59). As described above in the Court’s

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order setting an evidentiary hearing, (ECF No. 69), this factual dispute is material. If Plaintiff

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never received the second level response, or paperwork necessary to pursue his grievance to the

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third level, then that part of the process was not available to him.

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The Court recommends granting Defendant’s motion for summary judgment as to the

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second ground because it is undisputed that the grievance Plaintiff submitted did not cover any

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second incident of excessive force by Defendant Rodriguez. Defendant submitted a copy of the

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relevant grievance with his motion for summary judgment. (ECF 51-3, at pgs. 10-14). Plaintiff

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admits that it is a true copy of the grievance. That grievance states as follows:2
On July 9, 14 I was in my cell when C.O Rodriguez came to my cell 236 and
told me that I was wanted for catholic services so I got ready. As I walked down
the stairs I seen a C.O. by the office door when I walked into the “rotunda”
under the tower the door was locked and their [sic] was an officer C.O. Cerveza
was standing there in a white T-shirt with no belt on I then quickly turned to see
(2) C.Os one being C.O. Rodriguez standing there blocking me in the hallway.
We exchanged some words some “SOB’s and MFs.” I was instructed to cuff up
by C.O. Rodriguez. I asked why the answer was “That I’m known for assaulting
peace officers” so I complied. Once I was in hand cuffs I turned my head and
seen C.O. Rodriguez taking off his belt. I seen C.O. Cerveza approach me as he
hit me with a close fist. I was also hit by a stick from behind. I was kneed as I
hit the floor. I was kicked, kicked, kicked, and kicked some more. I was
uncuffed and called “a piece of shit” that is a derogatory nickname for my
custody status once they left into the dayroom I got up and walked toward my
cell. That’s where I stayed in all day. When night came I couldn’t sleep all
night so in the morning I went over to medical instead of going to breakfast. In
medical I was attended and given a shot then later sent to x-rays. When I
returned C.O. Cerveza told me to go to my unit instead of returning to medical
as advised by medical staff. I was later called at lunchtime have to go to
medical where I gave my (I.d.) to C.O. cerveza and he “advised” me not to be
stupid in any way. I was given pills seen the doctor then went on back to my
housing unit. I was put in bed rest for 10 days when I was in I asked about how
I got my injury. I said “I was sitting down in my cell with one foot on the stool I
brought my foot down that’s when I heard a pop on my back.” “I lied” cause
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The Court asked Plaintiff to read the grievance at the evidentiary hearing, and has referred to that part of
Plaintiff’s testimony to ensure accurate transcription of the grievance, which is in small handwriting and difficult
to read. Even though the Court has referred to testimony given at that hearing, summary judgment is still
appropriate because there was no dispute of fact regarding its contents, which were submitted in connection with a
motion for summary judgment.

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they had to do an (incident report) and turn it in to custody and the C.O. in
medical was the one that beat me and jumped with other officers I had no choice
it was either that or suffer retaliation. I was called every day into medical and
one day I was in a little room being asked the same question “what happened.”
Well today was different cause one of the nurses left the room the room and the
doctor looked up and said he had an idea of what happened he said “look.” So I
turned and seen (2) sergeants and (6) C.O.’s including C.O. Cerveza. I stayed
quiet and stuck to my story (1) sergeant was on the phone so I had no choice but
to remain silent for my own safety. Several days later I told C.O. Nelson that
his buddys [sic] had done “this” meaning put a whupping on me he stayed quiet.
By this time I think I was already in crutches. The doctor had told me if I refuse
to tell him (what really happened) he would take me off my pain medication and
he did. Even though I was on crutches he had me on the 2nd “tier” floor with a
mobility vest on. On July 16, 14 as I was going out for my second set of x-rays
I seen the psych and I gave her a sick call slip I needed to find someone to trust
and tell about this both C.O.’s got mad and I was walking out I was approached
by both of them (1) being C.O. Cerveza and told that they “were going to hand
me/you another one, dead man.” I just laughed weather [sic] it was out of
nervousness or what, but I seen the person a free staff and I mentioned to her the
little threat that I was told when I seen Sergeant Fiddler. I approached him and I
did go out of my way to look for him and I told him that their [sic] was an
incident with (3) C.O.’s I never mentioned no names I told him to please if he
can get the matter resolved Sergeant Fiddler said he would see he never got back
at me. I told “him” what I told the Doctor “him” being Sergeant Fiddler he said
that that’s good and I mentioned I did my part to stay quiet they needed to do
their part and resolve this issue. I told Sgt. Fiddler what the Doctor said and that
he was suspicious so “he” Sgt. Fiddler came up with a story about how “it was
done by me and my celly goofing around in the cell” . . . I mentioned this to my
celly “Paul Olivares #AN 3248.” Olivares said “he didn’t want to be mixed up
or get in trouble cause that wasn’t true then they would want to write him up.”
On July 17th I went to medical and “everyone” was [illegible] me inmates and
free staff the only ones that weren’t was the nurses “males” to be more specific.
After a regular check I went back by this time I had (3) days without eating and
(2) days without sleeping cause I was cut off my pain medication. I walked
across the yard. I got light headed. I was exhausted by the time I got to the
block once I started to climb the stairs. I got dizzy and all I remember was that I
seen my knee by my face and orange then when I opened my eyes I was flat on
the ground laying on my stomach. The dayroom was open so a lot of people
seen me fall. I was moved then later taken to the clinic where the doctor said I
was faking it and in the mix I asked the nursing staff if I could talk to the C.O.
It was a long time before C.O. Cerveza and C.O. Rodriguez walked in I was
quiet for a while before I said “that I couldn’t feel my legs.” They just laughed
and someone said “that’s what I get for fucking with someone’s wife.” I stayed
quiet. I asked to talk to the sergeant and I would like Sgt. Fiddler instead Sgt.
Smith walked in and said “why was I not facing what I had coming.” I just lay
there not saying anything. I was later transported to the hospital and declared
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paralyzed and again transferred to another where emergency surgery was
performed and now I’m learning how to walk. As for a motive I was having an
affair with a state employee we met many years ago in Los Angeles. I never
knew she was married. I knew nothing of “her” husband “ex” which is what she
called him. Me and “her” had an argument at the prison cause she found out I
was dealing “methamphetamines” in the streets and other drugs. In class I was
screamed at and humiliated by the name calling and other comments. We had
several conversations on this and it caught the attention of the C.O.s. “Her”
name is Hilary Jarvis the woman in the middle of the thing. My name is Jorge
Corena #AI8181 caught in their little drama.

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While this grievance is not limited in time to July 9, it does not describe any second
incident of excessive force by Defendant Rodriguez. Thus, the claim for excessive force in
Plaintiff’s Second Amended Complaint based on the allegation that on July 15, 2014,
“Defendant Rodriguez went into plaintiff’s cell while Defendant Doe held the door and acted as
defendants [sic] look out. Defendant Rodriguez again beat plaintiff with his fists, kicked him
and told him ‘if you keep on snitching it will keep on happening to you,’” (ECF No. 14, at pgs.
5-6), should be dismissed for failure to exhaust administrative remedies. As this second
incident was also the basis of the retaliation claim against Defendant Rodriguez, (ECF No. 7, at
p. 11; ECF No. 16, at p. 5; ECF No. 20, at p. x), the retaliation claim against Defendant
Rodriguez should also be dismissed.

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The Court thus recommends granting Defendant Rodriguez’ motion for summary
judgment in part as to the second claim for excessive force against Defendant Rodriguez and
the claim for retaliation based on that same incident against Defendant Rodriguez.
IV.

ANALYSIS OF AVAILABILITY OF ADMINISTRATIVE REMEDIES AS TO
THE FIRST EXCESSIVE FORCE CLAIM AGAINST DEFENDANT
RODRIGUEZ
A.

Summary of Relevant Evidence

On March 27, 2019, the Court held an evidentiary hearing regarding disputes of fact
concerning the exhaustion of administrative remedies, i.e., whether an appeal to the third level
was “available” under the case law. Plaintiff testified on his own behalf. Defendant Rodriguez
called the following witnesses on his behalf: Jason Barba, Bradford Sanders, Jr., Jorge
Dominguez, and Jerry Wood. Additionally, fourteen exhibits were admitted into evidence.
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Many relevant facts were undisputed, including that the process with the CDCR at the

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time required an appeal to the third level in order to exhaust administrative remedies, and that

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Plaintiff failed to submit his appeal to the third level. It was also undisputed that the CDCR

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issued a response at the second level, denying Plaintiff’s appeal, on October 10, 2014. The

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main dispute of fact is whether that response at the second level, and the original grievance that

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would have been attached, were ever physically delivered to Plaintiff in a way that allowed him

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to submit an appeal to the third level.

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Plaintiff testified on his own behalf. He testified that he submitted the grievance on
approximately August 18, 2014, describing the incident (as quoted above). He was then

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transferred multiple times for treatment of his injuries. At some point, he was transferred back

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to Tehachapi in a medical section of the prison, the Outpatient Housing Unit (“OHU”).3 He

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testified that “I didn’t have nothing on me. I didn’t have no personal property. You have to go

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a certain amount of time before you can have personal property.” He then described seeing a

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person who purported to have this grievance, but Plaintiff did not physically receive it, as

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follows:4

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One day out of the blue I just ended up, I had an officer just come over
knock on the window, call out my last name, say ‘hey look I got your
602.’ . . . He said, I’m going to put it with your property. You can’t
have personal property. He said he would write a receipt. I never got a
receipt. I never thought about asking for a receipt. . . . And I was bed
down at the time. . . . He said he was going to put his 602 in my
property . . . I had some knowledge of them acknowledging that I had it.

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When I ended up getting transferred out on December 8, I ended up
getting sent to SATF. When I arrived there, I didn’t have nothing on me.
They ended up sending my property later on. My TV had water on it. I
wrote a 602 on that. . . . I also filed a request for my 602, CDCR 22
forms. I wasn’t too sure about how much time they have to answer this
or that. . . .

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I put in one request slip for 602, explained that what the 602 is about. I

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3
Plaintiff described how he arrived at Tehachapi, was admitted to the OHU, then back to the ICU, then
back to Bakersfield hospital, then back to Tehachapi.
4
As there is not a transcript of the hearing, this transcription is unofficial and based on the audio file,
which is available to the parties upon request.

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also explained how in another 22 form that needed it, think ended up
filed a 22 on March, filing a 602 in March as well. And actually have
copies of that in the box. Didn’t get no response. So I wasn’t given any
opportunity to actually proceed. I seen where it said about personal
property when go out to medical, goes to the primary facility. I couldn’t
get it in CTC. In OHU, didn’t get personal property due to the fact that it
is considered personal property. I cant have that. It is personal property.
It needs to be stored. . . . No matter how many 602 I filed, I couldn’t get
possession of them. It was not in my possession and not in my property.
Never got a copy of the 602. When was in the OHU, I ended up seeing
something that officer said was my 602. I can’t say it was.

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Plaintiff also admitted into evidence original copies of three documents he submitted
asking for documents related to his grievance. One is a form 22 dated January 20, 2015,

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submitted by Plaintiff, stating “I would like to get copys [sic] of 602 that I filed at CCI about

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the assault that happened to me dated 7/2014. My paper work was taken or lost by

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transportation on my transfer there at SATC from Tehachapi.” (Exhibit ECF No. 58, at p. 4).

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The original documents also included a Form 22 addressed to the appeals coordinator on March

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5, 2015 stating “I want to know if I can request copies of my 602 for August or July 2014 at

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CCI Tehachapi.” (Id. at 5). Plaintiff also presented an original document (a Form 22) dated

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4/1/15, stating “I have written two separate requests asking for copies of the 602 that I filed at

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Tehachapi CCI at the end of the year, between July and August of 2014.” (Exhibit 2).

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Additionally, Plaintiff brought the original of a 602 dated 3/20/15, which states “I arrived here

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from Tehachapi (CCI) and custod [sic] lost or damaged my 602 on custody at (CCI). I have

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filled out (2) two request at this prison. SATF and my request on 22 Forms have been ignored

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dated 1/20/15 and 3/5/15,” and requests “copys [sic] of my 602 at Tehachapi (CCI) so I can

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forward it to the third level.” (Exhibit ECF No. 58, at p. 6). Furthermore, regarding whether he

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has supporting documents, Plaintiff checked “no” and wrote “I don’t have copys [sic] of the

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602 cause I was at CTC and the OHU without access to a copy machine.” (Id.). Plaintiff

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testified he never received a response to any of these requests for documents related to his

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grievance.

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On cross-examination, defense counsel questioned Plaintiff on his testimony regarding
not receiving his personal property while in the OHU. Defendant submitted evidence that
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Plaintiff received two pieces of legal mail during that time. Plaintiff also was able to send a

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letter to the prison law office while in OHU. Plaintiff admitted he did not know the name of

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the officer who allegedly showed him a copy of the second level response. Plaintiff admitted

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he had a right to get a receipt, but failed to get one and did not file a grievance about failing to

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get his mail. While Plaintiff was in the OHU, he also filed a grievance related to failing to have

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his glasses, and as a result he was allowed to keep his glasses in his cell. After Plaintiff left

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OHU, he filed a grievance about his TV, but did not immediately file a grievance about the

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missing second level response. Finally, defense counsel noted that one of the grievances he

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filled out in March 2015 mentions not having a copy machine in the OHU—not that Plaintiff

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was never given a copy of the second level response.

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Defense counsel then put on multiple witnesses from CDCR, who testified about the
appeals process and the failure of Plaintiff to appeal to the third level as required.

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First, Jason Barba worked at SATF when Plaintiff was there and testified that inmates
have access to documents in their central file.
Second, Bradford Sanders, Jr., testified on Defendant’s behalf. In 2014, he was a health

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care access captain. He was responsible for inmates’ access to care during that period. He

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testified that inmates were allowed to keep mail in their OHU cells. OHU inmates could use a

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paging service to use law library services. If an inmate needed something, he could submit a

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Form 22 request. The mailroom would drop off mail bags at the OHU and would deliver the

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mail to OHU inmates. It would be very rare, exceptional circumstances, when inmates would

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fail to receive their mail in the OHU. Inmate appeals were processed along with the regular

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mail.

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On cross-examination, Plaintiff questioned Mr. Sanders regarding Title 15, section

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3190(t), which states: “All allowable inmate property shall be inventoried, documented, and

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stored for inmates transferred Out-to-Medical or Out-to-Court, or placed in segregated housing,

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a Correctional Treatment Center, or an Outpatient Housing Unit, until the inmate returns.”

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(Exhibit J, p. 22). Mr. Sanders testified that this section applies when an inmate goes out for

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treatment or is gone long term. In these instances, the prison would inventory and store the
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inmate’s property that was in his cell. Mr. Sanders testified that this would not prevent an

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inmate at OHU from having property in his cell. Plaintiff also admitted a CDC 7206 medical

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form signed 7/20/14, which indicated that Plaintiff was “unable to complete exam due to bed

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bound” while in the OHU. (Exhibit 6).

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Third, Defense counsel called Jorge Dominguez, who worked at the Office of Appeals

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for the past three and a half years. He testified that third level correspondence would be

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considered legal mail. Mr. Dominguez testified that if an inmate does not have his original

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appeal, he would not be able to submit an appeal to the third level. If he submitted an appeal to

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the third level without the grievance or without the response from the second level, it would be

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rejected. If an inmate indicated that staff is trying to not provide him with the grievance, the

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Appeals Office would follow up on that allegation to check on the validity of those allegations.

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Mr. Dominguez also testified that inmates have a right to their mail. If an inmate did not

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receive mail, the inmate could file a grievance requesting a copy of his grievance. An inmate

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could also use a Form 22 to request a copy of his grievance. He also testified that the Appeals

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Office responds to requests for missing grievances by conducting full staff inquiries to find the

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missing grievances.

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Finally, defense counsel called Jerry Wood II. Mr. Wood works at CCI, Tehachapi. He

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worked there at the time of the incident, during 2014. He testified about the process, including

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the process for returning an inmate grievance response back to the inmate. He testified that the

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inmate should get the original grievance back along with the second level grievance response.

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If the inmate is at CCI, he uses institutional mail. Mr. Wood repeatedly testified that if an

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inmate does not receive his response, he can file a grievance or Form 22 asking for a copy of

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his grievance in order to pursue his appeal to the next level. The inmate can say some version

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of that he has not received his grievance, and he could obtain a copy of his grievance with an

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indication that it should be treated as an original. Mr. Wood also testified about the second

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level appeal response in this case, and testified that it indicated it had been “mailed/delivered to

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appellant” on October 16, 2014. (Exhibit E). Mr. Wood testified that he never received any

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documents related to Plaintiff’s missing grievance.
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Finally, Plaintiff submitted an exhibit from his time in the OHU where a doctor
requested that Plaintiff be provided with regular shoes. (Plaintiff’s Exhibit 8).
B.

Analysis of Evidence

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The evidentiary hearing surrounded the dispute of fact as to whether Plaintiff had

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received the second level appeal response and accompanying original grievance, which is

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needed to pursue his appeal to the third level.

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Defense counsel put on evidence that Plaintiff received the response, including that the

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second level appeal response indicates is was “mailed/delivered to appellant” on 10/16/14, and

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that the process at the time was to deliver such responses to inmates. Defense counsel also

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presented evidence that CCI had a process in place to deliver second level responses to inmates.

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That process provided that an inmate could file a grievance or Form 22 if he did not receive a

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response in time, and the appeals office would respond promptly. Defense witnesses also

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testified that OHU inmates should be able to keep personal property in their cell during this

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period. The defense witnesses appeared credible.

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In contrast, Plaintiff presented evidence that he did not receive the second level

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response or a copy of his grievance needed to process that appeal at the third level. This

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included his own testimony, which appeared credible, that an officer had held up his second

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level response and indicated that it would be put in his property, yet it was not in his property

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when Plaintiff eventually received his property. Plaintiff also admitted a regulation that states,

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“[a]ll allowable inmate property shall be inventoried, documented, and stored for inmates

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transferred . . . [to] Outpatient Housing Unit,” although there was a dispute about whether this

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applied to personal property delivered when an inmate was in OHU. The evidence indicates

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that Plaintiff, or his doctor, had to specifically request Plaintiff’s glasses and shoes while he

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was in the OHU, suggesting that Plaintiff did not automatically receive all of his personal

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property at that time.

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The Court finds the most probative evidence comprises the three original Form 22s and

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an original grievance that Plaintiff filed after this time requesting copies of his 602 to appeal to

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the third level. These include the Form 22 dated January 20, 2015, stating “I would like to get
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copys [sic] of my 602 that I filed at CCI about the assault that happened dated 7/2014 . . . ,” and

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a 602 from March 20, 2015, stating “I want copys [sic] of my 602 at Tehachapi (CCI) so I can

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forward it to the third level.” The Court inspected the originals and they appear authentic.

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Defendant did not question Plaintiff as to their authenticity or otherwise provide evidence that

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they were not authentic. These documents clearly support Plaintiff’s account of events. Not

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only do they corroborate Plaintiff’s testimony that he did not receive the second level response

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and original 602, they also call into question testimony by defense counsel regarding the

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process at that time. Defense witnesses repeatedly testified that, if an inmate did not receive a

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response to an appeal, he should file a grievance or Form 22 asking for another copy of his

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appeal. This appears to be exactly what Plaintiff did. However, contrary to the testimony of

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defense witnesses, Plaintiff never received a response to these requests. These documents thus

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indicate that, when it came to Plaintiff and this grievance at this time, the appeals process was

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not working correctly. Put another way, if the appeals office failed to respond to Plaintiff’s

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three requests for his grievance contrary to their own process, it seems likely that Plaintiff is

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truthfully testifying that he also failed to receive a response to his original grievance.

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While not dispositive, the Court also notes that, even in his Second Amended

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Complaint, which was filed on June 19, 2017, Plaintiff stated (under penalty of perjury) that he

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filed grievances that were not processed, and that he repeatedly requested copies of the

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grievances he filed, but was never provided a copy. (ECF No. 14, p. 9).

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Thus, after reviewing all evidence and witness testimony regarding this dispute of fact,

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this Court recommends finding that Plaintiff met his burden to establish that the third level of

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appeal was not available to Plaintiff because he did not receive the second level response to his

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grievance and the original grievance that were needed to pursue his appeal to the third level.

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Accordingly, Plaintiff should be deemed to have exhausted his available administrative

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remedies as to his excessive force claim against Defendant Rodriguez based on the alleged July

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9, 2014 incident.

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VII.

CONCLUSION AND RECOMMENDATIONS

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Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that:

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1.

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Defendant Rodriguez’s motion for summary judgment (ECF No. 51) be granted
in part.

2.

The claim against Defendant Rodriguez based on the alleged July 15, 2014

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excessive force incident and the claim for retaliation against Defendant

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Rodriguez based on that same incident be dismissed.

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3.

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remedies as to the excessive force claim against Defendant Rodriguez based on

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That Plaintiff be deemed to have exhausted his available administrative

the alleged July 9, 2014 excessive force incident.
These findings and recommendations are submitted to the United States district judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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fourteen (14) days after being served with these findings and recommendations, any party may

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file written objections with the court. Such a document should be captioned “Objections to

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Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be

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served and filed within seven days after service of the objections. The parties are advised that

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failure to file 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, 838-39 (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:

April 17, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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