(PC) Machado v. Wallace ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 OSCAR MACHADO, Case No. 2:20-cv-00523-JDP (PC) 9 Plaintiff, ORDER THAT: 10 v. (1) THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO RULE ON THESE 11 K. WALLACE, et al. FINDINGS AND RECOMMENDATIONS; 12 Defendants. (2) PLAINTIFF’S MOTION TO MODIFY THE SCHEDULING ORDER, ECF No. 30, IS 13 GRANTED; 14 (3) PLAINTIFF’S MOTION TO MODIFY THE SCHEDULING ORDER, ECF No. 31, IS 15 DENIED AS MOOT; 16 (4) PLAINTIFF’S MOTIONS TO COMPEL DISCOVERY, ECF Nos. 33 & 41, ARE 17 DENIED WITHOUT PREJUDICE. 18 FINDINGS AND RECOMMENDATIONS THAT: 19 DEFENDANT’S MOTION FOR SUMMARY 20 JUDGMENT BE GRANTED 21 OBJECTIONS DUE IN 14 DAYS 22 ECF No. 35 23 24 25 Oscar Machado (“plaintiff”) alleges that A. Bustamante, J. Vina, J. Canela, N. Hang, G. 26 Ellis, T. Freitas, and E. Speer (“defendants”) violated his First Amendment rights by conducting a 27 cell search in retaliation for filing prison grievances. ECF No. 1 at 7. He claims that, during the 28 cell search, defendants planted a drug syringe and then brought a false Rules Violation Report 1 against him. Id. at 7. He also alleges that defendants wrongfully confiscated a radio belonging to 2 his cellmate. Id. at 8. Defendants have filed a motion for summary judgment, arguing that 3 plaintiff failed to exhaust his claims regarding the syringe and radio. ECF No. 35. I have 4 reviewed the pleadings and agree that those claims should be dismissed as unexhausted. This 5 case should, however, still proceed on plaintiff’s claim that defendants conducted a retaliatory 6 cell search. 7 Scheduling and Discovery Motions 8 Plaintiff has also filed motions to modify the scheduling order and to extend the discovery 9 deadline.1 ECF Nos. 31, 30, & 41. He claims that defendants have not provided responses to 10 “the majority of [his] discovery demands” and asks that the discovery deadline be extended so 11 that his motions to compel, ECF Nos. 33 & 41, can be litigated. Defendants, in their opposition 12 to the latest motion to compel, state that they are agreeable to addressing plaintiff’s discovery 13 issues if their motion for summary judgment is denied.2 ECF No. 42 at 2. I will deny the 14 pending motions to compel without prejudice. They are inadequate because they do not describe 15 what discovery items are at issue. I will extend the discovery period by three months from the 16 date of this order’s entry. The new deadline for any future dispositive motions will be three 17 months after the new expiration of discovery. 18 Motion for Summary Judgment 19 A. Legal Standards 20 1. Summary Judgment Standard 21 Summary judgment is appropriate where there is “no genuine dispute as to any material 22 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 23 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 24 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 25 1 The current deadline for discovery (and for motions to compel) expired on January 22, 26 2021. ECF No. 24 at 4. 27 2 As stated above, I recommend that the motion be granted. Even so, one outstanding claim remains, and this case should not be closed. Thus, the defendants will have to address 28 plaintiff’s discovery claims to the extent that they pertain the exhausted claim. 1 while a fact is material if it “might affect the outcome of the suit under the governing law.” 2 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 3 F.2d 1422, 1436 (9th Cir. 1987). 4 Rule 56 allows a court to grant summary adjudication, also known as partial summary 5 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim. 6 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 7 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 8 single claim . . . .”) (internal quotation marks and citation omitted). The standards that apply on a 9 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. 10 Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 11 Each party’s position must be supported by (1) citations to particular portions of materials 12 in the record, including but not limited to depositions, documents, declarations, or discovery; or 13 (2) argument showing that the materials cited do not establish the presence or absence of a 14 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 15 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 16 other materials in the record not cited to by the parties, but it is not required to do so. See Fed. R. 17 Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 18 2001); see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 19 “The moving party initially bears the burden of proving the absence of a genuine issue of 20 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 21 moving party must either produce evidence negating an essential element of the nonmoving 22 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 23 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 24 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 25 initial burden, the burden then shifts to the non-moving party “to designate specific facts 26 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 27 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than 28 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 1 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material 2 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to 3 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. 4 Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 5 The court must apply standards consistent with Rule 56 to determine whether the moving 6 party has demonstrated there to be no genuine issue of material fact and that judgment is 7 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 8 “[A] court ruling on a motion for summary judgment may not engage in credibility 9 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 10 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 11 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 12 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 13 198 F.3d 1130, 1134 (9th Cir. 2000). 14 2. Exhaustion Requirements 15 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 16 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 17 confined in any jail, prison, or other correctional facility until such administrative remedies as are 18 available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion requirement “applies 19 to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the 20 relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 21 741 (2001). Unexhausted claims require dismissal. See Jones v. Bock, 549 U.S. 199, 211 (2007). 22 A prison’s own grievance process, not the PLRA, determines how detailed a grievance 23 must be to satisfy the PLRA exhaustion requirement. Id. at 218. When a prison’s grievance 24 procedures do not specify the requisite level of detail, “a grievance suffices if it alerts the prison 25 to the nature of the wrong for which redress is sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 26 (9th Cir. 2009) (internal quotation marks omitted). “The grievance ‘need not include legal 27 terminology or legal theories,’ because ‘[t]he primary purpose of a grievance is to alert the prison 28 to a problem and facilitate its resolution, not to lay groundwork for litigation.’” Reyes v. Smith, 1 810 F.3d 654, 659 (9th Cir. 2016) (quoting Griffin, 557 F.3d at 1120). 2 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 3 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1862 4 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the 5 prisoner.” Id. at 1856. The Supreme Court has explained when an administrative procedure is 6 unavailable: 7 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 8 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates . . . . Next, an 9 administrative scheme might be so opaque that it becomes, practically speaking, incapable of use . . . . And finally, the same is 10 true when prison administrators thwart inmates from taking 11 advantage of a grievance process through machination, misrepresentation, or intimidation . . . . [S]uch interference with an 12 inmate’s pursuit of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 13 14 Id. at 1859-60 (citations omitted); see also Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 15 2017) (“When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 16 deemed to have exhausted available administrative remedies.”). 17 If the court concludes that plaintiff has failed to exhaust available remedies, the proper 18 remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(a). See 19 Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 20 B. Analysis 21 There is one administrative grievance, numbered MCSP-A-19-03375, relevant here. ECF 22 No. 35-2 at 4-8. In the space where plaintiff was instructed to “explain his issue,” he alleged: 23 This complaint is submitted against Officers K. Wallace, A. Bustamante, J. Canela, C/O Hang, G. Ellis, T. Freitas, J. Vina, & 24 ISU Officer Murphy for another retaliatory cell search on August 9, 2019, conducted in retaliation for the filing of appeal log# MCSP- 25 A-19-02206, submitted for a prior retaliatory cell search. On August 9, 2019, approximately 8 officers entered assigned housing 26 to conduct a retaliatory cell search. At the conclusion of said search, staff left assigned housing in disarray, leaving personal 27 property throughout the cell. Fac “A” has a problem w/ conducting retaliatory cell searches. 28 1 Id. at 5, 7. As defendants argue, the grievance makes no mention of defendants planting a 2 syringe in order to frame plaintiff or confiscating a radio belonging to his cellmate. Under the 3 California Department of Corrections and Rehabilitation (“CDCR”) procedures in place at the 4 time, plaintiff was required to “state all facts known and available to him/her regarding the issue.” 5 Cal. Code Regs. tit. 15, § 3084.2(a)(3)-(4) (repealed June 2020). Given that plaintiff made no 6 mention of the planted syringe or stolen radio, prison administrators were not, as the PLRA 7 intends, afforded an opportunity to consider and address those claims prior to litigation. See 8 Woodford v. Ngo, 548 U.S. 81, 93 (2006) (“The PLRA attempts to eliminate unwarranted federal- 9 court interference with the administration of prisons, and thus seeks to ‘affor[d] corrections 10 officials time and opportunity to address complaints internally before allowing the initiation of a 11 federal case.’”) (citing Porter v. Nussle, 534 U.S. 516, 525 (2002)). 12 Plaintiff raises several arguments in opposition, none of which are availing. First, he 13 argues that requiring him to raise the specifics of those claims subjects him to an impermissibly 14 high pleading standard. ECF No. 39 at 8. But, as stated above, it is the prison’s rules that govern 15 the adequacy of a grievance and, under CDCR regulations, plaintiff was required to identify the 16 issues that he wanted prison administrators to address. Merely alleging that his cell was subject 17 to a retaliatory search would not have put administrators on notice of his allegations regarding the 18 stolen radio and planted evidence. Second, plaintiff argues that he disclosed his allegations about 19 the syringe and radio to the correctional officer—Sergeant Junes—who was charged with 20 investigating his grievance. Id. at 9. Junes’s first-level appeals response contradicts this 21 argument, however. In that response, June recounts that he asked plaintiff if he had anything to 22 add to the written grievance. ECF No. 40-1 at 4. Plaintiff indicated that he did not, stating 23 “[n]ope, I think that pretty much states it all.” Id. Third, plaintiff attributes his failure to mention 24 his other claims to the limited space on the grievance form. ECF No. 39 at 10. But empty lines 25 remain on his grievance form. ECF No. 35-2 at 7. Finally, plaintiff alleges that the court cannot 26 determine the status of his claims without the added context of prison officials’ responses to his 27 grievance. ECF No. 39 at 9. Those responses would not change the fact that plaintiff failed to 28 raise the syringe and radio issues in his grievance. And plaintiff, who presumably knows the 1 substance of the responses to his grievance, does not allege that prion officials sua sponte 2 addressed those issues. 3 I recognize that plaintiff has not separated the claims at issue in this case. In his 4 opposition, he argues that he has only two claims, one for retaliation and one for conspiracy.3 Id. 5 at 8. However, there are three claims at issue. First and most fundamentally, plaintiff alleges that 6 the cell search undertaken by defendants on August 9, 2019 was undertaken not for a legitimate 7 penological purpose, but to retaliate against him for filing grievances. This claim survives the 8 motion for summary judgment. Second, plaintiff alleges that defendants perpetrated a second act 9 of retaliation against him by planting a syringe in his cell and using it to file a false Rules 10 Violation Report against him. That claim, as stated above, is unexhausted and should be 11 dismissed. Third, plaintiff alleges that defendants confiscated his cellmate’s property, again as a 12 form of retaliation. That claim is also unexhausted. The latter two claims are separate; they 13 could succeed or fail independently. It might, for instance, be determined that defendants 14 retaliated against plaintiff by planting false evidence during a cell search that had a separate, valid 15 penological purpose. Conversely, a finder of fact might conclude that the cell search was 16 retaliatory, but that the drug evidence encountered was not fabricated. 17 It is ORDERED that: 18 1. Plaintiff’s motion to modify the scheduling order, ECF No. 30, is GRANTED. 19 2. The discovery deadline in this case is extended by three months from the date of 20 this order’s issuance. Any motions to compel must be filed by that date. Dispositive motions are 21 due three months from the close of the new discovery deadline.4 22 3. Plaintiff’s motion to modify the scheduling order, ECF No. 31, is DENIED as 23 moot. 24 25 3 Conspiracy is not an independent basis of liability in a section 1983 action; rather, it is a 26 manner of proving a defendant’s liability. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 27 2008). 4 If either of these deadlines fall on a weekend or holiday, they shall be extended to the 28 next business day. 1 4. Plaintiff's motions to compel discovery, ECF Nos. 33 & 41, are denied without 2 | prejudice. 3 5. The Clerk of Court shall assign a district judge to rule on these findings and 4 | recommendations. 5 Further, it is recommended that: 6 1. Defendants’ motion for summary judgment, ECF No. 35, be granted and □□□□□□□□□□□ 7 | claims related to the false Rules Violation Report for possession of a syringe and confiscation of 8 | his cellmate’s property be dismissed as unexhausted. 9 2. This action should proceed only with plaintiff's claim that the cell search 10 | undertaken by defendants on August 9, 2019 was retaliatory. 11 I submit these findings and recommendations to the district judge under 28 U.S.C. 12 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 13 | Eastern District of California. Within 14 days of the service of the findings and 14 | recommendations, any party may file written objections to the findings and recommendations 15 | with the court and serve a copy on all parties. That document should be captioned “Objections to 16 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 17 | and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the 18 | specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 19 | 834, 839 (9th Cir. 2014). 20 IT IS SO ORDERED. 22 ( q Sty - Dated: _ August 2, 2021 Q_-——— 23 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE 25 26 27 28