(PC) McCurdy v. California Department of Corrections and Rehabilitation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES C. MCCURDY, No. 2:17-cv-1736 TLN CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITAITON, et al., 16 Defendants. 17 18 Plaintiff is a California prisoner proceeding pro se with an action for violation of civil 19 rights under 42 U.S.C. §1983. On January 24, 2018, the court screened plaintiff’s complaint as 20 the court is required to do under 28 U.S.C. § 1915A(a). The court found that plaintiff could 21 proceed on claims for damages arising under the Eighth Amendment for excessive force and 22 denial of medical care against defendant Thomas as detailed in paragraphs 12 and 15 of plaintiff’s 23 complaint. Defendant Thomas has filed a motion for summary judgment with respect to those 24 claims arguing plaintiff failed to exhaust available administrative remedies prior to filing suit as 25 he was required to do under 42 U.S.C. § 1997(e)(a). 26 I. Summary Judgment Standard 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). 6 Summary judgment should be entered, after adequate time for discovery and upon motion, 7 against a party who fails to make a showing sufficient to establish the existence of an element 8 essential to that party’s case, and on which that party will bear the burden of proof at trial. See 9 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an 10 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 11 Id. 12 If the moving party meets its initial responsibility, the burden then shifts to the opposing 13 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 14 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 15 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 16 of their pleadings but is required to tender evidence of specific facts in the form of affidavits, 17 and/or admissible discovery material, in support of its contention that the dispute exists or show 18 that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed. 19 R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the 20 fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 21 governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., 22 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is 23 genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving 24 party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 25 In the endeavor to establish the existence of a factual dispute, the opposing party need not 26 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 27 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 28 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 1 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 2 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 3 amendments). 4 In resolving the summary judgment motion, the evidence of the opposing party is to be 5 believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the 6 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 7 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 8 obligation to produce a factual predicate from which the inference may be drawn. See Richards 9 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 10 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 11 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 12 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 13 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 14 II. Plaintiff’s Allegations 15 In his complaint, plaintiff alleges as follows: 16 1. On August 18, 2015, plaintiff was confined at the California Medical Facility and 17 defendant worked there as a correctional officer. 18 2. At 1:00 a.m. plaintiff experienced severe pain from Irritable Bowel Syndrome. He 19 sought medical treatment from defendant. Defendant declined to escort plaintiff to the 20 clinic determining plaintiff’s condition was not serious enough to warrant medical 21 attention. 22 3. Plaintiff then threatened to file a grievance against defendant. The two argued and 23 defendant threatened plaintiff with violence. Plaintiff repeated that he needed medical 24 attention and threatened to file a grievance against defendant a second time. 25 4. Defendant then called plaintiff “dirty white trash” and threatened to move plaintiff to a 26 different cell if he continued to “holler.” Plaintiff responded by making derogatory 27 comments including calling defendant the “N-word.” After this, defendant left and 28 plaintiff sat on his bunk. 1 5. At some point, defendant returned, entered plaintiff’s cell and attacked plaintiff by 2 swinging at plaintiff with his fists. Plaintiff fought back. Eventually the two ended up 3 in front of plaintiff’s cell where defendant struck plaintiff several more times and 4 knocked plaintiff to the ground. 5 6. Eventually defendant ran from the scene and plaintiff chased him. Plaintiff briefly 6 caught defendant, but then retreated to his cell. 7 7. When plaintiff returned to his cell, he attempted to attract witnesses in case defendant 8 returned either by himself or with “backup.” Correctional Officer Baumgarner 9 ordered plaintiff to exit his cell and submit to handcuffs. Plaintiff refused and resisted 10 by breaking windows and blocking access to plaintiff with a “swamp cooler.” 11 8. Officers used “flash bang grenades” to attempt restrain plaintiff. Eventually, plaintiff 12 was handcuffed and escorted to the medical clinic. In the clinic, plaintiff was 13 restrained to a bed, his Miranda rights were read, and he was informed he would be 14 charged with attempted murder because defendant Thomas sustained injuries. 15 9. Following the incident, plaintiff was transferred to California State Prison, Corcoran. 16 III. Defendant’s Arguments and Analysis 17 A. Exhaustion Law 18 Section 1997(e)(a) of Title 42 of the United States Code provides that “[n]o action shall be 19 brought with respect to prison conditions under section 1983 of this title, . . . until such 20 administrative remedies as are available are exhausted.” The exhaustion requirement demands 21 “proper” exhaustion. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). In order to “properly 22 exhaust” administrative remedies, the prisoner must generally comply with department procedural 23 rules, including deadlines, throughout the administrative process. Jones v. Bock, 549 U.S. 199, 24 218 (2006); Woodford, 548 U.S. at 90-91. 25 At the time of the incidents at issue in this case, administrative procedures with respect to 26 claims brought in this court by California Department of Corrections and Rehabilitation inmates 27 are exhausted once the third level of review is complete. The third level of review constitutes the 28 1 decision of the Secretary of the California Department of Corrections and Rehabilitation (CDCR). 2 Cal. Code Regs. tit. 15, § 3084.7. 3 B. Denial of Medical Care 4 Defendant provides evidence indicating plaintiff never submitting a grievance concerning 5 defendant Thomas denying plaintiff medical care on August 18, 2015. Plaintiff fails to present 6 any evidence that he did. Further, plaintiff fails to point to anything which reasonably suggests 7 his failure to submit a grievance regarding his denial of medical care claim was because 8 administrative remedies were not “available” to him. Accordingly, his denial of medical care 9 claim must be dismissed. 10 C. Excessive Force 11 Plaintiff did file a grievance alleging defendant Thomas used excessive force against 12 plaintiff on August 18, 2015. The grievance is dated December 27, 2016. ECF No. 67-5 at 11. 13 On June 7, 2017, the grievance was canceled at the third level pursuant to Code Regs. tit 15. § 14 3084.6 (repealed June 1, 2020) for being untimely and because plaintiff “refused to be 15 interviewed or cooperate with the interviewer.” Id. at 9. Under Cal. Code Regs. tit 15. § 3084.8 16 (repealed June 1, 2020) inmate grievances must be submitted within 30 days of the occurrence of 17 the events being appealed, provided the inmate had knowledge of the events. A grievance can 18 only be cancelled pursuant to § 3084.6 for being untimely as long as “the inmate . . . had the 19 opportunity to submit within the prescribed time constraints.” In the third level decision, the 20 reviewer specifically found that plaintiff had the opportunity to file a timely grievance. ECF No. 21 67-5 at 11. It does not appear plaintiff attempted to explain his delay in filing his grievance in his 22 grievance or in his appeal to the final level. 23 If an inmate’s administrative appeal is cancelled, the inmate can file a separate grievance 24 regarding the cancellation decision. Cal. Code Regs. tit. 15, § 3084.6(a)(3) & (e). Plaintiff was 25 informed of this in the final level cancellation of his grievance. Plaintiff filed such a grievance 26 which was cancelled as untimely as it was not filed within 30 days of the date of the cancellation 27 of his original grievance. Plaintiff also filed a grievance concerning the cancellation of the 28 ///// 1 second grievance which was also cancelled since it was filed more than 30 days after the second 2 cancellation. ECF No. 67-5 at 7. 3 Most of plaintiff’s opposition to defendant’s motion for summary judgment is a narrative 4 concerning prison conditions following his altercation with defendant and before he filed his 5 grievance. For the most part, he offers no coherent argument with sufficient and particular factual 6 support as to whether his grievance was properly cancelled for being untimely and /or because 7 plaintiff refused to be interviewed. However, a few points raised are worthy of some discussion. 8 First, plaintiff asserts he refused to be interviewed in exercise of his Miranda rights since, 9 at the time the interview was requested, the events of August 18, 2015 were under review by the 10 Solano County District Attorney for prosecution of plaintiff. It is at least arguable that a plaintiff 11 should not be foreclosed from bringing a federal action because he asserted his right to remain 12 silent. But, in bringing this action, neither Miranda nor plaintiff’s Fifth Amendment right to 13 remain silent relieve plaintiff from putting forth facts sufficient to state a claim upon which relief 14 could be granted. So, any suggestion that plaintiff’s Miranda or Fifth Amendment rights stand as 15 a per se barrier to plaintiff being interviewed as part of the investigation related to his grievance is 16 an overstatement of plaintiff’s rights. 17 Next, plaintiff asserts that initially he was not aware that as a prisoner he needed to 18 exhaust administrative remedies in order to seek federal relief as to prison conditions. However, 19 ignorance of the law, even for a prisoner proceeding pro se is generally not a valid excuse, see 20 Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999), and plaintiff fails to point to anything 21 justifying a departure from that rule here. 22 Finally, plaintiff argues that his administrative remedies were actually exhausted at the 23 second level of the review process since, at that level, his grievance was “partially granted.” 24 However, in the letter informing plaintiff that his grievance had been “partially granted,” plaintiff 25 was informed that the final level of review was still available to him and that his administrative 26 remedies had not yet been exhausted. FCF No. 67-5 at 14. Even in plaintiff’s request for review 27 at the final level, plaintiff indicated he was not satisfied with the second level decision. Id. at 12- 28 13. Accordingly, plaintiff’s argument that his administrative remedies were exhausted after the wOAOe SAPO □□□ OU PRIN INES MUU OW POO EM 1 | second level of review is frivolous. 2 | IV. Conclusion 3 For all the foregoing reasons, the court will recommend that defendant’s motion for 4 | summary judgment be granted and plaintiff's remaining claims be dismissed for failure to exhaust 5 | administrate remedies. 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. Defendant Thomas’s motion for summary judgment (ECF No. 67) be granted; 8 2. Plaintiffs remaining claims be dismissed for failure to exhaust available 9 | administrative remedies; and 10 3. This case be closed. 11 These findings and recommendations are submitted to the United States District Judge 12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 13 | after being served with these findings and recommendations, any party may file written 14 | objections with the court and serve a copy on all parties. Such a document should be captioned 15 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 | objections shall be served and filed within fourteen days after service of the objections. The 17 | parties are advised that failure to file objections within the specified time may waive the right to 18 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: July 30, 2020 Ci dp. f | fe 20 CAROLYN K. DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 1 1 95 mccul736.msj 26 27 28