Jones v. Oliveira, et al.

Filing 47

FINDINGS and RECOMMENDATIONS to GRANT Defendants' 34 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies; Referred to Judge Lawrence J. O'Neill, signed by Magistrate Judge Sheila K. Oberto on 12/23/2019. Objections to F&R due within TWENTY-ONE (21) DAYS. (Orozco, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES B. JONES,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS
TO GRANT DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT FOR FAILURE
TO EXHAUST ADMINISTRATIVE
REMEDIES

Defendants.

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1:17-cv-01311-LJO-SKO (PC)

(Doc. 34)

v.
J. GARCIA, et al.,

21-DAY DEADLINE

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Defendants Garcia, Ortega, and Sauceda move for summary judgment on the grounds that

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Plaintiff failed to exhaust administrative remedies prior to filing suit. (Doc. 34.) Plaintiff filed an

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opposition to Defendants’ motion on December 2, 2019, and Defendants filed a reply. (Docs. 44,

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45.) For the reasons set forth below, the Court recommends that Defendants’ motion be

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GRANTED and that this action be DISMISSED without prejudice.
LEGAL STANDARDS

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A. Summary Judgment

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Summary judgment is appropriate when the moving party “shows 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. R.

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Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine

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issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by

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“citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations …, admissions,

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interrogatory answers, or other materials,” or by showing that such materials “do not establish the

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absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

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evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears

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the burden of proof at trial, “the moving party need only prove that there is an absence of

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evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex,

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477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

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Summary judgment should be entered against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on which that

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party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of

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

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facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted,

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“so long as whatever is before the district court demonstrates that the standard for the entry of

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summary judgment … is satisfied.” Id. at 323.

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B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 provides that “[n]o action shall be brought with

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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies as are

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

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mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,

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211. Inmates are required to “complete the administrative review process in accordance with the

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applicable procedural rules, including deadlines, as a precondition to bringing suit in federal

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court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all

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inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the

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relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S.

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731, 741 (2001).
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The failure to exhaust administrative remedies is an affirmative defense, which the

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defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of

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producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if

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the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff

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failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). On a motion for summary

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judgment, the defendant must prove (1) the existence of an available administrative remedy and

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(2) that Plaintiff failed to exhaust that remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir.

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2015) (citations omitted). If the defendant meets this burden, “the burden shifts to the plaintiff,

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who must show that there is something particular in his case that made the existing and generally

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available administrative remedies effectively unavailable to him….” Id. If the plaintiff fails to

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meet this burden, the court should dismiss the unexhausted claims or action without prejudice.

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See Lira v. Herrera, 427 F.3d 1164, 1175 (9th Cir. 2005).

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DISCUSSION
A. Plaintiff’s Allegations
Plaintiff Garcia was housed at California State Prison, Corcoran, during all times relevant

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to this case. (Doc. 34-5, Defendants’ Statement of Undisputed Facts, at 2.) Plaintiff alleges that

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Defendant-Correctional Officers Garcia, Ortega, and Sauceda retaliated against him for filing

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administrative grievances and court actions. (Doc. 21 at 4-6; see also Doc. 22 at 2.) Specifically,

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Plaintiff alleges that Defendants destroyed his property and placed him in administrative

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segregation based on a false claim that he would stab a correctional officer. (Doc. 21 at 5-6, 20-

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21.) Plaintiff learned of Defendants’ actions on August 21, 2017. (Id. at 21.) On that date, when

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Plaintiff indicated that he was going to file a grievance for Defendants’ conduct, Garcia

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threatened to circulate a false claim that Plaintiff is “a convicted child molester, and serial rapist,

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and have [him] kicked back to this yard to see how long [he] last[s] until these guys kill [him].”

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(Id. at 22.) Plaintiff was so scared by the threat that he went on a hunger strike to be placed on

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suicide watch at “Wasco Mental Health.” (Id. at 22.)

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B. CDCR Grievance Process
The CDCR has an administrative grievance system for prisoners to appeal a policy,
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decision, action, condition, or omission by the department or staff if it has an adverse effect on

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prisoner health, safety, or welfare. Cal. Code Regs., tit. 15, § 3084.1(a). Compliance with 42

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U.S.C. section 1997e(a) requires California state prisoners to use CDCR’s grievance process to

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exhaust their claims before filing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir.

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2010); see also Woodford, 548 U.S. at 85-86. All administrative appeals are subject to three levels

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of review before the remedy is deemed exhausted. Cal. Code Regs., tit. 15, § 3084.1(b); see also

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Sapp, 623 F.3d at 818.

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C. Defendants’ Motion
1. Plaintiff failed to exhaust administrative remedies
Defendants contend that Plaintiff failed to exhaust CDCR administrative remedies before

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initiating this lawsuit on October 2, 2017. (Doc. 34-2 at 9.) According to the uncontested facts,

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Plaintiff exhausted one administrative appeal between August 21, 2017, the date Plaintiff learned

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of Defendants’ alleged misconduct, and October 2, 2017, the date Plaintiff filed his original

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complaint. (Doc. 34-5 at 2-3; Doc. 21 at 20.) However, the exhausted appeal (log no. OOA-17-

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01794) is not related to the claims in this case. (See Doc. 34-5 at 3). Rather, the appeal concerns a

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rules violation report issued against Plaintiff in 2016. (See Doc. 34-3, Ex. B.) Thus, with respect

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to the claims raised in this action, Plaintiff did not exhaust administrative remedies before filing

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his original complaint.

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Plaintiff filed a first amended complaint (FAC), the operative complaint, on October 22,

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2018. (Doc. 21.) Plaintiff’s FAC is identical to his original complaint, except for a date change

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and the dismissals of certain defendants. (Compare Doc. 1 with Doc. 21; see also Doc. 22.)

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Therefore, Plaintiff raises no new claims in his FAC, and he must have exhausted all claims in his

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FAC before he filed his original complaint. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th

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Cir. 2002) (holding that dismissal is required if prisoner does not exhaust prior to filing a

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complaint, even if he exhausts during the course of litigation); cf. Rhodes v. Robinson, 621 F.3d

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1002, 1007 (9th Cir. 2010) (holding that, where plaintiff exhausts new claims raised in an

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amended complaint before filing the amended complaint, exhaustion requirement is satisfied with

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respect to the new claims). Because Plaintiff failed to exhaust administrative remedies related to
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this case before filing his original complaint, the Court recommends dismissal of this action.

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2. Plaintiff is not excused from failing to exhaust

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In his opposition, Plaintiff contends that Defendants’ motion should be denied because (1)

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CDCR’s administrative grievance system does not provide adequate remedies, (Doc. 44 at 2, 14-

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18), and (2) Defendants threatened to harm him if he filed an administrative grievance, rendering

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the remedy effectively unavailable, (id. at 5-8, 18).
Plaintiff’s arguments are unavailing. With respect to his first argument, Plaintiff states that

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CDCR does not award damages to inmates and will not award equitable relief “against one of

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their own.” (Id. at 2, 3.) Plaintiff further states that no relief provided by CDCR can “turn[] back

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the hands of time,” and thus any potential relief for his First Amendment retaliation claim would

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be inadequate. (Id. at 15.) However, the Supreme Court has made clear “that an inmate must

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exhaust irrespective of the forms of relief sought and offered through administrative avenues.”

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Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). In other words, the type of remedy does not

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eliminate the exhaustion requirement; as long as some remedy is available, exhaustion is

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mandatory. See id. at 738-41. Plaintiff admits that some remedy is available, at least with respect

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to his loss of property claim.1 (Doc. 44 at 15.) Even if CDCR’s available remedies are adequate

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only with respect to his property claim, and inadequate with respect to his retaliation claim,

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Plaintiff’s need to exhaust remains.
Regarding his second argument, Plaintiff states that Officer Garcia’s threats discouraged

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him from pursuing an administrative appeal. (Id. at 8.) Plaintiff is correct that “the threat of

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retaliation for reporting an incident can render the prison grievance process effectively

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unavailable,” McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015); and, if true, Garcia’s threats

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against Plaintiff are reprehensible. However, in order to excuse his failure to exhaust, the threats

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against Plaintiff must have actually deterred him from filing a grievance. See id. at 987-88. Here,

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they did not.

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Plaintiff states that, once he felt safe enough, he filed two grievances for the incidents
underlying this action: the first on September 7, 2017 (log no. CSPC-7-17-05076), 17 days after
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Plaintiff voluntarily dismissed his property claims in his first amended complaint. (See Doc. 44 at 14-15.)

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the incidents in question, and the second on October 22, 2017 (log no. COR-17-05555). (See Doc.

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44 at 8; see also Doc. 34-3 at 125 and Doc. 34-4 at 51.) CDCR processed the first appeal at the

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first and second levels of review, (see Doc. 34-4 at 50, 55-56); but, Plaintiff did not appeal the

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decision to the third level. (Doc. 34-5 at 4). Thus, he did not exhaust this claim. See Cal. Code

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Regs., tit. 15, § 3084.1(b); see also Sapp, 623 F.3d at 818. CDCR did process the second appeal

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at all three levels of review, (see Doc. 34-3, at 129-33); hence, Plaintiff exhausted this claim at

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the conclusion of the third level on August 13, 2018. (See Doc. 34-3 at 123.)

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The foregoing demonstrates that Plaintiff was not deterred from filing grievances to the
point where the grievance process was “effectively unavailable.” See McBride, 807 F.3d at 987;

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see also Gaines v. Beasley, No. 1:15-cv-1533-LJO-JLT, 2018 WL 5270539, at *7 (E.D. Cal.

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2018) (“fact that plaintiff filed several appeals during the relevant period alleging retaliation or

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staff misconduct despite threats” shows that the objective test of McBride has not been met).

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Plaintiff filed a grievance only two weeks after the incidents in question, as well as a second

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grievance two months after the incidents. Although Plaintiff exhausted the second grievance in

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August 2018, he provides no justification for why he filed suit in October 2017—nearly one year

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before he exhausted his administrative remedies in August 2018. Courts have made clear that

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exhaustion is mandatory prior to bringing suit, even if exhaustion occurs during the course of

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litigation, as it does here. See McKinney, 311 F.3d at 1199. Because Plaintiff did not exhaust prior

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to initiating this action, dismissal is required under 42 U.S.C. § 1997e(a). See id.

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CONCLUSION AND RECOMMENDATIONS

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Based on the foregoing, the Court recommends that Defendants’ motion for summary

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judgment, (Doc. 34), be GRANTED and that this action be DISMISSED without prejudice.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days

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of the date of service of these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time

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may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

December 23, 2019

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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