(PC) Petillo v. Baughman ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SIDNEY PETILLO No. 2:19-CV-00667-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 HAINEY, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Pending before the Court is Defendants’ unopposed motion for summary 19 judgment. ECF No. 77. Plaintiff alleges that Defendants engaged in excessive force, used 20 discriminatory language towards him, illegally strip-searched him, and inappropriately touched 21 him in violation of his the Fourth, Eighth, and Fourteenth Amendments. ECF No. 24. 22 Defendants move for summary judgment, arguing that Plaintiff has not exhaust his administrative 23 remedies before commencing this action. ECF No. 77 at 1. The undersigned agrees that Plaintiff 24 has failed to exhaust his administrative remedies and thus recommends that Defendants’ motion 25 for summary judgment be granted. 26 / / / 27 / / / 28 / / / 1 I. BACKGROUND 2 Plaintiff commenced this civil rights action on April 16, 2019, alleging that 3 Defendants, Haynie, Jones, Villasenor, Mallot, Castello, and Herrera, employees of California 4 State Prison at Sacramento, violated his Fourth, Eighth, and Fourteenth Amendment rights.1 ECF 5 No. 1. He alleges in his second amended complaint that on February 7, 2018, Defendant Jones 6 injured him by striking him in the chest and used derogatory, discriminatory, homophobic, and 7 racist language against him. ECF No. 24 at 5-7. He claims that Defendants Herrera and 8 Villasenora strip-searched him, based on Defendants Hainey and Mallot order, and that 9 Defendant Herrera groped his genitalia during the search. Id. at 9-12. Plaintiff also contends that 10 Defendants Hainey, Mallot, Herrera, Costello, and Villasenora slammed him into a metal cage, 11 causing injury to his left shoulder, elbow, and face. Id. at 8. 12 Plaintiff filed a prison grievance on February 20, 2018, log number SAC-B-01033, 13 addressing the above incident. ECF No. 77-4 at 12. The grievance bypassed the first level of 14 review. Id. At the second level of review, the grievance was partially granted and referred to the 15 third level of review. Id. at 16-17. On July 2, 2018, a third-level decision issued, rejecting 16 plaintiff’s grievance because it lacked the required CDCR Form 1858 Rights and Responsibilities 17 Statement. Id. at 18. The third level response stated, 18 Be advised that you cannot appeal a rejected appeal, but should take the 19 corrective action necessary and resubmit the appeal within the timeframes specified in CCR 3084.6(a)2 and CCR 3084.8(b). Pursuant to CCR 20 3084.6(e), once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation 21 decision. The original appeal may only be resubmitted if the appeal on the cancellation is granted. 22 23 1 Plaintiff also named Castello as a Defendant on this action. ECF No. 24. On July 29, 2020, the Court was notified that Defendant Castello did not intend to waive service of process 24 because the California Department of Corrections and Rehabilitation was unable to identify any staff member with the name Castello, or variance thereof, working at the time of the alleged 25 incident. See ECF No. 39. The Court ordered Plaintiff to provide additional information to serve this defendant on August 3, 2020 and warned him that failure to effect service may result in the 26 dismissal of unserved defendants. See Fed. R. Civ. P. 4(m). ECF No. 43. To date, Plaintiff has 27 failed to serve Defendant Castello. 2 California Code of Regulation 3084.6(a)(2) requires an appeal on a cancelled decision to 28 be returned within 30 calendar days of rejection. 1 Id. 2 The record does not reflect that Plaintiff filed an appeal challenging the canceled 3 decision. Plaintiff did, however, submit a document to the Office of Appeals on November 29, 4 2018. Id. at 10. Nevertheless, the Office of Appeals informed him that his appeal was canceled 5 on February 11, 2019: 6 Your appeal has been cancelled pursuant to the California Code of 7 Regulations, Title 15, Section (CCR) 3084.6(c)(10). Failure to correct and return a rejected appeal within 30 calendar days of the rejection. 8 The Office of Appeals rejected and returned the appeal to the 9 inmate on July 2, 2018. The envelope addressed to The Office of Appeals was signed by staff on November 29, 2018 and was postmarked on 10 December 4, 2018. The envelope was received in our office on December 13, 2018. This exceeds time constraints to submit for third level review. 11 Pursuant to CCR 3084.6(e), once an appeal has been cancelled, 12 that appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation decision. The original appeal may only be 13 resubmitted if the appeal on the cancellation is granted. You have 30 calendar days to appeal the cancellation. Time constraints begin from the 14 date on the screen out form which cancelled your appeal. 15 Id. 16 17 II. THE PARTIES’ EVIDENCE 18 A. Defendants’ Evidence 19 Defendants’ motion for summary judgment is supported by the declaration of 20 Howard E. Moseley, Associate Director of the Office of the Appeals, ECF No. 77-4, and a 21 Statement of Undisputed Facts, ECF No. 77-3, contending the following facts are undisputed: 22 1. Plaintiff Sidney Petillo was an inmate incarcerated by the California Department of Corrections and Rehabilitation (CDCR), who 23 was housed at California State Prison, Sacramento on February 7, 2018, when the events alleged in his lawsuit purportedly occurred, and was 24 housed at California State Prison, Corcoran when he filed his original complaint on April 16, 2019, his First Amended Complaint on May 13, 25 2019, and his operative Second Amended Complaint on October 7, 2019. (Complaint at 1-2, ECF No. 1; First Amended Complaint at 1, ECF No. 7; 26 Second Amended Complaint (SAC) at 1, ECF No. 24.) 27 2. Plaintiff brings this action under 42 U.S.C. § 1983, alleging that Defendants used excessive force against him, discriminatory language 28 against him, illegally strip-searched him, and touched him inappropriately 1 in violation of his Fourth, Eighth, and Fourteenth Amendment rights. (SAC at 5-12; Findings and Recommendation at 2-3, ECF No. 30; Order 2 Adopting Findings and Recommendation at 1-2, ECF No. 34.) 3 3. Defendants Haynie, Jones, Villasenor, Mallot, and Herrera, were employed by CDCR as a correctional officers at California State 4 Prison, Sacramento at the time the alleged incidents occurred. (SAC at 3.) 5 4. CDCR, which includes California State Prison, Sacramento, has an administrative remedies process in place for all inmate 6 grievances and had this process in place during the timeframe relevant to Plaintiff’s claims. (Moseley Decl. ¶¶ 2-5.) 7 5. All inmate grievances are subject to final-level review by 8 CDCR’s Office of Appeals (OOA) before administrative remedies are considered exhausted for that grievance. (Moseley Decl. ¶ 2.) 9 6. All offender appeals are reviewed and screened out or 10 screened in by the OOA. An appeal is screened out (and not answered substantively) if it does not comply with the regulations governing the 11 appeal process. Instead, the appeal is returned with a letter instructing the offender how to cure the deficiency, if a cure is possible. An appeal is 12 screened in (and answered substantively) if it complies with the governing regulations. The Appeal History Report includes appeals that were 13 screened out or screened in; and if screened out, the report includes the reason for the screen-out. (Moseley Decl. ¶ 4.) 14 7. Plaintiff submitted a grievance concerning his claims in this 15 case to California State Prison, Sacramento in grievance log no. SAC-B- 18-01033, and received a response at the second level of review on March 16 26, 2018, which explained to Plaintiff that to exhaust his administrative remedies, a decision must be rendered at the third level of review. 17 (Moseley Decl. Ex. B.) 18 8. Plaintiff appealed SAC-B-18-1033 to the OOA on May 14, 2018, where it was assigned OOA Appeal Log No. 1806506 and was 19 screened out on June 26, 2018, because it was missing necessary supporting documents, specifically the CDCR Form 1858, Rights and 20 Responsibilities Statement, and mailed Plaintiff a screen-out letter informing him of the missing documentation on July 2, 2018, explicitly 21 stating: “Be advised that you cannot appeal a rejected appeal, but should take the corrective action necessary and resubmit the appeal within the 22 timeframes specified in CCR 3084.6(a) and CCR 3084.8(b). Pursuant to CCR 3084.6(e), once an appeal has been cancelled, that appeal may not be 23 resubmitted. However, a separate appeal can be filed on the cancellation decision. The original appeal may only be resubmitted if the appeal on the 24 cancellation is granted.” (Moseley Decl. ¶ 8 and Ex. B.) 25 9. Plaintiff resubmitted OOA Appeal Log No. 1806506 (SAC- B-18-01033) to the OOA on December 13, 2018, and the appeal was 26 cancelled on February 11, 2019, in a cancellation letter which informed Plaintiff of the following: “Your appeal has been cancelled pursuant to the 27 California Code of Regulations, Title 15, Section (CCR) 3084.6(c)(10). Failure to correct and return a rejected appeal within 30 calendar days of 28 the rejection,” and “The Office of Appeals rejected and returned the 1 appeal to the inmate on July 2, 2018. The envelope addressed to The Office of Appeals was signed by staff on November 29, 2018, and was 2 postmarked on December 4, 2018. The envelope was received in our office on December 13, 2018. This exceeds time constraints to submit for 3 third level review.” (Moseley Decl. ¶ 9 and Ex. B.) 4 10. The February 11, 2019, cancellation letter further explained that, “Pursuant to CCR3084.6(e), once an appeal has been cancelled, that 5 appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation decision.” (Moseley Decl. ¶ 9 and Ex. B.) 6 11. The OOA has never rendered a decision at the third level of 7 review for OOA Appeal Log No. 1806506 (SAC-B-18-01033). (Moseley Decl. ¶ 10.) 8 12. The OOA has no record of Plaintiff appealing or 9 challenging the cancellation of OOA Appeal Log No. 1806506 (SAC-B- 18-01033). (Moseley Decl. ¶10.) 10 ECF No. 77-3. 11 12 Plaintiff has not opposed Defendants’ motion nor disputed any of Defendants’ 13 facts. 14 III. STANDARD FOR SUMMARY JUDGEMENT 15 The Federal Rules of Civil Procedure provide for summary judgment or summary 16 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 17 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 18 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 19 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 20 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 21 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 22 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 23 moving party 24 . . . always bears the initial responsibility of informing the district court of 25 the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together 26 with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 27 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 28 1 If the moving party meets its initial responsibility, the burden then shifts to the 2 opposing party to establish that a genuine issue as to any material fact actually does exist. See 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 4 establish the existence of this factual dispute, the opposing party may not rely upon the 5 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 6 form of affidavits, and/or admissible discovery material, in support of its contention that the 7 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 8 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 9 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 10 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 11 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 12 return a verdict for the nonmoving party, Wool v. Tandem Computs., Inc., 818 F.2d 1433, 1436 13 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 14 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 15 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 16 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 17 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 18 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 19 In resolving the summary judgment motion, the Court examines the pleadings, 20 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 21 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 22 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 23 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 24 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 25 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 26 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 27 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 28 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 1 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 2 imposed.” Anderson, 477 U.S. at 251. 3 4 IV. DISUCSSION 5 Defendants contends that Plaintiff has not exhaust his available administrative 6 remedies because his grievance was cancelled at the third level of review for failure to submit 7 supporting documents and he failed to timely appeal the cancellation. ECF No. 77-2 at 7-9. 8 The Prison Litigation Reform Act (“PLRA”) requires prisoners seeking relief 9 under § 1983 to exhaust all available administrative remedies prior to commencing litigation. See 10 42 U.S.C. § 1997e(a); Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017). The Supreme Court 11 addressed the exhaustion requirement in Jones v. Block, 549 U.S. 199, 211 (2007), and 12 established three principles. First, prisoners are not required to specially plead or demonstrate 13 exhaustion in the complaint because lack of exhaustion is an affirmative defense that defendants 14 must plead and prove. Id. at 216. Second, individuals named as defendants in a complaint do not 15 necessarily need to be named in the grievance process for exhaustion to be considered adequate 16 because the applicable procedural rules that a prisoner must follow are defined by the particular 17 grievance process, not by the PLRA. Id. at 217-19. Third, the PLRA does not require dismissal 18 of an entire complaint if some, but not all, claims are unexhausted. Id. at 219-24. 19 The defendant bears the burden of showing non-exhaustion and if a defendant 20 meets his or her burden, the burden shifts to the plaintiff to show that the grievance process was 21 effectively unavailable. See Albino v. Baca, 747 F.3d 1162, 1171-72 (9th Cir. 2014). With that 22 in mind—there are no special circumstance exceptions to the exhaustion requirement. Ross v. 23 Blake, 578 U.S. 632, 639-42 (2016). The PLRA does not authorize courts to look to the 24 particulars of a case to determine if circumstances excuse a failure to exhaust. See id. A 25 plaintiff’s chance to show that the administrative process was unavailable constitutes PLRA’s 26 own, written exception. See id. at 641-42. The PLRA requires a plaintiff to exhaust available 27 administrative remedies but does not require the exhaustion of unavailable remedies. Id. Put 28 another way, inmates are obligated to exhaust only those grievance procedures “capable of use” 1 to obtain some relief for the conduct that the inmate challenges. Id. at 643-44. An administrative 2 remedy might be unavailable when procedures operate to a “dead end” and officials do not 3 actually provide relief, when an administrative scheme is so complex that inmates cannot use it, 4 or when officials simply thwart the grievance process. Id. 5 The PLRA requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 6 (2007); Merchant v. Corizon Health, Inc., 993 F.3d 733, 742 (9th Cir. 2021). Inmates must 7 comply with the deadlines and “critical procedural rules” of a prison’s administrative relief 8 system. Woodford, 548 U.S. at 91, 95; Merchant, 933 F.3d at 742. This means that an inmate 9 must use all the steps that a prison employs in its grievance process, permitting the prison a 10 chance to reach the merits of the grievance and correct its own errors. Woodford, 548 at 90-91, 11 94; see Fuqua v. Ryan, 890 F.3d 838, 844-45 (9th Cir. 2018); Reyes v. Smith, 810 F.3d 654, 657 12 (9th Cir. 2016). When reviewing exhaustion under California prison regulations, which have 13 since been amended, the Ninth Circuit observed that, substantively, a grievance is sufficient if it 14 “puts the prison on adequate notice of the problem for which the prisoner seeks redress.” Sapp v. 15 Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010); see Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 16 2009). 17 Until June 1, 2020, California allowed inmates to administratively appeal “any 18 policy, decision, action, condition, or omission by the department or its staff that the inmate or 19 parolee can demonstrate as having a material adverse effect upon his or her health, safety, or 20 welfare.” Cal. Code Regs., tit. 15, § 3084.1(a) (repealed 2020); see Munoz v. Cal. Dep’t of 21 Corrs., No. CV 18-10264-CJC (KS), 2020 WL 5199517, at *6 (C.D. Cal. July 24, 2020). The 22 California Department of Corrections and Rehabilitation (“CDCR”) used to have a three-step 23 process for grievances, but now has a two-step process. Id.; see Cal. Code Regs., tit. 15, §§ 3480- 24 87. 25 Broadly described, under the former three-step process, a prisoner had to submit a 26 grievance to the appeals coordinator of the prison where his or her claim arose. Munoz, 2020 WL 27 519917, at *6. If the inmate did not receive relief at the first level, he or she had to submit a 28 second level appeal. Id. If the inmate did not receive adequate relief at the second level, he or 1 she had to submit a third level appeal to the Office of Appeals. Id. If the Office of Appeals 2 reached a decision at the third level of review, the administrative remedies would be considered 3 properly exhausted. Id.; see Reyes, 810 F.3d at 657. 4 The undisputed facts establish that Plaintiff has not exhaust his administrative 5 remedies prior to commencing this action. Plaintiff’s appeal was canceled at the third level of 6 review on July 2, 2018, because it was missing CDCR Form 1858.3 ECF No. 77-4 at 18. The 7 Office of Appeals informed Plaintiff that he needed to file a separate appeal on the cancellation 8 decision, and if that was granted, he could resubmit the original appeal. Id. Plaintiff had 30 days 9 to file such an appeal; however, there is no evidence in the record that he did so within that 10 timeframe. While the record contains a copy of Plaintiff’s signed CDCR Form 1858, id. at 20, 11 there is no evidence of when, or even if, Plaintiff submitted it to the Office of Appeals. Further, it 12 appears that the only correspondence the Office of Appeals received from Plaintiff after his 13 appeal was rejected was dated November 29, 2018. Id. at 3. Thus, even if Plaintiff had included 14 the CDCR Form 1858 in his correspondence dated November 29, 2018, it would have been 15 untimely because more than 30 days had passed since his appeal was rejected at the third level. 16 Because the undisputed evidence shows that Plaintiff failed to exhaust administrative remedies 17 prior to filing suit, Defendants’ motion for summary judgment should be granted. 18 19 V. CONCLUSION 20 Based on the foregoing, the undersigned recommends that Defendants’ motion for 21 summary judgment, ECF No. 77, be granted and Defendant Castello, who remains unserved at 22 this time, be dismissed without prejudice, pursuant to Federal Rule of Evidence 4(m). 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court. Responses to the objections shall be filed within 14 days after service 27 3 On July 10, 2018, Plaintiff requested a CDCR Form 1858, and the prison provided him 28 with a blank copy on July 17, 2018. ECF No. 77-4 at 36. 1 | of objections. Failure to file objections within the specified time may waive the right to appeal. 2 | See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 || Dated: January 5, 2022 Ssvcqo_ 6 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10