Lomack v. Benifield et al

Filing 17

ORDER Granting 13 Motion for Summary Judgment; granting 13 Motion to Dismiss. Signed by Judge Edward J. Davila on 8/31/2017. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 8/31/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 LAMONT LOMACK, United States District Court Northern District of California 11 Plaintiff, 12 Case No. 16-03140 EJD (PR) ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT v. 13 14 J. R. BENEFIELD, et al., 15 Defendants. (Docket No. 13) 16 17 18 Plaintiff, a California inmate, filed a pro se civil rights complaints under 42 U.S.C. 19 § 1983 against officials at Salinas Valley State Prison (“SVSP”) where he was previously 20 incarcerated. The Court found the complaint, liberally construed, stated cognizable claims 21 and ordered service of the complaint on Defendants.1 (Docket No. 11.) Defendants 22 Hopkins and Benefield filed a motion for summary judgment asserting that Plaintiff failed 23 to exhaust administrative remedies, they are entitled to qualified immunity, and there is no 24 evidence that Defendant Hopkins personally deprived Plaintiff of a constitutional right. 25 (Docket No. 13, hereafter “Mot.”.) Plaintiff did not file an opposition although given an 26 opportunity to do so. 27 1 28 The Court dismissed the medical claim against Defendant “L.V.N. Mike” for failure to state a claim, and dismissed Defendant Mike from this action. (Docket No. 5 at 2-3.) DISCUSSION 1 2 I. The following facts as presented by Defendants in their motion are undisputed as 3 4 Statement of Facts and Claims Plaintiff has filed no opposition. On March 17, 2016, a prison-riot occurred at SVSP involving 18 inmates. Plaintiff 5 claims that during this riot, Defendant J. Benefield threw a “bomb” directly at him. 7 (Compl. at 3.) According to Defendant Benefield’s report concerning the riot, he observed 8 inmates continue to riot despite numerous orders to stop fighting and prone-out (to lie face- 9 down with arms and legs extended). (Compl. Attach. at 8.) Defendant Benefield gave 10 several orders to stop fighting and prone-out, but the inmates continued to fight. (Id.) 11 United States District Court Northern District of California 6 Defendant Benefield observed an inmate knock another inmate, Inmate Letele,2 to the 12 ground. (Id.) Inmate Letele was on the ground face-down, with his arms over his head, 13 and unable to defend himself from attack. (Id.) Then Plaintiff and two other inmates 14 began striking and kicking Inmate Letele in the head and torso. (Id.) Inmate Letele was 15 not defending himself from this attack. (Id.) To prevent further injury, Defendant 16 Benefield released an “OC Blast” (pepper-spray grenade) to stop the attack; Plaintiff and 17 the other inmates stopped attacking Inmate Letele and proned-out. (Id.) According to 18 Defendant Hopkin’s report, inmate Letele sustained a swollen forehead, slashes to his right 19 cheek, and slashes to the back of his head, but Plaintiff and the other two inmates sustained 20 no injuries during the riot. (Id. at 1.) Staff confiscated two inmate-manufactured weapons. 21 (Id.) With respect to decontamination, the report indicated that all involved inmates were 22 offered cool running water from the mini yard shower but they refused. (Id.) In the complaint, Plaintiff claims that after this incident, he was not afforded an 23 24 opportunity to decontaminate, and that medical staff did not explain the “importance and 25 2 26 27 28 Although Defendants refer to this inmate as “Latele” in their motion, the relevant documents spell his name as “Letele.” (Compl. Attach. at 1; Lomeli Decl., Ex. B.) The Court will adhere to the spelling of the name as “Letele” from the original reports of this incident. 2 1 encourage[]” Plaintiff to do so. (Compl. at 3.) Plaintiff claims that Defendant Lt. B. 2 Hopkins is liable for “signing off on the use of force.” (Id.) The Court found that liberally 3 construed, the complaint stated a cognizable claim of excessive force and deliberate 4 indifference to inmate’s suffering. (Docket No. 5 at 2.) Plaintiff states in his complaint that the appeal was partially granted at the second 5 6 level. (Compl. at 2.) The second level response stated that the “appeal inquiry was 7 completed and all issues were adequately addressed,” (Compl. Attach. at 10), which 8 Plaintiff understood as “them admitting some wrong doing.” (Id.) The complaint 9 indicates that Plaintiff did not submit the matter to the “highest level of appeal available.” (Compl. at 2.) 11 United States District Court Northern District of California 10 II. 12 Summary Judgment Summary judgment is proper where the pleadings, discovery and affidavits show 13 that there is “no genuine dispute as to any material fact and the movant is entitled to 14 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 15 “against a party who fails to make a showing sufficient to establish the existence of an 16 element essential to that party’s case, and on which that party will bear the burden of proof 17 at trial . . . since a complete failure of proof concerning an essential element of the 18 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 19 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 20 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 21 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 23 Generally, the moving party bears the initial burden of identifying those portions of 24 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 25 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 26 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 27 than for the moving party. But on an issue for which the opposing party will have the 28 3 1 burden of proof at trial, the moving party need only point out “that there is an absence of 2 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 3 to the motion is merely colorable, or is not significantly probative, summary judgment may 4 be granted. See Liberty Lobby, 477 U.S. at 249-50. 5 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 6 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 7 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 8 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 9 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 10 The Court’s function on a summary judgment motion is not to make credibility United States District Court Northern District of California 11 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 12 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 13 The evidence must be viewed in the light most favorable to the nonmoving party, and the 14 inferences to be drawn from the facts must be viewed in a light most favorable to the 15 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 16 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 17 1996). The nonmoving party has the burden of identifying with reasonable particularity 18 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 19 the district court may properly grant summary judgment in favor of the moving party. See 20 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 21 (9th Cir. 2001). 22 A. 23 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to Exhaustion 24 provide that “[n]o action shall be brought with respect to prison conditions under [42 25 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 26 other correctional facility until such administrative remedies as are available are 27 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the 28 4 1 discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. 2 Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now exhaust all ‘available’ 3 remedies, not just those that meet federal standards.” Id. Even when the relief sought 4 cannot be granted by the administrative process, i.e., monetary damages, a prisoner must 5 still exhaust administrative remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734). The 6 PLRA’s exhaustion requirement requires “proper exhaustion” of available administrative 7 remedies. Id. at 93. The California Department of Corrections and Rehabilitation (“CDCR”) provides 9 its inmates and parolees the right to appeal administratively “any departmental decision, 10 action, condition, or policy which they can demonstrate as having an adverse effect upon 11 United States District Court Northern District of California 8 their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right 12 to file administrative appeals alleging misconduct by correctional officers. See id. § 13 3084.1(e). Under the current regulations, in order to exhaust available administrative 14 remedies within this system, a prisoner must submit his complaint on CDCR Form 602 15 (referred to as a “602”) and proceed through three levels of appeal: (1) first formal level 16 appeal filed with one of the institution’s appeal coordinators, (2) second formal level 17 appeal filed with the institution head or designee, and (3) third formal level appeal filed 18 with the CDCR director or designee. Id. § 3084.7. 19 Nonexhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 20 549 U.S. 199, 211 (2007). Defendants have the burden of raising and proving the absence 21 of exhaustion, and inmates are not required to specifically plead or demonstrate exhaustion 22 in their complaints. Id. at 215-17. In the rare event that a failure to exhaust is clear on the 23 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6) of the 24 Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en 25 banc). Otherwise, defendants must produce evidence proving failure to exhaust in a 26 motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Id. 27 If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to 28 5 1 exhaust, a defendant is entitled to summary judgment under Rule 56. Id. at 1166. But if 2 material facts are disputed, summary judgment should be denied and the district judge 3 rather than a jury should determine the facts in a preliminary proceeding. Id. 4 The defendant’s burden is to prove that there was an available administrative 5 remedy and that the prisoner did not exhaust that available administrative remedy. Id. at 6 1172; see id. at 1176 (reversing district court’s grant of summary judgment to defendants 7 on issue of exhaustion because defendants did not carry their initial burden of proving their 8 affirmative defense that there was an available administrative remedy that prisoner 9 plaintiff failed to exhaust); see also Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005) (as there can be no absence of exhaustion unless some relief remains available, movant 11 United States District Court Northern District of California 10 claiming lack of exhaustion must demonstrate that pertinent relief remained available, 12 whether at unexhausted levels or through awaiting results of relief already granted as result 13 of that process). Once the defendant has carried that burden, the prisoner has the burden of 14 production. Albino, 747 F.3d at 1172. That is, the burden shifts to the prisoner to come 15 forward with evidence showing that there is something in his particular case that made the 16 existing and generally available administrative remedies effectively unavailable to him. 17 Id. But as required by Jones, the ultimate burden of proof remains with the defendant. Id. 18 Defendants assert that Plaintiff submitted no inmate appeal to the third level of 19 review concerning the use of excessive force during the riot on March 17, 2016. (Mot. at 20 5.) According to the Office of Appeals, Plaintiff submitted two inmate appeals that were 21 accepted by, and received a decision from, the third level of review: (1) No. NKSP 12- 22 00698, which was a group appeal that complained about disciplinary detention practices at 23 Kern Valley State Prison; and (2) No. SVSP 15-00917, which was a group appeal 24 complaining that SVSP did not provide inmates with enough hours of outdoor exercise. 25 (Voong Decl. ¶¶ 5-8, Exs. A-C.) Neither of these appeals involved any claim related to the 26 alleged use of excessive force by Defendants Hopkins or Benefield. (Id.) 27 With the complaint, Plaintiff submitted a copy of inmate appeal No. SVSP 16- 28 6 1 01845, purportedly to show that he had exhausted his claims. (Compl. at 2, Attach. at 3-6.) 2 Plaintiff asserts that the appeal was partially granted at the second level, and he believed 3 that it adequately addressed all his issues. (Id.) However, Defendants assert that this 4 appeal was rejected at the third level of review, and Plaintiff was advised that he needed to 5 submit the appeal with all the necessary documents in compliance with the regulations. 6 (Voong Decl., Ex. D.) Plaintiff failed to do so. Plaintiff also admits in the complaint that 7 he did not submit the matter to the “highest level of appeal available.” See supra at 3. 8 Plaintiff appears to assert in the complaint that he believed that since the appeal was 9 partially granted at the second level, he had received all the relief he requested and thereby satisfied the exhaustion requirement. (Compl. at 2.) A prisoner need not exhaust further 11 United States District Court Northern District of California 10 levels of review if he has either received all the remedies that are “available” at an 12 intermediate level of review, or has been reliably informed by an administrator that no 13 more remedies are available. Brown, 422 F.3d at 935. However, neither of these 14 circumstances applies to Plaintiff’s case. In fact, Plaintiff did not receive the relief sought 15 because the second appeal decision informed him that “the placement of documentation in 16 a staff member’s personnel file is beyond the scope of the staff complaint process.” 17 (Compl. Attach. at 10-11.) Furthermore, rather than being informed that no more remedies 18 were available, the second level decision included the following instructions: 19 20 21 22 23 24 25 26 “If you wish to appeal the decision and/or exhaust administrative remedies, you must submit your staff complaint appeal through all levels of appeal review up to, and including, the Secretary’s/Third Level of Review. Once a decision has been rendered at the Third Level, administrative remedies will be considered exhausted.” (Compl. Attach. at 10-11.) Plaintiff was clearly informed in this second level of review decision that further administrative remedies were available to him by means of a final appeal to the third level of review, and that he must submit his appeal through all levels of review in order to exhaust administrative remedies. (Id.) Accordingly, it cannot be said 27 28 7 1 that Plaintiff exhausted all available administrative remedies with respect to any claims, 2 either excessive force or deliberate indifference, as presented in appeal No. SVSP-L-16- 3 1845. See Woodford, 548 U.S. at 84. Furthermore, Defendants assert that even had inmate appeal No. SVSP-L-16-1845 4 5 been properly submitted through the third level of review, it would not have sufficed to 6 exhaust the excessive force claim raised in the instant action. Defendants point out that 7 California regulations state that an appeal must list all staff members involved and shall 8 describe their involvement in the issue. Cal. Code Regs. Tit. 15, § 3084.3(d). More 9 specifically, the regulations require that the appeal include the staff member’s last name, first initial, title, or position, if known. Id. at § 3084.2(a)(3). Plaintiff failed to comply 11 United States District Court Northern District of California 10 with these requirements because appeal No. SVSP-L-16-1845 does not identify Defendant 12 Benefield by name, title, or position. (Compl. Attach. at 10-11.) The Court agrees. 13 Nowhere in the appeal does Plaintiff allege excessive force by any officer. Rather, 14 Plaintiff specifically complains of the lack of water after the “incident” on March 17, 2016, 15 and alleges that Defendant Hopkins made a false statement in the report in this regard. 16 (Id.) The action requested by Plaintiff was that a document be created stating that he was 17 never given a chance to decontaminate nor asked, and that the document be placed in 18 Defendant Hopkins file. (Id.) Accordingly, it cannot be said that this appeal would have 19 sufficed to properly exhaust any claim against Defendant Benefield who is not mentioned 20 anywhere in the appeal or any claim of excessive force as no such claim was alleged. Based on the foregoing, the Court finds that Defendants have met their burden of 21 22 producing evidence showing that Plaintiff failed to exhaust his administrative remedies 23 with respect to the claims against them. Albino, 747 F.3d at 1166. Having filed no 24 opposition, Plaintiff has failed to come forward with evidence showing that existing and 25 generally available administrative remedies were effectively unavailable to him. Id. at 26 1172. Accordingly, Defendants are entitled to summary judgment under Rule 56. Id. at 27 1166. 28 8 1 CONCLUSION 2 For the reasons stated above, Defendants Benefield and Hopkin’s motion for 3 summary judgment, (Docket No. 13), is GRANTED.3 The claims against them are 4 DISMISSED for failure to exhaust administrative remedies. 5 This order terminates Docket No. 13. 6 IT IS SO ORDERED. 7 8/31/2017 Dated: _____________________ ________________________ EDWARD J. DAVILA United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Order Granting MSJ PRO-SE\EJD\CR.16\03140Lomack_grant.msj 25 26 27 28 3 Accordingly, the Court need not address the remainder of Defendants’ arguments regarding the viability of the excessive force claim at this time. 9

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