(PC)Maea v. Pfeiffer et al

Filing 62

ORDER GRANTING Defendants' Motion for Judicial Notice; FINDINGS and RECOMMENDATIONS to Grant in Part Defendants' Exhaustion Based 42 Motion for Summary Judgment signed by Magistrate Judge Helena M. Barch-Kuchta on 8/29/2024. Referred to Judge Kirk E. Sherriff. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERNEST MAEA,

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Plaintiff,

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Case No. 1:22-cv-00362-KES-HBK (PC)
ORDER GRANTING DEFENDANTS’
MOTION FOR JUDICIAL NOTICE

v.
(Doc. No. 42-3)
CHRISTIAN PFEIFFER, et al.,

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FINDINGS AND RECOMMENDATIONS TO
GRANT IN PART DEFENDANTS’
EXHAUSTION BASED MOTION FOR
SUMMARY JUDGMENT1

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(Doc. No. 42)

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14-DAY DEADLINE

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Defendants.

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Pending before the Court is the Motion for Summary Judgment filed by Defendants

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Michael Felder, Christian Pfeiffer, Lt. A. Martinez, Sgt. J. Anderson, and Capt. D. Goree on

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August 14, 2023. (Doc. No. 42, “MSJ”). Included within Defendants’ Motion is a Motion for

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Judicial Notice. (Doc. No. 42-3). Plaintiff, represented by counsel, filed an Opposition (Doc. No.

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56), and Defendant filed a Reply (Doc. No. 57). For the reasons set forth below, the undersigned

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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
(E.D. Cal. 2023).

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grants the Motion for Judicial Notice and recommends Defendants’ MSJ be granted in part and

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denied in part.

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I.

BACKGROUND

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A. Summary of Plaintiff’s Operative Complaint

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Plaintiff Ernest Maea (“Plaintiff” or “Maea”), a state prisoner represented by counsel

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proceeds on his First Amended Complaint filed pursuant to 42 U.S.C § 1983. (Doc. No. 8,

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“FAC”). The events giving rise to Plaintiff’s claims occurred at Kern Valley State Prison

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(“KVSP”). (Id. at 2). The FAC remains pending2 against the following as Defendants in their

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individual capacities: (1) KVSP Warden Christian Pfeiffer3; (2) KVSP Health Care CEO Michael

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Felder4; (3) Lieutenant A. Martinez; (4) Captain D. Goree5; and Does 1-20. (Doc. No. 8 at 3-4).

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The FAC collectively refers to Martinez, Anderson, and Goree as “Defendant CO’s.” (Id. at 4 ¶

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12).

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According to the FAC, on October 9, 2020 Defendant CO’s and Doe Defendants6 rushed

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to the scene of an unprovoked attack by four inmates on Plaintiff immediately spraying all of the

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inmates with OC spray while shouting orders for the inmates to desist and drop down to the floor.

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(Id. at 5 ¶ 18). Despite Plaintiff and the other inmates complying with orders, ceasing fighting

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and laying on the ground, Defendant CO’s threw a flash grenade that landed near Plaintiff’s face.

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(Id. at 5-6 ¶¶ 19-20). The flash grenade detonated and ignited the pepper spray on Plaintiff’s

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beard and face mask. (Id. ¶ 21). While Plaintiff was struggling to remove his face mask, an

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unidentified Defendant CO7 who was a few feet away sprayed OC spray directly into Plaintiff’s

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The Court granted Defendants’ Motion to Dismiss Kern Valley State Prison and California Department
of Corrections from the First Amended Complaint. (Doc. No. 28).
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The FAC correctly identifies Defendant “Christian Pfeiffer” as the Warden in the caption but in the body
of the FAC incorrectly refers to this Defendant’s forename as “Christina.” (Compare Doc. No. 8 at 1 with
3, ¶10). The Court assumes this is a scrivener’s error.
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Similarly, the FAC correctly identifies Defendant Michael Felder in the caption but in the body of the
FAC incorrectly refers to this Defendant forename as “Michel.” (Compare Doc. No. 8 at 1 with 4, ¶12).
The Court assumes this is a scrivener’s error.
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Plaintiff identifies this Defendant’s surname as “Gorels” in the FAC. In their Answer, Defendants note
the correct spelling as “Goree.” (Doc. No. 17 at 3:1-2). The Court will direct the Clerk to correct the
spelling on the docket.
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Plaintiff sued Does 1-20, but to date no substitution has been made for any of the Doe Defendants. (See
Doc. No. 42-1 at 7).
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Plaintiff does not specify which of the three Defendant Cos performed this act.

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face causing the flames to spread from Plaintiff’s facial mask to his entire face and upper torso.

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(Id. ¶ 22). The same unidentified Defendant CO then stomped on Plaintiff’s with his boot in “an

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extremely reckless and misguided attempt to put out the flames.” (Id. ¶ 23). The Defendant CO’s

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“began to beat Plaintiff’s bottom half of his body with batons.” (Id.). And despite the Defendant

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COs witnessing the beating, none intervened. (Id. ¶ 24).

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As Plaintiff was led back to his cell, he felt the skin peeling off his face and requested

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medical attention, but Defendant COs refused to take him to the infirmary. (Id. ¶ 25). After

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Plaintiff continued to complain that he needed medical attention, later that day he was seen by

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medical staff, who described his burns as “skin irritation” akin to a “bad sunburn” and provided

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him only with Tylenol. (Id. at 7 ¶ 26). On October 11, 2020, Plaintiff sought further medical

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attention and was prescribed “weak pain medications” that were inadequate to treat his pain. (Id.

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¶ 28). Plaintiff was seen by a nurse of October 12, 2020 who noted Plaintiff was “shaking” in

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pain and his blood pressure was elevated. (Id. at 7, ¶ 30). On October 14, 2020, Plaintiff again

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requested medical care and was seen by medical staff, who described his burns as “superficial”

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even though his facial hair had been burned off and his skin had become infected and discolored.

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Unspecified “Defendants” prescribed Plaintiff ibuprofen. (Id. at 7-8 ¶ 31). On October 27, 2020,

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Plaintiff was sent out for medical attention after the Prison Law Office contacted CDCR on

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Plaintiff’s behalf. (Id. at 8 ¶¶ 32-36). Plaintiff has extensive scars on his face from the burns,

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experiences increased infections from minor cuts and or scrapes on his face, ingrown facial hair,

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and increased sensitivity to any contact on his face. Plaintiff has also been diagnosed with

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temporomandibular joint (“TMJ”) and continues to experience pain, discomfort, and difficulty

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opening and closing his mouth from the Defendants CO’s stomping on his face. (Id. at 8-9 ¶¶ 37-

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38). Plaintiff has also lost vision in his right eye, which may be permanent and has caused

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Plaintiff to experience severe headaches and migraines and difficulty sleeping. (Id. at 9 ¶ 38).
The FAC alleges claims of excessive use of force,8 violation of the Bane Act, battery,

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against Defendants Pfeiffer, Martinez, Anderson, and Goree (First, Third, and Fourth Causes of

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The FAC cites to the Eighth and Fourteenth Amendment in support of Plaintiff’s excessive use of force claim. As

an incarcerated prisoner, Plaintiff’s claims stem for the Eighth, not the Fourteenth Amendment. See
Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015).

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Action); claims of cruel and unusual punishment, negligence, and violation of Government Code

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§ 845.6 against Defendants Felder, Pfeiffer, Martinez, Anderson, and Goree (Second, Fifth and

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Sixth Causes of Action). Specifically, as to Defendant KVSP Warden Christian Pfeiffer, the

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FAC alleges that Pfieffer failed to enforce policy, train, supervise, discipline subordinates,

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provide medical care, intervene, and used excessive force; as to Defendant Felder, the FAC

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alleges that Felder failed to properly train, supervise, and provide adequate medical care, and

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failed to punish actors who deprived Plaintiff of immediate and adequate medical care; discipline

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subordinates, provide medical care, intervene, and used excessive force; as to Defendants

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Martinez, Anderson, and Goree, the FAC alleges these “Defendant Cos” used excessive force,

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failed to intervene, and failed to provide immediate medical care. As relief, Plaintiff seeks

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damages, attorney’s fees, and costs. (Id. at 18).

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II.

DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE

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Defendants submit a Request for Judicial Notice In Support of their Motion for Summary

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Judgment. (Doc. No. 42-3). Defendants request the Court to take judicial notice of the following

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documents:

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1. Plaintiff’s government claim form submitted to the Department of General Services
(DGS) received April 14, 2021 (Exhibit A).
2. Plaintiff’s amended government claim form submitted to the DGS received May 27,
2021 (Exhibit B).

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3. The DGS’ response rejecting Plaintiff’s claim served September 28, 2021 (Exhibit C).

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4. The DGS certification that Exhibits A-C are true and correct copies of documents

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constituting the record of Plaintiff’s claim number 21003597.
Plaintiff did not file any opposition to the request for judicial notice.
Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not

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subject to reasonable dispute” because they are either “generally known within the trial court’s

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territorial jurisdiction,” or they “can be accurately and readily determined from sources whose

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accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts may “take judicial

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notice of a record of a state agency not subject to reasonable dispute.” City of Sausalito v.

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O’Neill, 386 F.3d 1186, 1223 n.2 (9th Cir. 2004); see also Anderson v. Holder, 673 F.3d 1089,

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1094 n.1 (9th Cir. 2012) (holding courts “may take judicial notice of records and reports of

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administrative bodies” (internal quotation marks omitted)).

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Defendants request the Court take judicial notice of documents comprising the record of

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Plaintiff’s administrative claim before DGS for claim number 21003597. These documents are

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certified as true and correct copies by DGS. Thus, the existence of these documents is not subject

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to reasonable dispute. Accordingly, the Court finds the existence and contents of these

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documents appropriate for judicial notice and grants Defendants’ request. However, the Court

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may not take judicial notice of the facts contained within those documents. See Walker v.

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Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. 2006).9

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III.

PARTIES’ POSITIONS

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A. Defendants’ Exhaustion-Based Motion for Summary Judgment

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Defendants filed the instant exhaustion based MSJ on August 14, 2023. (Doc. No. 42). In

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support, Defendants submit a Memorandum of Points and Authorities (Doc. No. 42-1); a

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Statement of Undisputed Material Facts (Doc. No. 42-2); a Request for Judicial Notice (Doc. No.

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42-3); and the Declarations of C. Garcia (Doc. No. 42-4), B. Hancock (Doc. No. 42-5), C.

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Henderson (Doc. No. 42-6), and Howard Moseley (Doc. No. 42-7), each containing attached

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exhibits. Defendants contend the uncontroverted evidence proves Plaintiff did not properly and

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fully exhaust his available administrative grievances regarding his claims against Defendants

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The Court notes the apparent discrepancy between the Defendants named in Plaintiff’s FAC as having
used excessive force against Plaintiff and having denied him medical care (Defendants Martinez,
Anderson, and Goree), and those cited in Plaintiff’s Amended Government Claim as having done so. The
latter document states, “On information and belief, the following correctional officers were present,
witnessed, and/or were directly involved in the assault and excessive use of force against Maea on or about
October 9, 2020: S. Silva, G. Villagomez, R. Garcia, E. Prieto, and Valero.” (Doc. No. 42-3 at 20). The
Amended Government Claims Form lists Defendants Martinez, Anderson, and Goree as “Employees
Against Whom the Claim is Filed” but does not list them among those who were “present, witnessed,
and/or were directly involved” in the incident. At this stage of the proceedings, the Court must accept as
true Plaintiff’s factual assertions in the FAC. It thus, addresses whether Plaintiff exhausted his
administrative remedies as the claims as articulated against the named Defendants. Thus, the apparent
discrepancy is not relevant to the issues currently before the Court.
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Felder, Pfeiffer, Anderson, Martinez, and Goree before filing this suit. (See generally Doc. No.

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42-1).

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Defendants attach the two custody grievances and two health care grievances Plaintiff

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submitted to correctional officials regarding the October 9, 2020 incident and the staff response to

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the grievances. As to Custody Grievance Log No. 71069, Defendants assert that it was not

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properly exhausted because (1) Plaintiff submitted it directly to the Office of Appeals, rather than

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the Office of Grievances, (2) the grievance does not name or describe the actions of the named

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Defendants, and (3) Plaintiff failed to appeal the Office of Appeal’s February 2021 reassignment

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of the grievance to Kern Valley State Prison. (Id. at 20-23). As to Custody Grievance Log No.

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57803, Defendants assert it was not properly exhausted because (1) it was not timely submitted,

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(2) the grievance does not name or describe the actions of the named Defendants, and (3) Plaintiff

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failed to appeal the rejection of the custody claim within his grievance as untimely. (Id.). As to

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Health Care Grievance Log Nos. 20000877 and 20000920, Defendants assert they were not

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properly exhausted because the grievances do not name nor describe the actions of any named

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Defendant. (Id. at 24-25).

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B. Plaintiff’s Opposition to Defendants’ Exhaustion-Based MSJ

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After being granted multiple extensions of time, Plaintiff filed an Opposition to the MSJ

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on January 23, 2024. (Doc. No. 56). In support, Plaintiff submits (1) a Statement of Undisputed

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Material Facts, (Doc. No. 56-1), (2) a Statement of Disputed Material Facts, (Doc. No. 56-2), (3)

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the Declaration of Colleen Mullen with various exhibits (Doc. No. 56-3), (4) Plaintiff’s

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Declaration (Doc. No. 56-18), and (5) Plaintiff’s Objections to Evidence Filed in Support of

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Defendants’ Motion (Doc. No. 56-19).

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Plaintiff asserts that Defendants’ Motion should be denied because there are genuine

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disputes of material fact as to (1) whether the prison grievance system was available to Plaintiff

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while he was being held in the administrative segregation unit, (2) whether Plaintiff exhausted

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those administrative remedies that were available to him, (3) and whether Plaintiff’s grievances,

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despite not naming the Defendants, sufficiently put prison officials on notice to satisfy the

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requirements of the Prison Litigation Reform Act. (See generally Doc. No. 56-1).
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C. Defendants’ Reply in Support of their Exhaustion-Based MSJ

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In their Reply, Defendants largely reiterate the arguments set forth in their moving brief as

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to why none of Plaintiff’s four grievances exhausted his administrative remedies. (See generally

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Doc. No. 57). Additionally, Defendants contend that Plaintiff’s claims regarding the

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unavailability of the grievance process should have been raised in a separate grievance. (Id. at 2).

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Further, they argue that the facts do not reflect those obstacles prevented Plaintiff from filing his

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grievances, but rather that he simply filed them incorrectly. (Id.).

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IV.

DISCUSSION

A. Summary Judgment Standard
Summary judgment is appropriate when there is “no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

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material where it is (1) relevant to an element of a claim or a defense under the substantive law

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and (2) would affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242,

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247 (1987).

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The party moving for summary judgment bears the initial burden of proving the absence

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of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When

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the moving party has met this burden, the nonmoving party must go beyond the pleadings and set

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forth specific facts by affidavits, deposition testimony, documents, or discovery responses,

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showing there is a genuine issue that must be resolved by trial. See Fed. R. Civ. P. 56(c)(1);

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Pacific Gulf Shipping Co. v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir.

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2021). A mere “scintilla of evidence” in support of the nonmoving party’s position is

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insufficient. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Rather, the

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evidence must allow a reasonable juror, drawing all inferences in favor of the nonmoving party,

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to return a verdict in that party’s favor. Id.

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In an exhaustion-based summary judgment motion, the defendant bears the initial burden

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of establishing “that there was an available administrative remedy, and that the prisoner did not

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exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the

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defendant carries that burden, “the burden shifts to the prisoner to come forward with evidence
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showing that there is something in his particular case that made the existing and generally

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available administrative remedies effectively unavailable to him.” Id. The ultimate burden of

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persuasion remains, however, with defendant. Id.

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The Court has carefully reviewed and considered all arguments, points and authorities,

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declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and

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other papers filed by the parties. The omission to an argument, document, paper, or objection is

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not to be construed that the Court did not consider the argument, document, paper, or objection.

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Instead, the Court thoroughly reviewed and considered the evidence it deemed admissible,

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material, and appropriate for purposes of this Order.

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B. Exhaustion Under the PLRA

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Under the PLRA, “[n]o action shall be brought with respect to prison conditions under [42

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U.S.C. § 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.” 42 U.S.C.

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§ 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life,” including

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Bivens claims. Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). Exhaustion is a condition

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precedent to filing a civil rights claim. Woodford v. Ngo, 548 U.S. 81, 93 (2006).

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The PLRA recognizes no exception to the exhaustion requirement, and the court may not

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recognize a new exception, even in “special circumstances.” Ross v. Blake, 578 U.S. 632, 648

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(2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the

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prisoner.” Id. at 639. A prison’s internal grievance process controls whether the grievance

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satisfies the PLRA exhaustion requirement. Jones v. Bock, 549 U.S. 199, 218 (2007).

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An inmate must exhaust available remedies but is not required to exhaust unavailable

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remedies. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc). “To be available, a

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remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Id.

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(quoting Brown v. Valoff, 422 F.3d 926, 936–37 (9th Cir. 2005)). “Accordingly, an inmate is

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required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain

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‘some relief for the action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (quoting

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Booth v. Churner, 532 U.S. 731, 738 (2001)).
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Failure to exhaust under the PLRA is “an affirmative defense the defendant must plead

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and prove.” Jones, 549 U.S. at 204. It is the defendant’s burden to prove that there was an

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available administrative remedy, and that the prisoner failed to exhaust that remedy. Albino, 747

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F.3d at 1172. “Once the defendant has carried that burden, the prisoner has the burden of

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production. That is, the burden shifts to the prisoner to come forward with evidence showing that

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

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remedies effectively unavailable to him.” Id. If the court concludes that the prisoner failed to

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exhaust available administrative remedies, the proper remedy is dismissal without prejudice. See

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Jones, 549 U.S. at 223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 2005).

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C. CDCR Custody Grievance Process

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For grievances received by prison officials on or after June 1, 2020, the California prison

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grievance system has two levels of review. Cal. Code Regs. tit. 15, §§ 3480-3487. Section

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3481(a) provides that an inmate can “submit a written grievance containing one or more claims

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. . . to dispute a policy, decision, action, condition, or omission by the Department or

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departmental staff that causes some measurable harm to their health, safety, or welfare.” Id.,

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§ 3481(a). Section 3482(c) directs that an inmate must follow this procedure to submit a

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grievance:

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(1) type or print legibly on an official form CDCR 602-1 (03/20) or
complete the form electronically, if available;
(2) describe all information known and available to the claimant
regarding the claim, including key dates and times, names and titles
of all involved staff members (or a description of those staff
members), and names and titles of all witnesses, to the best of the
claimant’s knowledge;
(3) describe any attempt to resolve the claim informally and, if
there was such an attempt, provide the details of that attempt,
including key dates and times, names and titles of all involved staff
members (or a description of those staff members), and the results
of that attempt, to the best of the claimant’s knowledge;

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(4) include all supporting documents available to the claimant
related to the claim or identify to the best of the claimant's ability
all relevant records with sufficient specificity for those records to
be located; and

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(5) sign and date the form CDCR 602-1 (03/20).

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Cal. Code Regs. tit. 15, § 3482(c). An inmate must submit the grievance within 30 days of the

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incident he is challenging. Id., § 3482(b).

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Once an inmate has submitted a CDCR 602-1, the Institutional or Regional Office of

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Grievances (“OOG”) must provide a written decision that clearly explains the reasoning for its

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decision as to each claim contained in the grievance. Cal. Code Regs. tit. 15, § 3481(a). Within

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30 days of the OOG decision, the inmate may appeal to the Office of Appeals (“OOA”), which

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must also provide a written decision to the inmate that clearly explains the reasoning for its

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decision as to each of the inmate’s claims. Id., §§ 3481(a), 3485(b). The regulations provide that

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the grievance is exhausted once the OOA completes its review. Id., § 3486(m).

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The regulations set forth two principal time constraints on officials reviewing an inmate’s

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grievance. First, an official who receives a grievance, either at the OOG or the OOA level of

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review, must provide the inmate with a notice of receipt within 14 days of filing. Id., §§ 3483(f),

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3486(f). The notice must include the date the grievance was received and the deadline for

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authorities to respond to the grievance. Id. The response deadline is provided in §§ 3483(i) for

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the OOG and 3486(i) for the OOA -- both entities have 60 days from the date of receipt to issue

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their written responses to the grievance unless a shorter time is mandated by other law.

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D. CDCR Health Care Grievance Procedures

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During the applicable time, CDCR’s health grievance process involved a two-step

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procedure for addressing an inmate’s health care concerns. See Cal. Code Regs. tit. 15,

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§ 3999.225, et seq. First, “[t]he grievant shall complete Section A of the CDCR 602 HC and

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submit to the HCGO [Health Care Grievance Office] where the grievant is housed within 30

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calendar days of: (1) The action or decision being grieved, or; (2) Initial knowledge of the action

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or decision being grieved.” Cal. Code Regs. tit. 15, § 3999.227(b); see also id., § 3999.225(n)

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(defining HCGO). “The grievant shall document clearly and coherently all information known

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and available to him or her regarding the issue … includ[ing] any involved staff member’s last

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name, first initial, title or position, and the date(s) and description of their involvement. If the

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grievant does not have information to identify involved staff member(s), the grievant shall

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provide any other available information that may assist in processing the health care grievance.”
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Id., § 3999.227(g); see also, e.g., Robinson v. Cryer, 2023 WL 3007344, at *6–7 (E.D. Cal. Apr.

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19, 2023), report and recommendation adopted, 2023 WL 3625266 (E.D. Cal. May 24, 2023)

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(finding medical grievance that did not identify certain defendants did not exhaust plaintiff’s

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administrative remedies with respect to those defendants).

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Second, “[i]f dissatisfied with the institutional level health care grievance disposition, the

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grievant may appeal the disposition … to HCCAB [Health Care Correspondence and Appeals

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Branch] . . . within 30 calendar days plus five calendar days for mailing . . . .” Cal. Code Regs.

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tit. 15, § 3999.229(a); see also id., § 3999.225(l) (defining HCCAB). “The headquarters’ level

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review constitutes the final disposition on a health care grievance and exhausts administrative

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remedies . . . .” Id., § 3999.230(h), see also id. § 3999.226(g) (“Health care grievances are

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subject to a headquarters’ level disposition before administrative remedies are deemed exhausted

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pursuant to section 3999.230. A health care grievance or health care grievance appeal rejection

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or withdrawal does not exhaust administrative remedies.”) (emphasis added).

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E. Exhaustion of State Law Claims

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The PLRA does not apply to state law claims. See 42 U.S.C. § 1997e(a) (requiring

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exhaustion of administrative remedies for actions pursuant to § 1983 or other federal laws); see

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also Franklin v. McDonnell, 2018 WL 6991084, at *7 (C.D. Cal. Nov. 20, 2018) (PLRA does not

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apply to state law negligence claim). However, under California state law “a prisoner must

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exhaust available administrative remedies before seeking judicial relief.” Wright v. State of Cal.,

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122 Cal.App.4th 659, 664-65 (2004). Additionally, California’s exhaustion requirement is

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jurisdictional. Id. at 655; Upshaw v. Superior Court, 22 Cal. App. 5th 489, 505-06 (2018).

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Compliance with the California Tort Claims Act does not excuse an inmate’s failure to exhaust

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his administrative remedies by filing a grievance. See Wright, 122 Cal. App. 4th at 663-64, 670-

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71 (dismissing state-law claims for failure to exhaust administrative remedies even though inmate

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filed timely government claim); Parthemore v. Col, 221 Cal. App. 4th 1372, 1376 (2013) (stating

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“obligation to exhaust the administrative remedies available to prisoners concerning the medical

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treatment they receive is independent of the obligation to comply with the Government Claims

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Act”); see also Velazquez v. County of Orange, 2013 WL 12128798, at *2, *7 (C.D. Cal. Dec. 2,
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2013) (dismissing state-law claims for failure to exhaust administrative remedies without

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addressing dispute over whether plaintiff complied with California Tort Claims Act).

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ANALYSIS

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A. Material Facts Regarding Exhaustion of Administrative Remedies

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Following a thorough review of the evidence submitted, the Court finds the following

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material facts are deemed undisputed, unless otherwise indicated. At the outset, the Court notes

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that Plaintiff’s briefing asserts various facts concerning the general difficulty he faced in

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obtaining grievance forms while in administrative segregation. (See Doc. No. 56-2 at 4-7, ¶¶ 22-

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41). Because Plaintiff does not specifically link these difficulties to any of the deficiencies at

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issue in his grievances, the Court does not find these facts to be material.
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Plaintiff Ernest Maea was, at all times relevant, an inmate in the custody of the

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California Department of Corrections and Rehabilitation (“CDCR”). (Doc. No. 8 at 3

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¶ 7).

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Plaintiff was incarcerated at Kern Valley State Prison (“KVSP”) from October 1, 2015
to March 15, 2021. (Doc. No. 42-4 at 2 ¶ 5).

•

On October 9, 2020, Plaintiff was involved in a use of force incident in which he

17

alleges he was injured by KVSP correctional officers who used excessive force against

18

him and then refused him medical treatment. (Doc. No. 8 at 10-18).

19

•

On October 14, 2020, Plaintiff filed a grievance to the Health Care Grievance Office,

20

assigned Log Number HC 20000877, which was received on October 22, 2020. (Doc.

21

No. 42-6 at 11). In it, Plaintiff states:

22
23
24
25
26
27
28

I have 2nd degree burns from an open flame to my face and I am in
constant pain. It is almost impossible to sleep. My face throbs like
it has its own heart beat. I was denied pain medication and help by
an Asian doctor that could not speak English or distinguish a burn
from a flame with a chemical burn. My blood pressure was high
due to pain and lack of sleep. Please help.” (Id.).
Under the “Supporting Documents” section, Plaintiff writes,
“Appointment recommendations by doctor on computer. I don’t
know his name. Doctor C. Relevante.” (Id.).
Plaintiff included an attachment which states, “I respectfully
request 2 Tylonol [sic] 3 with codeine 4 times a day, please. I am an
12

adult male 6’ft 1”in and 240 lbs. I was being given one tylonol [sic]
3 with codeine 3 times a day but it was stopped. It helped but only
lasted 2 hours. I just need the pills until I am done healing, please. I
am unable to sleep otherwise and the pain level fluxuates [sic].
Please help. Thank you. (Id. at 13).

1
2
3
4

•

On December 18, 2020, the HCGO issued a decision of no intervention, documenting

5

the medical attention Plaintiff received for his injuries. (Doc. No. 42-6 at 12-14). On

6

December 21, 2020, Plaintiff filed an appeal of Log No. 20000877, which was

7

received by the Health Care Correspondence and Appeals Branch on December 28,

8

2020. (Id. at 19, 20). In it, Plaintiff states:

9

I am very dissatisfied. I have just now received this response and
the date is 12-21-20. The incident in which I recieved [sic] 2nd and
3rd degree burns to my face and upper torso from an open flame not
chemical burns was 10-9-20. It’s been 2 months. I suffered
painfully for 2 weeks before I was seen by a real doctor in a real
hospital. Your staff took a hypocritic oath to help and to health to
never do harm. I sat here in an ad-seg cell in pain with no gauze or
any pain meds and had to rip pieces of towels and sheets in order to
properly dress my own injuries and hope I didn’t get any infections.
I didn’t start the sabaxone [sic] treatment until almost a month after
my injuries and that had nothing to do with helping me. I am your
ward. I hope your children never go through what I had to endure.
Dicks.

10
11
12
13
14
15
16

•

closed the grievance on March 23, 2021. (Id. at 16-18).

17
18

On March 19, 2021, the Headquarters Level issued a decision of no intervention, and

•

On October 27, 2020, Plaintiff submitted a second health care grievance, this time to

19

the Health Care Correspondence and Appeals Board, assigned Log No. 20000920,

20

which was received on November 5, 2020. (Doc. No. 42-6 at 18). In it, Plaintiff

21

states:

22
23
24
25
26
27
28

On October 9, 2020, I was in an altercation that ended with staff
using force to quell. A pepper powder grenade exploded near my
face in the crook of my neck and ignited my face mask and beard.
There was an open flame. Another officer sprayed his personal can
of O/C pepper spray which upon contact with the open flame from
my mask and beard then also caught on fire and engulfed my face
and upper torso in an open flame resulting in 2nd and 3rd degree
burns to my face and all the hair of my chest, arms and face was
sindged [sic] off. My injuries consisted of the skin of my lips, nose,
cheeks, chin and ears burning completely off. The first visit to a
doctor I had was with a Doctor C. Relevante. Upon explaining the
circumstances to my injuries, he concluded that my injuries were
superficial chemical burns that did not outside medical or any pain
13

1

relief. I again tried to explain that I have been sprayed before over
the last 15 years and never a reaction and that this was an open
flame. Due to Dr. C. Relevante’s ignorance and misdiagnoses I
was not properly seen by medical until 10/21/20 and was not able to
sleep due to the pain level I was experiencing. The nurse checked
my vitals 3 times in the visit with Dr. C. Relevante and all 3 times
my blood pressure was high. I was in pain for over 2 weeks until
the 3rd day after starting the silver sulfadiazine treatment and given
the Tylonol [sic] 3 with codeine by Dr. Chan. I would like this
documented so I can exhaust all formal remedies. Thank you.
(Doc. No. 42-6 at 18-19).

2
3
4
5
6
•

7

On February 5, 2021, HCCAB issued a rejection notice for HC 20000920, advising

8

Plaintiff that his grievance was improperly submitted to the appeals level and that he

9

is required to resubmit the grievance to “your institution’s Health Care Grievance
Office . . . within 30 calendar days.” (Doc. No. 42-6 at 20 (emphasis added)).

10
•

11

On February 25, 2021, the Health Care Grievance Office at KVSP received HC

12

20000920 and on February 26, 2021, the HCGO issued a rejection notice to Plaintiff

13

of the grievance because it was duplicative of HC 20000877 which was already

14

pending review. (Id. at 17).
•

15

On November 3, 2020, Plaintiff submitted a custody grievance to the CDCR Office of

16

Appeals, which was received on November 6, 2020.10 (Doc. No. 42-4 at 7-11). The

17

top of the grievance is marked “Log # 57803.” (Id. at 7). In it, Plaintiff states:

18

October 9, 2020, on Facility A during yard release I was a victim to
an assault by 2 inmates that resulted in staff using force to stop the
incident. The use of force resulted in my receiving 2nd and 3rd
degree burns to my face and neck and upper torso. While I was in a
prone position on the ground a pepper powder grenade was lobbed
by staff toward my face and landed in the crook of my neck and
shoulder on my left. The grenade then detonated and caught my
face mask and beard on fire with an open flame. From my right
side a staff member sprayed his O/C cannister, which upon contact

19
20
21
22
23
10

24
25
26
27
28

Defendants identify this grievance as Log # 71069 in the Declaration of C. Garcia, however at the top of
the grievance is written “Log # 57803.” (See Doc. No. 42-4 at 7). The grievance is signed “10/29/20” and
the date the Office of Appeals received the grievance is stamped “November 6, 2020.” (Id.). The
envelope accompanying the grievance indicates it was mailed on November 3, 2020. (Id. at 11). Thus,
Exhibit A appears to contradict Defendants’ position that grievance Log # 57803 was not received until
November 13, 2020. Meanwhile, Garcia’s Declaration describes Exhibit B as “[a] true and correct copy of
Grievance Log No. 57803,” however the grievance does not bear any Log Number. Plaintiff signed the
grievance on November 6, 2020 and it is marked received by the Kern Valley State Prison Inmate Appeals
Office on November 13, 2020. There is no envelope accompanying the grievance that would indicate
when it was mailed.

14

1

with the open flame ignited and engulfed my face and torso in fire.
Staff then proceed to put out the fire with their boots by kicking my
face and torso. The totality of my injuries include 2nd and 3rd
degree burns to my face and damage to my right eye which I cannot
see clearly out of. Also bruises and scrapes to my elbows, knees,
and chest. I voiced my pain and need for medical attention to staff
where I was told that I did not need medical attention and that my
injuries were superficial and like a bad sun tan. I put in 2 medical
requests and was finally seen by a doctor C. Relevante on October
14, five days after the incident. I asked for help and was told that
my wounds were from a chemical burn and did not need outside
medical nor pain relief and I will be fine with Ibuprofin [sic] and
plenty of water. I tried to explain it wasn’t a chemical burn and that
the pain I was in was preventing me from sleep. He ignored my
request for help. I was finally sent to the outside hospital on
October 21, 2020 and given pain relief almost 2 weeks of suffering.
I am exhausting all remedies for a higher review. (Id. at 7-9).

2
3
4
5
6
7
8
9
10

•

Plaintiff submitted a second custody grievance, signed November 6, 2020, which

11

bears a stamp from the Kern Valley State Prison Inmate Appeals Office dated

12

November 13, 2020. (Doc. No. 42-4 at 14-15). In it, Plaintiff states:

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

I respectfully request an investigation into improper use of force by
CDCR staff resulting in serious bodily injury. On October 9, 2020
at approximately 13:30 hours while being release [sic] to afternoon
yard, I was attacked by two inmates which required me to defend
myself. This also required staff to use force in the form of pepper
powdered grenades, personal O/C cannisters and batons to gain
control of incident . . . while in a prone position on the ground, a
pepper powdered grenade was launched toward my face and lodged
in the crook of my neck and face on the left side. Upon detonating,
the grenade caught my face mask and beard on fire with an open
flame. While on fire an officer to my right opened fire with his
O/C/ handheld pepper spray cannister. The jet spray of his O/C can
made contact with the open flame of my face mask and beard
caused by the grenade and ignited in a flame like a blowtorch. Staff
saw that I was on fire and tried to put out the flame with their boots
stomping and kicking my face and neck. While I tried to put out
the fire of my beard another staff member produced his baton and
started beating on my back until another officer told him I was on
fire. The injuries I received were: swollen face and neck and lips,
the skin from my nose, lips, cheeks, neck and ears blistered and
were scraped off from the kicking and decontamination. All the
burns were 2nd and 3rd degree in nature. I was misdiagnosed by
institution medical staff that resulted in nearly 2 weeks of constant
pain that kept me from sleeping and eating and healing properly. I
was not given any medical supplies in which to care for my many
open wounds and had to resort to ripping pieces of towels and
sheets to clean and care for my injuries. I was also not properly
given pain management. I have filed a form before this but told to
file another due to the last being outdated. I respectfully wish an
investigation to be completed in this matter. Please. Thank you. I
also respectfully request the incident report to this assault with the
15

1

names of all staff involved, please.
•

2

On November 18, 2020, CDCR issued an “OOG Acknowledgment of Receipt and

3

Closure of Grievance” regarding Custody Grievance Log No. 57803.11 (Doc. No. 42-

4

4 at 18). It contains separate responses to the medical and custody-related claims

5

contained in Plaintiff’s grievance. As to his medical claim, the letter indicates that

6

OOG “redirected this claim to the institution’s Health Care Grievance Coordinator for

7

review and processing in accordance with governing regulations.” (Id.). As to his

8

custody claim, the letter states that Plaintiff’s “claim concerning Offender Safety and

9

Security; Use of Force is being rejected by the Office of Grievances . . . [because] you

10

did not submit the claim within the timeframe required by California Code of

11

Regulations, Title 15 . . . You should have submitted your claim on or by 11/08/2020

12

to meet the 30 calendar day requirement set forth in the regulations. This serves as

13

your response from the Office of Grievances. If you are dissatisfied with this

14

response, you may appeal the rejection decision to CDCR’s Office of Appeals.” (Id.).
•

15

Plaintiff did not appeal the rejection of Custody Grievance Log No. 57803. (Doc. No.
42-4 at 5 ¶ 8; Doc. No. 42-7 at 4 ¶ 10).

16
•

17

On February 26, 2021, Plaintiff was issued a “Claimant Grievance Claims Decision
Response.” It states:

18
19

Our office reassigned your claim concerning Offender Safety and
Security; Use of Force to the Office of Grievances at Kern Valley
State Prison. The Office of Grievances at Kern Valley State Prison
will provide a response to your claim on or before 01/06/2021.
Once you receive a response from Kern Valley State Prison and if
you are dissatisfied with the decision, you may file an appeal with
the California Department of Corrections and Rehabilitation Office
of Appeals.

20
21
22
23

Decision: Reassigned. (Doc. No. 42-4 at 20).
24

•

Plaintiff did not receive any further response from the OOG at KVSP concerning

25
Custody Grievance Log No. 71069. (Doc. No. 56-6 at 61-62); (Doc. No. 56-17);
26
27
28

It is unclear whether OOG’s reference to Log # 57803 here is an error. As noted above, the grievance
marked Log # 57803 was received by OOA on November 6, 2020, and was apparently never transmitted
to OOG.
11

16

1

(Doc. No. 56-16); (Doc. No. 56-5 at 87-87).

2

•

Plaintiff filed his initial complaint in this matter on March 28, 2022. (Doc. No. 1).

3

•

Plaintiff’s first amended complaint (“FAC”) alleges claims for excessive force, and

4

cruel and unusual punishment in violation of the Eighth Amendment and state law

5

claims for violations of the Bane Act and Government Code § 845.6, battery, and

6

negligence. (See Doc. No. 8).

7

•

Plaintiff’s FAC identifies the following Defendants: KVSP Warden Christian Pfeiffer;

8

KVSP Health Care Chief Executive Officer Michael Felder; KVSP Correctional

9

Lieutenant Martinez; KVSP Correctional Sergeant Anderson; and KVSP Correctional

10
11

Captain Goree. (Doc. No. 8 at 3-4).
•

Plaintiff’s complaint alleges the following as to each Defendant arising out of a use of

12

force incident on October 9, 2020: (1) Defendant Pfeiffer failed to enforce policy,

13

train, supervise, discipline subordinates, provide medical care, intervene, and used

14

excessive force; (2) Defendant Felder failed to properly train, supervise, and punish

15

the actors who deprived Plaintiff of immediate and adequate medical attention; and

16

failed to provide adequate medical care after the October 9, 2020, incident; and (3)

17

Defendants Martinez, Anderson, and Goree used excessive force, failed to intervene,

18

and failed to provide immediate medical care. (Doc. No. 8 at 10-18).

19
20
21

B. HC 20000877 and HC 20000920 Did Not Exhaust Plaintiff’s Administrative
Remedies as to any Defendant
It is uncontested that Plaintiff’s first health care grievance, HC 20000877, does not name

22

any of the Defendants in this action. In this grievance, Plaintiff notes that he has “2nd degree

23

burns from an open flame to my face” but does not describe the actions or inaction of any

24

correctional staff involved in the October 9, 2020 use of force incident. Plaintiff does not argue

25

that HC 20000877 sufficiently put CDCR on notice regarding a custody-related claim. Thus,

26

there is no plausible argument that Plaintiff put Defendants Martinez, Anderson, or Goree on

27

notice regarding potential claims against them by filing Health Care grievance 20000877, and

28

therefore the grievance fails to exhaust administrative remedies against them.
17

Nevertheless, Plaintiff sets forth three arguments why his health care grievances “put the

1
2

prison on notice that Maea complained about inadequate medical care” and thus exhausted his

3

administrative remedies as to one or more unspecified Defendants.12 For reasons discussed

4

below, the Court does not find any of those arguments to be persuasive.
First, Plaintiff argues that he “provided the level of detail required by the prison’s

5
6

regulations.” (Doc. No. 56 at 24-25). Even though he did not name any of the individuals

7

identified in his federal Complaint in his healthcare grievance, Plaintiff argues, “[t]he Code of

8

Regulations solely requires that an inmate provide information to the best of his knowledge.” (Id.

9

at 25) (citing Cal. Code Regs. Tit. 15 3482(c)(2). While this is true, the Ninth Circuit has found

10

that a grievance exhausts administrative remedies as to an unnamed individual only where the

11

grievance “plainly put prison officials on notice of the nature of the wrong alleged in his federal

12

suit.” Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016). That is not the case with HC 20000877,

13

which complains only of lack of pain medication and proper medical care. (See Doc. No. 42-6 at

14

13). Because the grievance neither names nor describes the actions attributed to the named

15

Defendants, Plaintiff’s grievance fails to exhaust administrative remedies as to any of them.
Second, Plaintiff argues that his grievance “put the Defendants on notice that the officially

16
17

sanctioned conduct implicates supervisory liability.” (Doc. No. 56 at 25). He contends that his

18

“complaint regarding his medical care sufficiently put the Defendant on notice of the conduct . . .

19

believed to be violative of his rights, thereby making potential supervisory liability if the conduct

20

was deemed to be within policy obvious.” (Id.). Under Plaintiff’s argument, any claim against a

21

state employee would necessarily exhaust administrative remedies as to the employee’s

22

supervisor(s), whether or not they were aware of the conduct. This is contrary to applicable law

23

and the controlling case on the issue.

24

In Fordley v. Lizarraga, a California inmate submitted an administrative grievance

25

alleging an assault by four correctional officers. 18 F.4th 344, 347 (9th Cir. 2021). The inmate

26

later filed suit against not only the officers, but also the prison warden for deliberate indifference

27
28

12

The only plausible Defendant to be implicated by a claim for inadequate medical care are Defendants
Felder, the Health Care CEO, and perhaps Pfeiffer, the KVSP Warden.

18

1

to the officers’ violation of his constitutional rights. Id. at 349. The Ninth Circuit dismissed the

2

claim against the warden, holding that the inmate was required to exhaust his claim as to the

3

warden, but failed to do so. Although the claims all arose from the same incident, the Court noted

4

that the grievances “did not name [the] warden” or “describe the warden[’s]” involvement. Id.

5

The mere fact that the inmate’s claims against the warden related to the officers’ conduct was not

6

enough to “put the prison on notice that [the plaintiff] intended to assert a deliberate indifference

7

claim against the warden.” Id. Thus, the inmate’s failure to comply with prison grievance

8

regulations rendered the claim against the warden unexhausted. Id. Similarly, in Sunkett v. Ruiz,

9

the court granted an exhaustion-based motion for summary judgment in favor of the Chief

10

Executive Officer of Health Care Services at Calipatria State Prison, where plaintiff addressed

11

“medical staff as a whole” in his health care grievances but did not name the health care CEO in

12

either his grievance or his appeal. 2016 WL 8942966 (S.D. Cal. Feb. 12, 2016), report and

13

recommendation adopted, 2016 WL 8941158 (S.D. Cal. Mar. 14, 2016).

14

Likewise, here, Plaintiff’s claims against Warden Pfeiffer and Health Care CEO Felder

15

are unexhausted because they were neither mentioned in HC 20000877 nor are their actions

16

described in the grievance. Plaintiff cites a Southern District of Texas case holding that an inmate

17

exhausts his administrative remedies as to his Monell claim against a municipal entity “simply by

18

exhausting his remedies on his claims regarding the officially sanctioned conduct.” (Doc. No. 56

19

at 23) (citing Springer v. Unknown Rekoff, 2016 WL 5372526, at *5 (S.D. Tex. Sept. 26, 2016).

20

Plaintiff contends that the Court should be similarly lenient in evaluating exhaustion under a

21

supervisory liability theory. (Id.). However, such an approach would be directly contrary to the

22

Ninth Circuit’s holding in Fordley and is not explicitly justified even under the out-of-circuit

23

authority cited by Plaintiff, which applies only to Monell claims. Accordingly, the Court declines

24

to adopt such an approach and, thus, Plaintiff’s second argument likewise fails.

25

Third, Plaintiff argues that the Health Care Grievance Form was insufficient because it

26

does not specifically request the names of the involved Defendants. (Doc. No. 56 at 26). The

27

Court agrees that the 602 HC form does not specifically ask the inmate to provide the names of

28

involved staff, unlike the CDCR 602 form used for custody grievances. However, as discussed
19

1

above, Plaintiff’s failure to name any of the Defendants in his grievance is not itself fatal. Rather,

2

here, because Plaintiff neither named any Defendant nor described their actions, he failed to put

3

them or the institution on notice that they may be sued. See Reyes, 810 F.3d at 659. Plaintiff’s

4

failure to do either cannot fairly be attributed to the form 602 HC’s alleged shortcomings. See

5

Blacher v. Diaz, 2022 WL 2906488, at *6 (S.D. Cal. July 22, 2022) (rejecting plaintiff’s

6

argument that lack of space in grievance form prevented him from naming defendants). Thus,

7

Plaintiff’s third argument that he exhausted his administrative remedies as to his health care

8

grievances fails.

9

As to HC 20000920, the grievance does describe in some detail the use of force incident

10

giving rise to his injuries but appears to focus on the inadequate medical care that was provided to

11

him in the wake of the October 9, 2020 incident. Plaintiff does not argue in his Opposition that

12

HC 20000920 should not have been processed as a health care grievance. Even if the Court

13

construes the grievance as sufficiently describing the actions of Defendants Martinez, Goree, and

14

Anderson to provide fair notice of claims against them, it is uncontested that Plaintiff did not

15

appeal the February 26, 2021 rejection of his claim as duplicative by the HCGO. (Doc. No. 42-6

16

at 1). And CDCR regulations make clear that “[a] health care grievance or health care grievance

17

appeal rejection or withdrawal does not exhaust administrative remedies.” Cal. Code Regs. tit. 15

18

§ 3999.226(g); see also Warren v. Ndu, 2024 WL 583809, at *7 (E.D. Cal. Feb. 13, 2024)

19

(finding that plaintiff did not exhaust administrative remedies after receiving appeal rejection

20

notice from HCCAB), report and recommendation adopted, 2024 WL 1199550 (E.D. Cal. Mar.

21

20, 2024). Thus, Plaintiff failed to exhaust his administrative remedies as to HC 20000922.

22

C. There is a Genuine Dispute Whether Plaintiff’s Custody Grievances Exhausted

23

His Administrative Remedies as to Defendants Martinez, Anderson, and Goree

24

The record is more complicated for Plaintiff’s two custody grievances, Log Nos. 71069

25

and 57803. While Plaintiff did not follow the grievance procedures set forth in CDCR

26

regulations at every step, it is also apparent that CDCR did not properly process one or both of

27

Plaintiff’s grievances according to their own policies, resulting in the grievance process becoming

28

effectively unavailable to Plaintiff. Nonetheless, as discussed further below, neither of the
20

1

custody grievances names or describes any actions that can be construed as actions taken by

2

Defendants Felder and Pfeiffer, and therefore Plaintiff’s custody grievances fail to exhaust his

3

administrative remedies as to them. However, both grievances contain facts that provide fair

4

notice to the correctional staff who were on duty in Facility A for the October 9, 2020 use of

5

force incident that their actions could be the subject of a legal claim. Therefore, as discussed

6

further below, the Court finds it inappropriate to grant summary judgment as to Defendants

7

Martinez, Goree, and Anderson, but will recommend the district court grant summary judgment

8

as to Defendants Felder and Pfeiffer.

9

1. Log No. 71069

10

As an initial matter, Defendants’ filings reflect some confusion as to which of Plaintiff’s

11

grievances was identified by CDCR as Log No. 71069. For the sake of clarity, in this Order the

12

Court accepts Defendants’ position that this grievance was the one submitted on November 3,

13

2020 and received on November 6, 2020 (and identified as Exhibit A to the Declaration of

14

Carmen Garcia), even though it is marked as “Log # 57803.” Similar to their arguments above,

15

as to Plaintiff’s health care grievances, Defendants articulate three reasons why Custody

16

Grievance Log No. 71069 failed to exhaust Plaintiff’s administrative remedies as to any

17

Defendants.

18

First, Defendants argue the grievance fails to name or describe the actions of any

19

Defendants. As noted above, the Court agrees that with respect to Defendants Felder and Pfeiffer

20

the substance of this cusotdy grievance cannot be construed as alleging any improper action taken

21

or not taken by these two Defendants. It is uncontested that neither Defendant is mentioned by

22

name in Plaintiff’s grievance. As to Plaintiff’s medical care, the grievance states only that

23

Plaintiff “voiced [his] pains and need for medical attention to staff” who minimized his injuries.

24

There is no mention of any action or omission that could be attributed to Defendant Felder. The

25

only medical staff mentioned by name is Doctor C. Relevante, who is not a party to this action.

26

Because it neither names him nor describes his actions—but only refers to the actions of “staff”

27

and Dr. Relevante—the grievance fails to exhaust administrative remedies as to Defendant

28

Felder. See Reyes, 810 F.3d at 659; see also Sunkett, 2016 WL 8942966 at *12.
21

1

Nor do the use of force allegations name or make reference to any action or omission by

2

Defendant Pfeiffer, KVSP’s warden. The grievance refers only to “staff using force to stop the

3

incident” and describes specifically the staff who “lobbed” a pepper powder grenade at Plaintiff,

4

another staff member who “sprayed his O/C cannister” at Plaintiff, causing the grenade to ignite

5

on Plaintiff’s face, and “staff [who] proceed[ed] to put the fire with their boots by kicking

6

[Plaintiff’s] face and torso.” (Doc. No. 42-4 at 8-9). There are no facts alleging a connection

7

between the actions of individual correctional staff and Defendant Pfeiffer, nor any claim that

8

inadequate hiring, training, or supervision caused the correctional officers to violate Plaintiff’s

9

constitutional violations. Therefore, Custody Grievance Log No. 71069 fails to exhaust

10
11

Plaintiff’s administrative remedies as to Defendant Pfeiffer.
Further, Custody Grievance Log No. 71069 fails to allege any facts sufficient to exhaust

12

Plaintiff’s state law claim under the Bane Act, Cal. Civil Code § 52.1. California Civil Code

13

§ 52.1 (“Section 52.1”), the so-called “Bane Act,” permits a private right of action for damages:

14
15
16
17

If a person or persons, whether or not acting under color of law,
interferes by threats, intimidation, or coercion, or attempts to
interfere by threats, intimidation, or coercion, with the exercise or
enjoyment by any individual or individuals of rights secured by the
Constitution or laws of the United States, or of the rights secured by
the Constitution or laws of this state . . .
Cal. Civ. Code § 52.1(a) (emphasis added). A claim under Section 52.1 requires “an attempted or

18
19
20
21
22

completed act of interference with a legal right, accompanied by a form of coercion. Jones v.
Kmart Corp., 949 P.2d 941, 942 (1998). The essence of a Bane Act claim is that a defendant,
through threats, intimidation, or coercion, tried to or did prevent the plaintiff from doing
something that he had the right to do under the law or to force the plaintiff to do something that
he was not required to do under the law. Austin B. v. Escondido Union Sch. Dist., 57 Cal. Rptr.
23
24

3d 454, 472 (Cal. Ct. App. 2007) (quotation marks omitted). Although a complaint need not use
the statutory terms “threats, intimidation, or coercion,” it must allege facts from which the

25
26
27
28

presence of threats, intimidation, or coercion may be inferred. See Lopez v. County of Tulare,
2012 WL 33244, * 11 (E.D. Cal. Jan. 6, 2012). The Court fails to locate any language in this
grievance indicating that any Defendant used threats, intimidation, or coercion to interfere with

22

1

Plaintiff’s rights. Thus, the Court finds that the FAC fails to exhaust Plaintiff’s administrative

2

remedies as to his Bane Act claim against all Defendants.

3

As to the remaining claims against Defendants Anderson, Martinez, and Goree, however,

4

the Court reaches a different conclusion. The facts alleged in Custody Grievance No. 71069

5

closely resemble the allegations made against Defendants Anderson, Martinez, and Goree in

6

Plaintiff’s FAC. There, Plaintiff alleges that the three correctional supervisors and their staff:

7

sprayed Plaintiff with OC Spray after Plaintiff had already
submitted and complied with their orders, threw a NFDD [Noise
Flash Diversionary Device] at Plaintiff’s head which caused
Plaintiff’s mask and beard to catch on fire, sprayed Plaintiff directly
in the face with additional OC spray which caused Plaintiff’s face
to become engulfed with flames, then brutally beat him by kicking
his face and beating the bottom half of his body with batons.

8
9
10
11

(Doc. No. 8 at 10 ¶ 44).

12

After Defendants doused Plaintiff in flammable OC Spray, beat
Plaintiff, and thereafter set his face aflame, Defendants then wholly
failed to provide Plaintiff with adequate medical care. Plaintiff’s
skin was visibly and noticeably hanging off of his face following
the burn, but Defendants refused to take Plaintiff directly to the
infirmary.

13
14
15
16

(Doc. No. 8 at 12, ¶ 54).
While Defendants Anderson, Martinez, and Goree are not specifically named in Plaintiff’s

17
18

grievance, it is apparent from his subsequent custody grievance that he was seeking to identify

19

them and the other involved staff. (See Doc. No. 42-4 at 15) (“I also respectfully request the

20

incident report to this assault with the names of all staff involved, please.”). And because the

21

language of Plaintiff’s grievance is consistent with the claims alleged in the FAC against

22

Defendants Anderson, Martinez, and Goree for excessive use of force, deliberate indifference,

23

negligence, battery, and failure to summon medical care, the grievance “plainly put prison

24

officials on notice of the nature of the wrong alleged in his federal suit” Reyes, 810 F.3d at 659,

25

and provided fair notice to those Defendants.13

26

Second, Defendants argue that Plaintiff failed to exhaust his administrative remedies

27
28

13

As discussed above, the grievances do not allege facts that would support a Bane Act claim against any
Defendant.

23

1

because he improperly submitted his grievance directly to the Office of Appeals, rather than the

2

Office of Grievances at his institution, as required by CDCR regulations. However, it is also

3

uncontested that CDCR had a policy of reassigning erroneously filed grievances to the proper

4

office, as acknowledged by two CDCR officials who were deposed in this case. See Cal. Code

5

Reg. tit. 15 §§ 3485(b), 3485(g)(5); (Doc. No. 56-5 at 15, 21-24); (Doc. No. 56-6 at 53-54, 65).

6

And this is in fact what OOA told Plaintiff it had done in its February 26, 2021 “Claimant

7

Grievance Claims Decision Response.” (See Doc. No. 42-4 at 20). Thus, the mere fact that

8

Plaintiff did not initially file his grievance with the correct office does not establish that he failed

9

to exhaust his administrative remedies.

10

Third, Defendants argue that Plaintiff “did not submit an appeal” of the “Claimant

11

Grievance Claims Decision Response” that he received on February 26, 2021 and therefore failed

12

to fully exhaust his administrative remedies. (Doc. No. 42-1 at 11). However, even Defendants

13

admit that the actions of CDCR officials in processing this grievance and communicating with

14

Plaintiff were confusing and contradictory. As an initial matter, the February 26, 2021 letter,

15

which specifically referenced Log No. 71069, stated “[o]ur office reassigned your claim

16

concerning Offender Safety and Security; Use of Force to the Office of Grievances at Kern

17

Valley State Prison,” advised Plaintiff that “[t]he Office of Grievances at Kern Valley State

18

Prison will provide a response to your claim on or before 01/06/2021” and “[o]nce you receive a

19

response from Kern Valley State Prison and if you are dissatisfied with the decision, you may file

20

an appeal with the California Department of Corrections and Rehabilitation Office of Appeals.”

21

(Doc. No. 42-4 at 20). However, OOA’s internal notes on the grievance indicate, “Per Chief

22

Moseley, will close log without forwarding the reassignment to OOG because OOG have already

23

addressed the inmate’s concerns with log # 57803.” (Doc. No. 42-7 at 11). In other words, two

24

important statements in the February 26, 2021 letter to Plaintiff were false: (1) that the grievance

25

had been reassigned to KVSP, and (2) that Plaintiff should expect to receive a decision from

26

KVSP, after which he could file an appeal. In fact, the grievance had not been reassigned and

27

KVSP’s OOG never issued a response. Defendants attempt to blame Plaintiff for their own

28

omission, stating, “[i]n bypassing OOG, Plaintiff created a confusing situation and timeline that
24

1

ultimately resulted in no decision from OOG on Grievance 71069.” (Doc. No. 57 at 2). Surely

2

CDCR officials routinely confront duplicative and overlapping grievances and are expected to

3

nevertheless process them in accordance with their own regulations. Moreover, to the extent

4

Defendants assert that Plaintiff should have appealed the February 26, 2021 Claimant Grievance

5

Claims Decision Response, nowhere in that document do CDCR officials advise Plaintiff that he

6

could or should appeal the Response or how to do so. Rather, the plain language of the document

7

instructs Plaintiff to wait for the OOG response before filing an appeal. (Doc. No. 42-4 at 20).

8

In circumstances where prison officials provide mistaken instructions as they did here,

9

courts have found that a Plaintiff is excused from fully exhausting an administrative remedy. For

10

example, in Nunez v. Duncan, an erroneous instruction in a grievance form led plaintiff to believe

11

that he was required to review a particular “program statement” regarding strip searches before he

12

could appeal his grievance. Nunez v. Duncan, 591 F.3d 1217, 1220 (9th Cir. 2010). However,

13

the form cited the wrong program statement, one that was inapplicable and unavailable to

14

inmates. Id. The plaintiff made extensive efforts to obtain a copy of the program statement, to no

15

avail. Id. at 1221. The court ultimately found that plaintiff was excused from his failure to

16

exhaust his administrative remedies, reasoning that “[r]ational inmates cannot be expected to use

17

grievance procedures to achieve the procedures’ purpose when they are misled into believing they

18

must respond to a particular document in order to effectively pursue their administrative remedies

19

and that document is then not available.” Nunez, 591 F.3d at 1226. Similarly, in a Third Circuit

20

case, plaintiff was told that before he could file a grievance, he “was required to first wait for

21

[prison officials’] completion of the investigation and that [he] could then pursue a grievance in

22

the event [he] was not satisfied with their findings or conclusion of the investigation.” Brown v.

23

Croak, 312 F.3d 109, 111 (3d Cir. 2002). However, prison officials never informed plaintiff that

24

the investigation was complete and after he filed suit in federal court, filed a motion for summary

25

judgment on exhaustion grounds. The district court granted the defense motion, but the appeals

26

court reversed and remanded, finding that if plaintiff was never notified that the investigation was

27

complete, “the formal grievance proceeding . . . was never ‘available’ to [plaintiff] within the

28

meaning of 42 U.S.C. § 1997e.” Id. at 113.
25

1

Likewise, Plaintiff was told he could file an appeal of the institution’s decision as to his

2

grievance once he received a response from KVSP’s Office of Grievances. (Doc. No. 42-4 at 20).

3

But not only was no response ever issued, the grievance was never even reassigned to OOG,

4

contrary to the February 26, 2021 letter Plaintiff received. Thus, because Plaintiff was told to

5

wait to pursue his grievance for OOG to issue a response that never came, “the formal grievance

6

proceeding . . . was never available to [him] within the meaning of 42 U.S.C. § 1997e.” Brown,

7

312 F.3d at 113. Accordingly, the Court finds that Plaintiff exhausted the administrative

8

remedies that were available to him as to grievance log no. 71069 as to Defendants Martinez,

9

Anderson, and Goree on both his federal and his non-Bane state law claims.

10
11

2. Log No. 57803
Plaintiff’s second custody grievance—which is substantively very similar to his first—

12

raises some of the same exhaustion issues as his first custody grievance. Again, Defendants

13

contend that it did not exhaust Plaintiff’s administrative remedies because it does not name any

14

Defendants or describe their actions. (Doc. No. 42 at 21-23). Second, they contend that it was

15

untimely submitted, and third that Plaintiff failed to appeal the rejection of the grievance as

16

untimely. (Id. at 20-21).

17

As with Custody Grievance Log No. 71069, the Court finds that this grievance adequately

18

described the actions attributed to Defendants Martinez, Anderson, and Goree to provide fair

19

notice of the federal claims later made against them, as well as the state law claims for battery and

20

negligence. The grievance states that unnamed correctional staff lobbed a pepper powdered

21

grenade that detonated near Plaintiff’s face, that another officer sprayed with him OC spray,

22

causing his face mask and beard to be engulfed in flames, and that other officers used their feet

23

and baton to strike him while he was trying to put out the fire. (See Doc. No. 42-4 at 14-15).

24

This are the same actions that Plaintiff alleges against Anderson, Martinez, and Goree in the

25

FAC. (See generally Doc. No. 8). Thus, as a preliminary matter the Court finds the grievance

26

contained sufficient information to exhaust these claims as to those Defendants.

27
28

However, as to Plaintiff’s state law claims for violation of the Bane Act and failure to
summon medical care, the Court finds that Custody Grievance Log No. 57803 does not provide
26

1

fair notice to any Defendant sufficient to exhaust Plaintiff’s administrative remedies regarding

2

those claims. Unlike his previous custody grievance, this one does not mention any failure to

3

provide him immediate medical care in the wake of the October 9, 2020 incident. Rather it only

4

alleges that Plaintiff was “misdiagnosed by institution medical staff that resulted in nearly 2

5

weeks of constant pain . . .” (Doc. No. 42-4 at 15). Nor does it allege facts indicating that any

6

individual used threats, intimidation, or coercion to violate Plaintiff’s constitutional rights,

7

sufficient to provide fair notice of a Bane Act claim. Thus, the grievance fails to exhaust

8

Plaintiff’s administrative remedies as to those state law claims.

9

The Court finds there is a genuine dispute as to whether Plaintiff timely submitted this

10

grievance. In his declaration, Plaintiff asserts that he always submitted his grievances the day that

11

he signed them, which in this case was November 6, 2020. It is uncontested that Plaintiff’s

12

grievance would have been deemed timely if logged as submitted on November 6, 2020. For

13

reasons CDCR officials cannot explain, however, the grievance was not processed until

14

November 13, 2020, making it untimely. Further, there is evidence in the record that the time

15

between submission and receipt of a grievance could be as much as eight days, perhaps

16

exacerbated by delays related to the COVID-19 pandemic.14 However, even assuming Plaintiff

17

timely submitted his grievance, it is uncontested that he did not appeal the November 18, 2020

18

rejection of his claim as untimely. CDCR regulations are clear that, “[c]ompletion of the review

19

process by the Institutional or Regional Office of Grievances resulting in a decision of ‘denied,’

20

‘granted,’ ‘no jurisdiction,’ ‘redirected,’ ‘reassigned,’ or ‘rejected’ in accordance with subsections

21

(g)(1) through (g)(6) of this section does not constitute exhaustion of all administrative remedies

22

available to a claimant within the department.” Cal. Code Regs. tit. 15, § 3483(l)(1). Here,

23

because there is no dispute that Plaintiff did not appeal the rejection notice, he failed to exhaust

24

his administrative remedies as to Custody Grievance Log No. 57803.

25

Accordingly, for the reasons set forth above, it is hereby ORDERED:

26

Defendants’ Motion for Judicial Notice (Doc. No. 42-3) is GRANTED.

27
28

For example, Plaintiff’s Health Care Grievance No. 20000877 was submitted on October 14, 2020 and
received by CCHCS on October 22, 2020. (Doc. No. 42-6- at 11).
14

27

1

It is further RECOMMENDED:

2

1. Defendants’ Motion for Summary Judgment (Doc. No. 42) be GRANTED in part

3

and DENIED in part.

4

2. The Motion be GRANTED as to Defendants Pfeiffer and Felder on all federal and

5

state law claims and GRANTED as to Defendants Martinez, Anderson and Goree only

6

on the Bane Act state law claim.
3. Defendants’ Motion for Summary Judgment (Doc. No. 42) be DENIED as to

7
8

Defendants Martinez, Anderson, and Goree on Plaintiff’s Eighth Amendment claims

9

for excessive use of force, failure to intervene, and deliberate indifference to medical

10

care15 and state law claims for battery, negligence, and failure to summon medical care

11

claims.

12

NOTICE TO PARTIES

13

These findings and recommendations will be submitted to the United States district judge

14

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)

15

days after being served with these findings and recommendations, a party may file written

16

objections. Local Rule 304(b). The document should be captioned “Objections to Magistrate

17

Judge’s Findings and Recommendations.” Parties are advised that failure to file objections within

18

the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d

19

834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

20
21

Dated:

August 29, 2024
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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23
24
25
26
27
28

15

The medical indifference claims against Defendants Martinez, Anderson, and Goree stem only from the time
immediately after the incident until the time that Plaintiff was seen by medical staff later that same day.

28