(PC) Wood v. McCormick ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN RANDOLPH WOOD, No. 2:17-cv-00983-JAM-CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JACK MCCORMICK, et al., 15 Defendants. 16 17 Plaintiff is a California state prisoner proceeding pro se with this civil rights action filed 18 pursuant to 42 U.S.C. § 1983. This action proceeds on the complaint filed on May 7, 2017 19 alleging that two correctional officers at the Shasta County Jail used excessive force against 20 plaintiff in violation of the Eighth Amendment.1 See ECF No. 11 (screening order). Currently 21 pending before the court is defendants’ motion for summary judgment. ECF No. 31. The motion 22 has been fully briefed by the parties. See ECF Nos. 35, 36. For the reasons discussed below, the 23 undersigned recommends granting defendants’ motion for summary judgment on the basis that 24 plaintiff failed to exhaust his administrative remedies prior to filing this action.2 25 ///// 26 1 All of plaintiff’s filings dates are calculated using the prison mailbox rule. See Houston v. 27 Lack, 487 U.S. 266 (1988). 2 In the interest of judicial economy, the undersigned finds it unnecessary to address the 28 remaining grounds raised in defendants’ motion for summary judgment. 1 I. Allegations in the Complaint 2 The events giving rise to the present cause of action occurred on May 26, 2013 while 3 plaintiff was awaiting sentencing at the Shasta County Jail. ECF No. 1 at 8-9. In his verified 4 complaint, signed under penalty of perjury, plaintiff alleges that defendant McCormick “bashed” 5 him in the head and hand with a metal baton while responding to inmate-on-inmate violence 6 precipitated by gang members within plaintiff’s housing unit. ECF No. 1 at 7, 9-10. After 7 plaintiff was handcuffed and placed face-down on the ground, defendant Millis then “stomped up 8 and down repeatedly” on his back. ECF No. 1 at 11. 9 According to the complaint, plaintiff “used the prisoner grievance procedure available,” 10 but his “requests for proper medical care were denied and appeals from the denials were denied.” 11 ECF No. 1 at 12, 30-33 (Inmate Request for Information forms). Plaintiff also alleges that he 12 feared reprisals from the Shasta County Deputies. ECF No. 1 at 12. 13 II. Motion for Summary Judgment3 14 Defendants assert that plaintiff never filed or exhausted an administrative appeal 15 concerning his excessive force claims. ECF No. 31 at 5-7. Additionally, defendants contend that 16 plaintiff is not excused from the exhaustion requirement because he “has identified no defect in 17 the jail’s grievance procedure themselves.” ECF No. 31 at 5. To the extent that plaintiff alleges 18 that he feared retaliation if he filed a complaint about the use of force, defendants counter that the 19 threats of retaliation when “viewed objectively,” would not have “deter[red] an inmate of 20 ordinary firmness from filing a grievance.” Id. at 7. As a result, plaintiff is not excused from the 21 PLRA’s exhaustion requirement and defendants are entitled to judgment as a matter of law. 22 In his opposition, plaintiff concedes that he did not exhaust any administrative grievance 23 concerning his excessive force claims. ECF No. 35 at 3. However, he asserts under penalty of 24 perjury that “the threatening criminal behavior of multiple Shasta County Deputies is what 25 prevented Plaintiff from pursuing any relief from those very same Deputies.” ECF No. 35 at 3. 26 Plaintiff specifically states that he “was assaulted himself on another occasion,” but he does not 27 3 The court recounts only the portions of the pending motion that relate to the issue of exhaustion. 28 The parties’ respective positions on the Eighth Amendment claims are not addressed herein. 1 provide any additional details about such an assault or which deputy was responsible. Id. 2 By way of reply, defendants point out that plaintiff’s new contention that he was the 3 victim of another assault by an unnamed Shasta County Deputy contradicts his sworn deposition 4 testimony. ECF No. 36 at 2. Even accepting these general allegations of threatening behavior by 5 jail officials, there is no evidence that such actions were related to the use of the grievance 6 process or that such conduct would have deterred a reasonable inmate from filing a grievance. 7 ECF No. 36 at 2-3. 8 III. Undisputed Material Facts 9 During the relevant time period, inmate grievances at the Shasta County Jail were 10 governed by Chapter 7.2 of the Shasta County Sheriff Custody Division’s Policy and Procedural 11 Manual. See Defendants’ Statement of Undisputed Facts (“DSUF”) at ¶ 18. According to this 12 policy, there are three formal levels of review of an Inmate Request and Grievance Form. DSUF 13 ¶ 19; ECF No. 31-3 at 66-67. At the first level of review, the inmate submits the grievance form 14 to the correctional deputy. Id. If unsatisfied by the response, the inmate can submit the 15 grievance to the second level of review by the watch commander. Id. The third and final step of 16 the grievance process is completed by submitting the grievance form to the facility manager. Id. 17 Plaintiff was aware of the procedure for filing an inmate grievance in the Shasta County 18 Jail. DSUF at ¶ 20. Plaintiff did not file any grievances related to the use of force against him by 19 any deputies on May 26, 2013. DSUF at ¶ 22. Plaintiff did not submit any grievance related to 20 the use of force because deputies made verbal threats towards him and because plaintiff witnessed 21 deputies assault other individuals. ECF No. 31-3 at 19 (Plaintiff’s Deposition). He “didn’t feel 22 safe to make that specific complaint.” ECF No. 31-3 at 19. The only grievances that plaintiff 23 filed concerned medical care for the injuries that he received. DSUF at ¶ 21; ECF No. 1 at 30-33 24 (grievance forms). 25 IV. Legal Standards 26 A. Summary Judgment 27 Summary judgment is appropriate when it is demonstrated that there “is no genuine 28 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 1 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 2 “citing to particular parts of materials in the record, including depositions, documents, 3 electronically stored information, affidavits or declarations, stipulations (including those made for 4 purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R. 5 Civ. P. 56(c)(1)(A). Summary judgment should be entered, after adequate time for discovery and 6 upon motion, against a party who fails to make a showing sufficient to establish the existence of 7 an element essential to that party's case, and on which that party will bear the burden of proof at 8 trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof 9 concerning an essential element of the nonmoving party's case necessarily renders all other facts 10 immaterial.” Id. 11 If the moving party meets its initial responsibility, the burden then shifts to the opposing 12 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 13 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 14 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 15 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 16 and/or admissible discovery material, in support of its contention that the dispute exists or show 17 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 18 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 19 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 20 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 21 Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 22 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 23 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). In the 24 endeavor to establish the existence of a factual dispute, the opposing party need not establish a 25 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 26 shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” 27 T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the 28 pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 1 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 2 amendments). 3 In resolving the summary judgment motion, the evidence of the opposing party is to be 4 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 5 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 6 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's 7 obligation to produce a factual predicate from which the inference may be drawn. See Richards 8 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 9 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 10 simply show that there is some metaphysical doubt as to the material facts.... Where the record 11 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 12 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 13 B. Exhaustion of Administrative Remedies 14 The Prison Litigation Reform Act of 1995 provides that “[n]o action shall be brought with 15 respect to prison conditions under section 1983 of this title, ...until such administrative remedies 16 as are available are exhausted.” 42 U.S.C. § 1997e(a). A prisoner must exhaust his 17 administrative remedies before he commences suit. McKinney v. Carey, 311 F.3d 1198, 1199– 18 1201 (9th Cir. 2002); see also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2476 (2015) (stating that 19 the PLRA exhaustion requirement “applies to both pretrial detainees and convicted prisoners”). 20 Failure to comply with the PLRA’s exhaustion requirement is an affirmative defense that must be 21 raised and proved by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). In the Ninth 22 Circuit, a defendant may raise the issue of administrative exhaustion in either (1) a motion to 23 dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of 24 the complaint, or (2) a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1169 (9th 25 Cir. 2014) (en banc). 26 In order to defeat a properly supported motion for summary judgment based on a 27 prisoner’s failure to exhaust pursuant to 42 U.S.C. § 1997e(a), plaintiff must “come forward with 28 some evidence showing” that he has either (1) properly exhausted his administrative remedies 1 before filing suit or (2) “there is something in his particular case that made the existing and 2 generally available remedies unavailable to him by ‘showing that the local remedies were 3 ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.’” Williams v. 4 Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 5 778 n.5) (9th Cir. 1996)); Jones, 549 U.S. at 218. “Accordingly, an inmate is required to exhaust 6 those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the 7 action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 8 532 U.S. 731, 738 (2001)). If undisputed evidence viewed in the light most favorable to the 9 prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56 of 10 the Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). If 11 there is at least a genuine issue of material fact as to whether the administrative remedies were 12 properly exhausted, the motion for summary judgment must be denied. See Fed. R. Civ P. 56(a). 13 When the district court concludes that the prisoner has not exhausted administrative 14 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 15 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 16 Albino, 747 F.3d at 1168-69. 17 V. Analysis 18 At the outset, the court finds that defendants have met their initial burden of informing the 19 court of the basis for their motion, and identifying those portions of the record which they believe 20 demonstrate the absence of a genuine issue of material fact concerning plaintiff’s failure to 21 exhaust administrative remedies. The burden therefore shifts to plaintiff to establish that a 22 genuine issue as to any material fact actually does in fact exist. See Matsushita Elec. Indus. Co. 23 v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court has reviewed plaintiff's verified 24 complaint and his exhibits in opposition to defendants' pending motion. Drawing all reasonable 25 inferences from the evidence submitted in plaintiff's favor, the court concludes that plaintiff has 26 not submitted sufficient evidence at the summary judgment stage to create a genuine issue of 27 material fact concerning the exhaustion of his administrative remedies for the reasons explained 28 below. 1 In order to establish that the failure to exhaust was excusable, plaintiff must show that: 2 ‘(1) the threat [of retaliation] actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; 3 and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing 4 the part of the grievance process that the inmate failed to exhaust.’ 5 McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015) (quoting Turner v. Burnside, 541 F.3d 6 1077, 1085 (11th Cir. 2008)). See also Rodriguez v. County of Los Angeles, 891 F.3d 776, 794 7 (9th Cir. 2018) (allegations of “general and unsubstantiated fears about possible retaliation” 8 insufficient to satisfy inmate's burden to produce evidence of something in the particular case that 9 rendered administrative remedies effectively unavailable) (citing McBride, 807 F.3d at 987-88); 10 Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 922 (9th Cir. 2001) 11 (“conclusory allegations unsupported by factual data are insufficient to defeat ... summary 12 judgment motion”) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) ). 13 Construing the facts in the light most favorable to plaintiff, he has sufficiently alleged that 14 threats from jail deputies deterred him from filing a grievance on the use of excessive force. He 15 has therefore met the subjective test of McBride. Nonetheless, the undersigned concludes that 16 plaintiff has not met his burden of demonstrating that his fear of retaliation from these threats was 17 objectively reasonable. “That is, there must be some basis in the record for the district court to 18 conclude that a reasonable prisoner of ordinary firmness would have believed that the prison 19 official’s action communicated a threat not to use the prison’s grievance procedure and that the 20 threatened retaliation was of sufficient severity to deter a reasonable prisoner from filing a 21 grievance.” McBride, 807 F.3d at 987. Plaintiff’s conclusory contentions in this regard are 22 insufficient to meet his burden of production on summary judgment to show that jail officials 23 rendered administrative remedies unavailable to him. Compare Rodriguez, 891 F.3d at 794 24 (emphasizing that there was sufficient record evidence “supporting an actual and objectively 25 reasonable fear of retaliation for filing grievances.”) with Porter v. Nussle, 534 U.S. 516 (2002) 26 (rejecting a categorical exception to the exhaustion requirement for excessive force complaints 27 where the inmate alleged that prison officials subjected him to “a prolonged and sustained pattern 28 of harassment and intimidation”); Boyd v. Corr. Corp. of Am., 380 F.3d 989, 997–98 (6th Cir. 1 2004) (holding that nonspecific allegations of fear do not excuse the failure to exhaust 2 administrative remedies). 3 In this case, there is even less of a record of an inmate’s fear of retaliation than in the 4 McBride case. In McBride, the Ninth Circuit found that threatening statements by prison guards 5 who had severely beaten an inmate were not sufficient to render the administrative appeals 6 process unavailable. 807 F.3d at 988. Here, plaintiff’s statements concerning a fear of retaliation 7 are not even linked to the same guards who injured him, nor are they specifically connected to the 8 use of the grievance process itself. The undersigned finds that there is no record evidence 9 demonstrating an objectively reasonable fear of retaliation for filing a grievance about the use of 10 excessive force. See McBride, 807 F.3d at 988 (emphasizing that “[h]ostile interaction, even 11 when it includes a threat of violence, does not necessarily render the grievance system 12 ‘unavailable.’”). Accordingly, plaintiff has failed to meet his burden of demonstrating that the 13 jail’s grievance procedure was effectively unavailable to him as a result of the conduct of jail 14 officials. See Albino, 747 F.3d at 1166. For all these reasons, the undersigned recommends 15 granting defendants’ motion for summary judgment based on plaintiff’s failure to exhaust his 16 administrative remedies. 17 VI. Plain Language Summary for Pro Se Party 18 The following information is meant to explain this order in plain English and is not 19 intended as legal advice. 20 The court has reviewed the pending motion for summary judgment as well as the 21 affidavits and evidence submitted by the parties and has concluded that you did not properly 22 exhaust your administrative remedies concerning the allegations in your complaint. Therefore, 23 the assigned magistrate judge is recommending that defendants’ motion for summary judgment 24 be granted and your case be dismissed without prejudice. 25 You have fourteen days to explain to the court why this is not the correct outcome in your 26 case. If you choose to do this you should label your explanation as “Objections to Magistrate 27 Judge’s Findings and Recommendations.” The district court judge assigned to your case will 28 review any objections that are filed and will make a final decision on the motion for summary 1 | judgment. 2 In accordance with the above, IT IS HEREBY RECOMMENDED that: 3 1. Defendants’ motion for summary judgment (ECF No. 31) be granted on the basis of 4 plaintiffs failure to exhaust his administrative remedies. 5 2. The case be dismissed without prejudice. 6 3. The Clerk of Court be directed to close this case. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 9 | after being served with these findings and recommendations, any party may file written 10 || objections with the court and serve a copy on all parties. Such a document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 || objections shall be served and filed within fourteen days after service of the objections. The 13 || parties are advised that failure to file objections within the specified time may waive the right to 14 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: January 24, 2020 ( ft. / | is 4 16 CAROLYNK DELANEY. 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 12/wood0983.msj.CJRA.docx 25 26 27 28