Dawson v. United States Government et al

Filing 97

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/27/20 RECOMMENDING that Defendant Dailey's motion for summary judgment 85 be granted. Plaintiff's remaining claims be dismissed for failure to exhaust available administrative remedies. This case be closed. F&R referred to District Judge Morrison C. England, Jr. Objections to F&R due within fourteen days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH DEAN DAWSON,

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Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

UNITED STATES GOVERNMENT, et
al.,
Defendants.

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No. 2:18-cv-0354 MCE CKD P

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 May 8, 2019, the court screened plaintiff’s second amended

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complaint as the court is required to do under 28 U.S.C. § 1915A(a). The court found that

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plaintiff could proceed on claims for excessive force arising under the Eighth Amendment and

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retaliation arising under the First Amendment against Correctional Officer M. Daily as alleged in

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pages 3-5 of plaintiff’s second amended complaint. Defendant Daily (defendant) has filed a

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motion for summary judgment, arguing, among other things, that plaintiff failed to exhaust

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available administrative remedies prior to filing suit as he is required to do under 42 U.S.C. §

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1997(e)(a).

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I. Summary Judgment Standard

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Summary judgment is appropriate when it is demonstrated that there “is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by

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“citing to particular parts of materials in the record, including depositions, documents,

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electronically stored information, affidavits or declarations, stipulations (including those made for

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purposes of the motion only), admissions, interrogatory answers, or other materials. . .” Fed. R.

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Civ. P. 56(c)(1)(A).

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Summary judgment should be entered, after adequate time for discovery and upon motion,

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against a party who fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at trial. See

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an

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essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

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Id.

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If the moving party meets its initial responsibility, the burden then shifts to the opposing

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party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

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existence of this factual dispute, the opposing party may not rely upon the allegations or denials

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of their pleadings but is required to tender evidence of specific facts in the form of affidavits,

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and/or admissible discovery material, in support of its contention that the dispute exists or show

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that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.

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R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the

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fact in contention is material, i.e., a fact that might affect the outcome of the suit under the

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governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,

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Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is

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genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving

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party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

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In the endeavor to establish the existence of a factual dispute, the opposing party need not

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establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce
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the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

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Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963

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amendments).

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In resolving the summary judgment motion, the evidence of the opposing party is to be

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believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the

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facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475

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U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s

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obligation to produce a factual predicate from which the inference may be drawn. See Richards

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v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902

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(9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than

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simply show that there is some metaphysical doubt as to the material facts . . . . Where the record

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taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no

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‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

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II. Plaintiff’s Allegations

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On pages 3-5 of plaintiff’s second amended complaint, plaintiff alleges that on November

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16, 2017 defendant caused plaintiff to be attacked by inmate Erik Silva in retaliation for

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complaints filed by plaintiff against prison officials.

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III. Defendant’s Argument and Analysis

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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.” The exhaustion requirement demands

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“proper” exhaustion. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). In order to “properly

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exhaust” administrative remedies, the prisoner must generally comply with department procedural

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rules, including deadlines, throughout the administrative process. Jones v. Bock, 549 U.S. 199,

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218 (2006); Woodford, 548 U.S. at 90-91.

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At the time of the incidents at issue in this case, administrative procedures with respect to

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claims brought in this court by California Department of Corrections and Rehabilitation inmates

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were exhausted once the third level of review was complete. The third level of review constitutes
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the decision of the Secretary of the California Department of Corrections and Rehabilitation

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(CDCR). Cal. Code Regs. tit. 15, § 3084.7.

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Defendant points to evidence indicating that plaintiff submitted a grievance concerning

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the facts supporting plaintiff’s remaining claims. ECF No. 85-6 at 48. Ultimately, the grievance

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was cancelled at the final level as untimely. Id. at 46. Under Cal. Code Regs. tit 15. § 3084.8

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(repealed June 1, 2020) inmate grievances must be submitted within 30 days of the occurrence of

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the events being appealed, provided the inmate had knowledge of the events. The reviewer at the

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final level found that plaintiff’s grievance was not submitted until February 18, 2018, making it

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approximately two months late, and that plaintiff had the opportunity to file a timely grievance.

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Id. It does not appear that plaintiff attempted to explain his delay in filing his grievance in his

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grievance, or in his appeal to the final level.
If an inmate’s administrative appeal is cancelled, the inmate can file a separate grievance

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regarding the cancellation decision. Cal. Code Regs. tit. 15, § 3084.6(a)(3) & (e). Plaintiff was

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informed of this in the final level cancellation of his grievance. Plaintiff never filed such a

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grievance.
In his response to defendant’s motion, plaintiff fails to present any argument suggesting

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the cancellation of his grievance was not proper or anything else suggesting that plaintiff did

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properly exhaust all of the administrative remedies available to him.

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IV. Conclusion

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There is no genuine issue of material fact before the court as to whether plaintiff properly

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exhausted all administrative remedies available to him with respect to his remaining claims.

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Accordingly, the court will recommend that defendant’s motion for summary judgment be

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granted and plaintiff’s remaining claims be dismissed. In light of the foregoing, the court need

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not address the other arguments presented in the motion for summary judgment.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Defendant Dailey’s motion for summary judgment (ECF No. 85) be granted;

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2. Plaintiff’s remaining claims be dismissed for failure to exhaust available

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administrative remedies; and

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3. 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: August 27, 2020

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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