(PC) Johnson v. Overstreet ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID JOHNSON, Case No. 2:19-cv-02519-JAM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS’ MOTION FOR 13 v. SUMMARY JUDGMENT BE GRANTED 14 J. OVERSTREET, et al., ECF No. 20 15 Defendants. OBJECTIONS DUE IN 14 DAYS 16 17 18 19 Plaintiff, a state prisoner proceeding without counsel, has sued seven correctional officers, 20 claiming that they violated his Eighth Amendment rights by attacking him. He alleges that on 21 February 26, 2018, while he was incarcerated at Folsom State Prison, defendants pulled him from 22 his bunk, dragged him from his cell, and strip-searched him. They then allegedly lifted him by 23 his arms, slammed him to the ground, and punched and kicked him. Defendants have filed a 24 motion for summary judgment, arguing that plaintiff did not exhaust his administrative remedies 25 before filing this action. I agree that plaintiff’s claims should be dismissed as unexhausted and 26 recommend that defendants’ motion for summary judgment be granted. 27 28 1 Legal Standards 2 1. Summary Judgment Standard 3 Summary judgment is appropriate where there is “no genuine dispute as to any material 4 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 5 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 6 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 7 while a fact is material if it “might affect the outcome of the suit under the governing law.” 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 9 F.2d 1422, 1436 (9th Cir. 1987). 10 Rule 56 allows a court to grant summary adjudication, also known as partial summary 11 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim. 12 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 13 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 14 single claim . . . .”) (internal quotation marks and citation omitted). The standards that apply on a 15 motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. 16 Civ. P. 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 17 Each party’s position must be supported by (1) citations to particular portions of materials 18 in the record, including but not limited to depositions, documents, declarations, or discovery; or 19 (2) argument showing that the materials cited do not establish the presence or absence of a 20 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 21 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 22 other materials in the record not cited to by the parties, but it is not required to do so. See Fed. R. 23 Civ. P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 24 2001); see also Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 25 “The moving party initially bears the burden of proving the absence of a genuine issue of 26 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 27 moving party must either produce evidence negating an essential element of the nonmoving 28 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 1 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 2 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 3 initial burden, the burden then shifts to the non-moving party “to designate specific facts 4 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 5 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than 6 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 7 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material 8 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to 9 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. 10 Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 11 The court must apply standards consistent with Rule 56 to determine whether the moving 12 party has demonstrated there to be no genuine issue of material fact and that judgment is 13 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 14 “[A] court ruling on a motion for summary judgment may not engage in credibility 15 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 16 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 17 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 18 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 19 198 F.3d 1130, 1134 (9th Cir. 2000). 20 2. Exhaustion Requirements 21 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 22 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 23 confined in any jail, prison, or other correctional facility until such administrative remedies as are 24 available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion requirement “applies 25 to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the 26 relief sought by the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 27 741 (2001). Unexhausted claims require dismissal. See Jones v. Bock, 549 U.S. 199, 211 (2007). 28 1 A prison’s own grievance process, not the PLRA, determines how detailed a grievance 2 must be to satisfy the PLRA exhaustion requirement. Id. at 218. When a prison’s grievance 3 procedures do not specify the requisite level of detail, “a grievance suffices if it alerts the prison 4 to the nature of the wrong for which redress is sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 5 (9th Cir. 2009) (internal quotation marks omitted). “The grievance ‘need not include legal 6 terminology or legal theories,’ because ‘[t]he primary purpose of a grievance is to alert the prison 7 to a problem and facilitate its resolution, not to lay groundwork for litigation.’” Reyes v. Smith, 8 810 F.3d 654, 659 (9th Cir. 2016) (quoting Griffin, 557 F.3d at 1120). 9 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 10 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1862 11 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the 12 prisoner.” Id. at 1856. The Supreme Court has explained when an administrative procedure is 13 unavailable: 14 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 15 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates . . . . Next, an 16 administrative scheme might be so opaque that it becomes, practically speaking, incapable of use . . . . And finally, the same is 17 true when prison administrators thwart inmates from taking 18 advantage of a grievance process through machination, misrepresentation, or intimidation . . . . [S]uch interference with an 19 inmate’s pursuit of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 20 21 Id. at 1859-60 (citations omitted); see also Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 22 2017) (“When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 23 deemed to have exhausted available administrative remedies.”). 24 If the court concludes that plaintiff has failed to exhaust available remedies, the proper 25 remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(a). See 26 Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 27 28 1 Analysis 2 Defendants argue that, following the February 26, 2018 incident, plaintiff filed four 3 administrative grievances, only one of which—FSP-O-18-00621—addressed the claims in this 4 action. ECF No. 20-2 at 7-9. That grievance was cancelled at the first level because it was 5 submitted more than thirty days after the incident. ECF No. 20-5 at 12. Defendants argue that 6 because that grievance did not proceed through all three levels of review, this case must be 7 dismissed. ECF No. 20-2 at 7-8. 8 Plaintiff does not appear to dispute that the FSP-O-18-00621 appeal did not exhaust his 9 administrative remedies.1 ECF No. 26 at 19-20. Instead, he claims that within thirty days of the 10 incident, he submitted a grievance addressing defendants’ use of excessive force. He contends, 11 however, that he never received a response to that earlier grievance. Id. at 5-11. He also claims 12 that he sent two letters to the prison’s appeals coordinator inquiring about the status of that earlier 13 grievance, but these too received no response. Id. at 5-6. Plaintiff argues that the failure to 14 respond to his initial grievance and letters rendered the administrative procedures unavailable. Id. 15 at 6-7. 16 Plaintiff, however, has not submitted any evidence reflecting that prison officials ignored 17 a timely submitted grievance. And his vague assertions, lacking in details about the purported 18 grievance, are insufficient to excuse his failure to exhaust.2 See F.T.C. v. Publ’g Clearing House, 19 Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking detailed 20 facts and any supporting evidence, is insufficient to create a genuine issue of material fact.”); Otto 21 v. Quinn, No. EDCV 16-1883 AB (AS), 2019 WL 4221090, at *4 (C.D. Cal. June 6, 2019) 22 (finding that plaintiff's “conclusory and unsupported assertion that he exhausted his 23 1 Plaintiff does argue that the cancellation letter provided only vague instructions for how 24 to correct the grievance’s deficiencies. ECF No. 26 at 18. But contrary to plaintiff’s contention, the cancellation letter specifically advised him that he could file a separate appeal challenging the 25 cancellation decision. ECF No. 20-5 at 11; ECF No. 26 at 41. Plaintiff did not avail himself of that opportunity, ECF No. 20-5 at 6-8, which forecloses any argument that administrative 26 remedies were unavailable. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The 27 obligation to exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’”). 2 Plaintiff does not identify the date on which he purportedly submitted the earlier 28 grievance, or the individual to whom it was delivered. 1 administrative remedies is insufficient to avoid summary judgment”); Jeffries v. Fields, No. CV 2 12–1351 R(JC), 2014 WL 994908, at *18 (C.D. Cal. Mar. 10, 2014) (finding the plaintiff’s 3 conclusory assertion that tampered with his grievance “insufficient to demonstrate that any failure 4 to exhaust was excused due to misconduct by prison officials that rendered further administrative 5 remedies unavailable”). 6 Plaintiff also argues that a grievance that he submitted on April 25, 2018—log number 7 FSP-O-18-00493—contained sufficient information to exhaust his Eighth Amendment claims 8 against defendants. ECF No. 26 at 12-15. Defendants contend that the grievance, which received 9 a third-level decision, did not concern, or seek relief related to, defendants’ alleged use of 10 excessive force. ECF No. 29 at 2-3. Accordingly, they maintain that this grievance did not 11 exhaust the claims raised in this action. Id. 12 For remedies to be fully exhausted, an appeal must “alert the prison to a problem and 13 facilitate its resolution.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (concluding that 14 inmate grievance cannot serve to exhaust administrative remedies where it fails to “‘alert[ ] the 15 prison to the nature of the wrong for which redress is sought’”); Sapp v. Kimbrell, 623 F. 813, 16 824 (9th Cir. 2010) (holding that a grievance provides sufficient notice so long as “it alerts the 17 prison to the nature of the wrong for which redress is sought..”). In the grievance for appeal FSP- 18 18-O-00621, plaintiff complained that he was wrongfully found guilty of two rules violations— 19 both issued on February 26, 2018—for resisting a peace officer and refusing to provide a urine 20 sample. ECF No. 20-4 at 3, 9-12; ECF No. 26. He claimed that both violations were based on 21 misleading statements, and that he asked to be found not guilty and to have his credits be restored. 22 ECF No. 20-4 at 9. In arguing that he should not have been found guilty of the rule violations, 23 plaintiff did reference correctional officers’ use of “unnecessary force” and “excessive force.” Id. 24 Specifically, he claimed that he was unable to provide a urine sample because he was receiving 25 medical treatment for injuries caused by officers’ use of “unnecessary force.” Id. He also argued 26 that officers made false and misleading statements “to justify their use of excessive force . . . .” 27 Id. 28 1 But plaintiff’s references to excessive force in his grievance failed to provide prison 2 | officials with notice that he was complaining about the claims raised in this suit. His references 3 | to excessive force are better understood as explanations for his claim that he was wrongfully 4 | found guilty of two rule violations. This reading is supported by the fact that the only relief 5 | plaintiff sought was to be found not guilty and to have his credits restored. ECF No. 20-4 at 9. 6 Accordingly, it is hereby RECOMMENDED that: 7 1. Defendants’ motion for summary judgment, ECF No. 20, be granted, and plaintiffs 8 | claims against them be dismissed without prejudice. 9 2. The Clerk of Court be directed to close this case. 10 I submit these findings and recommendations to the district judge under 28 U.S.C. 11 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 12 | Eastern District of California. Within 14 days of the service of the findings and 13 | recommendations, any party may file written objections to the findings and recommendations 14 | with the court and serve a copy on all parties. That document should be captioned “Objections to 15 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 16 | and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the 17 | specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 18 | 834, 839 (9th Cir. 2014). 19 20 IT IS SO ORDERED. 21 ( q Sty - Dated: _ August 24, 2021 Q_-——— 22 JEREMY D,. PETERSON 54 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28