Williams v. Baker et al
Filing
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ORDER ADOPTING IN PART 38 FINDINGS AND RECOMMENDATIONS and ORDER GRANTING 30 Defendant's Motion for Summary Judgment signed by District Judge Dale A. Drozd on 9/25/2018. (Jessen, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SHANNON WILLIAMS,
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No. 1:16-cv-01540-DAD-JDP
Plaintiff,
v.
OFFICER BAKER,
Defendant.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN PART AND
GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES
(Doc. Nos. 30, 38)
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Plaintiff is a federal prisoner proceeding pro se in this civil rights action pursuant to
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Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On September 21, 2017, defendant Baker moved for summary judgment on plaintiff’s
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claim of retaliation, contending that plaintiff failed to exhaust his administrative remedies before
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filing suit. (Doc. No. 30.) On February 28, 2018, the then-assigned magistrate judge issued
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findings and recommendations, recommending that defendant’s motion be denied. (Doc. No. 38.)
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The findings and recommendations were served on the parties and contained notice that any
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objections thereto were to be filed within fourteen days after service. (Id. at 15.) On March 14,
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2018, defendant filed objections, labeled as a response to the findings and recommendations.
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(Doc. No. 39.) No other objections have been filed and plaintiff did not respond to defendant’s
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objections.
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the undersigned has
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conducted a de novo review of this case. Having carefully reviewed the entire file, including
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defendant’s objections, the undersigned will adopt the findings and recommendations in part.
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Having reviewed defendant’s objections, the court finds that the February 28, 2018
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findings and recommendation were supported by the record as it existed at the time the findings
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and recommendation were issued. The then–assigned magistrate judge recommended that
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defendant’s motion for summary judgment be denied, finding that although plaintiff’s
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Administrative Remedy Request No. 802835 failed to exhaust his administrative remedies with
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respect to his First Amendment retaliation claim, defendant had failed to demonstrate that
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plaintiff’s Administrative Remedy Request No. 801695 also failed to do so. (Doc. No. 38.)
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However, in his objections, defendant has now provided additional evidence regarding
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Administrative Remedy Request No. 801695. In light of this evidence, the court will decline to
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adopt the findings and recommendation in this regard, and also declines to adopt the
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recommendation that defendant’s motion for summary judgment on exhaustion grounds be
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denied. The court will adopt the remaining findings regarding plaintiff’s other efforts to exhaust
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his administrative remedies prior to filing suit, since those findings remain supported by the
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record and by proper analysis.
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The magistrate judge recommended that defendant’s motion for summary judgment be
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denied because defendant did not meet his burden of proving that plaintiff had not exhausted his
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available administrative remedies. In particular, defendant initially provided no evidence
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regarding plaintiff’s Administrative Remedy Request No. 801695, and thus no evidence
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suggesting that grievance did not exhaust plaintiff’s administrative remedies with respect to his
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retaliation claim. (Doc. No. 38 at 12.) However, defendant has now presented plaintiff’s
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Administrative Remedy Request No. 801695, which on its face makes clear that it did not relate
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to plaintiff’s retaliation claim against defendant Baker but rather complained of a September 14,
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2014 incident in which a different correctional officer allegedly used excessive force against
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plaintiff and made comments suggesting that force was imposed in retaliation for plaintiff filing
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inmate appeals. (See Doc. No. 39-2 at ¶¶ 4–6, Ex. 1 at 5-8.) In light of this evidence it cannot be
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disputed that plaintiff’s Administrative Remedy Request No. 801695 failed to exhaust plaintiff’s
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available administrative remedies on his retaliation claim against defendant Baker since that
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grievance had nothing to do with Baker. Accordingly, defendant met his burden of showing that
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plaintiff did not exhaust his available administrative remedies prior to filing suit.
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Because defendant has met his initial burden, the burden shifts to plaintiff to come
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forward with evidence that the existing administrative remedies effectively unavailable to him.
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See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). Since the magistrate judge did not
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address this issue, the court will review the evidence provided by plaintiff de novo to determine if
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plaintiff has met this burden.
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Plaintiff argues that remedies were effectively unavailable, because he was afraid to
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submit grievances. (Doc. No. 31.) Prison officials’ threats of retaliation can render
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administrative remedies effectively unavailable such that a prisoner need not exhaust them. See
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McBride v. Lopez, 807 F.3d 982, 984 (9th Cir. 2015). In McBride, the Ninth Circuit adopted a
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two-part test with a subjective component and an objective component. To show that a threat
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rendered the prison grievance system unavailable, a prisoner must (1) provide a basis for the court
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to find that he subjectively believed prison officials would retaliate against him if he filed a
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grievance; and (2) objectively demonstrate that the threatened retaliation was of sufficient
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severity to deter a reasonable prisoner from filing a grievance. Id. at 987-88.
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Here, the bulk of plaintiff’s arguments regarding threats relate to an alleged assault by
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correctional staff Lieutenant Hayes, who is not a defendant in this action, that occurred in
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September 2014. (Doc. No. 31 at 1–3, 13–15.) Plaintiff alleges that Lieutenant Hayes assaulted
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plaintiff because he filed grievances against other correctional staff and that defendant Baker
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facilitated this assault by directing plaintiff to the area where Hayes was waiting for plaintiff.
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(Doc. No. 31 at 2, 14.) Plaintiff alleges that after this assault defendant told plaintiff that “it was
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not a good idea to write up” staff members. (Doc. No. 31 at 2.) Plaintiff alleges that he informed
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correctional staff and filed an inmate grievance regarding this incident, but plaintiff was not
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placed in protective custody. (Doc. No. 31 at 2, 14.) Plaintiff additionally alleges that he made
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numerous grievances and verbal complaints throughout 2015 and 2016, but that nothing was done
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about the retaliation. (Doc. No. 31 at 3.)
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However, despite the alleged statement by defendant Baker that “it was not a good idea to
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write up” staff members (id. at 2), plaintiff has failed to show “that he was actually deterred from
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filing a grievance by the guards’ threats.” McBride, 807 F.3d at 988. Plaintiff acknowledges that
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despite the alleged retaliatory statements, he filed two Administrative Remedy Requests
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regarding the October 2014 incident. The fact that plaintiff pursued numerous inmate appeals and
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verbal claims does not support a finding that the alleged retaliatory statements served to make the
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administrative remedy process effectively unavailable to plaintiff. See Avery v. Virga, No. 2:11-
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cv-1945-KJM-EFB, 2016 WL 3548799, at *10 (E.D. Cal. June 24, 2016) (finding that plaintiff
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did not subjectively believe that prison officials would retaliate against him because “plaintiff
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pursued numerous appeals against defendants and prison officials”), report and recommendation
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adopted, 2016 WL 4441214 (E.D. Cal. Aug. 22, 2016); Hogue v. Ada County, No. 1:13-CV-
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00100-CWD, 2016 WL 1313458, at *16 (D. Idaho Mar. 31, 2016) (“While threatened harm by a
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correctional officer might deter a reasonable prisoner from filing a grievance, the record does not
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support a finding that Hogue was actually deterred from filing a grievance.”); Goldsby v.
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Kaschmitter, No. 1:14-CV-00032-REB, 2016 WL 1367737, at *6 (D. Idaho Apr. 6, 2016)
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(“[Plaintiff’s] multiple concern forms foreclose any argument that he was actually deterred from
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pursuing a grievance.”), aff’d, 712 Fed. App’x 701 (9th Cir. 2018); Jamison v. Baillie, No. 2:10-
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cv-124-KJM-EFB, 2016 WL 775746, at *4 (E.D. Cal. Feb. 29, 2016) (holding that plaintiff’s
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filing of an inmate appeal just days after the purported threats came from defendants was a
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sufficient basis upon which to find that plaintiff was not actually deterred). Because the court
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finds that plaintiff was not actually deterred from filing inmate grievances, the court need go no
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further in its analysis. The evidence before the court on summary judgment demonstrates that
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plaintiff failed to exhaust all available administrative remedies prior to pursuing his retaliation
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claim against defendant Baker.
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For these reasons,
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The findings and recommendations issued on February 28, 2018 (Doc. No. 38) are
adopted in part, as discussed above;
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Defendant’s motion for summary judgment (Doc. No. 30) is granted; and
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This action now proceeds on plaintiff’s claim against defendant Baker for
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excessive force in violation of the Eighth Amendment.
IT IS SO ORDERED.
Dated:
September 25, 2018
UNITED STATES DISTRICT JUDGE
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