Johnson v. De La Trinidad et al

Filing 70

REPORT AND RECOMMENDATION Regarding Defendant's Motion for Summary Judgment (ECF No. 34 ). Any written objections to R&R due by 8/17/2018. Any Reply due by 8/24/2018. Signed by Magistrate Judge Mitchell D. Dembin on 08/03/2018. (All non-registered users served via U.S. Mail Service)(ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SEDRIC EUGENE JOHNSON,
Plaintiff,

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Case No.: 3:17-cv-731-WQH-MDD

v.

REPORT AND
RECOMENDATION
REGARDING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

CORRECTIONAL OFFICER A. De
La TRINIDAD, et al.,
Defendants.

[ECF No. 34]

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This Report and Recommendation is submitted to United States

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District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and

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Local Civil Rule 72.1(c) of the United States District Court for the

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Southern District of California.

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For the reasons set forth herein, the Court RECOMMENDS
Defendants’ Motion for Summary Judgment be GRANTED.
I. PROCEDURAL HISTORY
Sedric Eugene Johnson (“Plaintiff”) is a state prisoner proceeding pro se
and in forma pauperis, after filing a civil complaint pursuant to 42 U.S.C.
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§ 1983. (ECF No. 1, 2)1. On April 11, 2017, Plaintiff filed a Complaint

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claiming: (1) excessive force; (2) assault and battery by an officer; (3) failure

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to assist from a known threat; (4) cruel and unusual punishment; (5) denial of

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proper medical care; and (6) violations of his Equal Protection rights. (ECF

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No. 1 at 1-7).

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On May 1, 2018, Defendants filed the instant Motion for Summary

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Judgment. (ECF No. 34). Defendants argue they are entitled to summary

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judgment because: (1) Plaintiff did not exhaust his available administrative

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remedies; (2) the favorable termination doctrine applies; (3) Plaintiff’s

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handcuffing did not amount to excessive force; (4) Defendants were not

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deliberately indifferent to Plaintiff’s medical needs and did not violate

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Plaintiff’s due process rights; and (5) Plaintiff’s injunctive relief claims are

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unavailable, therefore, his official capacity claims are barred. (Id. at 9-16).

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On May 19, 2018, Plaintiff filed his first Opposition. (ECF No. 50). The

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Opposition stated that he included multiple documents that would establish

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there was a genuine issue of material fact. (Id. at 2). The only other

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documents provided, however, were a Proof of Service by Mail that was

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addressed to this Court and the Deputy Attorney General, as well as a copy of

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Plaintiff’s mailed envelope. (Id. at 1-6).

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On June 5, 2018, Plaintiff filed a second Opposition stating he provided

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the Court and Defendants a wide range of documents that would properly

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oppose Defendants’ Motion for Summary Judgment. (ECF No. 52 at 2). The

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documents Plaintiff claimed he provided were not attached to the Opposition.

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(Id. at 1-8). Instead, Plaintiff attached: (1) a letter to the clerk regarding his

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All pincite page references refer to the automatically generated ECF page
number, not the page number in the original document.
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motion; (2) Plaintiff’s Second Opposition; (3) a copy of Plaintiff’s

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Klingele/Rand Notice; (4) a Proof of Service by Mail addressed to this Court

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and the Deputy Attorney General; and (5) a copy of Plaintiff’s mailed

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envelope. (Id.).

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On June 11, 2018, Plaintiff filed a third Opposition, which was a copy of

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Plaintiff’s Second Opposition, including 940 pages of Plaintiff’s discovery and

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discovery requests as exhibits. (ECF No. 56).

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On June 19, 2018, Defendants filed a Reply to Plaintiff’s Opposition.
(ECF No. 60).

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II. STATEMENT OF FACTS

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The facts are taken from Plaintiff’s Declaration in support of his

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Complaint and are not to be construed as findings of fact by the Court. (ECF

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No. 10 at 1-9).

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At approximately 7:19 AM on August 30, 2016, Officers De La Trinidad

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and Soto were working as security patrol officers when Plaintiff approached

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De La Trinidad to discuss a small bag of property he had intended to transfer

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with him to a new prison. (Id. at 2-3). De La Trinidad told Plaintiff he

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should have packed his bag the previous Friday if he wanted it to be

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transferred. (Id.). This led to an argument between Plaintiff and De La

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Trinidad, with De La Trinidad threatening to throw Plaintiff’s bag away.

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(Id.). Plaintiff told De La Trinidad he would file a small property claim

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against De La Trinidad if he threw the bag away. (Id.).

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Later, Plaintiff approached Officer De La Trinidad for a clothed body

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search. (Id.). Plaintiff claims during the search he was “pushed forward

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while being tripped from behind” and used his right hand to break his fall

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while De La Trinidad fell on top of him. (Id.). Plaintiff’s right knee was

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lacerated from the incident. (Id. at 5). Plaintiff also claims his head was

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slammed down by De La Trinidad’s elbow. (Id. at 6).

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Plaintiff was then handcuffed in a manner which he felt to be “cruel and

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unusual” because his left hand was “placed intentionally in the opposite

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direction [of his] right hand” and because the handcuffs were applied too

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tightly leading to Plaintiff sustaining indent marks. (Id.). Plaintiff was

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issued a Rules Violation Report that charged him with resisting an officer in

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his or her duties and was found guilty. (Id. at 8-9).

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III. LEGAL STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure authorizes the

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granting of summary judgment “if the pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any,

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show that there is no genuine issue as to any material fact and that the

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moving party is entitled to judgment as a matter of law.” The standard for

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granting a motion for summary judgment states a judgment must be entered,

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“if, under the governing law, there can be but one reasonable conclusion as to

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the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “If

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reasonable minds could differ,” however, judgment should not be entered in

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favor of the moving party. Id. at 250-51.

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The parties bear the same substantive burden of proof as would apply

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at a trial on the merits, including plaintiff’s burden to establish any element

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essential to his case. Liberty Lobby, 477 U.S. at 252; Celotex v. Catrett, 477

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U.S. 317, 322 (1986); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). The

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moving party bears the initial burden of identifying the elements of the claim

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in the pleadings, or other evidence, which the moving party “believes

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demonstrates the absence of a genuine issue of material fact.” Celotex, 477

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U.S. at 323; see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970);

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Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “A material

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issue of fact is one that affects the outcome of the litigation and requires a

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trial to resolve the parties’ differing versions of the truth.” S.E.C. v.

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Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). More than a

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“metaphysical doubt” is required to establish a genuine issue of material fact.

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Matsushita Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 586

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(1986).

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The burden then shifts to the non-moving party to establish, beyond the

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pleadings, that there is a genuine issue for trial. See Celotex, 477 U.S. at 324.

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To successfully rebut a properly supported motion for summary judgment,

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the nonmoving party “must point to some facts in the record that

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demonstrate a genuine issue of material fact and, with all reasonable

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inferences made in the plaintiff[’s] favor, could convince a reasonable jury to

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find for the plaintiff[].” Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736,

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738 (9th Cir. 2000) (citing Fed. R. Civ. P. 56; Celotex, 477 U.S. at 323; Liberty

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Lobby, 477 U.S. at 249).

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While the district court is “not required to comb the record to find some

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reason to deny a motion for summary judgment,” Forsberg v. Pacific N.W.

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Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988), see also Nilsson v.

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Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988), the court may

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nevertheless exercise its discretion “in appropriate circumstances,” to

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consider materials in the record which are on file but not “specifically

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referred to.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026,

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1031 (9th Cir. 2001). However, the court need not “examine the entire file for

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evidence establishing a genuine issue of fact, where the evidence is not set

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forth in the opposing papers with adequate references so that it could be

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conveniently found.” Id.

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In ruling on a motion for summary judgment, the court need not accept

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legal conclusions “cast in the form of factual allegations.” Western Mining

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Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). “No valid interest is

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served by withholding summary judgment on a complaint that wraps

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nonactionable conduct in a jacket woven of legal conclusions and hyperbole.”

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Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989).

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Moreover, “[a] conclusory, self-serving affidavit, lacking detailed facts

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and any supporting evidence, is insufficient to create a genuine issue of

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material fact.” F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171

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(9th Cir. 1997). Nevertheless, “the district court may not disregard a piece of

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evidence at the summary stage solely based on its self-serving nature.” Nigro

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v. Sears, Roebuck & Co., 784 F.3d 495, 497-498 (9th Cir. 2015) (finding

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plaintiff’s “uncorroborated and self-serving” declaration sufficient to establish

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a genuine issue of material fact because the “testimony was based on

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personal knowledge, legally relevant, and internally consistent.”).

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IV. DISCUSSION

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1. Exhaustion of Administrative Remedies

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Defendants argue none of Plaintiff’s previously filed grievances contain

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any of the claims in Plaintiff’s Complaint. (ECF No. 34 at 10). Defendants

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further argue that the “prison has no record of Plaintiff submitting any

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grievance addressing the issues in his Complaint.” (ECF No. 60 at 4).

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Defendants contend Plaintiff’s attached exhibits do not point to any disputed

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facts regarding whether Plaintiff exhausted his available administrative

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remedies. (Id.). Defendants maintain Plaintiff’s administrative appeals only

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apply to the guilty finding in his rules violation report and not any of the

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allegations made in this lawsuit. (Id.). Defendants argue they are entitled to

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summary judgment on all claims because they have established “through

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undisputed evidence that Plaintiff failed to exhaust administrative

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remedies.” (Id. at 5).

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Plaintiff contends he provided the Court and Defendants with

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“documents … exhausting the grievence [sic] process.” (ECF No. 52 at 2).

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Plaintiff further argues that during the process of exhausting his

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administrative remedies he was subjected to “harsher living conditions”

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which made it more difficult to seek relief. (ECF No. 56 at 11). Plaintiff

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argues it was futile to continue appealing because he felt that “any more

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attempts to exhaust the grievance process would [have] be[en] frivolous.” (Id.

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at 11-12).

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Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be

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brought with respect to prison conditions under . . . [42 U.S.C. § 1983], or any

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

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correctional facility until such administrative remedies as are available are

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exhausted.” 42 U.S.C. § 1997e(a) (West 2014); see also Booth v. Churner, 532

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U.S. 731, 736 (2001); Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010). “[A]

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prisoner must complete the administrative review process in accordance with

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the applicable procedural rules . . . as a precondition to bringing suit in

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federal court.” Woodford v. Ngo, 548 U.S. 81, 88 (2006).

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Prisoners must exhaust prison administrative procedures regardless of

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whether the type of relief they seek matches the type of relief available

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through administrative procedures. See Booth, 532 U.S. at 741; see also

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Morton, 599 F.3d at 945. But the PLRA requires exhaustion only of those

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administrative remedies “as are available,” and the PLRA does not require

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exhaustion when circumstances render administrative remedies “effectively

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unavailable.” Nunez v. Duncan, 591 F.3d 1217, 1223-1226 (9th Cir. 2010)

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(plaintiff’s failure to exhaust was excused because he took reasonable steps

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and was precluded from exhausting by the warden’s mistake).

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Failure to exhaust administrative remedies is an affirmative defense

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that defendants must raise and prove. See Jones v. Bock, 549 U.S. 199, 212-

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217 (2007) (explaining that inmates are not required to specifically plead or

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demonstrate exhaustion in their complaints). Specifically, “the defendant's

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burden is to prove that there was an available administrative remedy, and

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that the prisoner did not exhaust that available remedy.” Albino v. Baca, 747

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F.3d 1162, 1172 (9th Cir. 2014) cert. denied sub nom. Scott v. Albino, 135 S.

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Ct. 403 (2014). After the defendant has met that burden, the prisoner has

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the burden of production. (Id.). “That is, the burden shifts to the prisoner to

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come forward with evidence showing that there is something in his particular

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case that made the existing and generally available administrative remedies

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effectively unavailable to him.” (Id.). The plaintiff may rebut “by showing

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that the local remedies were ineffective, unobtainable, unduly prolonged,

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inadequate, or obviously futile.” (Id.) (quoting Hilao v. Estate of Marcos, 103

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F.3d 767, 778 n.5 (9th Cir. 1996)).

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Defendants’ motion establishes that the prison has no record of Plaintiff

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submitting any grievances with the same claims against the named

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Defendants in his Complaint. Although Plaintiff has filed numerous

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grievances regarding property issues, searches that occurred after the

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incident with Officer De La Trinidad, conditions of confinement relating to

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property, adjudication of guilt, and loss of good time credits; none of

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Plaintiff’s previously filed grievances include the same claims as his

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Complaint. By showing Plaintiff has never filed any grievances with similar

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claims, Defendants have effectively established that there were available

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administrative remedies for Plaintiff’s current claims which he did not

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pursue and exhaust. As Defendants have met their burden to show Plaintiff

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had available remedies, the burden now shifts to Plaintiff.

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Plaintiff opposes Defendants’ claim by arguing he attempted to exhaust

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his available remedies. Nonetheless Plaintiff has not provided any evidence

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that he has filed a grievance with similar claims, or evidence of appealing or

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exhausting any administrative grievance with similar claims, in his

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Oppositions or his 940 pages of attached documents. Plaintiff has only made

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conclusory arguments that he attempted to exhaust the administrative

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process without providing any further evidence of the attempts. This is not

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enough to rebut Defendants’ argument as Plaintiff has done nothing to

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establish that the grievance procedure was effectively unavailable to him or

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that he had properly exhausted the procedure. Therefore, Plaintiff has failed

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to meet his burden of production, which is a precondition to bringing suit in

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this Court.

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Plaintiff contends he was subjected to severe living conditions which

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made it difficult to exhaust his claims. Plaintiff does not explain, however,

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exactly how his living conditions were made worse or how they made it more

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difficult for Plaintiff to file grievances. Further, Plaintiff has filed multiple

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unrelated administrative grievances since the alleged incident demonstrating

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that these living conditions have not impeded his ability to file grievances as

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he argues. Therefore, the living conditions Plaintiff claims he was subjected

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to are not a legitimate excuse to Plaintiff’s exhaustion requirement.

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Finally, Plaintiff concedes that he did not exhaust his claims, by stating

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he knew it would have been futile to take the grievance process any further.

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Plaintiff argues futility, but he does not provide any further information or

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evidence of the futility of further appeals. Plaintiff’s conclusory statements

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are insufficient to find futility. Hilao, 103 F.3d at 778 n. 5. Thus, Plaintiff’s

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argument regarding futility is not a legitimate exception to Plaintiff’s

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exhaustion requirements.

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Plaintiff has failed to provide any evidence that he attempted to

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exhaust his available administrative remedies before suing Officers De La

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Trinidad, Soto, and Lamont. Because Plaintiff did not administratively

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exhaust any of the claims in his Complaint prior to filing this law suit all of

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his claims are effectively barred.

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In sum, the Court RECOMMENDS finding that Plaintiff’s claims were

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not exhausted through the administrative process, and that Defendant’s

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Motion for Summary Judgment should be GRANTED.

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VI. CONCLUSION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that the

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District Court issue an Order: (1) Approving and Adopting this Report and

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Recommendation; and (2) GRANTING Defendants’ Motion for Summary

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Judgment.

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IT IS HEREBY ORDERED that any written objections to this Report

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must be filed with the Court and served on all parties no later than August

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17, 2018. The document should be captioned “Objections to Report and

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Recommendation.”

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IT IS FURTHER ORDERED that any reply to the objection shall be
filed with the Court and served on all parties no later than August 24, 2018.
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The parties are advised that the failure to file objections within the specified

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time may waive the right to raise those objections on appeal of the Court’s

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order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

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IT IS SO ORDERED.
Dated: August 3, 2018

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