Draper v. Garcia

Filing 35

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/17/2017 RECOMMENDING defendant Garcia's 20 motion for summary judgment be granted; and this case be closed. Referred to Judge Garland E. Burrell, Jr.; 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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JOHN CLINT DRAPER,

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No. 2:16-cv-1917 GEB CKD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

A. GARCIA,

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Defendant.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. On August 16, 2016, the court screened plaintiff’s complaint as

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the court is required to do under 28 U.S.C. § 1915A. The court found service of process

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appropriate for defendant Garcia based upon a claim arising under the Eighth Amendment.

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Defendant Garcia filed his answer on November 17, 2016, and then filed a motion for summary

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judgment on February 7, 2017. In the motion defendant argues that plaintiff failed to exhaust

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available administrative remedies prior to filing suit, with respect to his remaining claim.

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Plaintiff has filed an opposition to the motion and the motion stands submitted to the court for

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decision.

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I. Plaintiff’s Allegations

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At all relevant times, plaintiff was an inmate housed at the California Medical Facility
(CMF) where defendant was employed as a correctional officer. Plaintiff alleges that on April 9,
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2016, defendant deliberately slammed a door on plaintiff’s right leg, ankle, and foot causing

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serious pain and injuries. After causing plaintiff these injuries, defendant failed to obtain

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medical attention for plaintiff.

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II. Standards

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Section 1997(e)(a) of Title 42 of the United States Code provides that “[n]o action shall be

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brought with respect to prison conditions under section 1983 of this title, . . . until such

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administrative remedies as are available are exhausted.” Administrative procedures generally are

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exhausted with respect to the California prisoner grievance process once the third level of review

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is complete. The third level of review constitutes the decision of the

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Secretary of the California Department of Corrections and Rehabilitation (CDCR). Cal. Code

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Regs. tit. 15, § 3084.7.

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The exhaustion requirement demands “proper” exhaustion. Woodford v. Ngo, 548 U.S.

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81, 90-91 (2006). In order to “properly exhaust” administrative remedies the prisoner must

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generally comply with the prison’s procedural rules throughout the administrative process. Jones

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v. Bock, 218 U.S. 199, 218 (2006).

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If undisputed evidence viewed in the light most favorable to the prisoner / plaintiff shows

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a failure to exhaust, a defendant is entitled to summary judgment under Rule 56 of the Federal

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Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). If there is at

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least a genuine issue of material fact as to whether there was exhaustion, the motion for summary

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judgment must be denied. See Fed. R. Civ P. 56(a).

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III. Analysis

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The evidence before the court indicates that plaintiff did file a grievance alleging that

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defendant slammed a door on plaintiff’s right leg and foot on April 9, 2016. ECF No. 20-5 at 7-

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10. However, plaintiff does not allege a denial of access to medical care in the grievance. The

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grievance was received at the CMF appeals office on April 13, 2016. Id. at 7. The grievance was

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reviewed and it was determined that the first level of the appeal of the grievance process would be

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bypassed and the grievance would proceed directly to the second level. Id. The grievance was

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accepted for review at the second level on April 13. Id. at 8.
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In a memorandum dated April 22, 2016, Warden Robert Fox issued the “second level

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response.” Id. at 22. Warden Fox informed plaintiff that his grievance was “partially granted” in

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that his “allegation of staff misconduct” “was referred for a Use of Force Inquiry.” Id. Plaintiff

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was also informed:

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Allegations of staff misconduct do not limit or restrict the
availability of further relief through the inmate grievance process.
If you wish to appeal the decision and/or exhaust administrative
remedies, you must submit your staff complaint appeal through all
levels of appeal review up to, and including, the Secretary’s/Third
Level of Review. Once a decision has been rendered at the Third
Level, administrative remedies will be considered exhausted.
Warden Fox’s memorandum was sent to plaintiff on May 10, 2016. Id. at 8.

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Plaintiff appealed Warden Fox’s decision to the third level of review on May 15, 2016.

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ECF No. 20-4 at 12. In a letter dated July 1, 2016, petitioner was informed that his third level

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appeal had been rejected because plaintiff did not include a CDCR Form 1858, “Rights and

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Responsibilities Statement” with his appeal. Id. at 10. Plaintiff was informed that he could not

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appeal a rejected appeal, but that he “should take the corrective action necessary and resubmit the

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appeal within the timeframes specified in CCR 3084.6(a) and CCR 3084.8(b).”

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In his opposition, plaintiff asserts that defendant ignored plaintiff’s request for a “Rights

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and Responsibilities Statement” on April 9, 2016. ECF No. 25 at 7. He also claims he requested

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one from the law library that day, but the law library clerk told plaintiff they did not have any. Id.

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at 2. However, plaintiff fails to point to any evidence indicating that he requested, and was

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denied, a “Rights and Responsibilities Statement” before he submitted his grievance for review at

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the third level, or after his grievance was rejected at the third level, so that he could complete the

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“Statement” and resubmit his grievance.

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Under Cal. Code Regs. tit. 15 § 3084.9(i) “any appeal alleging misconduct by a

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departmental peace officer . . . shall be accompanied by the subsection 3391 Rights and

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Responsibility Statement” which reads as follows:

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You have the right to make a complaint against a police officer [this
includes a departmental peace officer] for any improper police [or
peace] officer conduct. California law requires this agency to have
a procedure to investigate citizen's [or inmates'/parolees']
complaints. You have a right to a written description of this
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procedure. This agency may find after an investigation that there is
not enough evidence to warrant action on your complaint; even if
that is the case, you have the right to make the complaint and have
it investigated if you believe an officer behaved improperly.
Citizen [or inmate/parolee] Complaints and any reports or findings
relating to complaints must be retained by this agency for at least
five years.

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The statement must be signed by the inmate filing the appeal acknowledging that he or she is

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aware of its contents. Cal. Code Regs. tit. 15 § 3391(d).

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As indicated above, CDCR’s administrative remedies must generally be “properly

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exhausted” with respect to any claim brought in this court against a CDCR employee concerning

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conditions of confinement. “Proper” exhaustion generally includes the prisoner / plaintiff’s

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compliance with applicable procedural rules. Plaintiff failed to comply with CDCR rules by

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failing to submit a “Rights and Responsibilities Statement” with his third level appeal. Even

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when given a chance to correct this error, plaintiff failed to do so and he does not provide any

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adequate justification for his failure.

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IV. Conclusion
Because there is not a genuine issue of material fact as to whether plaintiff exhausted

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available administrative remedies with respect to his remaining Eighth Amendment claim against

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defendant Garcia, defendant Garcia’s motion for summary judgment should be granted.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Defendant Garcia’s motion for summary judgment (ECF No. 19) be granted; and

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2. This case be closed.

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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.” Any response to the

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

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 17, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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drap1917.exh

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