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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH HARVEY, 12 Plaintiff, 13 14 No. 2:12-cv-02029 KJM DB v. FINDINGS AND RECOMMENDATIONS J. BARBOUR, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983 alleging defendant Barbour forced him to do strenuous manual labor 19 contrary to his medical orders in violation of his First and Eighth Amendment rights. Pending 20 before the court is defendant Barbour’s partial motion for summary judgment for plaintiff’s 21 alleged failure to exhaust his available administrative remedies concerning the Eighth 22 Amendment deliberate indifference claim. (ECF No. 42.) Plaintiff filed an opposition to the 23 motion (ECF No. 46) and defendant filed a reply (ECF No. 47). For the reasons outlined below, the undersigned respectfully recommends that the district 24 25 court grant defendant’s partial motion for summary judgment concerning plaintiff’s deliberate 26 indifference claim. 27 //// 28 //// 1 1 I. 2 Factual Background Plaintiff is proceeding on his second amended complaint (SAC) against defendant 3 Barbour. (ECF No. 24.) Plaintiff alleges that while housed at California State Prison, Solano 4 defendant Barbour caused him to injure his back by ordering him to work in an unauthorized area 5 of the institution in retaliation for him complaining about unfair treatment by defendant Barbour 6 as his work supervisor. (Id. at 3.) Specifically, plaintiff claims that he was not content with his 7 work assignment, alleging that defendant Barbour discriminated against him because of his age. 8 (Id. at 6, 8.) In July of 2011, after expressing his displeasure to concerning this alleged 9 discrimination, defendant Barbour purportedly ordered plaintiff to wash out 40 trash cans in 10 retaliation for the complaint and in violation of plaintiff’s medical orders that restricted him to 11 light duty. (Id. at 5-6.) Plaintiff alleges that defendant Barbour was disciplined for forcing 12 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 13 14 Barbour’s alleged retaliation. (ECF No. 42-3 at 15.) In the original, first-level grievance, 15 plaintiff alleged that defendant Barbour discriminated against him because of his age concerning 16 work assignments and that she forced him to wash out 40 trash cans behind the kitchen in an area 17 of the prison where he does not have authorization to go. (Id. at 15, 17.) Plaintiff claimed 18 violations of his First and Fourteenth Amendment rights in the grievance, specifically stating that 19 defendant Barbour’s actions constituted a reprisal against him and that he was denied equal 20 protection of the law and due process through age discrimination. (Id. at 17.) Plaintiff’s 21 grievance was partially granted at the second level of review. (Id. at 20.) An inquiry was 22 conducted that found defendant Barbour violated California Department of Corrections and 23 Rehabilitation (CDCR) policy. (Id.) At the third level of review, plaintiff’s appeal was denied. (Id. at 13.) The third level 24 25 opinion found that an inquiry had already been conducted, staff was found to have violated 26 //// 27 28 1 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. 2 1 CDCR policy, and the institution would take appropriate action. (Id.) The decision also noted 2 that it represented the final level of exhaustion available to plaintiff within the CDCR. 3 In his third level appeal, however, plaintiff stated that he was dissatisfied with the second 4 level decision because it did not address additional information that he provided in his staff 5 interview. Specifically, plaintiff claimed that he had informed the interviewer about his 6 allegations that defendant Barbour’s order to clean the trash cans caused him to injure his back. 7 (Id. at 16.) Plaintiff stated in this appeal that he made a monetary demand for $50,000 for the 8 pain caused to his back. (Id.) The second level appeal decision did not mention these allegations. 9 (Id. at 19-20.) The third level decision did not address the back injury allegations or plaintiff’s 10 dissatisfaction with the scope of the second level decision. (Id. at 13-14.) 11 II. 12 Legal Standard By the Prison Litigation Reform Act of 1995 (PLRA), Congress amended 42 U.S.C. § 13 1997e to provide that “[n]o action shall be brought with respect to prison conditions under section 14 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other 15 correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. 16 § 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether 17 they involve general circumstances or particular episodes, and whether they allege excessive 18 force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 19 The United States Supreme Court has ruled that exhaustion of prison administrative 20 procedures is mandated regardless of the relief offered through such procedures. See Booth v. 21 Churner, 532 U.S. 731, 741 (2001). The Supreme Court has also cautioned against reading 22 futility or other exceptions into the statutory exhaustion requirement. See id. at 741 n. 6. 23 Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion 24 requirement by filing an untimely or otherwise procedurally defective administrative grievance or 25 appeal. See Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). “[T]o properly exhaust administrative 26 remedies prisoners ‘must complete the administrative review process in accordance with the 27 applicable procedural rules,’ [ ] - rules that are defined not by the PLRA, but by the prison 28 grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. 3 1 at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison 2 system’s requirements ‘define the boundaries of proper exhaustion.’”). 3 In California, prisoners may appeal “any policy, decision, action, condition, or omission 4 by the department or its staff that the inmate or parolee can demonstrate as having a material 5 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). 6 Most appeals progress through three levels of review. See id. § 3084.7. The third level of review 7 constitutes the decision of the Secretary of the California Department of Corrections and 8 Rehabilitation and exhausts a prisoner’s administrative remedies. See id. § 3084.7(d)(3). A 9 California prisoner is required to submit an inmate appeal at the appropriate level and proceed to 10 the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 11 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). 12 A prisoner may be excused from complying with the PLRA’s exhaustion requirement if 13 he establishes that the existing administrative remedies were effectively unavailable to him. See 14 Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir. 2014). For example, where prison officials 15 improperly screen out inmate grievances, they can render administrative remedies effectively 16 unavailable. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such a case, “the 17 inmate cannot pursue the necessary sequence of appeals[.]” Id. See also Nunez v. Duncan, 591 18 F.3d 1217, 1226 (9th Cir. 2010) (excusing an inmate’s failure to exhaust because he was 19 precluded from exhausting his administrative remedies by a warden’s mistaken instruction to him 20 that a particular unavailable document was needed for him to pursue his inmate appeal); Marella, 21 568 F.3d 1024 (excusing an inmate’s failure to exhaust because he did not have access to the 22 necessary grievance forms to timely file his grievance). 23 The PLRA exhaustion requirement is not jurisdictional but rather creates an affirmative 24 defense that defendants must plead and prove. See Jones, 549 U.S. at 216 (“[I]nmates are not 25 required to specially plead or demonstrate exhaustion in their complaints.”); Albino, 747 F.3d at 26 1168. A defendant may move for dismissal under Federal Rule of Civil Procedure 12(b)(6) “[i]n 27 the rare event” that a prisoner’s failure to exhaust is clear on the face of the complaint. Albino, 28 747 F.3d at 1168 & 1169. More typically, defendants are required to move for summary 4 1 judgment under Federal Rule of Civil Procedure 56 and produce probative evidence that proves a 2 prisoner’s failure to exhaust. See id. at 1166. If the undisputed evidence viewed in the light most 3 favorable to the prisoner demonstrates a failure to exhaust, the court should grant defendant’s 4 motion for summary judgment. On the other hand, if there are material facts in dispute, the court 5 should deny defendant’s motion summary judgment. See id. 6 III. 7 Legal Analysis It is uncontested that plaintiff’s initial inmate grievance concerned only his allegations of 8 age discrimination and retaliation against defendant Barbour. (ECF No. 42-3 at 15, 17.) The 9 original grievance specifies that defendant Barbour ordered plaintiff to clean 40 trash cans, but 10 does not allege that plaintiff suffered any physical injury from this activity. (Id. at 17.) However, 11 plaintiff’s third level appeal presents evidence that in his second level staff interview he raised the 12 issue of a back injury he suffered while cleaning the 40 trash cans. (Id. at 16.) Additionally, the 13 appeal indicates that plaintiff requested monetary damages for the injury and asserted that his 14 pain continued through that time. (Id.) 15 To have properly exhausted the deliberate indifference claim, plaintiff must have 16 submitted an inmate appeal regarding this claim and obtained a third level decision prior to 17 August 2, 2012, the date he filed this action. Woodford, 548 U.S. at 85-86; McKinney v. Carey, 18 311 F.3d 1198, 1199–1201 (9th Cir.2002). The evidence on the record, viewed in the light most 19 favorable to plaintiff, indicates that at two levels of review -- the second and third -- plaintiff 20 raised a grievance that could reasonably be interpreted as a deliberate indifference claim. (See 21 ECF No. 42-3 at 16.) Specifically, plaintiff asserted that he suffered a back injury as a result of 22 defendant Barbour’s orders concerning the trash cans. (Id.) Plaintiff’s SAC alleges that his 23 medical orders limited him to light duty work and that he suffered a back injury from the overly 24 strenuous activity of washing the 40 trash cans. (ECF No. 24 at 5-6.) 25 However, administrative remedies that are not exhausted at all three levels of review may 26 not be considered appropriate exhausted. Cal. Code Regs. tit. 15, §§ 3084.1(b) (“Administrative 27 remedies shall not be considered exhausted relative to any new issue . . . later named by the 28 appellant that was not included in the originally submitted CDCR Form 602 . . . and addressed 5 1 through all required levels of administrative review up to an including the third level.”). See also 2 Brazier v. Beard, 1:13-cv-00787-LJO-BMK, 2017 WL 202036, *3 (E.D. Cal. Jan. 17, 2017) 3 (plaintiff did not raise claim until third level of review and therefore the court recommended 4 dismissal). So, while “[a]n [administrative] appeal need not lay out the facts, articulate legal 5 theories, or demand particular relief[,]” Schultz v. Cal. Dept. of Corr., No. 1:11–cv–00988–LJO– 6 MJS, 2013 WL 5883677, *2 (E.D. Cal. Oct. 30, 2013), all issues still must be raised at all levels 7 of review in order to be considered exhausted by the courts. 8 Here, plaintiff only raised his deliberate indifference claim -- or, at the very least, raised 9 the issue of his injury, which might approximate a deliberate indifference claim -- at the second 10 and third levels of review, which is insufficient to meet the exhaustion requirement under 11 California law. Accordingly, the undersigned respectfully recommends that the partial motion for 12 summary judgment be granted concerning the deliberate indifference claim. 13 IV. Conclusion 14 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 15 1. 16 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. 17 2. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 6 1 Any reply to the objections shall be served and filed within fourteen days after service of 2 the objections. Failure to file objections within the specified time may waive the right to appeal 3 the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 4 951 F.2d 1153 (9th Cir. 1991). 5 Dated: March 1, 2017 6 7 8 9 10 11 TIM-DLB:10 DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / harv.2029.msj.exh 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?