Lumpkin v. Sharpe et al

Filing 30

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/16/2019 RECOMMENDING defendants' 24 motion for summary judgment be granted; and this case be closed. Referred to Judge Troy L. Nunley; 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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SYLVESTER LUMPKIN,

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No. 2:17-cv-1549 TLN CKD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

D. SHARPE, et al.,
Defendants.

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Plaintiff is a California prisoner proceeding pro se with claims arising under 42 U.S.C.

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§1983 and the Eighth Amendment for excessive force. Defendants Sharpe and Cooper are

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Correctional Officers employed at by the California Department of Corrections and Rehabilitation

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(CDCR) at High Desert State Prison. Their motion for summary judgment is before the court.

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I. Plaintiff’s Allegations

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In his complaint, which is signed under the penalty of perjury, plaintiff alleges as follows:

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1. On the morning of August 9, 2016, plaintiff had an appointment with a nurse at High

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Desert. While walking to the meeting place, plaintiff was informed by defendant Sharpe that

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plaintiff had stepped “out of bounds.” Plaintiff responded that he was not aware he had stepped

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“out of bounds.” Sharpe then said, “next time, watch your fucking foot,” to which plaintiff

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responded, “I am not a dog, you don’t have to talk to me that way, I was not paying attention to

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the out of bounds line.”
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2. At that point, Sharpe grabbed plaintiff by his shirt and “violently” pushed plaintiff

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against a wall. Sharpe told plaintiff to put his hands behind his head and interlock his fingers.

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Plaintiff complied. Sharpe then “violently” kicked plaintiff’s legs apart. Plaintiff told Sharpe this

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was not necessary and that he would be filing a “citizen’s complaint.”

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3. Then, defendant Sharpe cuffed plaintiff’s hands together behind plaintiff’s head and,

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“violently” grabbed plaintiff by his shirt and spun him around. Sharpe told plaintiff he would

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take him to a patio to discuss plaintiff filing a complaint. At some point, Sharpe bent plaintiff’s

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body forward while plaintiff’s hands were cuffed behind his head.

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4. Defendant Cooper approached and asked, “what’s up with this asshole.” Sharpe

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responded, “we have an asshole who likes to file complaints on officers. We are going to the

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patio.” At some point, Cooper and Sharpe bent plaintiff’s body forward a second time.

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5. Plaintiff then asked to speak to a sergeant and informed the officers that he would file a
complaint if anything happened to him.
6. As plaintiff was led through the door to the patio, Sharpe grabbed one of plaintiff’s

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legs, Cooper grabbed the other, they raised plaintiff in the air and then slammed him to the

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concrete pavement below. Plaintiff was knocked unconscious.

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7. Plaintiff asserts he suffered a fractured jaw, torn shoulder ligaments, and cuts and

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scrapes to his face as a result of defendants’ actions.

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II. Exhaustion of Administrative Remedies

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Defendants argue that they are entitled to summary judgment because there is no genuine

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issue of material fact as to whether plaintiff exhausted available administrative remedies prior to

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filing suit with respect to his claims against defendants Sharpe and Cooper. Section 1997(e)(a) of

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Title 42 of the United States Code provides that “[n]o action shall be brought with respect to

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prison conditions under section 1983 of this title, . . . until such administrative remedies as are

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available are exhausted.” Administrative procedures generally are exhausted with respect to the

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California prisoner grievance process once the third level of review is complete. The third level

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

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and Rehabilitation (CDCR). Cal. Code 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 a prisoner generally

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

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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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Defendants point to evidence indicating that on August 15, 2016, plaintiff submitted a

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grievance including allegations which resemble the allegations in plaintiff’s complaint against

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defendant Sharpe. ECF No. 24-7 at 8. The evidence also indicates plaintiff submitted the

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grievance to the third level on November 6, 2016. Id. at 9. On January 3, 2017, plaintiff was

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notified that his appeal was rejected because plaintiff did not submit, with his third level

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submission, California Department of Corrections and Rehabilitation Form 1858: “Rights and

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Responsibility Statement.” Id. at 7. Plaintiff was advised he “should the take corrective action

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necessary and resubmit the appeal within the timeframes specified in [California Code of

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Regulations] 3084.6(a) and . . . 3084.8(b).” The evidence presented by defendants indicates

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plaintiff never re-submitted his grievance and, therefore, that plaintiff did not “properly” exhaust

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administrative remedies.

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At his deposition, plaintiff asserted that he did re-submit his grievance to the third level in

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either “October or September” by giving it to an unidentified correctional officer at Hight Desert.

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Plaintiff never received a response to his re-submission. Dep. Tr. at 54-55. When asked if he

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ever inquired of the third level regarding the processing of his re-submitted grievance, plaintiff

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indicated that he did not. Id. at 55.

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There are three major problems with plaintiff’s deposition testimony. First, his grievance

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was rejected in January 2017, so it is not possible that the grievance was resubmitted in “October

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or September” of 2016. Also, under 15 Cal. Code Regs. § 3084.8, plaintiff’s re-submission
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would have been due 30 days after the rejection; if plaintiff submitted in “October or September”

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of 2017, it would not have been timely.

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Second, as indicated above, plaintiff asserts he resubmitted his grievance by giving it to an

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unidentified correctional officer at High Desert. However, at the beginning of his deposition

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plaintiff indicated that he was transferred to the California Medical Facility (CMF) in Vacaville in

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either December 2016, or January 2017, Dep. Tr. at 9-10, and the notice of rejection with respect

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to plaintiff’s original third level submission was sent to plaintiff at CMF on January 3, 2017.

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ECF No. 24-7 at 7.

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Finally, even if the court found that there is evidence plaintiff resubmitted his grievance in

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a timely fashion, plaintiff has not shown that the third level of review’s failure to render a

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decision on the resubmission rendered what was left of the grievance process “effectively

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unavailable” to plaintiff. See Albino, 747 F.3d at 1172. Nothing before the court suggests that if

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plaintiff, at some point shortly after the 60-working-day time limit for the third level to respond to

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the resubmission expired (15 Cal. Code Regs. § 3084.8), inquired why his resubmission had not

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been addressed and presented evidence indicating the grievance was timely-submitted, the third

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level would not have issued a decision on the re-submission.

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Because plaintiff did not submit any grievance regarding the actions of defendant Cooper

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and because there is no genuine issue of material fact as to whether plaintiff “properly” exhausted

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administrative remedies with respect to any claim he might have against defendant Sharpe,

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defendants are entitled to summary judgment.

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III. Heck

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Defendants point to evidence indicating plaintiff pled guilty to felony battery for kicking

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defendant Sharpe during the events occurring on the morning of August 9, 2016, and argue that

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any claim plaintiff may have for excessive force during those same events is precluded under

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Heck v. Humphry, 512 U.S. 477, 487 (1994).1 Under Heck a plaintiff cannot proceed on a §1983

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Per defendants’ request (ECF No. 25), the court judicially notices, pursuant to Rule 201 of the
Federal Rules of Evidence, that “on July 13, 2017, [plaintiff] was found guilty of the offense of
battery on a non-confined person in violation of California Penal Code section 4501.5, and
sentenced to a term of two years imprisonment consecutive to his existing terms. . .” See ECF
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claim if success on the claim would imply the invalidity of a criminal conviction. Id. at 487. In

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this instance, it is at least possible that defendants could have used excessive force against

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plaintiff in violation of the Eighth Amendment by slamming plaintiff to the ground even if, at

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some point, plaintiff committed battery against Sharpe by kicking him. Accordingly, the Heck

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bar does not apply.

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In accordance with the above, IT IS HEREBY RECOMMENDED that

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1. Defendants’ motion for summary judgment (ECF No. 24) 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: January 16, 2019

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No. 24-5 at 25.
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