Martin v. Her

Filing 83

ORDER signed by Chief District Judge Kimberly J. Mueller on 03/09/22 DENYING 70 Motion to Dismiss for failure to exhaust. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Smiley Martin,

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Plaintiff,

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No. 2:18-cv-01658-KJM-KJN
ORDER

v.
Officer J. Her,

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Defendant.

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Plaintiff Smiley Martin is a former state prisoner pursuing a civil rights action

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against Deputy Johnny Her, for harm Martin alleges he suffered while incarcerated. Her

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argues the claims against him should be dismissed because Martin has not exhausted his

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administrative remedies. Given the record before it, the court denies the motion to dismiss.

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I.

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BACKGROUND
Martin was injured in a fight on January 28, 2018. Compl. at 4, ECF No. 1. In his

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verified complaint, Martin alleges he filed a grievance complaining that Her did not properly

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respond to the fight or Martin’s injuries. Id. at 3–4. At his deposition, Martin testified that when

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Her learned of the grievance Her told a houseman, another prisoner serving in a designated role at

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the prison, that Her would impose gang enhancements and extra strikes if Martin maintained the

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grievance. Martin Dep. at 55–57, ECF No. 33-8. The houseman shared this information with
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Martin. Id. Martin did not appeal his grievance “to the highest level” of the administrative

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process because of Her’s threat of “charges and another strike.” Compl. at 3–4.

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Martin was awaiting a transfer to state prison when the fight occurred, and was transferred

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shortly after the fight. Findings and Recommendations at 7, ECF No. 44.1 After his transfer,

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Martin filed his complaint in this court, asserting an Eighth Amendment failure to protect claim

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and a First Amendment retaliation claim. See generally Compl.

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Her raised the question of whether Martin had exhausted his administrative remedies for

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the first time in the parties’ joint statement submitted in advance of the Final Pretrial Conference.

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Joint Pretrial Statement at 6, ECF No. 56. This court asked the parties to brief the issue. Pretrial

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Order at 6, ECF No. 61. In response, Her filed a supplemental trial brief. Def. Suppl. Br., ECF

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No. 70. Martin filed an opposition. Pl. Opp’n, ECF No. 75. Her replied. Reply, ECF No. 78.

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The court held a hearing on the exhaustion question on March 4, 2022. Mayela Montenegro and

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Matthew Donahue appeared on behalf of Martin and Carl Fessenden and Suli Mastorakos

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appeared as counsel for Her.

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II.

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LEGAL STANDARD
Under the Prison Litigation Reform Act (PLRA) “all inmates must now exhaust all

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available remedies” before filing a claim in court. Ross v. Blake, 578 U.S. 632, 641 (2016).

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“Exhaustion should be decided, if feasible, before reaching the merits of a prisoner’s claim.”

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Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). A “fact-based failure-to-exhaust defense

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should be asserted in a summary judgment motion.” Rodriguez v. Cnty. of Los Angeles, 891 F.3d

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776, 792 (9th Cir. 2018) (citation omitted). “[D]isputed factual questions relevant to exhaustion

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should be decided by the judge, in the same manner a judge rather than a jury decides disputed

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factual questions relevant to jurisdiction and venue.” Albino, 747 F.3d at 1170–71.

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The PLRA’s exhaustion requirement is an affirmative defense. Fordley v. Lizarraga,

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18 F.4th 344, 350–51 (9th Cir. 2021) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)). “The

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defendant bears the burden of showing that an administrative process was available to the inmate
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The court adopted these findings and recommendations on Her’s motion for summary
judgment. ECF No. 47.
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and that the inmate failed to exhaust it.” Id. (citation omitted). “Once the defendant shows that

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such a remedy was generally available, the burden shifts to the inmate to show that something in

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his particular case made the generally available administrative remedies effectively unavailable to

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him.” Id. “Because the failure to exhaust is an affirmative defense that defendants must plead

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and prove, the ultimate burden . . . remains with the defendants.” Id.

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III.

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ANALYSIS
Her argues Martin’s retaliation claim should be dismissed for failure to exhaust

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administrative remedies, as required by the PLRA. Def. Suppl. Br. at 2. Her also argues Martin

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did not fully exhaust his failure to protect claim because Martin did not appeal the denial of his

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grievance. Id. at 5. The court finds Her has not carried his burden with respect to either

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argument.

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Regarding retaliation, Her argues “[i]t is undisputed that [Martin] did not file a

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grievance.” Def. Suppl. Br. at 4. However, Her has not provided sufficient evidence to carry his

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burden of showing an administrative remedy was available to Martin. It is undisputed that Martin

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was transferred within days after the initial fight. When asked at hearing, defense counsel was

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unsure of the exact chronology but estimated the transfer occurred with ten days of the fight,

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while plaintiff’s counsel represented Martin was at a different facility by February 1, 2018, within

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five days after the fight. Her has not demonstrated a grievance process was available to Martin to

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complain about any retaliation after he relocated to a new facility. Nor does Her provide any

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evidence demonstrating that a person in custody, as Martin was at the time of the fight, could

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have initiated and completed any available administrative process, such that exhaustion was met,

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within ten days. Her has not pointed the court’s attention to any evidence in the record,

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demonstrating how the grievance process he implies was available works generally. The court

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finds Her has failed to carry his initial burden of proving Martin had access to an available

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administrative remedy that he did not exhaust. See Albino, 747 F.3d at 1176.

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Regarding the failure to protect claim, Her further asserts that Martin did not exhaust

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because he did not appeal the denial of this grievance. Def. Suppl. Br. at 5. Her argues

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“exhaustion requires completion of the prison administrative process, not just one part.” Id.
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Martin contends his claim was properly exhausted because “a prisoner need not press on to

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exhaust further levels of review once he has either received all ‘available’ remedies at an

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intermediate level of review or been reliably informed by an administrator that no remedies are

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available.” Pl. Opp’n at 5 (quoting Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005)).

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Assuming without deciding that administrative remedies remained available in the form of an

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appeal after Martin was transferred, Her still fails to carry his burden on this claim.

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“An inmate, . . . need not exhaust unavailable [remedies],” Ross, 578 U.S. at 642, and the

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Ninth Circuit has “recognize[d] . . . the threat of retaliation for reporting an incident can render

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the prison grievance process effectively unavailable and thereby excuse a prisoner’s failure to

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exhaust administrative remedies.” McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015);

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Rodriguez, 891 F.3d at 792. “[T]he prisoner must show that (1) ‘he actually believed prison

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officials would retaliate against him if he filed a grievance’; and (2) ‘a reasonable prisoner of

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ordinary firmness would have believed that the prison official’s action communicated a threat . . .

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of sufficient severity to deter a reasonable prisoner from filing a grievance.’” Rodriguez,

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891 F.3d at 792 (quoting McBride, 807 F.3d at 987). For a plaintiff to succeed in making this

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showing the record must include “factual statements supporting” the fear of retaliation, such as

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“declarations . . . describing the reasons [he] feared retaliation for filing grievances. . . .” Id.

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at 793–94. Here, Martin alleges in his complaint, which is verified, that he “got scared and didn’t

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push the grievance all the way” because Officer Her told other inmates he would give everyone

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involved in the fight extra charges and strikes if Martin’s grievance was not dropped. Compl. at 4

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& 6. In his deposition, Martin maintained that he believed Her “was for sure trying to threaten

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[Martin.]” Martin Dep. at 57. Martin also avers the other inmates also were pressuring him to

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drop the grievance. Compl. at 4.

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The verified complaint and Martin’s deposition testimony regarding the threats he

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experienced satisfy the showing Martin must make to demonstrate exhaustion was unavailable to

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him by way of retaliation. Her has not carried his burden to show that Martin did not exhaust

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administrative remedies for this claim.

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IV.

CONCLUSION

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The court denies the motion to dismiss (ECF No. 70) for failure to exhaust.

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IT IS SO ORDERED.

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DATED: March 9, 2022.

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