Fields v. Ducart

Filing 35

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING DEFENDANTS 24 MOTION FOR SUMMARY JUDGMENT. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 3/8/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RONNIE FIELDS,
Plaintiff,

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ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

v.

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Case No. 16-cv-06494-HSG (PR)

CLARK E. DUCART, et al.,

Re: Dkt. No. 24

Defendants.

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United States District Court
Northern District of California

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INTRODUCTION

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On October 17, 2016, plaintiff, a California prisoner, filed this pro se civil rights action

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under 42 U.S.C. § 1983 against two defendants at Pelican Bay State Prison (“PBSP”), where

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plaintiff is housed. The action was originally filed in the United States District Court for the

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Eastern District of California. The Eastern District thereafter transferred the action to this District

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on the ground that the claims arose in Del Norte County. The two defendants are PBSP Warden

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Clark E. Ducart and PBSP clinician Fox. On March 23, 2017, the Court screened the complaint

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and found that it stated a cognizable Eighth Amendment claim for deliberate indifference to

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plaintiff’s safety.

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On June 14, 2017, defendants filed a motion for summary judgment on the ground that

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plaintiff did not exhaust administrative remedies. Plaintiff has not filed an opposition, and the

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time in which to do so has passed. For the reasons discussed below, the motion for summary

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judgment will be granted and judgment will be entered against plaintiff.
BACKGROUND

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A.

Plaintiff’s Allegations
Plaintiff alleges that on September 16, 2015, he was given a new cellmate. Prior to being

celled together, the cellmate, according to plaintiff, had expressed to defendant PBSP clinician

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Fox that he was suicidal and homicidal and would kill any person he was celled with. On

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September 17, 2015, after the cellmate had been housed in plaintiff’s cell, defendant Fox

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approached the cell to talk to the cellmate about his mental state. The cellmate expressed to

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defendant Fox that when he had a chance he would kill plaintiff. Nevertheless, defendant Fox

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failed to have the cellmate removed. Plaintiff further alleges that defendant PBSP Warden Ducart

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was aware of the situation but failed to intervene. As a result, plaintiff was choked by his

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cellmate, causing plaintiff to suffer physical and emotional injury. Plaintiff does not indicate

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when his cellmate attacked him. See Dkt. No. 9-2 at 3, 4.

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B.

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Administrative Exhaustion Facts
As discussed more below, an inmate in California must proceed through three levels and

United States District Court
Northern District of California

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receive a decision from the third level (also known as the “Director’s level”) of the inmate

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administrative appeal system to exhaust his administrative remedies. Some inmate appeals are

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turned away at lower levels in the administrative appeal system, as may occur when an inmate’s

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appeal is screened out (to allow for the inmate to cure deficiencies and resubmit the appeal) or

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cancelled for noncompliance with certain procedural rules. Defendants’ motion is based on a

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cancelled inmate appeal.

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Defendants have submitted a declaration from PBSP appeals coordinator A. Sheldon

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(Sheldon). Dkt. No. 26. According to the declaration, Sheldon conducted a search of all inmate

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appeals submitted by plaintiff at PBSP. Id. ¶ 7, Ex. A. The search results show that plaintiff

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submitted only one appeal after September 16, 2015—the date on which he alleges he was housed

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with the violent cellmate. Id. ¶ 8, Ex. B. The appeal—appeal number PBSP-B-15-02549—was

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received on September 29, 2015 and concerned an incident that had occurred on February 16,

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2015. Id. It was cancelled pursuant to California Code of Regulation, Title 15, Section

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3084.6(c)(4), because plaintiff had failed to file his appeal within the thirty-day time limit. Id.

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The cancellation decision advised plaintiff that he could not appeal a rejected appeal but that he

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could take corrective action by resubmitting the original appeal. Id. There is nothing in the record

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showing that plaintiff resubmitted his appeal, either to correct the date of the incident complained

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of or for any other reason.
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DISCUSSION

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A.

Standard of Review

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Summary judgment is proper where the pleadings, discovery and affidavits show there is

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“no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

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law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

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genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving

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party. See id.
A court shall grant summary judgment “against a party who fails to make a showing

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sufficient to establish the existence of an element essential to that party’s case, and on which that

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United States District Court
Northern District of California

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party will bear the burden of proof at trial[,] . . . since 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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See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial

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burden of identifying those portions of the record that demonstrate the absence of a genuine issue

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of material fact. Id. The burden then shifts to the nonmoving party to “go beyond the pleadings

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and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on

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file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” See id. at 324

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(citing Fed. R. Civ. P. 56(e) (amended 2010)). The nonmoving party must show more than “the

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mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th

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Cir. 2010) (citing Liberty Lobby, 477 U.S. at 252). “In fact, the non-moving party must come

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forth with evidence from which a jury could reasonably render a verdict in the non-moving party’s

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favor.” Id. (citing Liberty Lobby, 477 U.S. at 252). If the nonmoving party fails to make this

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showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at

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323.

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For purposes of summary judgment, the court must view the evidence in the light most

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favorable to the nonmoving party; if the evidence produced by the moving party conflicts with

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evidence produced by the nonmoving party, the court must assume the truth of the evidence

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submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999).
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The court’s function on a summary judgment motion is not to make credibility determinations or

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weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv., Inc. v.

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Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is

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based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder

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v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s verified complaint

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as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746,

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plaintiff stated under penalty of perjury that contents were true and correct, and allegations were

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not based purely on his belief but on his personal knowledge). Plaintiff’s complaint is verified and

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therefore may be considered as evidence in opposition to the motion for summary judgment.
Plaintiff has not filed an opposition to the motion for summary judgment. A court may not

United States District Court
Northern District of California

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grant a summary judgment motion solely because the opposing party fails to file an opposition.

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The court still must review the sufficiency of defendants’ motion under the summary judgment

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standard. See Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003) (local rule cannot

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mandate automatic entry of judgment for moving party; court also must determine that movant has

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met summary judgment burden).

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B.

Exhaustion

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“No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or

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any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion

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in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002);

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Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (mandatory language of § 1997e(a) forecloses judicial

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discretion to craft exceptions to the requirement). All available remedies must be exhausted; those

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remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.’”

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Porter, 534 U.S. at 524. An inmate “need not exhaust unavailable [remedies],” however. Ross,

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136 S. Ct. at 1858 (emphasis added). An administrative remedy is unavailable if “it operates as a

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simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved

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inmates”; or if it is “so opaque that it becomes, practically speaking, incapable of use”; or if
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“prison administrators thwart inmates from taking advantage of a grievance process through

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machination, misrepresentation, or intimidation.” Id. at 1859–60.
Exhaustion of available remedies is a prerequisite to suit even if the prisoner seeks relief

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not available in grievance proceedings, such as money damages. Booth v. Churner, 532 U.S. 731,

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741 (2001). Section 1997e(a) requires “proper exhaustion” of available administrative remedies.

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Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion requires using all steps of an

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administrative process and complying with “deadlines and other critical procedural rules.” Id. at

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90.

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The failure to exhaust administrative remedies is an affirmative defense that must be raised
in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en

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Northern District of California

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banc). In bringing such a motion, the defendant has the initial burden to prove “that there was an

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available administrative remedy, and that the prisoner did not exhaust that available remedy.” Id.

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at 1172. If the defendant carries that burden, “the burden shifts to the prisoner to come forward

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with evidence showing that there is something in his particular case that made the existing and

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generally available administrative remedies effectively unavailable to him.” Id. The ultimate

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burden of proof remains with the defendant, however. Id. “If material facts are disputed,

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summary judgment should be denied, and the district judge rather than a jury should determine the

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facts.” Id. at 1166.

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The Court next turns to the administrative remedies available to California inmates. The

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

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parolees the right to appeal administratively “any policy, decision, action, condition, or omission

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by the department or its staff that the inmate or parolee can demonstrate as having a material

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adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a).

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Generally, an inmate must submit the appeal within thirty days of the “occurrence of the event or

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decision being appealed, or . . . [u]pon first having knowledge of the action or decision being

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appealed, or . . . [u]pon receiving an unsatisfactory departmental response to an appeal filed.” Id.

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§ 3084.8(b). In order to exhaust available administrative remedies within this system, a prisoner

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must proceed through three formal levels of appeal and receive a decision from the Secretary of
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the CDCR or his designee. Id. § 3084.1(b), § 3084.7(d)(3). “The third level review constitutes the

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decision of the Secretary of the California Department of Corrections and Rehabilitation on an

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appeal, and shall be conducted by a designated representative under the supervision of the third

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level Appeals Chief or equivalent. The third level of review exhausts administrative remedies;

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however, this does not preclude amending a finding previously made at the third level.” Id. §

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3084.7(d)(3).

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An inmate appeal may be cancelled for any of the eight reasons listed in the regulation.
See id. § 3084.6(c).1 Among the reasons for cancellation is that the inmate appeal is untimely. An

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appeal may be cancelled if the “[t]ime limits for submitting the appeal are exceeded even though

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the inmate or parolee had the opportunity to submit within the prescribed time constraints.” Id.

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Northern District of California

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§ 3084.6(c)(4). A cancellation decision under § 3084.6(c) does not exhaust administrative

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remedies. Id. § 3084.1(b). An inmate can appeal that decision to cancel his appeal by appealing

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the application of § 3084.6(c) to his original appeal; if he prevails on that separate appeal, the

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cancelled appeal later can be considered at the discretion of the appeals coordinator or the third

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level appeals chief. Id. § 3084.6(a)(3) and § 3084.6(e).

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Defendants have carried their burden to demonstrate that there were available

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administrative remedies for plaintiff and that plaintiff did not properly exhaust those available

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remedies. The undisputed evidence shows that California provides an administrative remedies

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system for California prisoners to complain about their conditions of confinement, and that

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plaintiff used that California inmate appeal system on or about September 29, 2015. The

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undisputed evidence also shows that plaintiff’s appeal was cancelled as untimely. As a result of

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cancellation of the inmate appeal due to plaintiff’s failure to file the inmate appeal within 30 days

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of the event complained of as required by the regulation, plaintiff failed to properly exhaust his

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An inmate appeal also may be screened out, or rejected, for any of the sixteen defects
listed in the regulation. See Cal. Code Regs. tit. 15, § 3084.6(b). The defects that may cause an
inmate appeal to be screened out are capable of being corrected -- e.g., the inmate may be required
to add information or documents, or make the appeal legible -- and the inmate may resubmit the
appeal after correcting the defect. See id. § 3084.6(a)(2). A rejection decision under § 3084.6(b)
does not exhaust administrative remedies. Id. § 3084.1(b).
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administrative remedies. See Ngo, 548 U.S. at 90-91 (“Proper exhaustion demands compliance

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with an agency's deadlines and other critical procedural rules because no adjudicative system can

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function effectively without imposing some orderly structure on the course of its proceedings”).

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Once defendants met their initial burden, the burden shifted to plaintiff to come forward
with evidence showing that something in his particular case made the existing administrative

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remedies effectively unavailable to him. See Albino, 747 F.3d at 1172. Plaintiff has not met his

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burden to show the administrative remedies were effectively unavailable. Nor has he offered any

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convincing reason to excuse his failure to comply with the exhaustion requirement. In his

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complaint, plaintiff asserts only that the denial of his appeal was based on “date being wrong” and

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that the denial stated he could “only file once,” thus preventing him from filing again. See Dkt. 9-

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Northern District of California

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2 at 1. However, the undisputed facts show that the denial specifically advised plaintiff of his

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right to appeal the cancellation decision. See Sheldon Decl. Ex. B. As discussed above, under

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California’s inmate appeal system, a cancelled appeal can be separately appealed and later

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reopened.
Bearing in mind that defendants have the ultimate burden of proof on the defense and

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viewing the evidence in the light most favorable to plaintiff, the Court concludes that defendants

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are entitled to judgment as a matter of law on the affirmative defense that plaintiff failed to

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exhaust administrative remedies for his Eighth Amendment claim. The action must be dismissed

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without prejudice to plaintiff filing a new action if he ever properly exhausts his administrative

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remedies.

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CONCLUSION

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For the foregoing reasons, defendants’ motion for summary judgment is GRANTED. The

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action is dismissed without prejudice due to plaintiff’s failure to exhaust administrative remedies

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before filing this action.

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This order terminates Dkt. No. 24.

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IT IS SO ORDERED.

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Dated: 3/8/2018

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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