Jacobsen v. Maldinado

Filing 56

ORDER GRANTING Defendant's 40 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies signed by Magistrate Judge Barbara A. McAuliffe on 9/25/2018. CASE CLOSED. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL JACOBSEN,

12

Plaintiff,

13

v.

14

Case No. 1:17-cv-00101-BAM (PC)
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES

MALDINADO,
(ECF No. 40)

15

Defendant.

16
17

I.

Background
Plaintiff Michael Jacobsen (“Plaintiff”) is a former county jail inmate proceeding pro se

18
19

and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action

20

proceeds on Plaintiff’s claim for excessive force in violation of the Fourteenth Amendment

21

against Defendant Maldonado (sued as Maldinado). All parties have consented to Magistrate

22

Judge jurisdiction. (ECF Nos. 4, 29.)
On February 14, 2018, Defendant filed a motion for summary judgment pursuant to

23
24

Federal Rule of Civil Procedure 56, on the ground that Plaintiff failed to exhaust his

25

administrative remedies.1 Fed. R. Civ. P. 56(c), Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.

26

2014) (en banc), cert. denied, 135 S. Ct. 403 (2014). (ECF No. 40.) On February 27, 2018,

27

1

28

Concurrent with this motion, Plaintiff was provided with notice of the requirements for opposing a motion for
summary judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th
Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 40-1.)

1

1

Plaintiff filed his opposition to the motion for summary judgment. (ECF No. 41.) Defendant

2

filed a reply on March 5, 2018. (ECF No. 43.) The motion is deemed submitted. Local Rule

3

230(l).

4

II.

Legal Standard

5

A.

Statutory Exhaustion Requirement

6

Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action

7

shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal

8

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

9

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is

10

required regardless of the relief sought by the prisoner and regardless of the relief offered by the

11

process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to

12

all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).

13

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

14

raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino,

15

747 F.3d at 1166. “In the rare event that a failure to exhaust is clear on the face of the complaint,

16

a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise,

17

the defendants must produce evidence proving the failure to exhaust, and they are entitled to

18

summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most

19

favorable to the plaintiff, shows he failed to exhaust. Id.

20

Defendant must first prove that there was an available administrative remedy and that

21

Plaintiff did not exhaust that available remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th

22

Cir. 2015) (citing Albino, 747 F.3d at 1172) (quotation marks omitted). The burden then shifts to

23

Plaintiff to show something in his particular case made the existing and generally available

24

administrative remedies effectively unavailable to him. Williams, 775 F.3d at 1191 (citing

25

Albino, 747 F.3d at 1172) (quotation marks omitted). The ultimate burden of proof on the issue

26

of exhaustion remains with Defendants. Id. (quotation marks omitted).

27

///

28

///
2

1

B.

Summary Judgment Standard

2

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

3

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

4

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino,

5

747 F.3d at 1166; Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each

6

party’s position, whether it be that a fact is disputed or undisputed, must be supported by

7

(1) citing to particular parts of materials in the record, including but not limited to depositions,

8

documents, declarations, or discovery; or (2) showing that the materials cited do not establish the

9

presence or absence of a genuine dispute or that the opposing party cannot produce admissible

10

evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may

11

consider other materials in the record not cited to by the parties, although it is not required to do

12

so. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.

13

2001); accord Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

14

The defendants bear the burden of proof in moving for summary judgment for failure to

15

exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available

16

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

17

If the defendants carry their burden, the burden of production shifts to the plaintiff “to come

18

forward with evidence showing that there is something in his particular case that made the

19

existing and generally available administrative remedies effectively unavailable to him.” Id. “If

20

undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust,

21

a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f

22

material facts are disputed, summary judgment should be denied, and the district judge rather than

23

a jury should determine the facts.” Id.

24

III.

Discussion

25

A.

Summary of Relevant Allegations

26

The events in the complaint are alleged to have occurred while Plaintiff was housed at the

27

Fresno County Jail. Officer Maldonado is the sole remaining defendant. Plaintiff’s allegations

28

are as follows:
3

1

On September 29, 2016, Plaintiff was arrested by Fresno Police and taken to the Fresno

2

County Jail to be booked. At the jail Plaintiff was told that his classification officer, Officer

3

Maldonado, could call Plaintiff’s probation officer in regards to his holding. Officer Maldinado

4

refused to call Plaintiff’s probation officer, at which point Plaintiff requested to speak to another

5

officer. Officer Maldonado also refused this request. Plaintiff then refused to dress out and hand

6

over his clothing unless he was allowed to speak to Officer Maldonado’s supervisor. Plaintiff

7

requested to speak to the supervisor several times, and Officer Maldonado refused. Officer

8

Maldonado then came back with three other unidentified officers. The four officers tackled

9

Plaintiff to the ground and continued to bash his face and head against the ground. Plaintiff

10

believes that the officers kicked his ribs and jaw, cracking his tooth. Plaintiff was bleeding from

11

his nose and eyebrow. Plaintiff did not fight back, and half of the assaults took place after he was

12

handcuffed. A lieutenant then came and videotaped Plaintiff’s injuries as he was strapped to the

13

restraint chair. Plaintiff was housed eight hours later.

14

Plaintiff suffered a broken nose with a laceration that resulted in a scar, a head injury

15

causing weeks of migraines, a fractured right bottom tooth resulting in a bacterial infection that

16

led to the tooth’s removal, and bruised ribs that caused pain for a month and a half.

17

B.

Undisputed Material Facts (UMF)2

1. Plaintiff Michael Jacobsen (“Plaintiff”) was in custody at the Fresno County Jail (“FCJ”)

18
19

from September 29, 2016 through March 6, 2017. (Porter Decl. ¶ 4(h).)

20

2. Plaintiff was incarcerated at FCJ when we he filed his operative complaint. (ECF No. 1;

21

Porter Decl. ¶ 4(h).)
3. Plaintiff’s sole claim against Defendant is a Fourteenth Amendment excessive force claim

22
23

for an alleged incident that occurred on September 29, 2016. (ECF No. 1.)

24

4. On December 8, 2017, Defendant filed his Answer to the Complaint, asserting affirmative

25

defenses, including, failure to exhaust administrative remedies. (ECF No. 26.)

26

///

27

2

28

See Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment,
(ECF No. 40-3), and Plaintiff’s Opposition to Summary Judgment, (ECF No. 41). Any facts which the parties
dispute are not included in this statement of undisputed facts.

4

1

5. The FCJ’s administrative grievance process is available to all inmates like Plaintiff who

2

can file a grievance concerning any condition of confinement at FCJ. According to the

3

FCJ’s Policies and Procedures, this includes, but is not limited to, officer conduct. (Porter

4

Decl. ¶¶ 5–10 & Exs. 1 (Fresno County Sheriff’s Office Jail Division Policies and

5

Procedures No. E-140), 2 (Fresno County Sheriff’s Office Jail Division Inmate

6

Orientation Handbook).)

7

6. The FCJ’s Inmate Handbook states that inmates can file a grievance “relating to any

8

condition of confinement, including but not limited to: medical care, classification actions,

9

program participation, telephone, mail, visiting procedures, food, and clothing or

10

bedding.” (Porter Decl., Ex. 2 (alteration in original).)

11

7. The deadline to submit a grievance is fourteen days from the date of the incident that an

12

inmate wishes to grieve, after which it is considered abandoned. (Porter Decl. ¶ 7 & Ex.

13

1, pp. 4–5; Ex. 2, p. 14.)

14
15
16

8. Plaintiff did not submit a grievance concerning the excessive force allegations against
Defendant. (Porter Decl. ¶¶ 11–36 & Exs. 3–25 (Inmate Grievances Forms).)
9. Plaintiff filed grievances on October 15, 2016, October 7, 2016, and November 11, 2016,

17

in which he describes his injuries. In the November 11, 2016 grievance, Plaintiff states

18

that the injuries were ones he “got on 9-29-16.” (ECF No. 41, pp. 16–25.)

19

10. Plaintiff did not submit a grievance concerning the allegations against Defendant prior to

20

the expiration of the fourteen-day period. (Porter Decl. ¶¶ 11–36 & Exs. 3–25.)

21

C.

22
23

Discussion
1.

Parties’ Positions

Defendant argues that Plaintiff did not exhaust his administrative remedies because

24

Plaintiff did not: (1) file any grievances regarding the excessive force allegations against

25

Defendant, (2) before the 14-day deadline, (3) or pursue a grievance through all required levels of

26

review. Defendant argues that the grievance process was available to Plaintiff, who filed

27

approximately seventeen grievances during his incarceration from September 29, 2016 through

28

March 6, 2017.
5

1

In opposition, Plaintiff argues that the Inmate Handbook available to inmates does not list

2

officer conduct as a possible grievance issue. Plaintiff further argues that he filed two grievances

3

before the 14-day deadline, and three total grievances describing the injuries caused by the

4

booking officers on September 29, 2016. Plaintiff alleges that FCJ does not permit the filing of

5

grievances against Doe defendants, and because he did not know the names of any of the officers

6

involved, including Defendant Maldonado, he was unable to file a grievance regarding the alleged

7

assault. Plaintiff states that he has finally learned the names of two Doe Defendants, and requests

8

that they be served. Plaintiff wishes to drop Doe Defendant #3 from the complaint. Finally,

9

Plaintiff states that he requires additional discovery pursuant to Local Rule 260(b), pertaining to

10

his medical records and the names of officers who brought discovery to Plaintiff on February 16,

11

2018.

12

In reply, Defendant argues that the grievances identified by Plaintiff relate only to medical

13

treatment, but do not allege excessive force or describe the alleged excessive force incident.

14

Defendant contends that Plaintiff’s ignorance of the officers’ names does not excuse or prevent

15

him from filing a grievance concerning the alleged assault, and his claimed ignorance of officer

16

conduct as a possible grievance issue is belied by other grievances filed by Plaintiff concerning

17

officer conduct. Finally, Defendant argues that the Court should grant summary judgment as to

18

the newly identified Doe Defendants, or, alternatively, issue an order to show cause why claims

19

against them should not be summarily adjudged.

20
21

2.

Plaintiff’s Failure to Exhaust Administrative Remedies

The Court finds that Defendant has carried the burden to demonstrate that there was an

22

available administrative remedy, but Plaintiff failed to exhaust that remedy in connection with his

23

excessive force claim against Defendant. None of the grievances identified by Plaintiff allege any

24

facts regarding an assault or use of excessive force by officers on September 29, 2016. At most,

25

Plaintiff states that he filed a grievance for “injuries [he] got on 9-29-16.” (ECF No. 41, p. 24.)

26

However, the remainder of that grievance identifies only medical complaints, and Plaintiff has

27

only checked “Medical” as the type of grievance. Furthermore, this grievance was submitted on

28

November 11, 2016, well after the 14-day deadline had expired. (Id.) Grievances which only
6

1

describe Plaintiff’s injuries in terms of requested medical care failed to place the jail on notice

2

that Plaintiff had an unresolved claim concerning excessive force, and are therefore not sufficient

3

to exhaust his administrative remedies with respect to the claim in this action.

4

The burden therefore shifts to Plaintiff to demonstrate that the existing and generally

5

available administrative remedy was effectively unavailable to him. The Court finds that Plaintiff

6

has failed to carry this burden. Plaintiff’s argument that he could not file a grievance prior to

7

learning the names of the booking officers involved is contradicted by the three grievances he

8

relies upon. Specifically, all three are directed at unidentified staff, such as “Nurses in Booking”

9

or “Medical Staff.” (Id. at 16, 20, 24.) The FCJ’s substantive responses to those three grievances

10

further indicate that Plaintiff had the ability to file a grievance without the names of any of the

11

officers involved in the excessive force claim at issue. (Id. at 17, 21, 25.)

12

Based on the foregoing, the Court finds that Plaintiff has not exhausted his administrative

13

remedies with regard to his excessive force claim against Defendant and that he should not be

14

excused from the failure to exhaust.

15

3.

Doe Defendants

16

On January 10, 2018, Doe Defendants #1, #2, and #3 were dismissed from this action,

17

without prejudice, pursuant to Federal Rule of Civil Procedure 4(m). (ECF No. 33.) Plaintiff

18

argues that he has finally identified Doe Defendants #1 and #2, and requests that they be served.

19

Defendant Maldonado, on the other hand, requests that the Court sua sponte grant summary

20

judgment on behalf of the newly-identified defendants, or, alternatively, issue an order to show

21

cause why claims against them should not be summarily adjudged.

22

The Court declines to take any of the requested actions with respect to the newly-

23

identified defendants. Though Defendant argues that the Court may grant summary judgment as

24

to a non-moving party when the moving party’s summary judgment motion reveals the absence of

25

a genuine dispute warranting judgment as to a non-movant, at this time, the Doe Defendants are

26

not parties to this action. The Doe Defendants are not on notice of the pendency of this action,

27

and have not had the opportunity to consent to or decline the jurisdiction of a Magistrate Judge.

28

As such, the undersigned lacks jurisdiction to enter a dispositive order regarding any of Plaintiff’s
7

1

claims against these individuals. Likewise, the Court declines to issue an order to show cause

2

requiring Plaintiff to respond with respect to claims no longer at issue in this action.

3
4

Should Plaintiff wish to pursue claims against the newly-identified defendants, those
claims were dismissed without prejudice, and may be re-filed if Plaintiff chooses to do so.

5

4.

Additional Discovery

With respect to Plaintiff’s requests for additional discovery, the Court has reviewed the

6
7

requests and finds that none are relevant to the exhaustion requirement. All the requests pertain

8

to Plaintiff’s medical records and subsequent discovery issues, and do not address the filing of

9

grievances or Plaintiff’s inability to do so prior to the filing of his complaint. Therefore, the

10

requests cannot serve as a basis for denial of Defendant’s motion pursuant to Local Rule 260(b),

11

and are denied as moot.

12

IV.

13

For the reasons discussed above, it is HEREBY ORDERED as follows:

Conclusion and Order

14

1. Defendant’s motion for summary judgment, (ECF No. 40), is GRANTED; and

15

2. Judgment shall be entered in favor of Defendant, and the Clerk of the Court is directed

16

to close this case.

17
18
19

IT IS SO ORDERED.
Dated:

/s/ Barbara

September 25, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

20
21
22
23
24
25
26
27
28
8