Wright v. Fields, et al

Filing 45

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/9/17 ORDERING that the July 27, 2016 findings and recommendations (ECF No. 24 ) are VACATED. It is RECOMMENDED that defendants' motion for summary judgment (ECF No. 20 ) be granted and that plaintiff's claims against defendants be dismissed without prejudice for failure to exhaust administrative remedies. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL WEBSTER WRIGHT,

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No. 2:15-cv-2291-KJM-EFB P

Plaintiff,

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v.

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D. FIELDS, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He alleges defendants D. Fields and C. Darling (hereafter “defendants”) violated

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his Eighth Amendment rights by using excessive force against him. ECF No. 1 at 4-5.

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Defendants move for summary judgment1 (ECF No. 20) arguing that plaintiff failed to exhaust his

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administrative remedies prior to filing this action. Plaintiff filed an opposition (ECF No. 42) and

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defendants submitted a reply (ECF No. 43). After review of the pleadings, it is recommended

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that defendants’ motion be granted.

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The motion was filed by defendant Fields (ECF No. 20) and defendant Darling filed a
joinder thereto (ECF No. 21). Additionally, the reply to plaintiff’s opposition was filed by Fields
and Darling filed a joinder to that pleading as well. ECF Nos. 43-44.
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I.

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On July 27, 2016 the court issued findings and recommendation recommending that this

Findings and Recommendations Issued July 27, 2016

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action be dismissed without prejudice due to plaintiff’s failure to submit a timely opposition to

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defendant’s motion for summary judgment. ECF No. 24. Those findings were held in abeyance

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on September 8, 2016 and plaintiff was afforded thirty days to file his opposition to the motion

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for summary judgment. ECF No. 28. As indicated above, plaintiff has now filed his opposition

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and, accordingly, the previous findings and recommendations are vacated.

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II.

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Plaintiff alleges that on June 21, 2014, while he was incarcerated at California State

Background

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Prison, Sacramento, he was partaking in unspecified outdoor activities. ECF No. 1 at 4. He was

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approached by defendants, both of whom were prison security officers, and they ordered him to

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return to his housing unit due to a “heat activation alert.”2 Id. Plaintiff declined and stated that he

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felt fine. Id. Plaintiff alleges that after he declined their orders a second time, the defendants

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restrained and handcuffed him. Id. at 4-5. He claims that he told defendants that a medical

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condition precluded him from being cuffed with his hands behind his back, but they ignored him

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and caused him “excruciating pain” during their efforts to restrain him. Id. at 5.

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Plaintiff’s administrative grievance regarding this incident – numbered SAC-14-01829 –

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was received by prison staff on July 3, 2014. ECF No. 20-4 at 6. The grievance was screened

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and rejected at the first level of review, with notice of such sent to plaintiff on July 17, 2014.

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ECF No. 20-5 ¶ 6; ECF No. 20-4 at 15. The rejection was pursuant to California Code of

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Regulations, Title 15, section 3084.6(b)(9) for the inclusion of unrelated documentation and

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section 3084.6(b)(7) for the omission of necessary supporting documents. ECF No. 20-4 at 15.

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Plaintiff resubmitted the grievance and prison officials received that resubmission on

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August 4, 2014. ECF No. 20-5 ¶ 7. The allegations against the defendants were processed and

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denied. Id. ¶¶ 7-8; ECF No. 20-4 at 11-12. Plaintiff received the denial on September 23, 2014.

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ECF No. 20-5 ¶ 8. Plaintiff elected to appeal the denial, but prison officials did not receive his

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Plaintiff states that “heat activation alerts” offered heat sensitive inmates the opportunity
to return to their housing units whenever temperatures exceed ninety degrees. ECF No. 1 at 4.
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appeal until January 9, 2015. Id. ¶ 9. The appeal was denied as untimely and plaintiff was

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instructed that he could not resubmit the cancelled appeal. ECF No. 20-4 at 10. Those

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instructions did, however, notify him that he could submit a separate appeal challenging the

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cancellation decision itself. Id. Plaintiff did not submit any further appeals related to grievance

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SAC-14-01829. ECF No. 20-4 at 3, ¶ 5; ECF No. 20-5 ¶ 10.

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III.

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Legal Standards
A.

Motion for Summary Judgment

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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). 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 principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims

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or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to

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“‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

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trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.

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Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary

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judgment practice, the moving party bears the initial responsibility of presenting the basis for its

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motion and identifying those portions of the record, together with affidavits, if any, that it

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believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323;

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Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets

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

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present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson,

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477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995).
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A clear focus on where the burden of proof lies as to the factual issue in question is crucial

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to summary judgment procedures. Depending on which party bears that burden, the party seeking

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summary judgment does not necessarily need to submit any evidence of its own. When the

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opposing party would have the burden of proof on a dispositive issue at trial, the moving party

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need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National

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Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters

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which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-

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summary judgment motion may properly be made in reliance solely on the ‘pleadings,

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depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment

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should be entered, after adequate time for discovery and upon motion, against a party who fails to

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make a showing sufficient to establish the existence of an element essential to that party’s case,

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and on which that party will bear the burden of proof at trial. See id. at 322. In such a

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circumstance, summary judgment must be granted, “so long as whatever is before the district

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court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is

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satisfied.” Id. at 323.

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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.”). Whether a factual dispute is material is

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determined by the substantive law applicable for the claim in question. Id. If the opposing party

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is unable to produce evidence sufficient to establish a required element of its claim that party fails

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in opposing summary judgment. “[A] complete failure of proof concerning an essential element

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of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S.

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at 322.

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Second, the dispute must be genuine. In determining whether a factual dispute is genuine

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the court must again focus on which party bears the burden of proof on the factual issue in
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question. Where the party opposing summary judgment would bear the burden of proof at trial on

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the factual issue in dispute, that party must produce evidence sufficient to support its factual

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claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit

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or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue

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for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to

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demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such

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that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,

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477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

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The court does not determine witness credibility.

It believes the opposing party’s

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evidence, and draws inferences most favorably for the opposing party. See Id. at 249, 255;

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Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the

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proponent must adduce evidence of a factual predicate from which to draw inferences. American

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Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J.,

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dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at

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issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th

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Cir. 1995). On the other hand, the opposing party “must do more than simply show that there is

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some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could

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not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

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trial.’” Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant

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summary judgment.

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Concurrent with his motion for summary judgment, defendants advised plaintiff of the

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requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure.

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ECF No. 20-1; see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d

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952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999); Klingele v. Eikenberry,

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849 F.2d 409 (9th Cir. 1988).

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B.

Dismissal for Failure to Exhaust Administrative Remedies

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The Prison Litigation Reform Act of 1995 (hereafter “PLRA”) states that “[n]o action

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shall be brought with respect to prison conditions under section 1983 . . . or any other Federal

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law, by a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA

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applies to all suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), but a prisoner is

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only required to exhaust those remedies which are “available.” See Booth v. Churner, 532 U.S.

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731, 736 (2001). “To be available, a remedy must be available as a practical matter; it must be

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capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (citing Brown v.

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Valoff, 422 F.3d 926, 937 (9th Cir. 2005)) (internal quotations omitted).
Dismissal for failure to exhaust should generally be brought and determined by way of a

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motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Id. at

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1168. Under this rubric, the defendant bears the burden of demonstrating that administrative

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remedies were available and that the plaintiff did not exhaust those remedies. Id. at 1172. If

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defendant carries this burden, then plaintiff must “come forward with evidence showing that there

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

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remedies effectively unavailable to him.” Id.

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IV.

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The pleadings make clear that there is no dispute as to the procedural history of the

Analysis

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relevant appeal. The claims against defendants were not fully exhausted in compliance with the

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administrative procedures of the California Department of Corrections and Rehabilitation.

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Plaintiff argues that exhaustion should be excused, however, because: (1) prison officials

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hindered the filing of his first-level appeal; (2) his initial appeal afforded defendants “due notice

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of federal adjudication”; and (3) he exhausted all administrative remedies that were actually

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available to him. ECF No. 42 at 2-4. These arguments are unavailing.

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There is no question that prison officials ultimately reviewed and denied his excessive

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force claims against the defendants at the first level. ECF No. 20-4 at 11-12. It is true that

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plaintiff’s first level appeal was initially rejected for procedural reasons (Id. at 15), but plaintiff
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resubmitted the grievance and a first level decision issued (Id. at 11-12). As such, plaintiff cannot

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convincingly argue that the initial procedural rejection amounted to “stonewalling” or deprived

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him of the opportunity to fully exhaust administrative remedies. Indeed, plaintiff did appeal that

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decision, but his second level appeal was untimely. Id. at 10; ECF No. 20-5 at 3, ¶ 9. Plaintiff

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has not offered any excuse for the untimeliness of his appeal. Even if an excuse for this delay

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were proffered, plaintiff would still have failed to avail himself of available administrative

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remedies insofar as he declined to challenge the decision to cancel his appeal.3 Exhaustion

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required him to do so, because the ability to challenge the cancellation represented an “available”

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remedy. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The obligation to exhaust

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‘available’ remedies persists as long as some remedy remains ‘available.’”). Had his cancellation

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challenge proved successful, he could have resubmitted his original appeal and secured a final

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administrative disposition on the merits of his claim.

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It is also irrelevant that his initial grievance provided prison officials notice of his

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intention to file a civil action in federal court. The requirements of the PLRA are clear, and a

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prisoner cannot circumvent them simply by announcing his intent to file a federal action

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regardless of the administrative outcome. To hold otherwise would be an express invalidation of

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the PLRA’s stated purpose.

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Finally, plaintiff cites Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016) in his opposition, but

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that case is inapposite here. Reyes held that “[w]hen prison officials opt not to enforce a

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procedural rule but instead decide an inmate's grievance on the merits, the purposes of the PLRA

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exhaustion requirement have been fully served . . .” Id. at 658. Prison officials did not decline to

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enforce any procedural rules here. As noted supra, plaintiff’s first level appeal was initially

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rejected on procedural grounds. Then, after it was resubmitted and decided, the second level

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The second level rejection for untimeliness provided:
Pursuant to CCR 3084.6(e), once an appeal has been cancelled, that
appeal may not be resubmitted. However, a separate appeal can
be filed on the cancellation decision. The original appeal may
only be resubmitted if the appeal on the cancellation is granted.

ECF No. 20-4 at 10 (emphasis added).
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appeal was rejected on procedural grounds. Merit decisions were never rendered at the second or

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third levels of review.

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V.

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Accordingly, the July 27, 2016 findings and recommendations (ECF No. 24) are

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Conclusion

VACATED.
Further, it is hereby RECOMMENDED that defendants’ motion for summary judgment

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(ECF No. 20) be granted and that plaintiff’s claims against defendants be dismissed without

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prejudice for failure to exhaust administrative remedies.

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 9, 2017.

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