Harvey v. Barbour

Filing 50

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/01/17 recommending that defendant Barbour's partial motion for summary judgment for failure to exhaust administrative remedies be granted; and plaintiff's claim for deliberate indifference be dismissed. MOTION for SUMMARY JUDGMENT 42 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH HARVEY,

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Plaintiff,

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No. 2:12-cv-02029 KJM DB

v.

FINDINGS AND RECOMMENDATIONS

J. BARBOUR,

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Defendant.

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief

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under 42 U.S.C. § 1983 alleging defendant Barbour forced him to do strenuous manual labor

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contrary to his medical orders in violation of his First and Eighth Amendment rights. Pending

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before the court is defendant Barbour’s partial motion for summary judgment for plaintiff’s

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alleged failure to exhaust his available administrative remedies concerning the Eighth

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Amendment deliberate indifference claim. (ECF No. 42.) Plaintiff filed an opposition to the

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motion (ECF No. 46) and defendant filed a reply (ECF No. 47).
For the reasons outlined below, the undersigned respectfully recommends that the district

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court grant defendant’s partial motion for summary judgment concerning plaintiff’s deliberate

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indifference claim.

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I.

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Factual Background
Plaintiff is proceeding on his second amended complaint (SAC) against defendant

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Barbour. (ECF No. 24.) Plaintiff alleges that while housed at California State Prison, Solano

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defendant Barbour caused him to injure his back by ordering him to work in an unauthorized area

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of the institution in retaliation for him complaining about unfair treatment by defendant Barbour

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as his work supervisor. (Id. at 3.) Specifically, plaintiff claims that he was not content with his

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work assignment, alleging that defendant Barbour discriminated against him because of his age.

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(Id. at 6, 8.) In July of 2011, after expressing his displeasure to concerning this alleged

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discrimination, defendant Barbour purportedly ordered plaintiff to wash out 40 trash cans in

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retaliation for the complaint and in violation of plaintiff’s medical orders that restricted him to

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light duty. (Id. at 5-6.) Plaintiff alleges that defendant Barbour was disciplined for forcing

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plaintiff to work in an area he was not authorized to work in. (Id. at 5.)
On July 25, 2011,1 plaintiff filed inmate grievance CSP-S-11-00779 concerning defendant

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Barbour’s alleged retaliation. (ECF No. 42-3 at 15.) In the original, first-level grievance,

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plaintiff alleged that defendant Barbour discriminated against him because of his age concerning

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work assignments and that she forced him to wash out 40 trash cans behind the kitchen in an area

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of the prison where he does not have authorization to go. (Id. at 15, 17.) Plaintiff claimed

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violations of his First and Fourteenth Amendment rights in the grievance, specifically stating that

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defendant Barbour’s actions constituted a reprisal against him and that he was denied equal

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protection of the law and due process through age discrimination. (Id. at 17.) Plaintiff’s

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grievance was partially granted at the second level of review. (Id. at 20.) An inquiry was

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conducted that found defendant Barbour violated California Department of Corrections and

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Rehabilitation (CDCR) policy. (Id.)
At the third level of review, plaintiff’s appeal was denied. (Id. at 13.) The third level

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opinion found that an inquiry had already been conducted, staff was found to have violated

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The appeal is dated by plaintiff as being submitted on July 17, 2011; however, the institutional
stamp on the grievance indicates it was received on July 25, 2011.
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CDCR policy, and the institution would take appropriate action. (Id.) The decision also noted

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that it represented the final level of exhaustion available to plaintiff within the CDCR.

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In his third level appeal, however, plaintiff stated that he was dissatisfied with the second

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level decision because it did not address additional information that he provided in his staff

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interview. Specifically, plaintiff claimed that he had informed the interviewer about his

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allegations that defendant Barbour’s order to clean the trash cans caused him to injure his back.

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(Id. at 16.) Plaintiff stated in this appeal that he made a monetary demand for $50,000 for the

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pain caused to his back. (Id.) The second level appeal decision did not mention these allegations.

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(Id. at 19-20.) The third level decision did not address the back injury allegations or plaintiff’s

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dissatisfaction with the scope of the second level decision. (Id. at 13-14.)

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II.

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Legal Standard
By the Prison Litigation Reform Act of 1995 (PLRA), Congress amended 42 U.S.C. §

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1997e to provide that “[n]o action shall be brought with respect to prison conditions under section

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1983 of this title, 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, whether

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they involve general circumstances or particular episodes, and whether they allege excessive

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force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

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The United States Supreme Court has ruled that exhaustion of prison administrative

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procedures is mandated regardless of the relief offered through such procedures. See Booth v.

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Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading

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futility or other exceptions into the statutory exhaustion requirement. See id. at 741 n. 6.

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Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion

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requirement by filing an untimely or otherwise procedurally defective administrative grievance or

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appeal. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o properly exhaust administrative

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remedies prisoners ‘must complete the administrative review process in accordance with the

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applicable procedural rules,’ [ ] - rules that are defined not by the PLRA, but by the prison

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grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S.
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at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison

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system’s requirements ‘define the boundaries of proper exhaustion.’”).

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In California, prisoners may appeal “any policy, decision, action, condition, or omission

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by the department or its staff that the inmate or parolee can demonstrate as having a material

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

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Most appeals progress through three levels of review. See id. § 3084.7. The third level of review

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constitutes the decision of the Secretary of the California Department of Corrections and

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Rehabilitation and exhausts a prisoner’s administrative remedies. See id. § 3084.7(d)(3). A

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California prisoner is required to submit an inmate appeal at the appropriate level and proceed to

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the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.

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2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

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A prisoner may be excused from complying with the PLRA’s exhaustion requirement if

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he establishes that the existing administrative remedies were effectively unavailable to him. See

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Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). For example, where prison officials

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improperly screen out inmate grievances, they can render administrative remedies effectively

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unavailable. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, “the

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inmate cannot pursue the necessary sequence of appeals[.]” Id. See also Nunez v. Duncan, 591

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F.3d 1217, 1226 (9th Cir. 2010) (excusing an inmate’s failure to exhaust because he was

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precluded from exhausting his administrative remedies by a warden’s mistaken instruction to him

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that a particular unavailable document was needed for him to pursue his inmate appeal); Marella,

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568 F.3d 1024 (excusing an inmate’s failure to exhaust because he did not have access to the

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necessary grievance forms to timely file his grievance).

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The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative

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defense that defendants must plead and prove. See Jones, 549 U.S. at 216 (“[I]nmates are not

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required to specially plead or demonstrate exhaustion in their complaints.”); Albino, 747 F.3d at

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1168. A defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(6) “[i]n

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the rare event” that a prisoner’s failure to exhaust is clear on the face of the complaint. Albino,

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747 F.3d at 1168 & 1169. More typically, defendants are required to move for summary
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judgment under Federal Rule of Civil Procedure 56 and produce probative evidence that proves a

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prisoner’s failure to exhaust. See id. at 1166. If the undisputed evidence viewed in the light most

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favorable to the prisoner demonstrates a failure to exhaust, the court should grant defendant’s

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motion for summary judgment. On the other hand, if there are material facts in dispute, the court

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should deny defendant’s motion summary judgment. See id.

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III.

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Legal Analysis
It is uncontested that plaintiff’s initial inmate grievance concerned only his allegations of

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age discrimination and retaliation against defendant Barbour. (ECF No. 42-3 at 15, 17.) The

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original grievance specifies that defendant Barbour ordered plaintiff to clean 40 trash cans, but

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does not allege that plaintiff suffered any physical injury from this activity. (Id. at 17.) However,

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plaintiff’s third level appeal presents evidence that in his second level staff interview he raised the

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issue of a back injury he suffered while cleaning the 40 trash cans. (Id. at 16.) Additionally, the

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appeal indicates that plaintiff requested monetary damages for the injury and asserted that his

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pain continued through that time. (Id.)

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To have properly exhausted the deliberate indifference claim, plaintiff must have

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submitted an inmate appeal regarding this claim and obtained a third level decision prior to

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August 2, 2012, the date he filed this action. Woodford, 548 U.S. at 85-86; McKinney v. Carey,

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311 F.3d 1198, 1199–1201 (9th Cir.2002). The evidence on the record, viewed in the light most

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favorable to plaintiff, indicates that at two levels of review -- the second and third -- plaintiff

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raised a grievance that could reasonably be interpreted as a deliberate indifference claim. (See

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ECF No. 42-3 at 16.) Specifically, plaintiff asserted that he suffered a back injury as a result of

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defendant Barbour’s orders concerning the trash cans. (Id.) Plaintiff’s SAC alleges that his

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medical orders limited him to light duty work and that he suffered a back injury from the overly

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strenuous activity of washing the 40 trash cans. (ECF No. 24 at 5-6.)

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However, administrative remedies that are not exhausted at all three levels of review may

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not be considered appropriate exhausted. Cal. Code Regs. tit. 15, §§ 3084.1(b) (“Administrative

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remedies shall not be considered exhausted relative to any new issue . . . later named by the

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appellant that was not included in the originally submitted CDCR Form 602 . . . and addressed
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through all required levels of administrative review up to an including the third level.”). See also

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Brazier v. Beard, 1:13-cv-00787-LJO-BMK, 2017 WL 202036, *3 (E.D. Cal. Jan. 17, 2017)

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(plaintiff did not raise claim until third level of review and therefore the court recommended

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dismissal). So, while “[a]n [administrative] appeal need not lay out the facts, articulate legal

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theories, or demand particular relief[,]” Schultz v. Cal. Dept. of Corr., No. 1:11–cv–00988–LJO–

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MJS, 2013 WL 5883677, *2 (E.D. Cal. Oct. 30, 2013), all issues still must be raised at all levels

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of review in order to be considered exhausted by the courts.

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Here, plaintiff only raised his deliberate indifference claim -- or, at the very least, raised

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the issue of his injury, which might approximate a deliberate indifference claim -- at the second

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and third levels of review, which is insufficient to meet the exhaustion requirement under

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California law. Accordingly, the undersigned respectfully recommends that the partial motion for

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summary judgment be granted concerning the deliberate indifference claim.

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IV.

Conclusion

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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1.

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Defendant Barbour’s partial motion for summary judgment for failure to exhaust

administrative remedies be granted; and
Plaintiff’s claim for deliberate indifference be dismissed.

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2.

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These findings and recommendations are submitted to the United States District Judge

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

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

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.”

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Any reply to the objections shall be served and filed within fourteen days after service of

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the objections. Failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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Dated: March 1, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / harv.2029.msj.exh

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