(PC) Shepherd v. Nueschmid ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIORNIA 10 11 CAMERON SHEPHERD, No. 2:19-cv-084 JAM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 A. CORNWELL, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff alleges defendant violated his Eighth Amendment rights by binding him 19 too tightly during contraband surveillance watch (“CSW”) and that defendant was negligent and 20 caused plaintiff emotional distress when he told plaintiff to drink a lot of water and left him for an 21 hour without permitting him to urinate. Before the court is defendant’s motion for summary 22 judgment. For the reasons set forth below, this court will recommend defendant’s motion be 23 granted. 24 BACKGROUND 25 This case is proceeding on plaintiff’s second amended complaint (“SAC”). (ECF No. 17.) 26 At the time of the events at issue, plaintiff was incarcerated at California State Prison-Solano. 27 Plaintiff alleges that August 13, 2017, correctional officers suspected him of having contraband. 28 Defendant Cornwell then placed plaintiff under contraband surveillance watch (“CSW”). 1 Plaintiff alleges that Cornwell taped clothing around plaintiff’s thighs, waist, and arms so tightly 2 that it cut off plaintiff’s circulation. Plaintiff told Cornwell the bindings were too tight, but 3 Cornwell ignored him. He also placed plaintiff in three jumpsuits that were too small and too 4 tight around plaintiff’s neck and groin. Plaintiff told Cornwell he could not breathe, but Cornwell 5 again “chose to ignore it.” Plaintiff was then forced to sleep in a cell with only a mattress, which 6 was provided only at night, and lights on 24 hours per day. 7 When plaintiff was having difficulty having a bowel movement, Cornwell advised him to 8 drink a lot of water, which caused plaintiff to have to urinate frequently. 9 On August 14, 2017, plaintiff told a correctional officer that he needed to urinate. The 10 correctional officer contacted Cornwell at least three times because only Cornwell could remove 11 plaintiff’s restraints to permit plaintiff to urinate. Despite the officer’s efforts, it took Cornwell 12 60 minutes to come to plaintiff’s cell. By that time, plaintiff had urinated on himself. After 13 plaintiff was allowed to clean himself, Cornwell reapplied the clothing and restraints in an overly 14 tight manner again. 15 Plaintiff contends he suffered back injuries, damage to his lower urinary tract, sleep 16 deprivation, pain and various mental health issues as a result of the CSW. He seeks 17 compensatory and punitive damages. 18 On screening, this court found plaintiff stated a potential federal claim against defendant 19 Cornwell for excessive force in violation of the Eighth Amendment when he bound plaintiff too 20 tightly during CSW. This court further found that plaintiff stated potential state law claims for 21 negligence and intentional inflection of emotional distress based on his allegations that Cornwell 22 told plaintiff to drink a lot of water and then did not permit him to urinate for an hour. (ECF No. 23 18.) 24 MOTION FOR SUMMARY JUDGMENT 25 I. Summary Judgment Standards under Rule 56 26 Summary judgment is appropriate when the moving party “shows that there is no genuine 27 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 28 Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of 1 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litigation, 627 2 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 3 moving party may accomplish this by “citing to particular parts of materials in the record, 4 including depositions, documents, electronically stored information, affidavits or declarations, 5 stipulations (including those made for purposes of the motion only), admissions, interrogatory 6 answers, or other materials” or by showing that such materials “do not establish the absence or 7 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 8 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). 9 When the non-moving party bears the burden of proof at trial, “the moving party need 10 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle 11 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325.); see also Fed. R. Civ. P. 56(c)(1)(B). 12 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 13 against a party who fails to make a showing sufficient to establish the existence of an element 14 essential to that party's case, and on which that party will bear the burden of proof at trial. See 15 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the 16 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 17 circumstance, summary judgment should be granted, “so long as whatever is before the district 18 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323. 19 If the moving party meets its initial responsibility, the burden then shifts to the opposing 20 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 21 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 22 existence of this factual dispute, the opposing party typically may not rely upon the allegations or 23 denials of its pleadings but is required to tender evidence of specific facts in the form of 24 affidavits, and/or admissible discovery material, in support of its contention that the dispute 25 exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. However, a complaint that 26 is submitted in substantial compliance with the form prescribed in 28 U.S.C. § 1746 is a “verified 27 complaint” and may serve as an opposing affidavit under Rule 56 as long as its allegations arise 28 from personal knowledge and contain specific facts admissible into evidence. See Jones v. 1 Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 2 1995) (accepting the verified complaint as an opposing affidavit because the plaintiff 3 “demonstrated his personal knowledge by citing two specific instances where correctional staff 4 members . . . made statements from which a jury could reasonably infer a retaliatory motive”); 5 McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987); see also El Bey v. Roop, 530 F.3d 6 407, 414 (6th Cir. 2008) (Court reversed the district court’s grant of summary judgment because 7 it “fail[ed] to account for the fact that El Bey signed his complaint under penalty of perjury 8 pursuant to 28 U.S.C. § 1746. His verified complaint therefore carries the same weight as would 9 an affidavit for the purposes of summary judgment.”). The opposing party must demonstrate that 10 the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 11 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury 12 could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 13 242, 248 (1986). 14 To show the existence of a factual dispute, the opposing party need not establish a 15 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 16 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 17 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). 18 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in 19 order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations 20 omitted). 21 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 22 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 23 party.” Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 24 opposing party’s obligation to produce a factual predicate from which the inference may be 25 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 26 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 27 party “must do more than simply show that there is some metaphysical doubt as to the material 28 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 1 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 2 omitted). 3 II. Analysis 4 Defendant first argues that plaintiff did not exhaust any of his claims though the prison 5 appeals process. In his second argument, defendant contends plaintiff also failed to exhaust his 6 state law claims through the Government Claims Act. Below, this court finds plaintiff failed to 7 exhaust his Eighth Amendment claim and recommends it be dismissed. This court then 8 recommends the district court decline to exercise supplemental jurisdiction over plaintiff’s state 9 law claims. 10 A. Exhaustion 11 1. Legal Standards for Exhaustion of Administrative Remedies 12 a. PLRA Exhaustion Requirement 13 The Prison Litigation Reform Act of 1995 (“PLRA”) mandates that “[n]o action shall be 14 brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a 15 prisoner confined in any jail, prison, or other correctional facility until such administrative 16 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Compliance with deadlines and 17 other critical prison grievance rules is required to exhaust. Woodford v. Ngo, 548 U.S. 81, 90 18 (2006) (exhaustion of administrative remedies requires “using all steps that the agency holds out, 19 and doing so properly”). “[T]o properly exhaust administrative remedies prisoners ‘must 20 complete the administrative review process in accordance with the applicable procedural rules,’ - 21 rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. 22 Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88); see also Marella v. Terhune, 23 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison system's requirements ‘define the 24 boundaries of proper exhaustion.’” (quoting Jones, 549 U.S. at 218)). 25 Although “the PLRA’s exhaustion requirement applies to all inmate suits about prison 26 life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), the requirement for exhaustion under the PLRA 27 is not absolute, Albino v. Baca, 747 F.3d 1162, 1172-72 (9th Cir. 2014) (en banc). As explicitly 28 stated in the statute, “[t]he PLRA requires that an inmate exhaust only those administrative 1 remedies ‘as are available.’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (quoting 42 2 U.S.C. § 1997e(a)) (administrative remedies plainly unavailable if grievance was screened out for 3 improper reasons); see also Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (“Remedies 4 that rational inmates cannot be expected to use are not capable of accomplishing their purposes 5 and so are not available.”). “We have recognized that the PLRA therefore does not require 6 exhaustion when circumstances render administrative remedies ‘effectively unavailable.’” Sapp, 7 623 F.3d at 822 (citing Nunez, 591 F.3d at 1226); accord Brown v. Valoff, 422 F.3d 926, 935 8 (9th Cir. 2005) (“The obligation to exhaust ‘available’ remedies persists as long as some remedy 9 remains ‘available.’ Once that is no longer the case, then there are no ‘remedies . . . available,’ 10 and the prisoner need not further pursue the grievance.”). 11 Dismissal of a prisoner civil rights action for failure to exhaust administrative remedies 12 must generally be brought and decided pursuant to a motion for summary judgment under Rule 13 56, Federal Rules of Civil Procedure. Albino, 747 F.3d at 1168. “Nonexhaustion” is “an 14 affirmative defense” and defendants have the burden of “prov[ing] that there was an available 15 administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1171- 16 72. A remedy is “available” where it is “capable of use; at hand.” Williams v. Paramo, 775 F.3d 17 1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1171). Grievance procedures that do not 18 allow for all types of relief sought are still “available” as long as the procedures may afford 19 “some relief.” Booth v. Churner, 532 U.S. 731, 738 (2001). If a defendant meets the initial 20 burden, a plaintiff then must “come forward with evidence showing that there is something in his 21 particular case that made the existing and generally available administrative remedies effectively 22 unavailable to him.” Albino, 747 F.3d at 1172. Remedies are “effectively unavailable” where 23 they are “ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Id. 24 (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). “[T]he ultimate 25 burden of proof,” however, never leaves the defendant. Id. 26 b. California’s Inmate Appeal Process 27 In California, prisoners may appeal “any policy, decision, action, condition, or omission 28 by the department or its staff that the inmate or parolee can demonstrate as having a material 1 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). At 2 the time plaintiff filed his appeals,1 inmates in California proceeded through three levels of appeal 3 to exhaust the appeal process: (1) formal written appeal on a CDC 602 inmate appeal form; (2) 4 second level appeal to the institution head or designee; and (3) third level appeal to the Director 5 of the California Department of Corrections and Rehabilitation (“CDCR”). Cal. Code Regs. tit. 6 15, § 3084.7. Under specific circumstances, the first level review may be bypassed. Id. The 7 third level of review constitutes the decision of the Secretary of the CDCR and exhausts a 8 prisoner’s administrative remedies. See id., § 3084.7(d)(3). However, a cancellation or rejection 9 decision does not exhaust administrative remedies. Id., § 3084.1(b). 10 A California prisoner is required to submit an inmate appeal at the appropriate level and 11 proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 12 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). In submitting a grievance, 13 an inmate is required to “list all staff members involved and shall describe their involvement in 14 the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). Further, the inmate must “state all facts known 15 and available to him/her regarding the issue being appealed at the time,” and they must “describe 16 the specific issue under appeal and the relief requested.” Id. § 3084.2(a)(4). The appeal should 17 not involve multiple issues that do not derive from a single event. Id. § 3084.6(b)(8). 18 An inmate has thirty calendar days to submit their grievance from the occurrence of the 19 event or decision being appealed, or “upon first having knowledge of the action or decision being 20 appealed.” Cal. Code Regs. tit. 15, § 3084.8(b). 21 2. Discussion of Exhaustion of Eighth Amendment Claim 22 The parties do not dispute that the only appeal in which plaintiff raised claims regarding 23 the August 2017 CSW was appeal no. CSP-S-17-01965. (See Plaintiff’s Depo. (ECF No. 74-3 at 24 5-82); Plaintiff’s Oppo. to Motion to Dismiss (ECF No. 78-1 at 2); Defendant’s Motion to 25 1 In 2020, California changed the grievance system from a three-tier system to a two-tier system. 26 That change was effective in June 2020, after plaintiff initiated the relevant appeals in the present case. See Cal. Code Regs. tit. 15, § 3480. All citations to the California code in the text refer to 27 the prior law. 28 2 The appeal is mistakenly referred to as CSP-17-01865 in plaintiff’s deposition. 1 Dismiss (ECF No. 74-1 at 5).) The parties include copies of that appeal with their briefs. (ECF 2 No. 74-5 at 9-20; ECF No. 78 at 46-50.3) 3 In the original appeal, plaintiff complained that defendant violated his Eighth Amendment 4 rights when he failed to return to plaintiff’s CSW cell when plaintiff needed to urinate, which 5 resulted in plaintiff urinating on himself. Plaintiff described the restraints but did not allege they 6 were too tight or otherwise complain about them, except to note that he required an officer to 7 remove them. (See ECF No. 74-5 at 11, 13.) 8 Plaintiff argues that he could not raise the restraints issue because the grievance form has 9 only a small space to state his complaints. The court does not find this argument convincing. 10 Plaintiff described in some detail the facts that resulted in being forced to urinate on himself. 11 Plaintiff could have chosen to omit one or two sentences of this description and add the restraints 12 issue. Plaintiff could also have chosen to submit a second appeal regarding the restraints issue. 13 Because he did neither, and because those were reasonable options available to plaintiff, this 14 court finds that the appeal forms’ limitation on space did not render plaintiff’s appeals 15 “unavailable.” Cf. Albino, 747 F.3d at 1172 (Administrative remedies are “effectively 16 unavailable” where they are “ineffective, unobtainable, unduly prolonged, inadequate, or 17 obviously futile.” (citation omitted).) 18 After the prison bypassed the first level of review, plaintiff was interviewed by 19 Correctional Lieutenant Pongyan on September19, 2017 regarding his appeal. (See ECF No. 74- 20 5 at 11-12, 15-16.) Plaintiff contends he told Pongyan during that interview that he was also 21 challenging the tightness of the restraints. (See ECF No. 78-1 at 9.) While plaintiff directs the 22 court to review Pongyan’s report, it appears that neither party has provided it.4 In any event, it 23 bears little, if any, relevance to this court’s consideration of the exhaustion issue. Even if plaintiff 24 did tell Pongyan during the interview that he sought to add an excessive force claim regarding the 25 3 Plaintiff’s copy does not include the full appeal packet – his appeals to each level and the 26 decision at each level. Therefore, this court looks to the copy provided by defendant. Plaintiff does not dispute that the copy provided by defendant is a complete and correct copy. 27 4 Pursuant to a protective order, Pongyan’s report was to be submitted, if at all, under seal. (See 28 ECF No. 80.) 1 tightness of his restraints, he failed to notify the Office of Appeals, the third level of review, that 2 he wished to make that one of the bases for his appeal. 3 In his appeal of the second level decision, plaintiff argued: (1) he should not have been 4 placed on CSW; (2) his restraints caused him to be under prison officials’ “full power” regarding 5 bathroom use; (3) Cornwell should not have prioritized a non-emergency meeting over allowing 6 plaintiff to urinate; and (4) Pongyan’s investigation was inadequate because she did not obtain 7 reports from all involved staff members. (ECF No. 74-5 at 12, 14.) Plaintiff does not mention 8 the tightness of his restraints or indicate in any way that he was challenging the second level 9 denial of his claim on that basis. 10 Even if plaintiff had raised the restraints issue in his appeal of the second level response, 11 he would not have exhausted his administrative remedies. California regulations require new 12 issues to be raised in a separate appeal. California Code of Regulations, title 15, § 3084.1(b) 13 states: “Administrative remedies shall not be considered exhausted relative to any new issue, 14 information, or person later named by the appellant that was not included in the originally 15 submitted [appeal] and addressed through all required levels of administrative review up to and 16 including the third level.” Thus, new claims are not permitted as the appeal moves through the 17 levels of review. A prisoner does not exhaust administrative remedies when he includes new 18 issues from one level of review to another. Mitchell v. Pena, No. 1:11-cv-01205-JLT LJO PC, 19 2013 WL 3733593, at *5 (E.D. Cal. July 15, 2013) (citing Rodgers v. Tilton, CIV. No. 2:07– 20 02269–WBS–DAD, 2011 WL 3925085, at 2 (E.D. Cal. Sept.1, 2011), rep. and reco. adopted, 21 2013 WL 4009750 (E.D. Cal. Aug. 5, 2013); Dawkins v. Butler, No. 09CV1053 JLS (DHB), 22 2013 WL 2475870, *8 (S.D. Cal. July 7, 2013) (a claim made for the first time in plaintiff’s 23 request for Third Level review was insufficient to exhaust the issue where it was not included in 24 the original appeal); see also Woodford v. Ngo, 548 U.S. 81, 90-93 (2006) (Exhaustion under the 25 PLRA requires “proper exhaustion,” which “demands compliance with an agency’s deadlines and 26 other critical procedural rules.”). 27 The undisputed facts show that plaintiff did not state any facts in appeal no. CSP-S-01796 28 that would have alerted prison officials that he was challenging the tightness of his restraints 1 during the August 2017 CSW. See Sapp, 623 F.3d at 824 (To exhaust an issue, prisoner must 2 “alert the prison to the nature of the wrong for which redress is sought.” (citations omitted).) 3 Even if the court resolves any factual disputes in plaintiff’s favor, plaintiff still has failed to 4 exhaust the excessive force claim prior to filing his federal suit as required under the PLRA. For 5 these reasons, plaintiff’s claim that Cornwell used excessive force when he placed plaintiff in 6 restraints that were too tight should be dismissed for plaintiff’s failure to exhaust his 7 administrative remedies. 8 B. Supplemental Jurisdiction over State Law Claims 9 A district court “may decline to exercise supplemental jurisdiction” over state law claims 10 if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). 11 “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of 12 factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, 13 fairness, and comity - will point toward declining to exercise jurisdiction over the remaining 14 state-law claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988), superseded 15 on other grounds by statute as recognized in Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557 16 (10th Cir. 2000); see also Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010); 17 McKinney, 311 F.3d at 1201 (“[T]he district court appropriately declined to exercise its 18 supplementary jurisdiction over the state claims” after dismissing federal claims for failure to 19 exhaust administrative remedies. (citations omitted).); Strojnik v. Bakersfield Convention Hotel I, 20 LLC, 436 F. Supp. 3d 1332, 1343 (E.D. Cal. 2020). 21 Remaining in federal court may be more convenient for plaintiff. However, that 22 convenience should not compel the court to disregard basic concerns of comity - a state court is in 23 a better position to resolve issues of state law. Therefore, the balance of factors does not tip in 24 favor of retaining the state-law claims.5 25 //// 26 //// 27 5 Because this court recommends dismissal of the state law claims on these grounds, it does not 28 reach the exhaustion issues for those claims. 1 For the foregoing reasons, IT IS HEREBY RECOMMENDED that defendant’s motion 2 | for summary judgment (ECF No. 74) be granted and plaintiff’s claims be dismissed without 3 | prejudice. 4 These findings and recommendations will be submitted to the United States District Judge 5 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 6 || being served with these findings and recommendations, either party may file written objections 7 || withthe court. The document should be captioned “Objections to Magistrate Judge's Findings 8 || and Recommendations.” The parties are advised that failure to file objections within the specified 9 || time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 10 | F.2d 1153 (9th Cir. 1991). 11 || Dated: August 25, 2021 12 13 14 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 | DLB» DB prisoner inbox/civil rights/S/shep0084.msj exh fr 25 26 27 28 11