Fletcher v. Marquez et al

Filing 24

ORDER: (1) Overruling Plaintiff's 15 Objections; (2) Adopting 22 Report and Recommendation; and (3) Granting Defendants' 15 Motion for Summary Judgment and dismissing without prejudice Plaintiff's First Amended Complaint. Signed by Judge Janis L. Sammartino on 3/12/2018. (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY L. FLETCHER,

Case No.: 16-CV-564 JLS (MDD)
Plaintiff,

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ORDER: (1) OVERRULING
PLAINTIFF’S OBJECTIONS;
(2) ADOPTING REPORT AND
RECOMMENDATION; AND
(3) GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

vs.

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CORRECTIONAL OFFICER
MARQUEZ, et al.
Defendants.

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(ECF Nos. 15, 22, 23)

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Presently before the Court is Judge Mitchell D. Dembin’s Report and

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Recommendation, (“R&R,” ECF No. 22), on Defendants W. Edrozo, S. Whiting, and S.

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Davis’s Motion for Summary Judgment, (“MSJ,” ECF No. 15-1). Plaintiff filed an

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Objection to Judge Dembin’s R&R, (“R&R Objs.,” ECF No. 23), and Defendants did not

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file a reply. For the following reasons, the Court (1) OVERRULES Plaintiff’s Objections,

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(2) ADOPTS Judge Dembin’s R&R, and (3) GRANTS Defendants’ Motion for Summary

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Judgment.

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BACKGROUND

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Judge Dembin’s R&R contains a thorough and accurate recitation of the factual and

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procedural histories underlying the instant Motion for Summary Judgment. (See R&R 2–

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8.)1 This Order incorporates by reference the background as set forth therein.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also

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United States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely

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objection, however, “the Court need only satisfy itself that there is no clear error on the

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face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory

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committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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ANALYSIS

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I.

Summary of the R&R Conclusion

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On March 4, 2016, Plaintiff filed a Complaint against various defendants for alleged

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violations of his civil rights. (“Compl.,” ECF No. 1.) Plaintiff accuses the moving

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Defendants of violating his right to access to courts through incidents of retaliation. (Id. at

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3–5.) On March 17, 2017, Defendants filed a Motion for Summary Judgment arguing that

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(1) Plaintiff failed to exhaust administrative remedies, (2) Plaintiff’s retaliation claim

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against Defendant W. Edrozo is Heck barred, and (3) the undisputed facts show that

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Defendants did not retaliate against Plaintiff. (See generally MSJ.)

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Without addressing Defendants’ other asserted grounds for dismissal, Judge Dembin

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Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each
page.

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concluded that Plaintiff did not exhaust all administrative remedies and thus recommends

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that the Court grant Defendants’ Motion for Summary Judgment. (R&R 11–13.) Judge

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Dembin notes that Plaintiff filed an administrative appeal which was accepted at the first

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level, but withdrew the appeal before it was fully resolved and did not appeal it to any

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higher levels. (Id. at 12.) Plaintiff did not provide any evidence in his opposition to

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Defendants’ Motion for Summary Judgment to show that he exhausted his administrative

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remedies. (See generally ECF No. 19.) Thus, Judge Dembin found that there were

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administrative remedies available to Plaintiff, but that they were not exhausted. (R&R 11–

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12.)

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II.

Summary of Plaintiff’s Objections

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Liberally construing Plaintiff’s filing, it appears he objects to Judge Dembin’s

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Report and Recommendation by stating that he “swear[s]” that he “did exhaust all

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administrative remedies against [correctional officer] Marquez.”

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Plaintiff’s filing contains no other specific objections to Judge Dembin’s Report and

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Recommendation. (See generally id.)

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III.

(R&R Objs. 4.)

Court’s Analysis

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The Court reviews, de novo, each part of Judge Dembin’s Report and

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Recommendation to which Plaintiff objects. 28 U.S.C. § 636(b)(1)(c). Because the

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exhaustion issue is dispositive, the Court need not review the merits of Plaintiff’s claim.

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See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir.) (en banc), cert. denied sub nom., Scott

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v. Albino, 135 S. Ct. 403 (2014).

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Plaintiff objects to Judge Dembin’s finding that Plaintiff failed to adequately exhaust

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his administrative remedies before bringing a claim. (R&R Obj. 4.) Under the Prison

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Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison

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conditions under . . . [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined

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in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted.” 42 U.S.C. § 1997e(a); Morton v. Hall, 599 F.3d 942, 945 (9th

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Cir. 2010). Therefore, a prisoner’s completion of the administrative review process is “a
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precondition to bringing suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006).

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However, since the PLRA only requires exhaustion of administrative remedies “as are

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available,” exhaustion is not required when circumstances render administrative remedies

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“effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 822–23 (9th Cir. 2010).

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Under the PLRA, failure to exhaust is an affirmative defense that defendants must

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raise and prove. See Jones v. Bock, 549 U.S. 199, 216 (2007) (“Inmates are not required

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to specially plead or demonstrate exhaustion in their complaints.”).

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judgment, defendants bear the burden of producing evidence necessary to demonstrate a

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failure to exhaust. Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017). To do so,

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defendants must “prove that there was an available administrative remedy, and that the

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prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. Once this

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burden has been met, the prisoner must “come forward with evidence showing that there

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

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administrative remedies effectively unavailable to him.” Id.

For summary

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A. Exhaustion of Administrative Remedies

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The Court will first examine whether Defendants met their burden of demonstrating

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a failure to exhaust. To do so, Defendants must first show there was an available

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administrative remedy. Judge Dembin’s Report and Recommendation found it clear from

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the record that administrative remedies were available to Plaintiff under Title 15 of the

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California Code of Regulations. (See R&R 11 (finding that Title 15 provides three

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mandatory levels of review for prisoners, and Plaintiff had knowledge of this grievance

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process).) Under Title 15, to pursue an administrative remedy, “an inmate must submit a

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CDC Form 602 inmate appeal at the First Level of review.” (Id.) An inmate dissatisfied

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with the decision at this level must appeal through the Second and Third Levels to exhaust

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the administrative remedy. (Id.) The fact that Plaintiff filed a CDC Form 602, complaining

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about Defendant W. Edrozo, shows both that this administrative remedy was available to

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Plaintiff and that he had knowledge of its existence. (See Declaration of J. Walters

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(“Walters Decl.”), ECF No. 15-5, at 20.) Thus, the Court finds that Defendants have met
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their burden of showing the existence of an available administrative remedy.

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Having established that a remedy was available, Defendants must next show that

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Plaintiff failed to exhaust it. Defendants argue that because Plaintiff withdrew his appeal

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at the First Level, he failed to exhaust all available remedies. (MSJ 11.) On March 25,

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2014, Plaintiff brought a 602 inmate appeal against Defendant W. Edrozo for retaliation

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and for confiscating Plaintiff’s property. (Walters Decl. 20.) On June 5, 2014, Plaintiff

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agreed to withdraw his appeal in exchange for the return of some, though not all, of his

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property. (See id. at 21–27.) On his request to withdraw, Plaintiff wrote, “I do not wish to

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pursue this issue any further therefore I am withdrawing this 602 at the first level.” (Id. at

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21.) Withdrawing an appeal is tantamount to abandonment and fails to exhaust available

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remedies. Rivera v. U.S. Postal Serv., 830 F.2d 1037, 1039 (9th Cir. 1987), overruled on

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other grounds by Bullock v. Berrien, 688 F.3d 613 (9th Cir. 2012); see also Cruz v. Tilton,

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No. 1:06CV883-DLB-PC, 2009 WL 3126518, at *5 (E.D. Cal. Sept. 24, 2009) (“A

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withdrawn inmate grievance cannot be used to demonstrate exhaustion of administrative

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remedies.”). Prisoners are obligated to exhaust all available remedies so long as some

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remedy remains available to them. Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).

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Here, Plaintiff withdrew his appeal prior to achieving all remedies available to him.

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Though he received some of his confiscated property in exchange for withdrawal, there

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was other property he alleged was taken that was not returned. (See Walters Decl. 21–27.)

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Furthermore, in his inmate appeal, Plaintiff requested that action be taken to “stop the

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retaliation” against him by correctional officers. (Id. at 20.) The record does not show that

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this request was resolved through the inmate appeal process. Therefore, Plaintiff had some

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remedies still available to him through the appeal process prior to his withdrawal. Thus,

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the record is clear that Plaintiff did not exhaust his administrative remedies

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B. Effectively Unavailable Administrative Remedy

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Having found that administrative remedies were available but not exhausted,

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Plaintiff must come forward with evidence showing that the administrative remedies were

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effectively unavailable to him. The record indicates that after Plaintiff wrote an inmate
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appeal on March 25, 2014, he submitted several CDCR Form 22’s2 prior to withdrawing

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his appeal on June 5, 2014. (Walters Decl. 32–37.) These forms contained complaints

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from Plaintiff directed to the prison warden, various correctional officers, and the “appeals

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coordinators” that Plaintiff had faced retaliation and that his life had been threatened by

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correctional officers. (See id.) The Ninth Circuit has recognized that “when a prisoner

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reasonably fears retaliation for filing a grievance, the administrative remedy is effectively

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rendered unavailable and the prisoner's failure to exhaust excused.” McBride v. Lopez, 807

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F.3d 982, 986 (9th Cir. 2015); see also Ross v. Blake, 136 S. Ct. 1850, 1860, (2016) (“[A]n

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administrative procedure is unavailable . . . when prison administrators thwart inmates from

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taking advantage of a grievance process through machination, misrepresentation, or

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intimidation.”). Thus, the Court will examine these CDCR 22 forms for evidence of

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retaliation against Plaintiff for filing a grievance.

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Plaintiff filed CDCR Form 22’s allegeing retaliation after Plaintiff brought his

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inmate appeal, but prior to withdrawing the appeal. At first blush, this might suggest

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Plaintiff feared retaliation for filing his appeal. However, the forms contain allegations

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concerning incidents that occurred prior to Plaintiff’s inmate appeal, and in fact led to his

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bringing an appeal. Furthermore, Plaintiff makes no allegations that he was retaliated

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against during his administrative appeal process.
(i) Plaintiff’s Initial Complaint About Correctional Officer Marquez in

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Early 2014

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Plaintiff makes several references to a complaint he had made about Correctional

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Officer Marquez, which allegedly resulted in retaliation against him. Plaintiff alleges that

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Marquez threatened his life because Plaintiff “told Captain Benyard about [Marquez] and

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all what [sic] he has been saying and doing.” (Compl. 3.) Plaintiff also references this

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complaint about Marquez in several of the CDCR 22 forms that he submitted after bringing

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A CDCR Form 22 is an Inmate Request for Interview, Item or Service. (See, e.g., Walters Decl. 32.)
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his inmate appeal. (See Walters Decl. 33–34 (“you let these officers do this to me all

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because I didn’t drop the complaint on [correctional officer] Marquez.”).) The record is

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not clear the exact date that Plaintiff made this complaint about Marquez, but one CDCR

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form states that on February 26, 2014, officers stole his property “all because [he] didn’t

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drop the complaint on [correctional officer] Marquez.” (Id. at 34; see also Declaration of

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Captain E. Benyard, ECF No. 15-4, at 2 (“In early 2014, I became aware that inmate

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Fletcher alleged that Officer Marquez had threatened him.”).) Thus, it is clear that Plaintiff

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made a complaint about Correctional Officer Marquez before February 26, 2014; at least a

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month prior to bringing his inmate appeal on March 25, 2014.

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(ii) Retaliation Against Plaintiff By Correctional Officers

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Plaintiff’s CDCR 22 forms claim that correctional officers retaliated against Plaintiff

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because of the complaint he made against Correctional Officer Marquez. (See Walters

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Decl. 32–37.) For example, Plaintiff submitted a CDCR Form 22 claiming that, on an

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unspecified date, Correctional Officer Edrozo threatened him and paid an inmate to lie

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about him, “all because [he had] a complaint on [correctional officer] Marquez.” (Id. at

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33). Similarly, Plaintiff submitted a separate form stating that on February 26, 2014,

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correctional officers took his property and either threw it away or destroyed it, “all because

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[he] didn’t drop the complaint on [correctional officer] Marquez.” (Id. at 34.) The other

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various CDCR Form 22’s filed by Plaintiff allege these same events; that he was

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threatened, inmates were paid to lie about him, and his property was stolen. (See id. at 31–

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37.) None of the CDCR Form 22’s allege that retaliation occurred after Plaintiff brought

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his inmate appeal. (See id.)

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(iii) Plaintiff Brings an Inmate Appeal

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On March 25, 2014, Plaintiff brought his inmate appeal, claiming that his property

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had been taken and that correctional officer Edrozo was encouraging another inmate to lie

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about Plaintiff in retaliation for the complaint Plaintiff made about Marquez. (Id. at 20–

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22.) These allegations appear to be the same claims made by Plaintiff in his CDCR 22

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forms, which suggests he submitted the forms to reiterate the complaints he had against the
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correctional staff. Thus, while the record contains claims of retaliation against Plaintiff,

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the retaliation appears to be due to a complaint Plaintiff made about Defendant Marquez—

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not for bringing his inmate appeal. Additionally, this alleged retaliation did not dissuade

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Plaintiff from pursuing an inmate appeal and, in fact appears to have prompted him to do

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so. Furthermore, Plaintiff has not claimed that he faced retaliation for bringing an inmate

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appeal in any of his filings. (See generally ECF Nos. 1, 19, 23.) Finally, the record

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provides a reason for the withdrawal; some property was returned to Plaintiff in exchange

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for the withdrawal of his claim. (Walters Decl. 21.) Thus, there is no evidence of

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retaliation for filing his grievance. Therefore, administrative remedies were available to

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Plaintiff and he does not have an excuse for failing to exhaust them.
Based on the record evidence, the Court agrees with Judge Dembin that Plaintiff

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failed to adequately exhaust his administrative remedies.

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OVERRULES Plaintiff’s Objection.

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Accordingly, the Court

CONCLUSION

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For the foregoing reasons, the Court (1) OVERRULES Plaintiff’s Objections, (2)

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ADOPTS Judge Dembin’s R&R in its entirety, and (3) GRANTS Defendants’ Motion for

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Summary Judgment, (ECF No. 15). Because Plaintiff had not exhausted his remedies prior

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to filing this case, further amendment would be futile. However, the Court will dismiss

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Plaintiff’s claim without prejudice so that he may exhaust any remaining administrative

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remedies and seek redress accordingly. Accordingly, the Court DISMISSES WITHOUT

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PREJUDICE Plaintiff’s First Amended Complaint. This Order concludes litigation in

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this matter. The Clerk SHALL close the file.

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Dated: March 12, 2018

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