Smith v. Jenkens

Filing 57

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 8/16/2017 RECOMMENDING defendants' 50 motion for summary judgment be granted; and the action be dismissed without prejudice for failure to exhaust administrative remedies under the PLRA. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DESHONE SMITH,

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No. 2:15-cv-00344 WBS DB

Plaintiff,

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v.

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JENKENS, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in an action brought

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under 42 U.S.C. § 1983. Plaintiff asserts claims for excessive force and retaliation, alleging that

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defendants punched him in the back and ribs because he previously pursued litigation against

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correctional officers.

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Defendants move for summary judgment, arguing that plaintiff failed to exhaust

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administrative remedies under the Prison Litigation Reform Act (“PLRA”) by not submitting his

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appeal to the third level. Defendants also argue for summary judgment on the merits of the case;

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however, because it is clear that plaintiff did not exhaust administrative remedies -- and makes no

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showing that the administrative process was effectively unavailable to him -- the court need not

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reach the merits arguments. Accordingly, for the reasons outlined below, the motion should be

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granted and the action dismissed without prejudice.

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I.

BACKGROUND

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A.

Factual Background

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In the second amended complaint, plaintiff alleges that upon being transferred to Mule

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Creek State Prison (MCSP), defendants Jenkens and Pogue escorted him to the Facility A-Yard.

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(ECF No. 16-1 at 2.) According to the complaint, these defendants threatened plaintiff because

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he was a “prison litigator.” (Id.) In addition to threatening him, plaintiff alleges defendants

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struck him with their fists and held a billy club against his back. (Id.)

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B.

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On November 12, 2014, plaintiff filed a “CDCR 602 Inmate/Parolee Appeal” form

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regarding these allegations. (ECF No. 50-2 at 5.) The appeal was noted as received on December

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24, 2014. (Id.) After its filing, plaintiff’s appeal was screened, returned to him for corrections,

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and received again on January 13, 2015. (ECF No. 50-2 at 3, 5.)

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Procedural Background

Plaintiff states that he submitted his original complaint to this court on November 22,

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2014, and that he resubmitted it on February 3, 2015. (ECF No. 1 at 6.) The original complaint

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was docketed on February 10, 2015. (ECF No. 1.)

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The first level of review for the prisoner appeal was bypassed, and the second-level

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review was completed on February 24, 2015. (ECF No. 50-2 at 3, 6.) The appeal states that it

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was returned to plaintiff on May 4, 2015. (Id.) M. Voong, Chief of the Office of Appeals for the

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CDCR, declares that plaintiff did not submit a third-level appeal. (ECF No. 50-3 ¶ 8.)

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On May 5, 2015, plaintiff sent a notice addressed to the Appeals Coordinator claiming

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that he had submitted a previous notice on April 29, 2015 stating that his appeal was missing.

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(ECF No. 55-1 at 7.) Plaintiff claims that a second notice was submitted on May 3, 2015

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concerning the purportedly missing appeal. (Id.) The Appeals Coordinator reviewed plaintiff’s

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May 5, 2015 notice and filed a response on May 11, 2015 stating that plaintiff’s appeal “was

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completed and returned to [him] on 5/4/15.” (Id.)

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As noted above, plaintiff’s original complaint was docketed on February 10, 2015. (ECF

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No. 1.) The second amended complaint, which is operative, was docketed on April 10, 2015.

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(ECF No. 16.) The court screened the second amended complaint and found that plaintiff stated a
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cognizable retaliation claim against Jenkens and a cognizable excessive force claim against

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Jenkens and Pogue. (ECF No. 17 at 1.)

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C.

Motion for Summary Judgment

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Defendants move for summary judgment. (ECF No. 50.) Defendants argue that plaintiff

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failed to exhaust administrative remedies because he never submitted his appeal to the third level

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and filed this action before the second-level review was complete. (Id. at 5–7.) They further

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argue that plaintiff did not suffer any harm and, therefore, lacks constitutional standing. (Id. at 8.)

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Additionally, they argue that defendants did not use excessive force. (Id. at 9)

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Plaintiff opposes defendants’ motion for summary judgment. (ECF No. 55.) Plaintiff

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contends that he exhausted administrative remedies because his appeal went missing and was

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never responded to. (ECF No. 55-1 at 7.) He also asserts that he has constitutional standing

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because defendants’ alleged assault caused or exacerbated pain in his testicles, legs, and lower

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back. (Id. at 2, 4.) Additionally, plaintiff argues that defendants used excessive force on him

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because they punched him in his back and ribs for malicious and retaliatory reasons, which his

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cellmate witnessed. (See ECF Nos. 55 at 2; 55-1 at 2, 4.) Defendants filed a reply memorandum.

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(ECF No. 56.)

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Defendants’ motion for summary judgment included a so-called “Rand Notice” (ECF No.

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50-5) to plaintiff informing him of the requirements for opposing a motion pursuant to Rule 56 of

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the Federal Rules of Civil Procedure. See Woods v. Carey, 684 F.3d 934, 941 (9th Cir. 2012);

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Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988); Rand v. Rowland, 154 F.3d 952,

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957 (9th Cir. 1998) (en banc).
For the reasons outlined below, the court grants defendants’ motion for summary on the

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grounds that plaintiff failed to exhaust administrative remedies before filing this lawsuit. The

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court will not address the merits portion of the summary judgment motion.

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II.

STANDARD OF REVIEW

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A.

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Summary judgment is appropriate when there is “no genuine dispute as to any material

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Summary Judgment Standard

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary
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judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant

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to the determination of the issues in the case, or in which there is insufficient evidence for a jury

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to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600

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(1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986); Nw. Motorcycle Ass’n v.

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U.S. Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). At bottom, a summary judgment

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motion asks whether the evidence presents a sufficient disagreement to require submission to a

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jury.

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The moving party bears the initial responsibility of presenting the basis for its motion and
identifying those portions of the record, together with affidavits, if any, that it believes

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demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

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317, 323–24 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the

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moving party meets its burden with a properly supported motion, the burden then shifts to the

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opposing party to present specific facts that show there is a genuine issue for trial. Anderson, 477

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U.S. at 248; Matsushita, 475 U.S. at 586–87; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th

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Cir. 1995) (per curiam).

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To defeat summary judgment the opposing party must establish a genuine dispute as to a

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material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that

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is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at

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248 (“Only disputes over facts that might affect the outcome of the suit under the governing law

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will properly preclude the entry of summary judgment.”). Second, the dispute must be genuine.

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In determining whether a factual dispute is genuine the court must again focus on which party

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bears the burden of proof on the factual issue in question. Where the party opposing summary

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judgment would bear the burden of proof at trial on the factual issue in dispute, that party must

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produce evidence sufficient to support its factual claim. Conclusory allegations unsupported by

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evidence are insufficient to defeat the motion. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.

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1989) (citation omitted).

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B.

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The Prison Litigation Reform Act of 1995 (PLRA) mandates that “[n]o action shall be

Failure to Exhaust Administrative Remedies Standard

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brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Although “the PLRA's

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exhaustion requirement applies to all inmate suits about prison life,” Porter v. Nussle, 534 U.S.

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516, 532 (2002), the requirement for exhaustion under the PLRA is not absolute. See Albino v.

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Baca, 697 F.3d 1023, 1030–31 (9th Cir. 2012). As explicitly stated in the statute, “[t]he PLRA

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requires that an inmate exhaust only those administrative remedies ‘as are available.’” Sapp v.

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Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (quoting 42 U.S.C. § 1997e(a)) (administrative

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remedies plainly unavailable if grievance was screened out for improper reasons); see also Nunez

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v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (“Remedies that rational inmates cannot be

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expected to use are not capable of accomplishing their purposes and so are not available.”). “We

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have recognized that the PLRA therefore does not require exhaustion when circumstances render

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administrative remedies ‘effectively unavailable.’” Sapp, 623 F.3d at 822 (citing Nunez, 591

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F.3d at 1226); accord Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The obligation to

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exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no

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longer the case, then there are no ‘remedies . . . available,’ and the prisoner need not further

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pursue the grievance.”).

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Dismissal of a prisoner civil rights action for failure to exhaust administrative remedies

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must generally be brought and decided pursuant to a motion for summary judgment under Rule

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56, Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc).

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Defendant bears the burden of proving that there was an available administrative remedy that the

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prisoner did not exhaust it. Id. at 1172. If defendant meets this burden, then the burden shifts to

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plaintiff to “come forward with evidence showing that there is something in his particular case

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that made the existing and generally available administrative remedies effectively unavailable to

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him.” Id. In adjudicating summary judgment on the issue of exhaustion, the court must view all

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the facts in the record in the light most favorable to plaintiff. Id. at 1173.
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III.

ANALYSIS
Plaintiff submitted a first-level appeal on November 12, 2014, and that the second-level

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review was completed on February 24, 2015. (ECF No. 50-2 at 3, 5–6.) The evidence before the

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court shows that the appeal was returned to plaintiff on May 4, 2015. (ECF Nos. 50-2 at 3, 6; 55-

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1 at 7.) Additionally, Voong declares that plaintiff failed to submit his appeal to the third level

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(ECF No. 50-3 at 2-3), which plaintiff does not dispute. Accordingly, it is undisputed that

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plaintiff did not complete his prisoner appeal process through the third level of review.

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Plaintiff argues that the third level was effectively unavailable to him because his appeal
went missing (i.e., he never received a second-level response). However, plaintiff filed the

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original complaint in this lawsuit on February 10, 2015 (ECF No. 1), which is more than two

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months before plaintiff claims he even inquired with the Appeals Coordinator about the status of

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his original prisoner appeal (ECF No. 55-1 at 7). Additionally, plaintiff was interviewed

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concerning his initial appeal (which was bypassed to the second level of review from the start) on

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December 29, 2014. (ECF No. 50-1 at 6.) Plaintiff asserts (and defendants’ dispute) that he was

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interviewed again on January 15, 2015 concerning his appeal. This was less than one month

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before plaintiff filed this lawsuit.

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The record evidence before the court shows that the second level review of plaintiff’s

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appeal was returned to him on May 4, 2015. (ECF No. 50-1 at 6.) As noted above, plaintiff did

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not inquire about the status of the second level of review through official channels until April 29,

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2015. (ECF No. 55-1 at 7). Even if plaintiff never received the decision concerning the second

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level review on May 4, 2015, he still filed this lawsuit while the review was indisputably

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underway; the lawsuit was filed more than two months before plaintiff inquired about the status

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of his appeal and less than a month after plaintiff claims he was interviewed by prison officials

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concerning the appeal. While plaintiff disputes that he received a response to his appeal on May

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4, 2015, it is not disputed that the appeals coordinator received the appeal decision on May 4,

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2015, which officially signals the conclusion of that level of review. (ECF No. 501- at 6.)

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Plaintiff filed his lawsuit before the second level appeal process was completed. Plaintiff

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cannot assert that the decision was missing or that the administrative process was not available to
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him on February 10, 2015 when this action was filed. The record clearly shows that the second

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level review was underway on that date and that plaintiff never inquired about the status of his

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appeal until months after he filed the lawsuit. “The obligation to exhaust ‘available’ remedies

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persists as long as some remedy remains available. Once that is no longer the case, then there are

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no remedies available, and the prisoner need not further pursue the grievance.” Brown v. Valoff,

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422 F.3d 926, 935 (9th Cir. 2005) (internal quotations omitted). On February 10, 2015, plaintiff

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still had available administrative remedies that he did not exhaust before pursuing this action.

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Accordingly, plaintiff failed to exhaust administrative remedies. For that reason, this action must

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be dismissed without prejudice.

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IV.

CONCLUSION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendants’ motion

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for summary judgment (ECF No. 50) be granted, and that the action be dismissed without

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prejudice for failure to exhaust administrative remedies under the PLRA.

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These findings and recommendations will be 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. The document should be captioned

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

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objections shall be filed and served within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may result in waiver of the

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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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Dated: August 16, 2017

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DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / smit.0344.msj

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