Smith v. Roberts et al

Filing 34

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT by Judge William H. Orrick granting 16 Motion for Summary Judgment. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 9/25/2017)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 NOEL RAY SMITH, 10 Plaintiff, United States District Court Northern District of California 11 v. 12 Case No. 16-cv-04764-WHO (PR) ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BARBARA ROBERTS, et al., 13 Defendants. 14 Dkt. No. 16 15 INTRODUCTION 16 Plaintiff Noel Ray Smith claims in this federal civil rights action that his jailors 17 18 violated his rights under the Americans With Disabilities Act and the Rehabilitation Act of 19 1973 when they fired him from his prison job at the textile mill and denied his request for 20 reinstatement.1 Defendants move for summary judgment. (Dkt. No. 16.) Smith failed to 21 administratively exhaust his claims against three of the defendants and has failed to show a 22 genuine dispute of material fact on the merits because his medical limitations, which he 23 brought to the attention of his supervisor, precluded him from continuing work in the 24 sewing room of the textile mill. I will GRANT defendants’ motion for summary 25 judgment. 26 27 28 1 Defendants provided Smith with the required warnings under Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). (Dkt. No. 16-9.) FACTUAL BACKGROUND 1 2 In 2015, Smith, a state prisoner, was fired from his prison job at the textile mill at 3 CTF-Soledad. Smith alleges that he was impermissibly fired because of his epileptic 4 seizure disorder. (Am. Compl. at 3.) He also asserts that defendants failed to 5 accommodate his disability, such as by reassigning him to a job as a porter or in the textile 6 mill’s shipping department. (Id. at 5.) 7 Defendants dispute that he was fired because of his alleged disability. In their view, 8 his termination was a response to his doctor’s September 2014 instructions to “[a]void 9 working with machinery” and another doctor’s October 2014 instructions to “avoid . . . sharp object machinery.” (Am. Compl., Dkt. No. 6 at 14 and 15.) According to 11 United States District Court Northern District of California 10 defendants, all textile workers “are required to be able to use a sewing machine, scissors, 12 and seam rippers to sew, trim, and tear garments down whenever factory needs dictate.” 13 (Mot. for Summ. J. (“MSJ”) at 3; Voong Decl., Ex. D at 2.) To defendants, all means 14 everyone; even those who work as porters or clerks, or in shipping, must meet this 15 requirement. (Id.) 16 Smith counters that the CDCR “has never . . . considered sewing machines to be 17 ‘dangerous machinery.’” (Pl.’s Opp. to MSJ (“Opp.”) at 3.) He also asserts that the 18 “C.D.C.R. medical department has never allowed me to work on sewing machines while at 19 the same time restricting me from using sissors [sic], snipps [sic], or seam rippers by 20 classifying them as ‘sharp objects.’” (Id.) As support for his position, Smith has appended 21 a 2016 chrono from a prison doctor. It states that Smith “is allowed to work at sewing 22 machine in [the textile mill] since it is not considered to be a [sic] hazardous machinery.” 23 (Id., Ex. F.) The chrono also states, however, that Smith is restricted from jobs that 24 involve, among other tasks, working with “hazardous machinery” or “sharp objects.” (Id.) 25 Smith exhausted administrative review of one grievance. It was denied at every 26 level. He then brought the present suit against defendants for violating his rights under the 27 Americans With Disabilities Act (“ADA”) and the Rehabilitation Act of 1973. He names 28 as defendants Barbara Roberts, his supervisor at the textile factory; William Anderson, 2 1 who denied Smith’s inmate grievance at the second level of review; Gregg Sheffield, who 2 signed the second level response; and Scott Kernan, Secretary of the CDCR. 3 Defendants move for summary judgment on grounds that Smith (i) failed to 4 administratively exhaust his claims prior to filing his suit against Anderson, Sheffield and 5 Kernan and (ii) has not shown a genuine dispute of material fact that defendants violated 6 his disability rights because of the medical limitations issued by his doctors. 7 STANDARD OF REVIEW Summary judgment is proper where the pleadings, discovery and affidavits 9 demonstrate that there is “no genuine dispute as to any material fact and [that] the movant 10 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those 11 United States District Court Northern District of California 8 which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 12 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 13 reasonable jury to return a verdict for the nonmoving party. Id. 14 The party moving for summary judgment bears the initial burden of identifying 15 those portions of the pleadings, discovery and affidavits which demonstrate the absence of 16 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 17 Where the moving party will have the burden of proof on an issue at trial, it must 18 affirmatively demonstrate that no reasonable trier of fact could find other than for the 19 moving party. On an issue for which the opposing party by contrast will have the burden 20 of proof at trial, as is the case here, the moving party need only point out “that there is an 21 absence of evidence to support the nonmoving party’s case.” Id. at 325. 22 Once the moving party meets its initial burden, the nonmoving party must go 23 beyond the pleadings and, by its own affidavits or discovery, set forth specific facts 24 showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c). The Court is 25 concerned only with disputes over material facts and “[f]actual disputes that are irrelevant 26 or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the task of the 27 court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 28 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with 3 1 reasonable particularity, the evidence that precludes summary judgment. Id. If the 2 nonmoving party fails to make this showing, “the moving party is entitled to a judgment as 3 a matter of law.” Celotex, 477 U.S. at 323 (internal quotation marks omitted). DISCUSSION 4 5 I. Exhaustion Defendant moves for summary judgment on grounds that Smith failed to exhaust his 6 7 administrative remedies regarding defendants Anderson, Sheffield, and Kernan before 8 filing suit.2 Prisoners must properly exhaust their administrative remedies properly before filing 9 suit in federal court, as mandated by the Prison Litigation Reform Act (“PLRA”). 11 United States District Court Northern District of California 10 Woodford v. Ngo, 548 U.S. 81, 93 (2006). “No action shall be brought with respect to 12 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 13 confined in any jail, prison, or other correctional facility until such administrative remedies 14 as are available are exhausted.” 42 U.S.C. § 1997e(a). Proper exhaustion requires using all 15 steps of an administrative process and complying with “deadlines and other critical 16 procedural rules.” Woodford, 548 U.S. at 90. The Supreme Court recently reaffirmed that the PLRA’s exhaustion requirement is 17 18 mandatory. Ross v. Blake, 136 S. Ct. 1850, 1856-58 (2016). A prisoner is required to 19 exhaust the grievance procedures that are “capable of use” to obtain “some relief for the 20 action complained of.” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2006)). 21 Unless the administrative process is not available, “the PLRA’s text suggests no limits on 22 an inmate’s obligation to exhaust — irrespective of any ‘special circumstances.’” Id. at 23 1856. “[T]hat mandatory language means a court may not excuse a failure to exhaust.” Id. 24 25 26 27 28 Title II provides redress for discrimination by a “public entity,” a term which does not include individuals. See 42 U.S.C. §§ 12131(1), 12132. In light of this, it may seem unnecessary to determine whether Smith exhausted his administrative remedies against these individual defendants. However, the Court sees value in addressing the issue of exhaustion because it disposes of any individual claims Smith may bring against these defendants; and it pares the case down to the dispute that gave rise to this action, that is, Roberts’s firing of Smith. 2 4 1 The State of California provides its prisoners the right to appeal administratively 2 “any policy, decision, action, condition or omission by the [CDCR] or its staff that the 3 inmate . . . can demonstrate as having a material adverse effect upon his or her health, 4 safety, or welfare.” 15 CCR § 3084.1(a). In order to exhaust available administrative 5 remedies within this system, a prisoner must proceed through several levels of appeal: 6 (i) informal review, submitted on a CDC 602 inmate appeal form; (ii) first formal level 7 appeal, to an institution appeals coordinator; (iii) second formal level appeal, to the 8 institution warden; and (iv) third formal level appeal, to the Director of the CDCR. See id. 9 § 3084.7; Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). A prisoner exhausts the appeal process when he completes the third level of review. 15 CCR § 3084.1(b); 11 United States District Court Northern District of California 10 Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010). 12 To initiate an appeal, also referred to as a grievance, the inmate or parolee must 13 submit a CDCR Form 602 describing the issue to be appealed to the appeals coordinator’s 14 office at the institution for receipt and processing. Id. § 3084.2(a)-(c). As of 2011, the 15 appeal must name “all staff member(s) involved” and “describe their involvement in the 16 issue.” Id. § 3084.2(a)(3). 17 Here, Smith submitted one 602 form related to his termination (CTF-16-00154). 18 (MSJ, Voong Decl., Ex. D at 3.) In it, he complained that his supervisor B. Roberts 19 impermissibly fired him after reviewing his doctor’s recommendation that he stay away 20 from sharp objects. (Id.) There is no mention in the 602 form of defendants Anderson, 21 Sheffield, or Kernan, nor any description of their actions. (Id.) 22 The grievance was denied at the second level by defendants Anderson and 23 Sheffield. (Id. at 7-9.) Smith, dissatisfied with the denial, appealed to the third level. (Id. 24 at 4.) In his statement of reasons for dissatisfaction, Smith complained that Anderson’s 25 decision was “contrary to C.D.C.R. policy under the Armstrong Remedial plan.” (Id.) 26 The grievance was denied at the third level by Voong, Chief of the Office of 27 Appeals. (Id. at 1-2.) He found that Smith’s epileptic disorder made it unsafe for him to 28 work in the textile factory. (Id.) Voong stated that all textile workers “are required to be 5 1 able to use a sewing machine, scissors, and seam rippers to sew, trim, and tear garments 2 down whenever factory needs dictate.” (Id. at 2.) All means all — even those who work 3 as porters or clerks, or in shipping, must meet this requirement. (Id.) 4 I must grant summary judgment in favor of defendants Anderson, Sheffield and 5 Kernan because they were never named, nor were their actions described, in the 602 form 6 as required by 15 CCR § 3084(a)(3). Smith named only one defendant, B. Roberts, in the 7 sole relevant CDCR Form 602. These undisputed facts mandate dismissal of defendants 8 Anderson, Sheffield and Kernan. Smith counters that: (i) Anderson, Sheffield, and Kernan “made themselves a party” 10 to the alleged violation because they failed to act after being put on notice by his grievance; 11 United States District Court Northern District of California 9 (ii) there is no regulatory requirement that he separately name or grieve these defendants’ 12 actions; and (iii) case law supports his assertion that there is no requirement that he name 13 the defendants in his 602 form, or that he should have filed separate grievances about their 14 actions. (Opp. at 4-5.) These arguments lack merit for three reasons. 15 First, it is immaterial to the question of exhaustion whether the defendants made 16 themselves a party to the action. The regulations required Smith to name them in his 602 17 form and describe their actions, and he did not do so. “[I]t is the prison’s requirements . . . 18 that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). 19 Second, there is a regulatory requirement (15 CCR § 3084.2(a)(3)) that Smith name the 20 defendants and describe their actions. Third, the case law Smith cites was issued before 21 2011, that is, before the naming requirement became operative. See 15 CCR § 3084.2 22 (2011). Subsequent case law supports this Court’s conclusion. See Martinez v. Swift, No. 23 C 13-3973 RS (PR), 2015 WL 1349525, at *2 (N.D. 2015) (failure to name in 24 administrative appeal the prison guard who reviewed grievance constituted a failure to 25 exhaust); Panah v. Department of Corrections and Rehabilitation, No. 14-cv-00166-BLF, 26 2015 WL 1263494, at *9-10 (N.D. Cal. 2015) (failure to name warden in prison grievance 27 constituted a failure to exhaust, despite plaintiff’s allegations that warden condoned or 28 permitted the violation). 6 Accordingly, defendants’ motion for summary judgment in favor of Anderson, 1 2 3 4 5 Sheffield, and Kernan is GRANTED. II. ADA and Rehabilitation Act Claims The substance of Smith’s claim is that Roberts violated his rights under the ADA and the Rehabilitation Act of 1973 when she terminated him. 6 Title II of the ADA provides that “no qualified individual with a disability shall, by 7 reason of such disability, be excluded from participation in or be denied the benefits of the 8 services, programs, or activities of a public entity, or be subjected to discrimination by any 9 such entity.” 42 U.S.C. § 12132. To state a claim under Title II of the ADA, a plaintiff must allege four elements: (i) he is an individual with a disability; (ii) he is otherwise 11 United States District Court Northern District of California 10 qualified to participate in or receive the benefit of some public entity’s services, programs, 12 or activities; (iii) he was either excluded from participation in or denied the benefits of the 13 public entity’s services, programs or activities, or was otherwise discriminated against by 14 the public entity; and (iv) such exclusion, denial of benefits, or discrimination was by 15 reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 16 Section 505 of the Rehabilitation Act of 1973, as amended and codified in 17 29 U.S.C. § 794(a), provides that “[n]o otherwise qualified individual with a disability . . . 18 shall, solely by reason of his or her disability, be excluded from the participation in, be 19 denied the benefits of, or be subjected to discrimination under any program or activity 20 receiving Federal financial assistance.” The Rehabilitation Act is applicable to state 21 prisons receiving federal financial assistance. See Armstrong v. Wilson, 124 F.3d 1019, 22 1022-23 (9th Cir. 1997). 23 The elements of a claim under the Rehabilitation Act are that: (i) the plaintiff is a 24 handicapped person under the Act; (ii) he is otherwise qualified; (iii) the relevant program 25 receives federal financial assistance; and (iv) the defendants impermissibly discriminated 26 against him on the basis of the handicap. See Bonner v. Lewis, 857 F.2d 559, 562-63 (9th 27 Cir. 1988). 28 7 1 In the prison context, both Title II of the ADA and Section 504 of the Rehabilitation 2 Act must be applied with consideration to legitimate penological interests. See Armstrong 3 v. Wilson, 942 F. Supp. 1252, 1259 (N.D. Cal. 1996) (citing Gates v. Rowland, 39 F.3d 4 1439, 1447 (9th Cir. 1994)). In other words, “to prevail on a claim that their statutory 5 rights have been violated, inmates must show that the challenged prison policy or 6 regulation is unreasonable.” Pierce v. Cnty. of Orange, 526 F.3d 1190, 1217 (9th Cir. 7 2008) (citing Gates, 39 F.3d at 1447). “In ADA cases, the plaintiff bears the burden of 8 establishing the elements of the prima facie case, including — if needed — ‘the existence 9 of a reasonable accommodation’ that would enable him to participate in the program, service, or activity at issue.” Pierce, 526 F.3d at 1217 (quoting Zukle v. Regents of 11 United States District Court Northern District of California 10 University of California, 166 F.3d 1041, 1046 (9th Cir. 1999)). 12 Furthermore, “[s]ection 12131 [of the ADA], which defines the class of individuals 13 entitled to § 12132’s protection, includes a test that evaluates the risk posed by an 14 individual.” Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179 F.3d 15 725, 735 (9th Cir. 1999). “Specifically, an individual who poses a significant risk to the 16 health or safety of others that cannot be ameliorated by means of a reasonable modification 17 is not a qualified individual under § 12131.” Id. 18 Essentially the same showing is required to state a cause of action under section 504 19 of the Rehabilitation Act and under the ADA. See Olmstead v. Zimring, 527 U.S. 581, 20 589-91 (1999); Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). Because 21 the parties have not indicated any relevant difference between the ADA and the 22 Rehabilitation Act analyses for the claims, the claims will be addressed together, as they 23 frequently are. See Duvall, 260 F.3d at 1135. 24 I assume without deciding that Smith’s epilepsy qualifies as a disability under these 25 statutes. There is no question that Smith had been working successfully in the textile mill 26 before he brought his medical condition to his supervisor’s attention, and that he wants to 27 return to that position. However, Smith has not shown a genuine issue of disputed fact that 28 (i) he was otherwise qualified to participate in or receive the benefit of the public entity’s 8 1 services, programs, or activities, a showing required by both statutes, (ii) he did not pose a 2 risk to the health and safety of others, and (iii) the prison policy was unreasonable. Smith was not otherwise qualified to participate in the job program. The medical 3 4 chronos in September and October 2014 state that Smith should not work with sharp 5 objects or machinery.3 (Am. Compl., Dkt. No. 6 at 14 and 15.) All employees (including 6 porters and shippers) of the textile mill have to be able to work with sharp objects, such as 7 scissors and seam rippers. (MSJ at 3; Voong Decl., Ex. D at 2.) The inevitable conclusion 8 is that Smith was not otherwise qualified to work at the textile mill. Second, Smith has not shown a genuine dispute of material fact that he does not pose 9 a significant risk to the health and safety of himself or others. The undisputed record 11 United States District Court Northern District of California 10 shows that jobs in the textile mill require persons to be around and use sharp objects and 12 machinery. Smith’s epileptic disorder puts him at risk of significant injury to himself and 13 others, should he have a seizure while handling or simply being around such tools and 14 machines, or have a seizure near to those handling sharp tools or working with machinery. 15 His doctors agree, as evidenced by the 2014 and 2016 chronos. Two cases are instructive here, though they arise in the context of Title I of the 16 17 ADA, which relates to employment. In Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 18 84-86 (2002), the Court held that Title I is not violated by regulations which permit 19 employers to refuse to hire an individual because his disability would pose a direct threat 20 to his own health while on the job, even if he is willing to take the risk. Smith would take 21 the risk, but defendants are not required to let him do so. In Hutton v. Elf Atochem North 22 America, 273 F.3d 884, 892 (9th Cir. 2001), an employee who had a blackout during a 23 diabetic episode was not a “qualified individual” because his condition created a risk of 24 significant harm to himself and others in a chemical production plant. There is no 25 evidence that Smith has had an epileptic seizure on the job, but the medical limitations are 26 3 27 28 The Court notes that the second chrono was issued in 2016, well after the 2015 events at issue. While it clearly cannot have influenced defendants’ actions in 2015, it reaffirms the validity of the warnings given in the 2014 chronos. The chronos are described in page 2 of this order. 9 1 explicit in warning that he should not work with sharp objects or machinery. 2 Third, Smith also has not shown a genuine dispute of material fact that his 3 termination was unreasonable in light of the dangers posed by his condition. Smith’s 4 disability poses a risk to the health and safety of himself and others. A policy that protects 5 workers who should not be around and work with sharp objects and machinery, according 6 to their physicians, is not unreasonable. 7 Accordingly, defendants’ motion for summary judgment on the merits is GRANTED 8 because there is no material fact in dispute. Smith’s rights under the ADA and the 9 Rehabilitation Act of 1973 have not been violated. CONCLUSION 10 United States District Court Northern District of California 11 12 13 14 Defendants’ motion for summary judgment (Dkt. No. 16) is GRANTED. The Clerk shall terminate Dkt. No. 16, enter judgment in favor of defendants, and close the file. IT IS SO ORDERED. Dated: September 25, 2017 _________________________ WILLIAM H. ORRICK United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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