Freeman v. Field Service Agents

Filing 51

ORDER - Defendant's objection (ECF No. 49 ) to the Report and Recommendation of U.S. Magistrate Judge William G. Cobb is overruled. The Report and Recommendation of U.S. Magistrate Judge William G. Cobb (ECF No. 48 ) is adopted in its entirety. Defendants' motion for summary judgment (ECF No. 45 ) is denied. Signed by Chief Judge Miranda M. Du on 6/29/2021. (Copies have been distributed pursuant to the NEF - SC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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VINCENT FREEMAN, II,

Case No. 3:18-cv-00192-MMD-WGC
Plaintiff,

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ORDER

v.
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FIELD SERVICE AGENTS, et al.,
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Defendants.
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I.

SUMMARY

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Plaintiff Vincent Freeman, II, who is incarcerated at Ely State Prison (“ESP”), brings

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this action under 42 U.S.C. § 1983. (ECF No. 14.) On December 22, 2020, Defendants

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Armando Lozano-Carrera and Milton Hsieh filed a motion for summary judgment.1 (ECF

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No. 45 (“Motion”).) Before the Court is a Report and Recommendation (“R&R”) of United

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States Magistrate William G. Cobb (ECF No. 48), recommending the Court deny

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Defendants’ Motion. Defendants filed an objection to the R&R. (ECF No. 49 (“Objection”).)

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Because the Court agrees with Judge Cobb that Plaintiff exhausted his administrative

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remedies, the Court will overrule the Objection and adopt the R&R in full.

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II.

BACKGROUND

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The following facts are undisputed unless otherwise noted.

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A.

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Plaintiff alleges that while he was a pretrial detainee at the Clark County Detention

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Center (“CCDC”), two officers, Lozano-Carrera and Hsieh, attacked him as he began to

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sit down in a courtroom holding cell. (ECF No. 14.) The same day that incident occurred,

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August 5, 2016, Plaintiff filed a grievance against Lozano-Carrera and Hsieh. (ECF No.

The Incident and the Grievance Process

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1Plaintiff

responded (ECF No. 46) and Defendants replied (ECF No. 47).

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45-5 at 2 (“Grievance”).) In his Grievance, Plaintiff alleges that the officers instigated an

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unprovoked “malicious attack” which caused him significant pain and scratches on his

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skin. (Id.) Plaintiff further stated that he would be contacting LVMPD Internal Affairs and

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that he would like to speak with a watch commander. (Id.)

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On August 10, 2016, Sergeant Steven Williams received and reviewed Plaintiff’s

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grievance. (ECF No. 45-9 at 3.) Sergeant Williams requested a video copy of the incident

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from the courthouse and instructed Defendant Lozano-Carrera to complete a Use of Force

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Report. (Id.) The next day, August 11, 2016, Sergeant Williams received the video and

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reviewed it. (Id.) Lieutenant Kathryn Bussell also reviewed Plaintiff’s grievance, written

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reports of the incident, and the video recording of the incident. (ECF No. 45-40 at 3.)

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Lieutenant Bussell then spoke with Plaintiff about the incident and determined, after her

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review, that Plaintiff had been the sole cause of the altercation and that there was no policy

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violation occurred. (Id. at 3-4.) Under the portion of the Grievance indicating the resolution

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of the complaint, Lieutenant Bussell wrote: “You and I discussed your grievance on 8-11-

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16. My office will be following up with the appropriate paperwork.” (ECF No. 45-5 at 2.)

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She then signed and dated the Grievance “8-11-16 @ 1330.” (Id.)

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Plaintiff subsequently brought this civil rights action for excessive force in violation
of his Fourteenth Amendment rights. (Id.)
Defendants’ Motion and Judge Cobb’s R&R

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B.

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Defendants moved for summary judgment, arguing that Plaintiff failed to exhaust

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his administrative remedies before filing suit. (ECF No. 45.) Specifically, Defendants state

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that the Las Vegas Metropolitan Police Department’s Standard Operating Procedure

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14.00.00 (“SOP 14.00.00”) required Plaintiff to file “another grievance up the chain of

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command.” (Id. at 22.) Plaintiff gives three reasons why he was not required to take further

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action after his grievance was resolved. (ECF No. 46 at 8-9.) First, he argues that the

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grievance process did not provide monetary damages, so the remedy he sought was not

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available through grieving. (Id. at 8.) Next, Plaintiff counters that SOP 14.00.00 only

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expressly requires appeals in the prisoner classification context. (ECF No. 46 at 8.)
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Reasoning that SOP 14.00.00 is ambiguous or vague at best on how Plaintiff should

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proceed if he disagreed with Lieutenant Bussell’s conclusion, Plaintiff argues that any

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further process was “effectively unavailable” and that he should be excused from its

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requirements. (Id. at 9.) Finally, Plaintiff asserts he does not recall ever being made aware

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of the Inmate Handbook which outlines the grievance process. (Id.)

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Judge Cobb recommends the Court deny the Motion because Plaintiff exhausted

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his administrative remedies. (ECF No. 48 at 11.) More specifically, Judge Cobb found that

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SOP 14.00.00 required officers, not inmates, to forward a grievance about staff

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misconduct up the chain of command, and that the officers’ responsibility extends only

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until the grievance is resolved. (Id. at 11.) Judge Cobb reasoned that Plaintiff’s Grievance

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was resolved when Lieutenant Bussell returned it to him with the resolution section

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completed on August 11, 2016. (Id.) Accordingly, SOP 14.00.00 does not require Plaintiff

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to have taken any further action on his Grievance and the Court may consider it exhausted.

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(Id.)

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Judge Cobb further found that Defendants have not provided sufficient evidence to

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demonstrate that Plaintiff had any information outside of SOP 14.00.00 that he was

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required to appeal his Grievance. (Id. at 12-13.) Although Defendants argue Plaintiff had

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access to an Inmate Handbook, that rules were posted in Plaintiff’s housing unit, and that

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it is common practice for officers to inform inmates of the appeals requirement, Judge

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Cobb found that Defendants provided no evidence that any of these forms of information

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were made available to Plaintiff. (Id. at 14.) As a result, Judge Cobb recommends denying

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Defendants’ Motion. Defendants’ objection followed. (ECF No. 49.)

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III.

LEGAL STANDARD

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This Court “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). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the Court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. The Court’s review is thus de novo
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because Defendants filed their Objection. (ECF No. 49.)

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IV.

DISCUSSION

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Defendants object to the R&R on two grounds. First, Defendants argue that Judge

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Cobb erred in finding Plaintiff exhausted his administrative remedies because the

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interpretation of the CCDC grievance procedure is inconsistent with the Court’s prior

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orders. (ECF No. 49 at 2.) Second, Defendants assert it is improper to conclude that the

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appeals procedure was unavailable to Plaintiff based on his inability to recall appropriate

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process. (Id.) The Court will address each objection in turn.

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A.

Administrative Exhaustion

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Defendants argue in their Motion that Plaintiff failed to exhaust his administrative

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remedies because he did not appeal Lieutenant Bussell’s resolution of his Grievance.

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(ECF No. 45 at 22-23.) Plaintiff responds that nothing in SOP 14.00.00 required him to

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appeal that determination and, accordingly, there were no further remedies available to

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him. (ECF No. 46 at 9.) A plaintiff’s failure to exhaust administrative remedies is “an

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affirmative defense the defendant must plead and prove.” Albino v. Baca, 747 F.3d 1162,

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1175-76 (9th Cir. 2014). Proper exhaustion requires the plaintiff to use “all the steps the

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agency holds out.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). Judge Cobb agreed with

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Plaintiff and found that SOP 14.00.00 places no additional burden on an inmate to appeal

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a grievance once it is resolved.

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In their Objection, Defendants first argue that Judge Cobb’s interpretation of SOP

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14.00.00 conflicts with this Court’s interpretation of the same guidance in another case,

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Cervantes v. Las Vegas Metropolitan Police Department Detention Services Division, et

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al., Case No. 2:17-cv-00562-MMD-DJA. (ECF No. 49 at 4-7.) The Court does not find the

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reasoning in Cervantes applicable here. In Cervantes, the issue was whether the plaintiff

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received a timely and appealable decision at all.2 The plaintiff in that case filed several

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Court found that he did not. See Case No. 2:17-cv-00562-MMD-DJA (ECF
No. 117 at 12-13).
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grievances requesting urgent medical attention for an abscessed tooth. The Court found

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there that because CCDC did not timely process his grievances, the plaintiff did not receive

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a final resolution that he could appeal which would have resulted in any useful remedy.3

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Contrary to Defendants’ argument in their Objection, the Court never interpreted SOP

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14.00.00 to require that an inmate must appeal a grievance for their administrative

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remedies to be exhausted, nor that appealing grievances was somehow “central” to

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CCDC’s policy. (ECF No. 49 at 5.) Instead, the Court did not reach the question of whether

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further appeals were necessary because the plaintiff in Cervantes did not receive any

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timely final determination from which he could appeal.

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Moreover, Judge Cobb’s interpretation of SOP 14.00.00 in this case does not

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produce a contrary result to the Court’s prior ruling in Cervantes. Judge Cobb reasons that

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SOP 14.00.00 does not provide clear guidance to inmates on several aspects of the

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appeals process, including whether an appeal up the chain of command is the inmate’s

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responsibility or whether it will be automatically forwarded by the officers 4 or whether any

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action is required at all once an inmate receives a final resolution.5 These are questions

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the Court never reached in Cervantes. Here, Plaintiff did receive a final determination from

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Lieutenant Bussell, but further asserts that SOP 14.00.00 did not require him to take any

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further administrative action. The Court agrees with Judge Cobb—there is nothing in SOP

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14.00.00 that requires an inmate to appeal a resolved grievance up the chain of command.

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Insofar as Defendants argue there are other administrative guidelines that did

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require Plaintiff to appeal a decision made by the platoon lieutenant further up the chain

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of command, Defendants did not produce those documents or otherwise show that Plaintiff

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was actually on notice of their alleged requirements. See Albino v. Baca, 747 F.3d at 1175-

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76 (finding defendants failed to demonstrate failure to exhaust when there was no specific

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Case No. 2:17-cv-00562-MMD-DJA (ECF No. 117 at 12-13).

4(ECF

No. 48 at 11-12 (citing ECF No. 45-14 at Section II(B)(6).)

5(ECF

No. 48 at 10-11 (citing ECF No. 45-14 at Section II(B)(7).)
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evidence that inmates knew about the manual discussing the complaint process and an

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inmate declared he was not told about the process). Viewing the evidence in the light most

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favorable to Plaintiff, Defendants have not sufficiently shown they are entitled to summary

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judgment on their affirmative defense that Plaintiff failed to exhaust his administrative

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remedies. Accordingly, the Court will overrule the Objection.

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B.

Availability of Remedies

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Defendants further argue that although there was an appeals process that could

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have afforded Plaintiff available remedies, Plaintiff declined to avail himself of those

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remedies. (ECF No. 49 at 9.) As a result, Defendants argue, Plaintiff may not claim those

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remedies were unavailable. (Id.) In his opposition to Defendants’ Motion, Plaintiff stated

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that he was satisfied with the resolution of his Grievance “from the standpoint that I had

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been afforded an investigation of my complaints.” (ECF No. 46-1 at 3.) But he also states

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that was not made aware of the rules regarding grievance appeals, nor was he told that

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he could appeal the resolution of his Grievance. (Id. at 2.) Judge Cobb relied on these

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assertions to find that Defendants failed to carry their burden of proof that further remedies

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were available. The Court agrees with Judge Cobb.

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Defendants’ only evidence that guidelines for a mandatory appeals process exist

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which Plaintiff was responsible to know lies in the declaration of Sergeant Sheree Butler.

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(ECF No. 45-15.) While Sergeant Butler attests to the existence of an Inmate Handbook,

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that inmates have access to the Inmate Handbook, and that appeals procedures are

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posted in each housing unit, she does not give any specific evidence that Plaintiff actually

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knew of the Inmate Handbook or of the appeals process requirements. (Id. at 3.) More

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importantly, neither Sergeant Butler’s declaration nor any other proffered evidence from

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Defendants states what that appeals process actually is.

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While the Court agrees with Judge Cobb and Defendants that an inmate is not

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excused from exhausting their administrative remedies merely because the grievance

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process does not afford monetary damages (ECF No. 48 at 10), the Court finds

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Defendants fail to demonstrate there were further available remedies that Plaintiff both
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knew about and was required to exhaust before filing suit. Plaintiff stated that he could not

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recall ever having access to the Inmate Handbook. Defendants fail to produce the Inmate

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Handbook or any other evidence that outlines the appeals process. Moreover, Defendants

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fail to otherwise provide evidence that Plaintiff specifically was informed of the appeals

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process. Sergeant Butler’s declaration is not enough to prove there were available

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remedies Plaintiff knew about but did not avail himself of. Accordingly, the Court will

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overrule the Objection.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the issues before

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the Court.

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It is therefore ordered that Defendant’s objection (ECF No. 49) to the Report and

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Recommendation of U.S. Magistrate Judge William G. Cobb is overruled. The Report and

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Recommendation of U.S. Magistrate Judge William G. Cobb (ECF No. 48) is adopted in

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its entirety.

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It is further ordered that Defendants’ motion for summary judgment (ECF No. 45)
is denied.
DATED THIS 29th Day of June 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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