Hendrix v. Orozco-Soria, et al.

Filing 23

FINDINGS and RECOMMENDATION to Grant Defendant's Motion for Summary Judgment for Failure to Exhaust Administrative Remedies 18 , signed by Magistrate Judge Michael J. Seng on 4/9/2018: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE DEE HENDRIX III,

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Plaintiff,
v.
D. OROZCO-SORIA, et al.,

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Defendants.

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CASE NO. 1:17-cv-00750-DAD-MJS(PC)
FINDINGS AND RECOMMENDATION TO
GRANT DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT FOR FAILURE
TO EXHAUST ADMINISTRATIVE
REMEDIES
(ECF No. 18)
FOURTEEN-DAY DEADLINE

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

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action pursuant to 42 U.S.C. § 1983. The action proceeds against Defendant Astorga on

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Plaintiff’s Eighth Amendment claims of medical indifference and excessive force. (ECF

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Nos. 6, 16.)

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Defendant has moved for summary judgment on the ground that Plaintiff failed to

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exhaust administrative remedies. (ECF No. 18.) Plaintiff opposes the motion. (ECF No.

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21.) Defendant replied. (ECF No. 22.)

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For the reasons set forth below, the undersigned will recommend that Defendant’s
motion be granted.

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I.

Plaintiff’s Allegations

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Plaintiff’s allegations may be summarized as follows:

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On May 18, 2017, Correctional Officer Orozco-Soria1 conducted a search of

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Plaintiff’s property. Orozco-Soria “mentally and emotionally” bullied Plaintiff by

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threatening to destroy his personal property. During the encounter, Plaintiff informed

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Orozco-Soria that he was in need of mental health care. Plaintiff then punched a metal

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door and began to yell, demanding that he be taken to a mental health care provider. As

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a result of punching the door, Plaintiff broke his hands.

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Following the incident, Defendant Astorga arrived and, despite seeing Plaintiff’s

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injured hands, handcuffed Plaintiff so tightly the cuffs pinched Plaintiff’s skin and grinded

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against Plaintiff’s dislocated bones. Astorga also jerked Plaintiff’s arm violently. Plaintiff

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was then taken to be evaluated by medical personnel. When a nurse asked Astorga to

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remove Plaintiff’s handcuffs, Astorga refused, stating that Plaintiff was a “dangerous

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idiot.” After being evaluated by the nurse, Plaintiff’s arm was again “jerked,” causing

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Plaintiff pain. When Plaintiff complained, Astorga responded, “so what?”

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III.

Undisputed Facts

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A.

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Plaintiff filed one inmate appeal to the third level of review regarding this issue:

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Appeal Log No. VSP-17-00493

Appeal Log No.VSP-17-00493. (ECF No. 18-5 ¶ 8)

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The initial 602 grievance form was submitted on March 19, 2017, and Plaintiff

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requested that Orozco-Soria be put under investigation for abusing his power and

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refusing to refer Plaintiff to a mental health specialist. (Id. at 12.) Plaintiff alleged that

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Orozco-Soria threatened to destroy Plaintiff’s property during a room search and refused

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to allow Plaintiff to speak to a mental health care professional when Plaintiff became

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upset. (Id. at 13.) Plaintiff’s grievance indicates that, “I punched the steel door screaming

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I need help. Still Officer Orozco just laughed at me.” (Id.) Plaintiff’s only mention of

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Plaintiff originally brought claims against Orzoco-Soria as well, but those claims were dismissed. (See
ECF Nos.6, 16.)

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Defendant Astorga states, “With officer Astorga as my escort I went to TTA for my

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broken hands.” (Id.)

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This appeal was processed as an Appeal Inquiry and bypassed the first level of

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review. (Id. at 15-16.) Plaintiff received a response from the second level of review that

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Plaintiff’s allegations of staff misconduct against Orozco-Soria were reviewed and it was

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found that staff did not violate California Department of Corrections and Rehabilitation

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(“CDCR”) policy. (Id. at 16.) Defendant Astorga’s conduct was not addressed in the

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response. (Id.) Plaintiff and two witnesses were interviewed as a part of the investigation,

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and their responses do not mention Defendant Astorga. (Id.)

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On April 27, 2017, Plaintiff appealed to the third level of review. (Id. at 10-11.)

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Plaintiff stated that Orozco-Soria continued to bully him and that the investigators only

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asked his witnesses one question. (Id.) This appeal was denied. (Id. at 7.) The appeal

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reviewer found that Plaintiff’s allegations were properly reviewed and agreed with the

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determination of the second level reviewer that staff did not violate CDCR policy. (Id.)

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Defendant Astorga was not mentioned in the response. (Id.)

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IV.

Legal Standards

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A.

Summary Judgment Standards

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The court must grant a motion for summary judgment if the movant shows that

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there is no genuine dispute as to any material fact and the moving party is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the

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case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is

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sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id.

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at 248-49.

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The party moving for summary judgment bears the initial burden of informing the

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court of the basis for the motion, and identifying portions of the pleadings, depositions,

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answers to interrogatories, admissions, or affidavits which demonstrate the absence of a

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triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet
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its burden, “the moving party must either produce evidence negating an essential

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element of the nonmoving party's claim or defense or show that the nonmoving party

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does not have enough evidence of an essential element to carry its ultimate burden of

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persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,

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1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)

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(“When the nonmoving party has the burden of proof at trial, the moving party need only

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point out ‘that there is an absence of evidence to support the nonmoving party's case.’”)

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(quoting Celotex, 477 U.S. at 325).

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If the moving party meets its initial burden, the burden shifts to the non-moving

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party to produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins.

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Co., Ltd., 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or

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denials of the adverse party's evidence, but instead must produce admissible evidence

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that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at

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1076. If the non-moving party does not produce evidence to show a genuine issue of

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material fact, the moving party is entitled to judgment. See Celotex, 477 U.S. at 323.

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Generally, when a defendant moves for summary judgment on an affirmative

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defense on which he bears the burden of proof at trial, he must come forward with

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evidence which would entitle him to a directed verdict if the evidence went

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uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992).

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The failure to exhaust administrative remedies is an affirmative defense that must be

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raised in a motion for summary judgment rather than a motion to dismiss. See Albino v.

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Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for summary

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judgment for nonexhaustion, the defendant has the initial burden to prove “that there

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was an available administrative remedy, and that the prisoner did not exhaust that

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available remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to

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the prisoner to come forward with evidence showing that there is something in his

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particular case that made the existing and generally available administrative remedies

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effectively unavailable to him.” Id. The ultimate burden of proof remains with the
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defendant, however. Id. If material facts are disputed, summary judgment should be

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denied, and the “judge rather than a jury should determine the facts” on the exhaustion

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question, Id. at 1166, “in the same manner a judge rather than a jury decides disputed

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factual questions relevant to jurisdiction and venue,” Id. at 1170-71.

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In ruling on a motion for summary judgment, inferences drawn from the underlying

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facts are viewed in the light most favorable to the non-moving party. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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A verified complaint may be used as an opposing affidavit under Rule 56, as long

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as it is based on personal knowledge and sets forth specific facts admissible in

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evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995)

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(treating plaintiff's verified complaint as opposing affidavit where, even though

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verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of

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perjury that contents were true and correct, and allegations were not based purely on his

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belief but on his personal knowledge). Plaintiff’s pleading is signed under penalty of

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perjury and the facts therein are evidence for purposes of evaluating Defendant’s motion

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for summary judgment.

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B.

California’s Administrative Exhaustion Rules

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“No action shall be brought with respect to prison conditions under [42 U.S.C. §

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1983], or any other Federal law, by a prisoner confined in any jail, prison, or other

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correctional facility until such administrative remedies as are available are exhausted.”

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42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is

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mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Ross v. Blake, 136 S. Ct. 1850,

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1856-57 (2016) (mandatory language of § 1997e(a) forecloses judicial discretion to craft

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exceptions to the requirement). All available remedies must be exhausted; those

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remedies “need not meet federal standards, nor must they be ‘plain, speedy, and

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effective.’” Porter, 534 U.S. at 524. Even when the prisoner seeks relief not available in

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grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.;

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Booth v. Churner, 532 U.S. 731, 741 (2001). Section 1997e(a) requires “proper
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exhaustion” of available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93

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(2006). Proper exhaustion requires using all steps of an administrative process and

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complying with “deadlines and other critical procedural rules.” Id. at 90.

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The State of California provides its inmates and parolees the right to appeal

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administratively “any policy, decision, action, condition, or omission by the department or

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its staff that the inmate or parolee can demonstrate as having a material adverse effect

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upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order

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to exhaust available administrative remedies, a prisoner must proceed through three

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formal levels of appeal and receive a decision from the Secretary of the CDCR or his

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designee. Id. § 3084.1(b), § 3084.7(d)(3).

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The amount of detail in an administrative grievance necessary to properly exhaust

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a claim is determined by the prison's applicable grievance procedures. Jones v. Bock,

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549 U.S. 199, 218 (2007); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010)

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(“To provide adequate notice, the prisoner need only provide the level of detail required

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by the prison's regulations”). California prisoners are required to lodge their

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administrative complaint on a CDCR-602 form (or a CDCR-602 HC form for a health-

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care matter). The level of specificity required in the appeal is described in a regulation:

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The inmate or parolee shall state all facts known and
available to him/her regarding the issue being appealed at
the time of submitting the Inmate/Parolee Appeal form, and if
needed, the Inmate/Parolee Appeal Form Attachment.
Cal. Code Regs. tit. 15, § 3084.2(a)(4).

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Exhaustion of administrative remedies may occur if, despite the inmate's failure to

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comply with a procedural rule, prison officials ignore the procedural problem and render

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a decision on the merits of the grievance at each available step of the administrative

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process. Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); e.g., Id. at 659 (although

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inmate failed to identify the specific doctors, his grievance plainly put prison on notice

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that he was complaining about the denial of pain medication by the defendant doctors,

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and prison officials easily identified the role of pain management committee's

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involvement in the decision-making process).

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V.

Analysis

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Defendant moves for summary judgment on the ground that Plaintiff did not

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exhaust either of his claims against Defendant Astorga. Defendant argues that Appeal

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Log No. VSP-17-000493 did not alert prison officials that Defendant Astorga used

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excessive force or denied Hendrix adequate medical care.

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The evidence shows that Plaintiff only filed one appeal and it referred to

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Defendant Astorga only in passing and without complaint, stating that Astorga escorted

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Plaintiff to medical for his broken hands. (ECF No. 18-5 at 13.) Plaintiff argues that the

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word “escort” would indicate that Plaintiff was handcuffed and since his hands were

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broken that would serve to alert prison officials that the force used by Defendant Astorga

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was excessive.

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The word “escort” does not serve to alert prison officials to “the nature of the

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wrong for which redress is sought.” See Griffin, 557 F.3d at 1120. From Plaintiff’s appeal

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reasonable prison officials would be on notice only that Plaintiff was seeking an

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investigation into the alleged conduct of Correctional Officer Orozco-Soria. Plaintiff’s

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brief reference to Defendant Astorga does not alert prison officials to any alleged wrong

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done by Astorga. The word “escort” by itself does not serve to alert prison officials to

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Plaintiff’s current allegation that Defendant Astorga put handcuffs on Plaintiff too tightly,

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denied Plaintiff medical care for his broken hands, or otherwise mistreated Plaintiff in any

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way. It does not make any claim that would suggest Astorga used excessive force or

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was deliberately indifferent to Plaintiff’s medical needs. It does not give the prison the

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opportunity to address of the issues Plaintiff seeks to raise here. Plaintiff’s appeals did

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do not exhaust Plaintiff’s claims.

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Defendant has thus carried his burden to demonstrate that there were available

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administrative remedies for Plaintiff and that Plaintiff did not properly exhaust those

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available remedies. The undisputed evidence shows that California provides an
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administrative remedies system for California prisoners to complain about their health

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care, and that Plaintiff used that California inmate-appeal system to complain about

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other issues, but not about the alleged conduct of Defendant Astorga involved in this

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action.

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Plaintiff acknowledges that he only filed one appeal. This appeal did not exhaust

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his administrative remedies in regards to Defendant Astorga. Since Defendants met their

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initial burden of so showing, the burden shifts to Plaintiff to come forward with evidence

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that something in his particular case made the existing administrative remedies

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effectively unavailable to him. See Albino, 747 F.3d at 1172. Plaintiff argues that

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remedies were effectively unavailable to him because he has a mental health issue,

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which was known to prison officials, and therefore the government is estopped from

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raising any deficiencies in his grievance as a bar to his having exhausted. Plaintiff cites

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to 15 CCR 3084.5 which provides that “When an appeal indicates the inmate or parolee

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has difficulty describing the problem in writing . . . the appeals coordinator shall ensure

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that the inmate or parolee receives assistance in completing and/or clarifying the

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appeal.” (b)(1).

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However, Appeal VSP-17-000493 does not indicate that Plaintiff had difficulty in

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describing the problem in writing. In Appeal VSP-17-000493 Plaintiff fully described his

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complaint against Correctional Officer Orozco-Soria and pursued this appeal to the final

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level of review. Plaintiff did not indicate in his initial grievance or any subsequent appeal

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that he needed assistance in describing any problems he was wishing to grieve and

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there is no evidence that Plaintiff requested any assistance in the second level interview

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that was conducted. Plaintiff’s argument, therefore, does not indicate that remedies were

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effectively unavailable to Plaintiff.

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Defendant has met his burden of showing that administrative remedies were

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available to Plaintiff, and that Plaintiff failed to exhaust them. Accordingly, Defendant’s

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motion for summary judgment should be granted

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VI.

Conclusion

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Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendant’s

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motion for summary judgment for failure to exhaust administrative remedies be

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GRANTED.

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The findings and recommendation will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond

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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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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, 839 (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 9, 2018

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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