Arellano v. Ojeda et al

Filing 49

ORDER Denying Defendants' 34 Motion for Summary Judgment. Signed by Judge Michael M. Anello on 4/25/2017. (All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 14cv2401-MMA (JLB)

RAUL ARELLANO, JR.,
Plaintiff,

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v.

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ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

E. OJEDA, et al.,

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Defendants.

[Doc. No. 34]

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Plaintiff Raul Arellano, Jr. is a state prisoner proceeding pro se in this civil rights

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action filed pursuant to the Civil Rights Act, 42 U.S.C. § 1983. Defendants E. Ojeda and

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L. Helmick move for summary judgment pursuant to Federal Rule of Civil Procedure 56.

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See Doc. Nos. 34, 39. Defendants argue that Plaintiff failed to exhaust his administrative

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remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act

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(“PLRA”), 42 U.S.C. § 1997e(a). Plaintiff filed an opposition to the motion, to which

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Defendants replied. See Doc. Nos. 37, 42. In addition, the Court permitted Plaintiff to

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file a sur-reply. See Doc. No. 48. The Court took the motion under submission on the

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briefs and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 43.

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For the reasons set forth below, the Court DENIES Defendants’ motion.

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14cv2401-MMA (JLB)

BACKGROUND1

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This action arises out of events occurring on or about April 17, 2014 through April

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22, 2014, at R. J. Donovan Correctional Facility in San Diego, California. According to

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Plaintiff, during that time he was housed in solitary confinement. On the evening of

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April 17, 2014, Plaintiff alleges that the toilet in his cell overflowed. Due to the

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persistence of the problem, and the resulting unsanitary conditions in his cell, Plaintiff

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asked Defendant Lieutenant Helmick for assistance. Defendant Helmick told Plaintiff to

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unclog the toilet with his hands. At Defendant Helmick’s suggestion, Plaintiff submitted

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a California Department of Corrections and Rehabilitation (“CDCR”) Form 22

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Inmate/Parolee Request for Interview, Item or Service on April 20, 2016. The request

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was filled out to the attention of Defendant Sergeant Ojeda. On April 23, 2016,

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Defendant Ojeda responded to the request, noting that the toilet was no longer clogged.

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Ojeda advised Plaintiff to request cleaning supplies from the floor officers.

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LEGAL STANDARD

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Under the Prison Litigation Reform Act (“PLRA”), inmates seeking relief from

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prison conditions must exhaust available administrative remedies prior to bringing any

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suit challenging prison conditions. 42 U.S.C. § 1997e(a) (“No action shall be brought

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with respect to prison conditions . . . until such administrative remedies as are available

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are exhausted.”); Porter v. Nussle, 534 U.S. 516, 524 (2002) (“exhaustion is mandatory . .

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. unexhausted claims cannot be brought in court”). “[T]he prison’s requirements . . .

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define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).

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“[T]he exhaustion question in PLRA cases should be decided as early as feasible.”

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Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014).

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The facts material to the exhaustion issue are taken from Defendants’ Separate Statement of
Uncontested Facts, as well as pertinent declarations and exhibits submitted by the parties.

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In the Ninth Circuit, a motion for summary judgment is generally the appropriate

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vehicle for raising the plaintiff’s failure to exhaust administrative remedies because

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“failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not

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required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549

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U.S. at 216; Albino, 747 F.3d at 1170 (“[A] motion for summary judgment, as opposed to

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an unenumerated Rule 12(b) motion, [is the proper procedural device] to decide

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exhaustion”). The burden is on the defendant to prove that there was an available

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administrative remedy that the plaintiff failed to exhaust. See Albino, 747 F.3d at 1172.

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If the defendant meets that burden, the burden shifts to the prisoner to present evidence

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

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available administrative remedies effectively unavailable to him. Id.

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The Court must draw all inferences in the light most favorable to the nonmoving

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party and determine whether a genuine issue of material fact precludes entry of judgment.

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Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942

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(9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S. Ct. 1566

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(2012). The Court determines only whether there is a genuine issue for trial and, in doing

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so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v.

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Ponder, 611 F3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

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

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prisoners the right to appeal administratively “any departmental decision, action,

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condition or policy perceived by those individuals as adversely affecting their welfare.”

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Cal. Code Regs. tit. 15, § 3084.1(a). It also provides them the right to file appeals

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alleging misconduct by correctional officers and/or officials. Id. § 3084.1(e). On

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January 28, 2011, the inmate appeals process was modified and limited to three levels of

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review with provisions allowing the first level to be bypassed under specific

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circumstances. Id. § 3084.7. If a prisoner is not satisfied with the response he receives at

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the first level of review, he may submit his appeal to the second level of review, after
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which he may appeal to the third and final level. Id. § 3084.7. In order to satisfy section

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1997e(a), California state prisoners are required to use this process to exhaust their claims

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prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006). Proper exhaustion

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requires using all steps of an administrative process and complying with “deadlines and

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other critical procedural rules.” Id. at 90.

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1. Plaintiff’s Inmate Appeals

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On November 26, 2014, the R. J. Donovan Inmate Appeals Office (“IAO”)

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received Plaintiff’s Inmate 602 Appeal, Log No. 14-4202, regarding the toilet incident.

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In this appeal, Plaintiff stated:

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On May 1, 2014 I send a 602 to Appeal Coordinator raising the same issue
I’ll be raising here. I then have been waiting till this day for a response. I didn’t
send another 602 sooner because it can get cancel [sic] due to Title 15 rules
for duplication. Since it doesn’t say how much time it has to pass in order to
file another 602, that is why I waited till now. But I believe 5-6 months is been
enough time to re-due [sic] another one.

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Doc. No. 34-3 at 8-10.2 On December 9, 2014, the IAO cancelled the appeal as untimely.

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On December 16, 2014, the IAO received Plaintiff’s Inmate 602 Appeal, Log No.

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14-4414, regarding the cancellation of Plaintiff’s November 2014 appeal. In this appeal,

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Plaintiff requested that the IAO grant review of the issues raised in his November 2014

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appeal, despite the untimeliness of that appeal. At the second level of review, Plaintiff

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informed the Appeals Coordinator that he could provide evidence that he submitted a

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timely appeal regarding the toilet incident on May 1, 2014. Plaintiff claimed that he had

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kept the original of the May 1, 2014 appeal in his cell, together with the Form 22 service

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request he submitted on April 20, 2014. On January 29, 2015, Plaintiff’s appeal was

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denied at the second level of review based on Plaintiff’s failure to “substantiate his

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Document citations refer to the pagination assigned by the CM/ECF system.
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claim” regarding submission of a timely appeal on May 1, 2014 with “any credible

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information or evidence.” Doc. No. 37 at 10.

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Plaintiff appealed to the third level of review on February 11, 2015. With this

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submission, Plaintiff attached the purported original of his May 1, 2014 appeal as a

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supporting exhibit. On April 28, 2015, Plaintiff’s appeal was denied at the third level of

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review. The third level reviewer noted that “the appellant claims he submitted the

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original appeal on May 1, 2014; however, there is no evidence to support his claim.” Id.

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at 3.

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On May 15, 2015, the IAO received Plaintiff’s Inmate 602 Appeal, Log No. 151984, regarding the toilet incident. In this appeal, Plaintiff stated:
I know am submitting this 602 one year later but I did file within the 30 day
[sic] of the incident. Also another one 5 months after. But never got a
response. I then was about to submit another one but my property got taken
due to me been in suicidal then to adseg.

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Id. at 15-17. On June 11, 2015, the IAO canceled the appeal as untimely.

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2. Analysis

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Defendants argue that Plaintiff did not exhaust his administrative remedies

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properly before filing this lawsuit. Defendants put forth evidence demonstrating that

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Plaintiff did not comply with CDCR’s administrative grievance procedures, including the

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declaration testimony of B. Self, the Appeals Coordinator at R. J. Donovan. According

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to Self, Plaintiff submitted two Inmate Appeals regarding the events at issue in this

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litigation, both of which were cancelled as untimely pursuant to California Code of

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Regulations, title 15, § 3084.6(c)(4), and § 3084.8(b)(1). See Self Decl. ¶ 6. In his

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declaration, Self avers that prison officials “did not receive and accept for review any

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timely appeals from plaintiff relating to the allegations” at issue in this case. Id. ¶ 7.

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Over the course of this litigation, Plaintiff has made various representations

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regarding exhaustion. Plaintiff stated in his original complaint, filed on October 8, 2014,

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that he had not exhausted his administrative remedies as to the events of April 17-22,
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2014 at the time he initiated this action. See Doc. No. 1 at 6. Although Plaintiff checked

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both the “yes” and “no” boxes in response to the inquiry regarding exhaustion, Plaintiff

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stated “[a]dministrative relief was not sought because a 602 could not have been able to

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fix the problem. There was no remedy to damage what had already been done.” Id.

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Plaintiff’s admission is “competent evidence of the facts stated.” Huey v. Honeywell, 82

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F.3d 327, 333 (9th Cir. 1996). Nevertheless, in his Second Amended Complaint, filed on

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December 7, 2015, Plaintiff alleges that he exhausted his administrative remedies through

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the third level of review. See Doc. No. 13 at 8.

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With his opposition brief, Plaintiff submits documentation related to his December

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2014 appeal, Log No. 14-4414, including a copy of the Third Level Appeal Decision,

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dated April 28, 2015, denying the appeal. See Doc. No. 37 at 3. However, Plaintiff’s

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December 2014 appeal did not exhaust his claim in this action for two reasons. First, it

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was submitted and exhausted after Plaintiff filed suit. See McKinney v. Carey, 311 F.3d

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1198, 1199 (9th Cir. 2002) (An action must be dismissed unless the prisoner exhausted

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his available administrative remedies before he filed suit, even if the prisoner fully

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exhausts while the suit is pending.); see also Cano v. Taylor, 739 F.3d 1214, 1220-21

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(9th Cir. 2014). Second, Plaintiff’s December 2014 appeal challenged the cancellation of

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his November 2014 appeal, but did not address the underlying April 2014 toilet incident.

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As such, Plaintiff’s December 2014 appeal did not suffice to exhaust his claim regarding

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that incident. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010).

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Notwithstanding his apparent failure to exhaust the Eighth Amendment claim

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raised in this action, Plaintiff has maintained since November 2014 that he did in fact

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submit a timely appeal on May 1, 2014, regarding the clogged toilet in his cell, but he

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never received a response from prison officials. If so, this would suggest that Plaintiff

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should be excused from the exhaustion requirement. An inmate’s failure to exhaust

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under the PLRA may be excused where “circumstances render administrative remedies

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effectively unavailable.” See Nunez v. Duncan, 591 F.3d 1217, 1224, 1226 (9th Cir.

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2010). To be available, a remedy must be “available as a practical matter” and “capable
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of use.” Albino, 747 F.3d at 1171. For example, an administrative remedy may be

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unavailable “when prison administrators thwart inmates from taking advantage of a

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grievance process through machination, misrepresentation, or intimidation.” Ross v.

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Blake, 578 U.S. __, 136 S. Ct. 1850, 1855 (2016).

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Plaintiff declares under penalty of perjury that “I did submitt [sic] 602 on time but
it was lost.” Doc. No. 48 at 2. Plaintiff goes on to explain:
Once lost I then submitted 4202 but was consider late. I filed 4414 and when
I filed it I attached the original 602 dated within the 30 days exception. I
mention I was sending the original because only a copy was sent. I send a
copy because I wanted to prevent that if 602 lost or thrown away I still had
the original. And just as how I felt or had a feeling it occured [sic]. Officers
had thrown away my initial 602. And it’s why after giving 602 Appeal office
a reasonable time to answer I decided to make 602-4202. Then 4414 due to
the fact 4202 was late . . . when I was interview by Olson (602 Appeal
Coordinator) on 4414, I did told him about the 602 I previously submitted on
May 1, 2014, but he didn’t want to take my evidence as evidence. According
to him such evidence was not enough. I then told him that how was I suppose
[sic] to prove I send it if 602’s don’t got receipts, neither it leaves copy’s. But
Olson didn’t care. He didn’t told me he would deny me until I received his
results.

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Id. Although it appears that Plaintiff is not certain whether his May 1, 2014 appeal was

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lost in the mail or purposefully mishandled by prison officials, the result would have been

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the same in either case – the unavailability of the administrative grievance process, and

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therefore any potential remedy. See Albino v. Baca, 697 F.3d 1023, 1034 (9th Cir. 2012)

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(“[A]ffirmative actions by jail staff preventing proper exhaustion, even if done

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innocently, make administrative remedies effectively unavailable.”).

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Defendants argue that the Court should discount Plaintiff’s explanation regarding

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his failure to exhaust, and question the veracity of his assertions regarding the submission

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of an appeal on May 1, 2014. According to Defendants, crediting Plaintiff’s evidence

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“creates a troubling precedent whereby prisoners can effectively perform an end-run

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around the Prison Litigation Reform Act’s exhaustion requirement by blithely offering a

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the-dog-ate-my-homework excuse that they filed the appeal, ‘but it must have gotten
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lost.’” Doc. No. 42 at 4. The Court is sympathetic to Defendants’ point in this regard.

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But as the Seventh Circuit has noted, “the potential for fraud does not justify obligating

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truthful prisoners to prove that they mailed their complaints when the prison authorities

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do not provide them with means for verification.” Dole v. Chandler, 438 F.3d 804, 813

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(7th Cir. 2006).

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In this case, Plaintiff consistently asserted throughout the appeal process that he

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submitted a timely appeal of the toilet incident on May 1, 2014, and for reasons

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unbeknownst to him, he never received a response. “When prison officials fail to

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respond to a prisoner’s grievance within a reasonable time, the prisoner is deemed to

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have exhausted available administrative remedies within the meaning of the PLRA.”

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Andres v. Marshall, No. 15-56057, 2017 U.S. App. LEXIS 6990, at *6 (9th Cir. Apr. 21,

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2017) (per curiam); see also Sapp, 623 F.3d at 823 (citing Dole v. Chandler, 438 F.3d

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804, 811 (7th Cir. 2006) (“[P]rison officials’ failure to respond to a properly filed

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grievance makes remedies ‘unavailable’ and therefore excuses failure to exhaust.”).

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In sum, although Defendants have shown that Plaintiff failed to exhaust his

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administrative remedies prior to commencing this action, Plaintiff submits competent

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evidence demonstrating that his failure must be excused. Accordingly, summary

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judgment in Defendants’ favor is not appropriate.

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CONCLUSION

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Based on the foregoing, the Court DENIES Defendants’ motion for summary

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judgment.
IT IS SO ORDERED.
DATE: April 25, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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