Cruz v. Betancourt

Filing 50

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT; DENYING MOTION TO STRIKE by Judge William Alsup, granting 31 Motion for Summary Judgment; terminating 31 Motion to Dismiss; denying 48 Motion to Strike. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 6/13/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SANTIAGO CRUZ,

No. C 16-0152 WHA (PR)

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Plaintiff,

ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT; DENYING
MOTION TO STRIKE

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OFFICER C. BETANCOURT,
For the Northern District of California

United States District Court

v.
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Defendant.
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/

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INTRODUCTION
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Plaintiff, an inmate at the California Training Facility (“CTF”), filed this civil rights
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case under 42 U.S.C. 1983 alleging that Officer C. Betancourt, a CTF correctional officer,
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retaliated against him for filing administrative grievances and orchestrated an attack upon
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plaintiff by another inmate. Defendant has filed a motion to dismiss or for summary judgment,
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plaintiff has filed an opposition to the motion to dismiss, and defendant filed a reply brief.
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Plaintiff then filed a separate opposition to the motion for summary judgment and declaration
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by another inmate, and defendant filed a motion to strike plaintiff’s opposition to the motion for
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summary judgment and the declaration. For the reasons discussed below, the motion to strike is
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DENIED, and the motion for summary judgment is GRANTED.
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STATEMENT
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In 2014, plaintiff was housed in a unit of CTF known as “Whitney Hall,” where
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defendant was a floor officer. Plaintiff suffers from mental illness for which he received
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medication. On April 15, 2014, plaintiff was placed on “C-status” — a designation for inmates
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who have a disciplinary history — because he had one serious rule violation and two

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administrative rules violations within the previous six months. Inmates on C-status lose certain

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privileges, including possession of televisions and other appliances, which may be confiscated

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by prison officials. On May 5, 2014, defendant worked his ordinary shift from 6:00 a.m. to 2:00

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p.m. as the floor officer in Whitney Hall, and during his shift he searched plaintiff’s cell and

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found a television, which he confiscated. At 4:28 p.m., after defendant’s shift had ended and he

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was no working, plaintiff was assaulted by another inmate named Osborn. Osborn was also

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housed in Whitney Hall on C-status. Osborn seriously injured plaintiff, including knocking

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plaintiff out and breaking four of his ribs.

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According to plaintiff, defendant generally allowed C-status inmates in Whitney Hall to
keep prohibited appliances in their cells as long as they behaved well. Plaintiff asserts that on

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For the Northern District of California

United States District Court

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May 5 defendant searched plaintiff’s cell and confiscated the television in retaliation for

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administrative grievances plaintiff had submitted against defendant’s partner, Officer Carillo.

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Plaintiff also claims that defendant orchestrated Osborn’s assault of plaintiff on May 5.

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Specifically, plaintiff asserts that in the morning of May 5, defendant confiscated prohibited

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items from both plaintiff and Osborn after searching their cells. According to plaintiff,

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defendant told Osborn that plaintiff had reported Osborn’s possession of appliances knowing

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that Osborn would be angry at plaintiff for being a “snitch.” Plaintiff contends that defendant

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also knew that Osborn would have access to plaintiff in the afternoon of May 5 when they

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would both be released from their cells to receive their medications. Therefore, plaintiff claims

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that Osborn’s assault of him was set up by defendant.

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Plaintiff further alleges that following this incident and up until the date plaintiff

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prepared the complaint filed in this case — December 15, 2015 — defendant continued to

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threaten plaintiff with “more of the same” property confiscation and serious injuries.

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ANALYSIS
Defendant argues for dismissal of plaintiff’s claims, and in the alternative for summary

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judgment. Because he is entitled to summary judgment for the reasons discussed below, the

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dismissal arguments need not be addressed.

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A.

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STANDARD OF REVIEW
Summary judgment is proper where the pleadings, discovery and affidavits show that

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there is "no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute

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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a

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verdict for the nonmoving party. Ibid. The moving party for summary judgment bears the

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initial burden of identifying those portions of the pleadings, discovery and affidavits which

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demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S.
317, 323 (1986). When the moving party has met this burden of production, the nonmoving

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For the Northern District of California

United States District Court

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party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific

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facts showing that there is a genuine issue for trial. Ibid. If the nonmoving party fails to

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produce enough evidence to show a genuine issue of material fact, the moving party wins. Ibid.

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At summary judgment, the judge must view the evidence in the light most favorable to the

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nonmoving party: if evidence produced by the moving party conflicts with evidence produced

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by the nonmoving party, the judge must assume the truth of the evidence set forth by the

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nonmoving party with respect to that fact. Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014).

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B.

PLAINTIFF’S CLAIMS

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1.

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Plaintiff claims that defendant retaliated against him for filing administrative grievances

Retaliation Claim

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against defendant’s partner, Officer Carillo. Retaliation by a state actor for the exercise of a

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constitutional right is actionable under 42 U.S.C. 1983. Mt. Healthy City Sch. Dist. Bd. of

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Educ. v. Doyle, 429 U.S. 274, 283-84 (1977). “Within the prison context, a viable claim of

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First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took

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some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and

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that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the

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action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408

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F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted).
There is no triable issue of fact related to the second element of a retaliation claim. To

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satisfy the second element of a retaliation claim, plaintiff must prove that defendant took the

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adverse actions “because of” plaintiff’s protected conduct. See ibid. The adverse actions

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asserted here took place on May 5, when defendant searched plaintiff’s cell and confiscated the

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television, and then allegedly orchestrated Osborn’s assault of plaintiff later that day (ECF No.

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1 at 2, 3; ECF No. 46 at 2). Plaintiff’s asserted protected conduct was an administrative

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grievance he filed about defendant’s partner, Officer Carillo, several weeks earlier (ECF No. 46

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Exh. A). Retaliation is not established simply by showing adverse activity by defendant after
protected speech, however; rather, plaintiff must show a nexus between the two. Huskey v. City

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For the Northern District of California

United States District Court

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of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on the logical

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fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore because of this”). The papers

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evince no nexus or relationship of any kind between defendant’s actions on May 5 and the

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grievance filed by plaintiff against Carillo. There is no dispute that defendant could search

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plaintiff’s cell and confiscate the television because plaintiff was on C-status due to plaintiff’s

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disciplinary history. Even if, as plaintiff asserts, defendant had not previously enforced those

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regulations, there is no evidence that his doing so on May 5 was motivated by plaintiff’s

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grievance against Carillo as opposed to some other reason. Similarly, there is no evidence that

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Osborn assaulted plaintiff because plaintiff had filed an administrative grievance. In the

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absence of any such evidence, finding that plaintiff’s grievances caused Osborn to assault him

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would be simply speculation by a fact-finder as there are a host of other reasons the assault

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might have occurred. Such speculation is not sufficient to create a triable issue of fact.

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There is also no triable issue of fact as to the fifth element of the retaliation claim with

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respect to the search and confiscation of the television. The fifth element of a retaliation claim

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requires a prisoner to prove the absence of legitimate correctional goals for the defendant’s

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adverse conduct. Pratt, 65 F.3d at 806; see Brodheim v. Cry, 584 F.3d 1262, 1272 (9th Cir.

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2009) (applying four- part test from Turner v. Safley, 482 U.S. 78 (1978), to determine whether

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adverse conduct reasonably related to legitimate penological interest in retaliation analysis).

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Plaintiff has not done so. As discussed above, there is no dispute that prison regulations

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prohibited inmates on “C-status” from having a television, or that plaintiff’s disciplinary history

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qualified him from being placed on “C-status.” Searching cells and confiscating prohibiting

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televisions is the most logical way of enforcing a rule prohibiting inmates from having them.

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Further, a policy that takes away the privilege of televisions for inmates when they break prison

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rules serves the legitimate correctional goal of preserving order and safety in a prison setting.

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Plaintiff has presented no evidence that the search of his cell and confiscation of his television

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did not reasonably advance legitimate penological goals. Thus, even if defendant had done so
because of plaintiff’s protected conduct, defendant would be entitled to summary judgment

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For the Northern District of California

United States District Court

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because there is no triable issue of fact as to whether the search and confiscation were unrelated

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to advancing legitimate penological goals.

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As there is no triable issue of fact on at least one of the elements of plaintiff’s retaliation
claim, defendants are entitled to summary judgment on this claim.

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2.

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Plaintiff claims that defendant violated his Eighth Amendment right to be free from

Eighth Amendment Claim

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cruel and unusual punishment by orchestrating Osborn’s assault on him. Defendant moves for

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summary judgment on this claim Eighth Amendment claim both on exhaustion grounds and on

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the grounds that there is no evidence that he knew or had reason to know that Osborn would

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attack plaintiff. The merits argument need not be reached because it clear from the undisputed

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evidence that plaintiff did not exhaust his administrative remedies on this claim.

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The Prison Litigation Reform Act (“PLRA”) provides that "[n]o action shall be brought

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with respect to prison conditions under [42 U.S.C. 1983], or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted." 42 U.S.C. 1997e(a). Compliance with the exhaustion

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requirement is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532

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U.S. 731, 739-40 & n.5 (2001). Exhaustion must ordinarily be decided in a summary judgment

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motion. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). If undisputed

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evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a

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defendant is entitled to summary judgment under Rule 56. Id. at 1166.

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The California Department of Corrections and Rehabilitation (“CDCR”) provides its

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inmates and parolees the right to appeal administratively “any policy, decision, action,

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condition, or omission by the department or its staff that the inmate or parolee can demonstrate

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as having a material adverse effect upon his or her health, safety, or welfare.” 15 Cal. Code

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Regs. § 3084.1(a). It also provides its inmates the right to file administrative appeals alleging

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misconduct by correctional officers. Ibid. In order to exhaust available administrative remedies
within this system, a prisoner must submit his complaint on CDCR Form 602 (referred to as a

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For the Northern District of California

United States District Court

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“602”) and proceed through several levels of appeal: (1) first level appeal filed with one of the

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institution’s appeal coordinators, (2) second level appeal filed with the institution head or

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designee, and (3) third level appeal filed with the CDCR director or designee. Id. § 3084.7.

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Defendant has shown that plaintiff did not file any administrative grievances

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complaining that defendant orchestrated the assault by Osborn on May 5, 2014. Plaintiff asserts

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that he exhausted this claim in an administrative grievance that he filed on September 17, 2014

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(ECF No. 43 at Exh. A (grievance number CTF-S 14-01655)). This grievance did not assert

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that defendant orchestrated the assault by Osborn on May 5, 2014, however, which is the basis

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for plaintiff’s Eighth Amendment claim.

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Administrative remedies are not exhausted where the grievance, liberally construed,

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does not have the same subject and same request for relief. See, e.g., Morton, 599 F.3d at 946;

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O’Guinn, 502 F.3d at 1062, 1063. In addition, the PLRA exhaustion requirement requires

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“proper exhaustion,” which means compliance with prison grievance procedures. Jones v.

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Bock, 549 U.S. 199, 217-18 (2007) (the level of detail necessary in a grievance to exhaust a

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claim is determined by the prison’s grievance requirements, and not the PLRA). California

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prison regulations require the grievance to “describe the specific issue under appeal and the

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relief requested,” “ list all staff member(s) involved and [] describe their involvement in the

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issue,” and “state all facts known and available to [the inmate] regarding the issue being

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appealed” at the time the grievance is submitted. 15 Cal. Code Regs. § 3084.2(a). It is noted

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that neither the California regulations nor the PLRA require a grievance to include legal

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terminology or legal theories unless they are needed to provide notice of the harm being

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grieved, nor must a grievance include every fact necessary to prove each element of an eventual

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legal claim. See ibid.; Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).

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Grievance number CTF-S 14-01655 did not include even the most basic facts underlying

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plaintiff’s Eighth Amendment claim. It did not state that plaintiff was assaulted on May 5,

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made no mention of Osborn, did not state that defendant had informed Osborn that plaintiff was
a snitch or orchestrated the assault, and did not describe the injuries plaintiff suffered. These

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For the Northern District of California

United States District Court

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facts were certainly known to or available to plaintiff and thus had to be included in the

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grievance under the California regulations. In the “actions requested” section of the grievance,

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plaintiff requested that defendant and Carillo “stop telling others to beat me up,” and for an

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investigation into the “incident” on May 5, 2014. Even if these statements refer to the May 5

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assault — which does not appear to be the case for the reasons discussed in the next paragraph

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— they are certainly not “all” of the facts known or available to plaintiff about that incident,

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which is what the California regulations require. Because the grievance, even when liberally

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construed, did not meet the California regulations’ requirement to set forth all of the facts

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known or available to plaintiff about the May 5 assault by Osborn and defendant’s purported

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orchestration of it, the grievance did not “properly exhaust” plaintiff’s Eighth Amendment

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claim as required by the PLRA.

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Even if the California regulations did not control the analysis here, the grievance did not

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properly exhaust the Eighth Amendment claim because it did not alert prison officials to the

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problem and allow them to take corrective action. See ibid. (where prison regulations do not

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specify how much detail is necessary, proper exhaustion under the PLRA requires a grievance

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at least to inform prison officials of the problem to afford them an opportunity to correct it).

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Asking to have defendant “stop telling others to beat me up” would not alert prison officials to

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the fact that defendant had orchestrated the May 5 assault because the grievance made no

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mention of the assault on May 5, Osborn, or defendant’s purported initiation of it. Instead, in

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the same paragraph, the grievance referred to a different fight plaintiff had with another inmate

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in August 2014, which would reasonably indicate to prison officials that plaintiff was referring

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to that fight and not the May 5 assault that is the basis of plaintiff’s Eighth Amendment claim.

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Plaintiff’s request for an investigation of the “incident” on May 5 also did not alert prison

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officials to the assault because the only “incidents” mentioned in the grievance that occurred on

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May 5 were the search of plaintiff’s cell and confiscation of his television on that day. Because

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the grievance did not indicate that plaintiff was assaulted on May 5 or that defendant was
involved in setting up that assault, the grievance did not alert prison officials to the problem or

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For the Northern District of California

United States District Court

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give then an opportunity to correct it. As a result, it did not “properly exhaust” plaintiff’s

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Eighth Amendment claim regardless of California’s requirements for its prisoner grievances.

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Furthermore, the September 17, 2014, grievance could not properly exhaust the Eighth

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Amendment claim because it would not be a timely of defendant’s alleged conduct related to

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the May 5, 2014, assault. The PLRA’s exhaustion requirement cannot be satisfied “by filing an

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untimely or otherwise procedurally defective administrative grievance or appeal.” Woodford v.

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Ngo, 548 U.S. 81, 84 (2006). California regulations require an inmate to file an administrative

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grievance within thirty days of the event being appealed. 15 Cal. Code Regs. § 3084.8. The

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grievance was filed over four months after defendant allegedly orchestrated the assault on May

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5, 2014. Under California regulations, the grievance was an untimely appeal of defendant’s

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conduct on May 5, 2014, which conduct forms the basis of plaintiff’s Eighth Amendment claim.

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As a result, the grievance could not properly exhaust plaintiff’s Eighth Amendment claim.

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There are no triable issues as to whether the grievance filed by plaintiff on September

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14, 2014, exhausted plaintiff’s Eighth Amendment claim under the PLRA, and there is no

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evidence of any other administrative grievance related to that claim. Therefore, defendant is

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entitled to summary judgment on plaintiff’s claim for lack of exhaustion. Because of this

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conclusion, defendant’s other arguments for summary judgment are not addressed.

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CONCLUSION
For the reasons set out above, defendant’s motion for summary judgment is GRANTED.

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With respect to plaintiff’s Eighth Amendment claim, the grant of summary judgment is without

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prejudice to plaintiff bringing the claim in a new action if and when he satisfies the exhaustion

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requirement of the PLRA.

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In light of plaintiff’s pro se and incarcerated status, his piecemeal oppositions are

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allowed, despite the fact that one part of the opposition was not timely filed. Accordingly,

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defendant’s motion to strike plaintiff’s opposition to his motion for summary judgment and the

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supporting declaration (ECF Nos. 46, 47) is DENIED.
The clerk shall enter judgment and close the file.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: June
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, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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