Sisneros v. Brown et al

Filing 34

ORDER: (1) Granting 10 Defendant Davis and Krittman's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6); and (2) Granting 9 Defendant Brown and Mendez's Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56 and 42 U.S.C. § 1997e(a). The Court Directs the Clerk to enter a partial judgment on behalf of Defendants Brown and Mendez pursuant to Fed. R. Civ. P. 50(b). Plaintiff is Granted forty-five (45) days leave to file an Amended Complaint. Signed by Judge Gonzalo P. Curiel on 8/6/2015. (All non-registered users served via U.S. Mail Service)(srm)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOSEPH C. SISNEROS, CDCR #F-17317, Case No.: 14cv0891 GPC (RBB) ORDER: Plaintiff, 13 14 15 16 17 18 (1) GRANTING DEFENDANT DAVIS AND KRITTMAN’S MOTION TO DISMISS PURSUANT TO Fed. R. Civ. P. 12(b)(6) [Doc. No. 10] vs. D. BROWN, Sergeant; D. MENDEZ, Correctional Officer; J. DAVIS, Psychiatrist; S. KRITTMAN, Psychologist, Defendants. AND (2) GRANTING DEFENDANT BROWN AND MENDEZ’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO Fed. R. Civ. P. 56 AND 42 U.S.C. § 1997e(a) [Doc. No. 9] 19 20 21 22 23 24 25 26 27 Joseph C. Sisneros (“Plaintiff”), is a prisoner currently incarcerated at the California Health Care Facility (“CHCF”) in Stockton, California, and is proceeding pro se and in this civil action pursuant to 42 U.S.C. § 1983. Defendants are all correctional and medical officials employed at Richard J. Donovan Correctional Facility (“RJD”) where Plaintiff was incarcerated in September and November 2013. See Compl., Doc. 28 1 14cv0891 GPC (RBB) 1 No. 1, at 1-2. Plaintiff claims Defendants acted with deliberate indifference to his safety 2 in violation of the Eighth Amendment by failing to protect him from being attacked by 3 his cellmate. Id. at 3-4. He seeks $49,000 in both general and punitive damages. Id. at 6. 4 I. Procedural History Defendants Davis and Krittman have filed a Motion to Dismiss Plaintiff’s 5 6 Complaint for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6) (Doc. No. 10). 7 Defendants Brown and Mendez have filed a Motion for Summary Judgment pursuant to 8 FED. R. CIV. P. 56 based on Plaintiff’s failure to properly exhaust available administrative 9 remedies prior to suit, as is required by 42 U.S.C. § 1997e(a) (Doc. No. 9). In response to 10 the Court’s Notice to Plaintiff of Defendants’ Motion for Summary Judgment (Doc. No. 11 12), Plaintiff has filed an Opposition (Doc. No. 14), as well as several additional 12 supplemental oppositions, exhibits, and other miscellaneous documents (Doc. Nos. 18, 13 20, 22, 29). In response to Plaintiff’s original Opposition, Defendants have filed a Reply 14 (Doc. No. 16). 15 After careful review of both Motions, as well as all evidence submitted both by 16 Defendants in support of summary judgment and Plaintiff in response, the Court 17 GRANTS both Defendant Davis & Krittman’s Motion to Dismiss Plaintiff’s Complaint 18 for failing to state a claim, and Defendant Brown and Mendez’s Motion for Summary 19 Judgment based on Plaintiff’s failure to exhaust his administrative remedies for the 20 reasons set out below. 21 II. 22 Factual Allegations Plaintiff is “70 years old,” weighs “168 pounds,” and suffers from “three life- 23 threatening diseases—diabetes, hypertension & the Hep. C virus.” Compl. at 3. “A few 24 days” or “about one week” before September 10, 2013, Plaintiff was assigned a cellmate 25 named Gomez, whom Plaintiff describes as “loud & obnoxious,” “43 years old at 200+ 26 lbs. & as crazy as they come.” Id. This “first time,” Plaintiff contends he “got rid of Mr. 27 Gomez” by explaining his “bizarre, erratic & crazy behavior” and “the big differences 28 between them,” to Defendant Mendez, a Correctional Officer. Id. at 3, 7. Plaintiff claims 2 14cv0891 GPC (RBB) 1 Gomez “looked dangerous” and he “didn’t want to deal with [him].” Id. at 3. Mendez 2 “agreed, and moved Mr. Gomez out.” Id. at 7. 3 On September 10, 2013, Gomez was “moved back with [Plaintiff]” for a “second 4 and final time.” Id. at 3-4. Plaintiff “objected & complained,” but Mendez told him he 5 “had no choice,” because “Sergeant Brown ok[ayed] the move.” Id. at 3. Plaintiff 6 “believes” that neither Mendez nor Brown “bothered to check the master file, or the 7 I.S.R.S. file1 on Mr. Gomez[’s] psychological evaluation” before placing him with 8 Plaintiff. Id. at 7. 9 After Gomez moved in, Plaintiff claims he initially helped Gomez with “his 10 laundry, and [his] store,” and “protected him from other inmates trying to take advantage 11 of him.” Id. at 4. Plaintiff also assisted Gomez by “reading and writing” letters from his 12 mother and sister, which is “how [he] found out that Mr. Gomez should be on psych. 13 meds.” Id. 14 Plaintiff claims that on November 8, 2013, he “talked to Dr. Davis—the prison 15 psychiatrist,” “explained” Gomez’s “bizarre and crazy behavior,” and told him that 16 “according to [Gomez’s] mom,” Gomez needed medication. Id. Davis replied that 17 Gomez “had to go through his clinician[,] Dr. Krittman.” Id. One or two weeks before 18 19 20 21 22 23 24 25 26 27 28 The Institutional Staff Recommendation Summary (ISRS) is part of an inmate’s Cumulative Case Summary, and is prepared for each inmate committed or returned to the custody of the CDCR as a parole violator with a new life term. See CAL. CODE REGS., tit. 15 § 3075.1(a)(6), (h) (Jan. 1, 2015). “The ISRS shall state the sources of information used and summarize the inmate’s history of or status concerning: type of confidential information on file; holds or detainers; medical and dental requirements or limitations; results of a psychiatric or psychological referral; work experiences and skills; narcotics, drugs and alcohol use; escapes; arson offenses; sex-related offenses; academic and Career Technical Education program needs or interests; necessary casework follow-up; the counselor’s evaluation of the inmate; release plans if the inmate has six months or less to release; Reentry Hub eligibility; classification score and custody designation suffix; community correctional facility eligibility; and recommended facility placement.” Id. § 3075.1(h)(1). 1 3 14cv0891 GPC (RBB) 1 November 10, 2013, Plaintiff contends both Drs. Krittman and Davis “had a one on one 2 with inmate Gomez,” but “nothing was done.” Id. On November 10, 2013, Plaintiff claims Gomez “almost took [his] life because 3 4 [Plaintiff] asked Gomez politely” to lower the volume on the TV. Id. Plaintiff claims 5 Gomez “bushwacked [him],” by “pummeling [him] on the head, face & torso,” biting his 6 cheek, stabbing him on the head and face with his eyeglasses, spitting in his ear and face, 7 and kicking him in the ribs, kidneys and shins. Id. at 3. Plaintiff claims “the whole ordeal 8 lasted about one hour.” Id. at 3. Plaintiff claims Gomez was able to “pin[] [him] down 9 real good,” and was able to “severely beat [him] almost to the point of death,” because 10 Plaintiff’s “medical problems, one bad arm,” hypoglycemia, and dizzy spells rendered 11 him “defenseless.” Id. at 4, 7. 12 III. 13 Defendant Davis and Krittman’s Motion to Dismiss Both Drs. Davis and Krittman move to dismiss Plaintiff’s Complaint against them 14 pursuant to FED. R. CIV. P. 12(b)(6) on grounds that he has failed to “allege facts 15 necessary to support a claim of deliberate indifference to his safety,” and because they 16 are entitled to qualified immunity. See Defs.’ Mem. of P&As in Supp. of Mot. to Dismiss 17 (Doc. No. 10-1) at 4-8. 18 A. 19 A Rule 12(b)(6) dismissal may be based on either a “‘lack of a cognizable legal Standard of Review 20 theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 21 Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) 22 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). 23 “To survive a motion to dismiss, a complaint must contain sufficient factual 24 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 25 v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 26 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that 27 allows the court to draw the reasonable inference that the defendant is liable for the 28 misconduct alleged.” Id. at 679 (citing Twombly, 550 U.S. at 556). “Threadbare recitals 4 14cv0891 GPC (RBB) 1 of the elements of a cause of action, supported by mere conclusory statements, do not 2 suffice.” Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555 (on motion to dismiss court is 3 “not bound to accept as true a legal conclusion couched as a factual allegation.”). “The 4 pleading standard ... does not require ‘detailed factual allegations,’ but it demands more 5 than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 6 678 (citations omitted). 7 In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts 8 all non-conclusory factual allegations as true, and determines whether those non- 9 conclusory factual allegations accepted as true state a claim for relief that is plausible on 10 its face. Iqbal, 556 U.S. at 676-684; Turner v. City & Cty. of San Francisco, __ F.3d __, 11 2015 WL 3619888 at *3 (9th Cir. 2015) (noting that “conclusory allegations of law and 12 unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.”) (internal 13 quotation marks and citation omitted). And while “[t]he plausibility standard is not akin 14 to a probability requirement,” it does “ask[] for more than a sheer possibility that a 15 defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (internal quotation marks and 16 citation omitted). In determining plausibility, the Court is permitted “to draw on its 17 judicial experience and common sense.” Id. at 679. 18 Nevertheless, claims asserted by pro se petitioners, “however inartfully pleaded,” 19 are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. 20 Kerner, 404 U.S. 519-20 (1972). Thus, courts “continue to construe pro se filings 21 liberally when evaluating them under Iqbal.” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 22 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (noting 23 that courts “have an obligation where the petitioner is pro se, particularly in civil rights 24 cases, to construe the pleadings liberally and to afford the petitioner the benefit of any 25 doubt.”)). 26 B. 27 The Eighth Amendment requires prison officials to “take reasonable measures to 28 Eighth Amendment Failure to Protect Claims guarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); 5 14cv0891 GPC (RBB) 1 DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 199-200 (1989) 2 (“[W]hen the State takes a person into its custody and holds him there against his will, 3 the Constitution imposes upon it a corresponding duty to assume some responsibility for 4 his safety and general well-being.”). In fact, the Supreme Court has specifically held that 5 this duty requires officials to protect prisoners from violence at the hands of other 6 prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations omitted); Hearns v. 7 Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). 8 However, “[p]rotecting the safety of prisoners and staff involves difficult choices 9 and evades easy solutions.” Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). Thus, 10 in order to state a cruel and unusual punishment claim based on a prison official’s failure 11 to protect him, Plaintiff must first allege facts sufficient to show that the risk he faced 12 was objectively “sufficiently serious,” i.e., that the conditions under which he was 13 confined posed a “substantial risk of serious harm” to him. Farmer, 511 U.S. at 834; 14 Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015). Second, because “only the 15 unnecessary and wanton infliction of pain implicates the Eighth Amendment,” Plaintiff’s 16 pleading must also contain “factual content that allows the court to draw the reasonable 17 inference,” Iqbal, 556 U.S. at 678, that each individual defendant he seeks to hold liable 18 acted with a “sufficiently culpable state of mind.” Wilson, 501 U.S. at 297 (internal 19 quotation marks, emphasis and citations omitted); see also Hudson, 503 U.S. at 5, 8. 20 In a failure to protect case, “that state of mind is one of ‘deliberate indifference’ to 21 inmate health or safety.” Farmer, 511 U.S. at 834. Prison officials display a deliberate 22 indifference to an inmate’s well-being only when they know of and consciously disregard 23 a substantial risk of harm to his health or safety. Farmer, 511 U.S. at 837. “[T]he official 24 must both be aware of facts from which the inference could be drawn that a substantial 25 risk of serious harm exists, and he must also draw the inference.” Id.; see also Taylor v. 26 Barkes, __ U.S. __, 135 S. Ct. 2042, 2045 (2015) (noting that Farmer holds that “Eighth 27 Amendment liability requires actual awareness of risk.”). This “subjective approach” 28 focuses only “on what a defendant’s mental attitude actually was,” Farmer, 511 U.S. at 6 14cv0891 GPC (RBB) 1 839, and “is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2 2004). 3 Thus, if prison officials “did not know of the underlying facts indicating a 4 sufficiently substantial danger,” and “were therefore unaware of the danger,” or if “they 5 knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts 6 gave rise was unsubstantial or nonexistent,” they may not be held liable. Farmer, 511 7 U.S. at 844; see also Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 8 2002) (noting that a prison official who “should have been aware of the risk, but was not, 9 … has not violated the Eighth Amendment, no matter how severe the risk.”). 10 Moreover, the deliberate indifference standard requires that even if a prison official 11 is alleged to have “actually kn[own] of a substantial risk to [Plaintiff’s] health or safety[,] 12 [he] may be found free from liability if [he] responded reasonably to the risk, even if the 13 harm was not ultimately averted.” Farmer, 511 U.S. at 844. Deliberate indifference is, 14 therefore, “‘something more than mere negligence,’ but ‘something less than acts or 15 omissions for the very purpose of causing harm or with knowledge that harm will 16 result.’” Cortez, 776 F.3d at 1050 (quoting Farmer, 511 U.S. at 835). 17 Thus, in order to state a plausible claim for relief against Drs. Davis and Krittman, 18 Plaintiff’s Complaint must include enough “factual content that allows the court to draw 19 the reasonable inference” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556), that 20 both Davis and Krittman actually knew his cellmate, Gomez, posed an objectively serious 21 risk to his safety or health, “inferred that substantial harm might result from the risk,” and 22 then failed to take reasonable action to abate it. See Wallis v. Baldwin, 70 F.3d 1074, 23 1077 (9th Cir. 1995). As currently pleaded, the Court finds Plaintiff’s Complaint fails to 24 allege a plausible claim for relief under the Eighth Amendment against either Dr. 25 Krittman or Dr. Davis because he has failed to include sufficient “factual enhancement” 26 from which the Court may reasonably infer that either of them acted, or failed to 27 reasonably act, under circumstances which presented a “substantial” or “obvious risk of 28 “imminent” harm to him. See Iqbal, 556 U.S. at 678; Baze v. Rees, 553 U.S. 35, 50 7 14cv0891 GPC (RBB) 1 (2008) (to be deliberately indifferent, a prison official must fail to reasonably act under 2 circumstances which are “‘sure or very likely to cause serious . . . and needless 3 suffering’” and which “give rise to ‘sufficiently imminent dangers.’” (quoting Helling v. 4 McKinney, 509 U.S. 25, 33-35 (1993)). 5 First, Plaintiff claims that while he “talked to Dr. Davis” on November 8, 2013 6 about Gomez’s “bizarre and crazy behavior,” and mentioned Gomez’s mother’s belief 7 that her son “should be on psych meds,” see Compl. at 4, he pleads no further factual 8 allegations to show that Davis knew, based on this conversation alone, that he faced a 9 “substantial risk” of serious harm if Gomez were not medicated or assigned to another 10 cell; nor does Plaintiff allege any additional facts from which the Court might reasonable 11 infer that Davis consciously disregarded any risk that was “obvious.” Farmer, 511 U.S. at 12 842; Cortez, 776 F.3d at 1050. In fact, Plaintiff admits Dr. Davis did not simply ignore 13 his concerns, but instead took some action when he recommended to Plaintiff that Gomez 14 consult with his clinician, Dr. Krittman, and then met “one on one” with Gomez 15 approximately two weeks before Plaintiff was attacked. See Compl. at 4; Farmer, 511 16 U.S. at 844 (defendant is not liable “if [he] responded reasonably to the risk, even if the 17 harm was not ultimately averted.”). Moreover, Plaintiff does not allege Gomez made any 18 threats against him in Davis’s presence during their meeting, and does not proffer any 19 other facts from which the Court might reasonably infer how or why Davis might have 20 actually “drawn the inference” that Plaintiff faced a substantial risk of harm simply 21 because he shared a cell with Gomez. Farmer, 511 U.S. at 837 (“[T]he official must both 22 be aware of facts from which the inference could be drawn that a substantial risk of 23 serious harm exists, and he must also draw the inference.”); see also Taylor, __ U.S. at 24 __, 135 S. Ct. at 2045 (“Eighth Amendment liability requires actual awareness of risk.”). 25 Even assuming Plaintiff’s conversation with Davis on November 8, 2013, provided 26 Davis with information consistent with a potential for harm, a “mere suspicion” without 27 more is insufficient to show deliberate indifference. Berg, 794 F.2d at 459 (deliberate 28 indifference “does not require that the guard or official ‘believe to a moral certainty that 8 14cv0891 GPC (RBB) 1 one inmate intends to attack another at a given place at a time,’” but “he must have more 2 than a mere suspicion that an attack will occur.’”) (citations omitted); see also Labatad v. 3 Corr. Corp. of Am., 714 F.3d 1155, 1161 (9th Cir. 2013) (finding summary judgment 4 proper as to prisoner’s Eighth Amendment claim where only evidence offered to 5 demonstrate deliberate indifference was defendants’ knowledge that plaintiff fought three 6 days prior to his cellmate’s attack with a member of his cellmate’s gang); Johnson v. 7 Hicks, No. 1:11-CV-02162-GSA-PC, 2014 WL 1577280, at *5 (E.D. Cal. Apr. 17, 2014) 8 (finding prisoner failed to sufficiently allege Eighth Amendment failure to protect claim 9 where he claimed attacker was “in Ad–Seg for disciplinary reasons,” and was “well 10 known for in-cell violence,” but failed to claim any defendant knew his attacker “posed a 11 particular, present danger” to him). 12 Plaintiff’s claims as to Dr. Krittman are even less availing. Specifically, Plaintiff 13 alleges only that Davis told him Krittman was Gomez’s clinician, and that Krittman, like 14 Davis, had a “one on one” with Gomez “about one week before he assaulted [Plaintiff].” 15 Compl. at 4. Plaintiff offers no “further factual enhancement” as to Dr. Krittman or any 16 role he may have played in causing Plaintiff’s injury. Twombly, 550 U.S. at 557; Iqbal, 17 556 U.S. at 677 (“[E]ach Government official, his or her title notwithstanding, is only 18 liable for his or her own misconduct.”); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 19 1978) (a person “subjects” another to the deprivation of a constitutional right, within the 20 meaning of section 1983, if he does an affirmative act, participates in another’s 21 affirmative acts, or omits to perform an act which he is legally required to do that causes 22 the deprivation of which complaint is made.”). Critically, Plaintiff fails to further allege 23 Krittman actually knew Plaintiff had complained to Davis about Gomez’s “bizarre and 24 crazy behavior,” id., and fails to offer any additional facts from which the court might 25 reasonably infer that Krittman consciously disregarded any substantial risk posed by 26 Gomez that was otherwise “obvious.” Farmer, 511 U.S. at 842; Cortez, 776 F.3d at 1050. 27 28 9 14cv0891 GPC (RBB) Thus, as currently pleaded, the Court finds Plaintiff’s Eighth Amendment failure to 1 2 protect claims against both Drs. Davis and Krittman are merely “consistent with” 3 possible liability, but, without further factual enhancement, are insufficient to “nudge 4 [Plaintiff’s] claim” of cruel and unusual punishment “across the line from conceivable to 5 plausible.” Iqbal, 556 U.S. at 678, 680 (citing Twombly, 550 U.S. at 557, 570). Accordingly, the Court GRANTS Defendant Davis and Krittman’s Motion to 6 7 Dismiss Plaintiff’s Eighth Amendment failure to protect claims pursuant to FED. R. CIV. 8 P. 12(b)(6).2 9 IV. 10 Defendants Brown and Mendez’s Motion for Summary Judgment Next, Defendants Brown and Mendez seek summary judgment as to Plaintiff’s 11 Eighth Amendment failure to protect claims on grounds that he failed to exhaust his 12 administrative remedies before filing suit as is required by 42 U.S.C. § 1997e(a) (Doc. 13 No. 9). 14 A. 15 16 Legal Standards 1. Statutory Exhaustion Requirement Pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall 17 be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 18 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 19 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This 20 statutory exhaustion requirement applies to all inmate suits about prison life, Porter v. 21 22 23 24 25 26 27 28 2 Because the Court finds Plaintiff has failed to state an Eighth Amendment failure to protect claim against either Defendant Davis or Krittman, it need not further decide whether they are entitled to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 200 (2001) (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”); see also County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged the deprivation of a constitutional right at all.”). 10 14cv0891 GPC (RBB) 1 Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief 2 sought by the prisoner or the relief offered by the process. Booth v. Churner, 532 U.S. 3 731, 741 (2001). 4 “Proper exhaustion demands compliance with an agency’s deadlines and other 5 critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). The Supreme 6 Court has also cautioned against reading futility or other exceptions into the statutory 7 exhaustion requirement. See Booth, 532 U.S. at 741 n.6. Moreover, because proper 8 exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by 9 filing an untimely or otherwise procedurally defective administrative grievance or appeal. 10 See Woodford, 548 U.S. at 90-93. Instead, “to properly exhaust administrative remedies 11 prisoners ‘must complete the administrative review process in accordance with the 12 applicable procedural rules,’[ ]-rules that are defined not by the PLRA, but by the prison 13 grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 14 548 U.S. at 88). See also Marella v Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The 15 California prison system’s requirements ‘define the boundaries of proper exhaustion.’”) 16 (quoting Jones, 549 U.S. at 218). 17 Because the failure to exhaust is an affirmative defense, Defendants bear the 18 burden of raising and proving its absence. Jones, 549 U.S. at 216; Albino v. Baca, 747 19 F.3d 1162, 1166 (9th Cir. 2014) (en banc). “In the rare event that a failure to exhaust is 20 clear from the face of the complaint, a defendant may move for dismissal under Rule 21 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, Defendants must produce evidence 22 proving the Plaintiff’s failure to exhaust, and they are entitled to summary judgment 23 under Rule 56 only if the undisputed evidence, viewed in the light most favorable 24 Plaintiff, shows he failed to exhaust. Id. 25 26 2. Rule 56 Summary Judgment Any party may move for summary judgment, and the Court must grant summary 27 judgment if the movant shows that there is no genuine dispute as to any material fact and 28 the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a) (quotation 11 14cv0891 GPC (RBB) 1 marks omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 2 1216 (9th Cir. 2011). Each party’s position, whether a fact is disputed or undisputed, 3 must be supported by: (1) citing to particular parts of materials in the record, 4 including but not limited to depositions, documents, declarations, or discovery; or (2) 5 showing that the materials cited do not establish the presence or absence of a genuine 6 dispute or that the opposing party cannot produce admissible evidence to support the fact. 7 FED. R. CIV. P. 56(c)(1) (quotation marks omitted). The Court may consider other 8 materials in the record not cited to by the parties, although it is not required to do so. 9 FED. R. CIV. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 10 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th 11 Cir. 2010). 12 When Defendants seek summary judgment based on the Plaintiff’s failure to 13 exhaust specifically, they must first prove that there was an available administrative 14 remedy and that Plaintiff did not exhaust that available remedy. Williams v. Paramo, 775 15 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino, 747 F.3d at 1172) (quotation marks 16 omitted). If they do, the burden of production then shifts to the Plaintiff “to come forward 17 with evidence showing that there is something in his particular case that made the 18 existing and generally available administrative remedies effectively unavailable to him.” 19 Williams, 775 F.3d at 1191; see also McBride v. Lopez, __ F.3d __, 2015 WL 3953483 at 20 *1, 2 (9th Cir. June 30, 2015) (No. 12-17682) (citing “certain limited circumstances 21 where the intervening actions or conduct by prison officials [may] render the inmate 22 grievance procedure unavailable.”). 23 “If the undisputed evidence viewed in the light most favorable to the prisoner 24 shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.” 25 Albino, 747 F.3d at 1166. However, “[i]f material facts are disputed, summary judgment 26 should be denied, and the district judge rather than a jury should determine the facts.” Id. Defendants’ Arguments 27 B. 28 Brown and Mendez claim the California Department of Corrections and 12 14cv0891 GPC (RBB) 1 Rehabilitation (“CDCR”) has established an administrative grievance procedure which 2 was available to Plaintiff, and that he, in fact, did avail himself of that procedure by filing 3 three separate administrative appeals referencing Gomez’s November 10, 2013 attack. 4 Brown and Mendez seek summary judgment, however, because they claim none of these 5 appeals are sufficient to show Plaintiff exhausted the Eighth Amendment failure to 6 protect claims he now seeks to pursue. See Defs.’ Mem. of P&As in Supp. of Mot. for 7 Summ. J. (Doc. No. 9-1) (hereafter “Defs.’ P&As”) at 15-18. Specifically, Brown and 8 Mendez claim Plaintiff’s first two administrative appeals failed to put them on notice that 9 he was complaining about Gomez’s cell assignment, and not merely seeking medical 10 attention for the injuries he sustained. Id. at 15-17. Brown and Mendez further contend 11 that while Plaintiff’s third appeal did include allegations related to the danger posed by 12 Gomez’s cell assignment, it was not properly exhausted because it was untimely. Id. at 13 17-18. 14 C. 15 First, no party disputes that the CDCR provides inmates with an administrative Discussion 16 remedy to address both “non-medical inmate grievances,” also known as Inmate/Parolee 17 Appeals, which are initiated by filing a CDCR Form 602, see Decl. of R. Olson in Supp. 18 of Defs.’ Mot. for Summ. J. (Doc. No. 9-3) (hereafter “Olson Decl.”) at 1, ¶ 1; CAL. 19 CODE REGS., tit. 15 § 3084.2(a), and “medical, dental and mental health care issues,” also 20 known as Patient/Inmate Health Care Appeals, which are initiated by filing a CDCR 21 Form 602 HC. See Decl. of R. Robinson in Supp. of Defs.’ Mot. for Summ. J. (Doc. No. 22 9-6) (hereafter “Robinson Decl.”) at 2 ¶ 2; Williams, 775 F.3d at 1191. No party further 23 disputes that appeals related to medical care are “handled under the same regulatory 24 framework” as non-medical appeals, see Defs.’ P&As at 8, insofar as both are initially 25 reviewed by either custody or medical staff at the institutional level, see Robinson Decl. 26 ¶ 3; Olson Decl. ¶ 1; however, “third level” health care appeals are “processed by the 27 Inmate Correspondence and Appeals Branch (ICAB)” and California Correctional Health 28 13 14cv0891 GPC (RBB) 1 Care Services (CCHCS),3 while third level non-medical inmate appeals are heard by the 2 CDCR’s Office of Appeals in Sacramento. See Robinson Decl. at 1-2 ¶¶ 1-3; Olson Decl. 3 at 1-2 ¶¶ 1-2. 4 In addition, no party disputes that an administrative appeal must be filed within 5 thirty calendar days: (1) of the event or decision being appealed, (2) upon the inmate first 6 having knowledge of the action or decision being appealed, or (3) upon receipt of an 7 unsatisfactory departmental response to an appeal filed. See CAL. CODE REGS., tit. 15, 8 § 3084.8(b)(1) (quotation marks omitted); Vaden v. Summerhill, 449 F.3d 1047, 1049 9 (9th Cir. 2006); see also Olson Decl. at 2-3 ¶¶ 2-4. A California prisoner may appeal “any policy, decision, action, condition, or 10 11 omission by the department or its staff that [he] can demonstrate as having a material 12 adverse effect upon his . . . health, safety, or welfare.” CAL CODE REGS., tit. 15 13 § 3084.1(a). Since January 28, 2011, and during the times alleged in Plaintiff’s 14 Complaint, Title 15 of the California Code of Regulations requires three formal levels of 15 appeal review. See Olson Decl. at 2 ¶ 2. 16 Thus, in order to properly exhaust, a California prisoner must, within 30 calendar 17 days of the decision or action being appealed, or “upon first having knowledge of the 18 action or decision being appealed,” CAL. CODE REGS., tit. 15 § 3084.8(b), “use a CDCR 19 Form 602 (Rev. 08/09), Inmate/Parolee Appeal, to describe the specific issue under 20 appeal and the relief requested.” Id. § 3084.2(a). The CDCR Form 602 “shall be 21 submitted to the appeals coordinator at the institution.” Id. § 3084.2(c), § 3084.7(a). If the 22 first level CDCR Form 602 appeal is “denied or not otherwise resolved to the appellant’s 23 satisfaction at the first level,” id. § 3084.7(b), the prisoner must “within 30 calendar days 24 25 26 27 28 3 Health care appeals have been handled separately from non-medical appeals within the CDCR since August 1, 2008, as a result of a still-pending Northern District of California class action lawsuit regarding medical care standards throughout the State’s prisons. See Robinson Decl., at 2 ¶ 2 (citing Plata v. Brown, et al., N. D. Cal. Civil Case No., 3:01-cv01351-TEH (2001)). 14 14cv0891 GPC (RBB) 1 . . . upon receiving [the] unsatisfactory departmental response,” id. § 3084.8(b)(3), seek a 2 second level of administrative review, which is “conducted by the hiring authority or 3 designee at a level no lower than Chief Deputy Warden, Deputy Regional Parole 4 Administrator, or the equivalent.” Id. § 3084.7(b), (d)(2). “The third level is for review of 5 appeals not resolved at the second level.” Id. § 3084.7(c). “The third level review 6 constitutes the decision of the Secretary of the CDCR on an appeal, and shall be 7 conducted by a designated representative under the supervision of the third level Appeals 8 Chief or equivalent. The third level of review exhausts administrative remedies,” id. 9 § 3084.7(d)(3), “unless otherwise stated.”1 Id. § 3084.1(b); see also Olson Decl. ¶¶ 2-3; 10 CDCR OP. MAN. § 541100.13 (“Because the appeal process provides for a systematic 11 review of inmate and parolee grievances and is intended to afford a remedy at each level 12 of review, administrative remedies shall not be considered exhausted until each required 13 level of review has been completed.”). 14 Therefore, the only question in this case is whether Defendants Brown and Mendez 15 have carried their burden under Rule 56 to show there is no material dispute as to whether 16 Plaintiff exhausted the administrative remedies made available to him as to the failure to 17 protect claims he now alleges against them before he filed suit as is required by CAL. 18 CODE REGS., tit. 15 § 3084, et seq. See Compl. at 2-3; Williams, 775 F.3d at 1191. Defendants’ Evidence 19 1. 20 Defendants admit Plaintiff filed three administrative appeals specifically 21 addressing Gomez’s November 10, 2103 attack, and have attached evidence of those 22 appeals as documented in both the CCHCS’s health care appeals tracking database 23 (HCARTS), and the CDCR’s Office of Appeals Inmate Appeals Tracking System 24 25 For example, “[a] second level of review shall constitute the department’s final action on appeals of disciplinary actions classified as ‘administrative’ as described in section 3314, or minor disciplinary infractions documented on CDC Form 128-A (rev. 4-74), Custodial Counseling Chrono, pursuant to section 3312(a)(2), and shall exhaust administrative remedy on these matters.” CAL. CODE REGS., tit. 15 § 3084.7(b)(1). 1 26 27 28 15 14cv0891 GPC (RBB) 1 (IATS). See Defs.’ P&As at 8; Olson Decl. at 3-4 & Exs. A & B; Robinson Decl. at 3-4 2 & Exs. A & B. The content, procedural histories, and outcomes of each of these appeals 3 are summarized below. 4 a. 5 On November 16, 2013, six days after he was attacked by Gomez, Plaintiff filed a 6 CDCR 602 Inmate/Parolee Appeal, which was originally logged as RJD-A-13-3696. See 7 Decl. of D. VanBuren in Supp. of Defs.’ Mot. for Summ. J. (Doc. No. 9-5) (hereafter 8 “VanBuren Decl.”) at 3 ¶ 5(a) & Ex. B at 22. In the section of this CDCR 602 Form in 9 which he was asked to “state briefly the subject of your appeal,” Plaintiff wrote “personal 10 injury.” Id. Ex. B at 22. In the following section A, when asked to “[e]xplain [his] issue,” 11 and to use a CDCR 602-A if he required more space, Plaintiff described in great detail 12 how he was attacked by Gomez on November 10, 2013, and how he was “caught of[f] 13 guard,” when Gomez went “berserk” after he “politely” asked him to lower the volume 14 on the TV. Plaintiff continued by listing his infirmities, describing the physical struggle, 15 and explaining how “days before,” he had read a letter from Gomez’s mom that said, “Be 16 sure to take your psy. meds.” Id. at 23. Plaintiff included allegations related to how, prior 17 to the attack, he “went to see Dr. Davis & … told him about [Gomez’s] behavior & his 18 mom’s letter. Dr. Davis replied he [Gomez] had to go through his clinician D. Krittman 19 before he can dispense psych. meds.” Plaintiff then claimed he “followed up on this,” by 20 “try[ing] to get [Gomez] his medication,” but it was “to[o] late,” and Gomez attacked 21 him. Id. RJD-HC-13049994 / RJD-A-13-3696 22 In section B of his CDCR Form 602, entitled “Action requested,” Plaintiff 23 continued to describe Gomez’s attack as a “one way fight” due to Plaintiff’s age, 24 diabetes, hypertension, and Hep-C status. Id. at 22. On the attached CDCR 602-A, 25 Plaintiff further reported that as a result of Gomez’s attack, his jaw and cartilage in his 26 nose was broken, he could “only breathe through one nostril,” was experiencing pain 27 while chewing, had a bruised arm and face, and believed a loose muscle or tendon was 28 “just dangling.” Id. at 23. Plaintiff concluded by “requesting all that’s damaged be 16 14cv0891 GPC (RBB) 1 repaired,” including “the diaphragm of [his] back where [his] ribs are.” Id. Finally, just 2 above his signature, Plaintiff explained that no supporting documents were being attached 3 to his CDCR Form 602 because he was waiting for his “medical report to arrive at 4 medical records.” Id. at 22. Plaintiff’s CDCR Form 602 Log No. RJD-A-13-3696 was “received” at the Inmate 5 6 Appeals Office on November 21, 2013. See Olson Decl. at 4 ¶ 6(b). On November 22, 7 2013, Plaintiff was issued a CDC Form 6954 at the first level of screening. See VanBuren 8 Decl. at 2 ¶ 5(a) & Ex. B at 21. According to Inmate Appeals Coordinator Olson, because 9 “the only relief requested was medical treatment for the injuries [he] sustained during the 10 attack,” Olson Decl. at 4 ¶ 6(b), Plaintiff was notified that CDC Form 602 Log No. RJD- 11 A-13-03696 was being “returned,” and he was “advised that this appeal issue should be 12 submitted to the appropriate CDCR unit for review.” Id. However, the same November 13 22, 2013 Form 695 also informed Plaintiff that his “appeal ha[d] been forwarded to 14 health care staff” for “further processing and review,” id.; indeed, both Olson and Health 15 Care Appeals Coordinator VanBuren admit Plaintiff’s appeal was ultimately “accepted 16 for review,” “converted to a Health Care Appeal,” and re-assigned tracking No. RJD-HC- 17 13049994 on November 25, 2013. Id.; see also VanBuren Decl. at 3 ¶ 5(a). 18 19 On either December 9, 2013, or December 22, 2013, RJD-HC-13049994 was partially granted at the second level of review, and later denied at the third level of 20 21 22 23 24 25 26 27 28 Section 3084.5 of Title 15 of the California Code of Regulations, entitled “Screening and Managing Appeals,” provides that “prior to acceptance and assignment for review,” the institution’s appeals coordinator, or a “delegated staff member under the direct oversight of the coordinator shall screen all appeals.” CAL. CODE REGS., tit. 15 § 3084.5(b)(1) (eff. Jan. 2015). “When an appeal is not accepted, the inmate or parolee shall be notified of the specific reason(s) for the rejection or cancellation of the appeal and the correction(s) needed for the rejected appeal to be accepted.” Id. § 3084.5(b)(3). Chapter 5 of the CDCR’s OPERATIONS MANUAL further provides that “[w]hen it is determined that an appeal will not be accepted[,] an Inmate/Parolee Screening Form, CDC Form 695 . . . shall be completed, attached to the CDCR Form 602 and returned to the inmate or parolee.” CDCR OP. MAN., § 54100.10 (eff. Jan. 1, 2015). 4 17 14cv0891 GPC (RBB) 1 review on February 26, 2014. See Van Buren Decl. at 3 ¶ 5(a) & Ex. B at 18; see also 2 Robinson Decl. at 3 ¶ 6(b) & Ex. B; Pl.’s Supp. Doc. in Opp’n (Doc. No. 29) at 26. 3 b. 4 On November 24, 2013, approximately two weeks after Gomez’s attack, and just 5 two days after he was issued the CDC Form 695 in relation to Log No. RJD-A-13-3696, 6 Plaintiff filed a separate Patient/Inmate Health Care Appeal on a CDCR 602 HC Form, 7 which was assigned Log No. RJD-HC-13050039. VanBuren Decl., Ex. C at 26. In this 8 appeal, Plaintiff stated that the “subject/purpose of [his] appeal” was “[t]o follow up on 9 injuries [he] sustained [i]n a beating,” repeated the details of Gomez’s November 10, RJD-HC-13050039 10 2013 attack, and explained how his age and medical condition prevented him from 11 “defend[ing] [him]self.” Id., Ex. C at 16, 28. Plaintiff further claimed that while someone 12 in the “hospital & the prison clinic” indicated after the attack that there would be a 13 “medical follow up,” and he had since “complained various times to the nurse & doctor,” 14 he still “want[ed] to talk to medical,” because he believed he had a “brain concussion” 15 which was affecting his memory, eyesight, and hearing. Id. at 28. As he did in CDCR 16 Form 602 Log No. RJD-A-13-3696, Plaintiff also reported to have “talked to Dr. Davis 17 concerning [Gomez’s] meds & bizarre behavior” before the attack, but claimed Gomez 18 was “moved back with [him] despite [his] warning to CO Mendoza.”5 Id. 19 Log No. RJD-HC-13050039, like Log No. RJD-HC-13049994, was partially 20 granted at the second level of review on December 22, 2013, and later denied at the third 21 22 23 24 25 26 27 28 Plaintiff’s Complaint does not name any Correctional Officer named Mendoza as a party to this action; nor does he claim that by referring to Mendoza, he intended to implicate Defendant Mendez instead. See CAL. CODE REGS., tit. 15 § 3084.2(a)(3) (“To assist in the identification of staff members, the inmate or parolee shall include the staff member’s last name, first initial, title or position, if known, and the dates of the staff member’s involvement in the issue under appeal. If the inmate . . . does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question.”). 5 18 14cv0891 GPC (RBB) 1 level of review on February 26, 2014. VanBuren Decl., at 3 ¶ 5(b) & Ex. C at 30-32; see 2 also Robinson Decl. at 3 ¶ 6(c); Pl.’s Supp. Doc. in Opp’n (Doc. No. 29) at 25. 3 c. 4 Finally, on December 20, 2013, approximately forty days after Gomez’s November RJD-A-13-04021 5 10, 2013 attack, Plaintiff filed a CDCR 602 Inmate/Parolee Appeal, which was assigned 6 Log No. RJD-A-13-04021. See Olson Decl., at 3 ¶ 6(a) & Ex. A at 8-10. This time, when 7 asked to “state briefly the subject of [his] appeal,” Plaintiff wrote “reckless behavior.” 8 Id., Ex. A at 8. In Section A of the CDCR Form 602, and on the attached CDCR Form 9 602-A, in which he was asked to “explain [his] issue,” Plaintiff again claimed to have 10 been “viciously attacked” by Gomez on November 10, 2013. But this time, in addition to 11 mentioning both Drs. Krittman and Davis’s alleged roles in either failing to medicate 12 Gomez or somehow prevent the attack, Plaintiff also identified Defendants Mendez and 13 Brown, and claimed “CO Mendez” was at fault for “plac[ing] Gomez twice with [him],” 14 and Brown was responsible for “OK[ing] the move.” Id. at 10. Plaintiff then added 15 complaints of “never receiv[ing] some prescription medication, and endur[ing] approx.14 16 days of excruciating pain,” and questioned, “Why was a demented predator placed with a 17 sick old man like myself?” Id. Finally, when asked what action he requested, Plaintiff 18 wrote: “It would be nice if everybody involved would admit their mistakes & not pass the 19 blame to somebody else.” Id. 20 While Appeals Coordinator Olson admits that RJD-A-13-04021 did include claims 21 that Defendants Mendez, Brown, Krittman, and Davis “failed to protect him from vicious 22 attack by his cellmate,” and that “his cellmate was moved to his cell with no regard to his 23 safety,” Olson Decl. at 3 ¶ 6(a), this appeal was “screened out/cancelled” at the first level 24 of administrative review on December 24, 2013, “due to loss of time constraints,” and 25 pursuant to CAL. CODE REGS., tit. 15, § 3084.6(c)(4). Id. at 3-4. ¶ 6(a) & Ex. A at 6. R. 26 Briggs, the Acting Chief of the CDCR’s Office of Appeals, further attests that a search of 27 the IATS database failed to show that Log No. RJD-A-13-04021, or any appeal filed by 28 Plaintiff, which included allegations that Brown or Mendez had failed to protect him 19 14cv0891 GPC (RBB) 1 from Gomez’s November 10, 2013 attack, had ever been accepted for processing at the 2 third level of administrative review. See Decl. of R. Briggs in Supp. of Defs.’ Mot. for 3 Summ. J (Doc. No. 9-4) (hereafter “Briggs Decl.”) at 4 ¶ 8. Plaintiff’s Rebuttal Evidence 4 2. 5 In opposition to Defendant Brown and Mendez’s Motion, and in response to their 6 evidence, Plaintiff filed hundreds of pages of his medical and mental health records. But 7 he does not allege he was denied adequate medical care in his Complaint; therefore these 8 records are not relevant to show that he exhausted his Eighth Amendment failure to 9 protect claims. See Doc. Nos. 14, 18, 20, 29. Buried within these submissions, however, 10 Plaintiff also makes further factual allegations as to his former cellmate Gomez’s 11 dangerous proclivities, and he includes copies of the same three administrative appeals 12 Defendants Brown and Mendez offer as proof of his failure to exhaust. See Doc. No. 29, 13 at 2-3, 23-26. 14 In fact, Plaintiff appears to concede that he failed to timely exhaust his failure to 15 protect claims as to Brown and Mendez, see id. at 31, but argues he was in “excruciating 16 pain” for the “30 to 40 days” following Gomez’s attack, that he “tried to fill out the 602 17 appeal forms [and] to send [them] in before the 30 day time limit,” but was “not in his 18 right mind” and “not operating within his faculties” at the time. Id. at 34; see also Doc. 19 No. 14 at 12. By the time Plaintiff claims he submitted his third administrative appeal via 20 a CDCR Form 602 (Log No. RJD-A-13-04021), this time specifically mentioning both 21 Brown and Mendez’s “reckless behavior” in “placing Gomez” in his cell on December 22 20, 2013, he acknowledges it was “to[o] late.” See Doc. No. 29 at 31; see also Olson 23 Decl., Ex. A at 8-10. Defendants’ Reply 24 3. 25 In Reply, Defendants Brown and Mendez contend Plaintiff’s “allegations that he 26 was in pain or not in his right mind are not sufficient to excuse compliance with the 27 exhaustion requirement,” and are belied by other evidence which shows he was able to 28 20 14cv0891 GPC (RBB) 1 timely file three6 separate administrative appeals “which discussed the attack and 2 requested additional medical care,” but which nevertheless failed to mention Brown and 3 Mendez’s failures to protect him from Gomez’s November 10, 2013 attack. See Defs.’ 4 Reply (Doc. No. 16) at 3-4. 5 4. 6 Based on the evidence presented, the Court finds no genuine material dispute exists Analysis 7 as to whether Plaintiff has properly exhausted all available administrative remedies as to 8 his Eighth Amendment failure to protect claims against Defendants Brown and Mendez, 9 and that therefore Brown and Mendez are entitled to summary judgment based on 10 Plaintiff’s failure to comply with 42 U.S.C. § 1997e(a). See Albino, 747 F.3d at 1166 11 (noting that if “undisputed evidence viewed in the light most favorable to the prisoner 12 shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.”). 13 First, Brown and Mendez have carried their burden of production by submitting 14 sufficient evidence which shows that neither of the administrative appeals Plaintiff timely 15 filed and properly exhausted through the third and final level of administrative review 16 following Gomez’s November 10, 2013 attack (Log No. RJD-HC-1304994 or Log No. 17 RJD-HC-13050039), adequately put either of them on notice that he was seeking to 18 complain about their failure to protect him from Gomez, and not instead seeking medical 19 attention for the injuries he sustained during the attack. An appeal generally “suffices to 20 exhaust a claim if it puts the prison on adequate notice of the problem for which the 21 prisoner seeks redress.” Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir. 2010); see also 22 Jones, 549 U.S. at 218 (noting that the level of detail in an administrative grievance 23 necessary to properly exhaust a claim is determined by the prison’s applicable grievance 24 procedures); Woodford, 548 U.S. at 84, 90-1 (noting that to “properly” exhaust, prisoner 25 26 27 28 6 In addition to RJD-HC-1304994, and RJD-HC-13050039, Defendants claim that on December 10, 2013, Plaintiff timely filed a third appeal, Log No. RJD-HC-13050094, requesting orthopedic shoes. See Defs.’ Reply at 4; VanBuren Decl., Ex. A at 9. 21 14cv0891 GPC (RBB) 1 must “comply with an agency’s deadlines and other critical procedural rules.”). In this 2 case, the record shows that those “critical procedural rules” required that Plaintiff’s 3 CDCR 602 appeal forms “describe the specific issue under appeal and the relief 4 requested,” see CAL. CODE REGS., tit. 15, § 3084.2 (a), prohibited him from “combining 5 unrelated issues on a single appeal form,” id. § 3084.2(a)(1), and mandated that he “list 6 all staff member(s) involved” and “describe their involvement in the issue.” Id., 7 § 3084.2(a)(3)7; see also Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“[A] 8 prisoner must exhaust his administrative remedies for the claims contained within his 9 complaint before that complaint is tendered to the district court.”) (emphasis added). 10 The primary purpose of a grievance is to notify the prison of a problem. Griffin, 11 557 F.3d at 1120 (quotation marks and citations omitted); accord Wilkerson v. Wheeler, 12 772 F.3d 834, 839 (9th Cir. 2014); Akhtar v. Mesa, 698 F.3d 1202, 1211 (9th Cir. 2012). 13 Thus, Plaintiff’s CDCR 602 Log No. RJD-HC-1304994 or Log No. RJD-HC-13050039 14 would suffice to satisfy § 1997e(a)’s exhaustion requirement if Defendants Brown and 15 Mendez were included in a list of staff members involved, if either of these appeals 16 “describe[d] [Brown and Mendez’s] involvement in the issue under appeal,” and if he 17 mentioned or somehow directed his allegations of wrongdoing on their failure to protect 18 him from Gomez, and did not, instead, focus his grievances on his medical infirmities 19 and the injuries he sustained and make specific demands for immediate medical relief. 20 See CAL. CODE REGS. tit. 15, § 3084.2. Because the undisputed evidence in the record 21 shows instead that Plaintiff’s CDCR 602 Log No. RJD-HC-1304994 and Log No. RJD- 22 HC-13050039 lacked even a modicum of detail involving their purported roles in failing 23 to protect him, Defendants Brown and Mendez could not have reasonably been alerted to 24 25 Before January 28, 2011, the CDCR’s regulations merely required prisoner to include a description of the problem and the action requested on the CDCR Form 602. See § 3084.2(a) (2010); Sapp, 623 F.3d at 824 (finding that at the time Sapp filed his grievance, 15 CAL. CODE REGS., § 3084.2 did not require him to identify prison officials by name in order to exhaust). 7 26 27 28 22 14cv0891 GPC (RBB) 1 the nature of the wrong for which Plaintiff now seeks redress against them. See Sapp, 623 2 F.3d at 824; Akhtar, 698 F.3d at 1211; McCollum v. Cal. Dept. of Corr. and 3 Rehabilitation, 647 F.3d 870, 876 (9th Cir. 2011) (finding Wiccan prisoner’s grievance 4 alleging religious discrimination in the form of unequal access to worship places and 5 sacred items insufficient to put prison officials on notice of Plaintiff’s separate legal 6 challenge to the prison’s failure to establish a paid Wiccan chaplaincy). 7 Second, Defendants have also proffered sufficient evidence related to Plaintiff’s 8 CDCR Form 602 Log No. RJD-A-13-04021 to demonstrate that while it was sufficient to 9 put Brown and Mendez on notice of Plaintiff’s failure to protect claims against them, 10 there is nevertheless no genuine dispute as to whether this appeal was “properly” 11 exhausted. This is because the record shows, and Plaintiff admits, this appeal was 12 rejected as untimely. See CAL. CODE REGS., tit. 15 § 3084.8(b) (requiring inmate or 13 parolee to “submit the appeal within 30 calendar days of: (1) [t]he occurrence of the 14 event or decision being appealed, or; (2) [u]pon first having knowledge of the action or 15 decision being appealed, or; (3) [u]pon receiving an unsatisfactory departmental response 16 to an appeal filed.”); CDCR OP. MAN., § 54100.13 (“Cancellation or rejection decisions 17 . . . do not exhaust the administrative remedies available.”); Olson Decl. at 3 ¶ 6(a) & Ex. 18 A at 6-11; Pl.’s Supp. Opp’n (Doc. No. 29) at 31; Woodford, 548 U.S. at 90 (“Proper 19 exhaustion demands compliance with an agency’s deadlines.”). 20 Thus, because Defendants Brown and Mendez have carried their burden to show 21 both that “that there was an available administrative remedy, and that [Plaintiff] did not 22 exhaust that available remedy” as to the failure to protect claims alleged against them, 23 Albino, 747 F.3d at 1172, the burden then shifts to Plaintiff to “come forward with 24 evidence” to show “that there is something in his particular case that made the existing 25 and generally available administrative remedies effectively unavailable to him.” Id. at 26 1172; Williams, 775 F.3d at 1191. 27 28 As mentioned above, Plaintiff has submitted voluminous copies of his medical records in Opposition to Defendant Brown and Mendez’s Motion for Summary 23 14cv0891 GPC (RBB) 1 Judgment, and has included copies of the same CDCR inmate appeals they offer as proof 2 of his failure to exhaust. See Doc. Nos. 14, 18, 20, 29. He does not expressly claim that 3 administrative remedies were not available to him; but he does argue he should be 4 excused from 42 U.S.C. § 1997e(a)’s exhaustion requirement because he “must not have 5 been in [his] right mind,” when he “filed numerous 602’s medical and regular appeals” 6 during the “30-40 days” after Gomez’s attack due to a “lot of excruciating pain,” and 7 because he was “in duress.” Plaintiff further admits, however, that “[i]t was not that [he] 8 couldn’t file 602s,” because his “right arm was good enough to write,” but instead it was 9 because he just “could not think straight,” and “fe[lt] like a zombie” at the time. See Pl.’s 10 11 Opp’n, Doc. No. 14 at 12; Supp. Opp’n, Doc. No. 20, at 4. “To be available, a remedy must be available as a practical matter; it must be 12 capable of use; at hand.” Williams, 775 F.3d at 1191 (internal quotations and citations 13 omitted). A prisoner may demonstrate that an administrative remedy was “effectively 14 unavailable” to him by “showing that the local remedies were ineffective, unobtainable, 15 unduly prolonged, inadequate, or obviously futile.” Id. (quoting Hilao v. Estate of 16 Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)); Albino, 747 F.3d at 1172. For example, 17 Plaintiff may meet his burden of production by offering evidence which shows prison 18 officials “thwarted” him by “inform[ing] [him] that he c[ould not] file a grievance,” 19 Williams, 775 F.3d at 1192 (citing Brown v. Valoff, 422 F.3d 926, 937 (9th Cir. 2005)), 20 threatened him with retaliation if he filed one, see McBride, __ F.3d __, 2015 WL 21 3953483 at *3-4, improperly rejected or “screened out” his grievance, see, e.g., Sapp, 623 22 F.3d at 822-823; made a “mistake” by erroneously requiring additional paperwork which 23 caused him to miss a filing deadline, see e.g., Nunez v. Duncan, 591 F.3d 1217, 1226 (9th 24 Cir. 2010); failed to provide him with either grievance forms or information about the 25 grievance procedure, despite his complaints or requests, see e.g., Albino, 747 F.3d at 26 1177; or by pointing to other circumstances, like hospitalization, segregation, or transfer 27 to another facility, which precluded any meaningful opportunity to timely comply. See 28 Marella, 568 F.3d at 1027-28 (remanding exhaustion issue to district court where record 24 14cv0891 GPC (RBB) 1 unclear as to whether prisoner injured in a knife attack at the hands of another prisoner 2 had access to the necessary grievance forms or the ability to timely file an appeal due to 3 his stay in the hospital, prison infirmary, and subsequent administrative segregation); see 4 also O’Neal v. Stewart, 2014 WL 3818117 at *2 (C.D. Cal. 2014) (collecting cases 5 suggesting an inmate’s transfer from one institution to another immediately following the 6 incident giving rise to his claim could render administrative remedies unavailable). 7 Here, however, Plaintiff has failed to “come forward with evidence” sufficient to 8 rebut the ample evidence offered by Defendants Brown and Mendez which, even when 9 viewed in the light most favorable to Plaintiff, shows both the availability of California’s 10 prison administrative procedures, and his failure to properly exhaust those procedures. 11 Albino, 747 F.3d at 1172, 1174.8 Specifically, Plaintiff has failed to show that prison 12 officials thwarted his access to the grievance procedure, threatened or intimidated him in 13 any way, or were mistaken when they rejected RJD Log. No. 13-A-0421 as untimely. See 14 Williams, 775 F.3d at 1191-92; Nunez, 591 F.3d at 1226; McBride, __ F.3d at __, 2015 15 WL 3953483 at *2-3. Moreover, while Plaintiff suggests his failure to properly include 16 his Eighth Amendment failure to protect claims against Brown and Mendez in either Log 17 No. RJD-HC-1304994 or Log No. RJD-HC-13050039 was due to his confusion, 18 medication, or pain, see Pl.’s Opp’n, Doc. No. 14 at 12, he has not pointed to any 19 20 21 22 23 24 25 26 27 28 While Plaintiff’s Complaint (Doc. No. 1), and the documents he has submitted in Opposition to Defendant Brown and Mendez’s Motion for Summary Judgement (Doc. Nos. 14, 18, 20, 29), contain factual claims related to his ability to exhaust which are based on his personal knowledge, none are verified under penalty of perjury pursuant to 28 U.S.C. § 1746. “A verified complaint may be used as an opposing affidavit under Rule 56.” Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (citing McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987)). In Williams, the Ninth Circuit considered allegations raised in a prisoner’s complaint related to exhaustion as an affidavit sufficient to show that administrative remedies were “not available” because they were made under penalty of perjury. 775 F.3d at 1192 & n.11. Here, Plaintiff’s allegations are not sworn, but even if they were, they would still be insufficient to meet his burden of production as to exhaustion, because unlike in Williams, Plaintiff does not claim to have be “thwarted from filing a grievance.” Id. (citing Brown, 422 F.3d at 937). 8 25 14cv0891 GPC (RBB) 1 evidence which shows that his mental or physical state, or any other condition of his 2 confinement outside of his control, precluded him from timely or meaningfully seeking 3 administrative review of either Brown or Mendez’s purported role in Gomez’s attack. Cf. 4 Marella, 568 F.3d at 1027-28; O’Neal, 2014 WL 3818117 at *2. In fact, the undisputed 5 evidence before this Court shows that Plaintiff was indeed able to properly exhaust 6 claims related to the medical care and follow-up treatment he received following 7 Gomez’s attack when he timely filed Log No. RJD-HC-1304994 and Log No. RJD-HC- 8 13050039, despite his allegedly compromised physical and mental condition at the time. 9 Therefore, the Court finds Defendant Brown and Mendez are entitled to summary 10 judgment as to Plaintiff’s failure to protect claims based on his failure to exhaust those 11 claims prior to filing suit pursuant to 42 U.S.C. § 1997e(a) and FED. R. CIV. P. 56(a). 12 V. Conclusion and Order 13 Based on the foregoing, the Court: 14 1) 15 16 GRANTS Defendant Davis and Krittman’s Motion to Dismiss pursuant to FED. R .CIV. P. 12(b)(6) (Doc. No. 10); 2) GRANTS Defendant Brown and Mendez’s Motion for Summary Judgment 17 based on Plaintiff’s failure to exhaust administrative remedies as required by 42 U.S.C. 18 § 1997e(a) pursuant to FED. R. CIV. P. 56 (Doc. No. 9); 19 3) FINDS no just reason for delay and therefore DIRECTS the Clerk to enter a 20 partial judgment on behalf of Defendants Brown and Mendez pursuant to FED. R. CIV. P. 21 50(b); and 22 4) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 23 which to file an Amended Complaint which addresses the deficiencies of pleading his 24 failure to protect claims against Defendants Davis and Krittman only. Plaintiff is 25 cautioned that his Amended Complaint must be complete in itself without reference to his 26 original complaint. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 27 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes 28 the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that 26 14cv0891 GPC (RBB) 1 claims dismissed with leave to amend which are not re-alleged in an amended pleading 2 may be “considered waived if not repled.”). 3 Should Plaintiff elect not to proceed by filing an Amended Complaint against 4 Defendants Davis and Krittman within 45 days, the Court will enter a final Order of 5 dismissal of the remainder of this civil action based on his failure to state an Eighth 6 Amendment failure to protect claim against them, and his failure to prosecute in 7 compliance with a Court Order requiring amendment. See Ferdik v. Bonzelet, 963 F.2d 8 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to prosecute permitted if plaintiff 9 fails to respond to a court’s order requiring amendment of complaint); Lira v. Herrera, 10 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 11 opportunity to fix his complaint, a district court may convert the dismissal of the 12 complaint into dismissal of the entire action.”). 13 IT IS SO ORDERED. 14 15 Dated: August 6, 2015 _______________________________ HON. GONZALO P. CURIEL United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 27 14cv0891 GPC (RBB)

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