(PC) Arena v. Navarro ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER M. ARENA, Case No. 1:20-cv-00617-BAM (PC) 12 Plaintiff, ORDER DENYING DEFENDANTS’ MOTION TO STRIKE SUR-REPLY 13 v. (ECF No. 50) 14 NAVARRO, et al., ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 15 Defendants. (EXHAUSTION) (ECF No. 26) 16 ORDER LIFTING STAY OF DISCOVERY 17 AND RESETTING DISCOVERY AND DISPOSITIVE MOTION DEADLINES 18 Discovery Deadline: December 8, 2023 19 Dispositive Motion Deadline: February 9, 2024 20 21 I. Background 22 Plaintiff Peter M. Arena (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 24 Plaintiff’s first amended complaint against Defendants Medina, Allison, Ramos, Pacheco, and 25 Navarro for excessive force in violation of the Eighth Amendment. All parties have consented to 26 United States Magistrate Judge jurisdiction. (ECF No. 35.) 27 On April 16, 2021, Defendants filed a motion for summary judgment on the grounds that 28 Plaintiff failed to exhaust his administrative remedies before filing suit, as required by the Prison 1 Litigation Reform Act.1 Fed. R. Civ. P. 56(c), Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2 2014) (en banc), cert. denied, 574 U.S. 968 (2014). (ECF No. 26.) Plaintiff timely filed an 3 opposition on May 28, 2021, (ECF No. 36), and Defendant timely filed a reply on June 17, 2021, 4 (ECF No. 40). 5 On September 27, 2021, the Court granted Defendants’ motion to modify the discovery 6 and scheduling order, stayed merits-based discovery, and vacated the discovery and dispositive 7 motion deadlines pending disposition of the exhaustion summary judgment motion. (ECF No. 8 44.) 9 On October 7, 2021, Plaintiff filed an “Opposition of the Defendants Motion to Stay 10 Discovery and Modify Discovery and Scheduling Order.” (ECF No. 47.) Construing the filing as 11 an unauthorized sur-reply to Defendants’ motion for summary judgment, Defendants filed a 12 motion to strike on October 14, 2021. (ECF No. 50.) Plaintiff did not file a response. 13 The motion for summary judgment and motion to strike are deemed submitted. Local 14 Rule 230(l). 15 II. Defendants’ Motion to Strike 16 Generally, parties do not have the right to file sur-replies, and motions are deemed 17 submitted when the time to reply has expired. Local Rule 230(l). The Court generally views 18 motions for leave to file sur-replies with disfavor. Hill v. England, No. CVF05869 REC TAG, 19 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes–Benz USA, LLC, 366 F. 20 Supp. 2d 1190, 1197 (N.D. Ga. 2005)). However, district courts have the discretion to either 21 permit or preclude a sur-reply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 22 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit “inequitable 23 surreply”); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district 24 court did not abuse discretion in denying leave to file sur-reply where it did not consider new 25 evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply 26 may not be considered without giving the non-movant an opportunity to respond). In this Circuit, 27 1 Concurrent with this motion, Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th 28 Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 26-5.) 1 courts are required to afford pro se litigants additional leniency. E.g., Wilhelm v. Rotman, 680 2 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. 3 Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th 4 Cir. 2010). 5 Here, Plaintiff did not seek leave of Court before filing his sur-reply, nor did he respond to 6 the motion to strike explaining why his sur-reply should be considered. While the Court agrees 7 that portions of Plaintiff’s sur-reply constitute “new” evidence, the evidence itself does not alter 8 the findings and recommendations that the Court will make regarding the motion for summary 9 judgment, as detailed below. Defendant’s motion to strike is therefore denied. 10 III. Legal Standards 11 A. Statutory Exhaustion Requirement 12 Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action 13 shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal 14 law, by a prisoner confined in any jail, prison, or other correctional facility until such 15 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is 16 required regardless of the relief sought by the prisoner and regardless of the relief offered by the 17 process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to 18 all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002). 19 The failure to exhaust is an affirmative defense, and the defendants bear the burden of 20 raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino, 21 747 F.3d at 1166. “In the rare event that a failure to exhaust is clear on the face of the complaint, 22 a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, 23 the defendants must produce evidence proving the failure to exhaust, and they are entitled to 24 summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most 25 favorable to the plaintiff, shows he failed to exhaust. Id. 26 Defendant must first prove that there was an available administrative remedy and that 27 Plaintiff did not exhaust that available remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th 28 Cir. 2015) (citing Albino, 747 F.3d at 1172) (quotation marks omitted). The burden then shifts to 1 Plaintiff to show something in his particular case made the existing and generally available 2 administrative remedies effectively unavailable to her. Williams, 775 F.3d at 1191 (citing Albino, 3 747 F.3d at 1172) (quotation marks omitted). The ultimate burden of proof on the issue of 4 exhaustion remains with Defendant. Id. (quotation marks omitted). 5 B. Summary Judgment Standard 6 Any party may move for summary judgment, and the Court shall grant summary judgment 7 if the movant shows that there is no genuine dispute as to any material fact and the movant is 8 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 9 747 F.3d at 1166; Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each 10 party’s position, whether it be that a fact is disputed or undisputed, must be supported by 11 (1) citing to particular parts of materials in the record, including but not limited to depositions, 12 documents, declarations, or discovery; or (2) showing that the materials cited do not establish the 13 presence or absence of a genuine dispute or that the opposing party cannot produce admissible 14 evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may 15 consider other materials in the record not cited to by the parties, although it is not required to do 16 so. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 17 2001); accord Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 18 The defendant bears the burden of proof in moving for summary judgment for failure to 19 exhaust, Albino, 747 F.3d at 1166, and he must “prove that there was an available administrative 20 remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172. If the defendant 21 carries his burden, the burden of production shifts to the plaintiff “to come forward with evidence 22 showing that there is something in his particular case that made the existing and generally 23 available administrative remedies effectively unavailable to him.” Id. “If undisputed evidence 24 viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is 25 entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts are 26 disputed, summary judgment should be denied, and the district judge rather than a jury should 27 determine the facts.” Id. 28 /// 1 C. Saddozai v. Davis 2 During the pendency of the motion for summary judgment, the United States Court of 3 Appeals for the Ninth Circuit decided the case of Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022). 4 The parties have not filed any briefs addressing the potential effect of Saddozai on the instant 5 action, nor does the Court find further briefing necessary. 6 In Saddozai, the Ninth Circuit held that “a prisoner who has fully complied with the 7 PLRA’s exhaustion requirement need not file an entirely new federal case simply because he had 8 not exhausted when he filed his original federal complaint.” Id. at 706. Accordingly, the Ninth 9 Circuit reversed the district court’s dismissal of the plaintiff’s third amended complaint on 10 grounds including failure to exhaust prior to commencing suit, holding that the PLRA’s 11 exhaustion requirements apply based on the filing date of the operative complaint. Id. at 708 12 (emphasis added). Further, because a supplemental complaint can defeat an affirmative defense 13 applicable to an earlier complaint, Federal Rule of Civil Procedure 15 allows prisoners to 14 supplement a complaint to add facts regarding administrative exhaustion. Id. at 709. 15 IV. Discussion 16 A. Summary of CDCR’s Administrative Review Process 17 At the relevant time, “[t]he California prison grievance system ha[d] three levels of 18 review; an inmate exhausts administrative remedies by obtaining a decision at each level.” Reyes 19 v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (repealed 20 June 1, 2020) & Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). See also Cal. Code Regs. 21 tit. 15, § 3084.7(d)(3) (“The third level review constitutes the decision of the Secretary of the 22 California Department of Corrections and Rehabilitation on an appeal, and shall be conducted by 23 a designated representative under the supervision of the third level Appeals Chief or equivalent. 24 The third level of review exhausts administrative remedies….”) (repealed June 1, 2020). 25 Pursuant to this system, an inmate may appeal “any policy, decision, action, condition, or 26 omission by the department or its staff that the inmate . . . can demonstrate as having a material 27 adverse effect upon his . . . health, safety, or welfare.” Id. at § 3084.1(a). 28 /// 1 The process was initiated by submitting a CDCR Form 602, Inmate/Parolee Appeal. Id. at 2 § 3084.2(a). In the appeal form, prisoners must list all staff members involved and describe their 3 involvement in the issue. Id. at § 3084.2(a)(3). If the inmate does not have the requested 4 identifying information about the staff member, he must provide any other available information 5 that would assist the appeals coordinator in making a reasonable attempt to identify the staff 6 member in question. Id. 7 B. Undisputed Material Facts (UMF)2 8 In light of the Ninth Circuit’s decision in Saddozai v. Davis, discussed above, the universe 9 of material facts has significantly narrowed since the parties’ submissions of factual statements 10 and supporting evidence. Therefore, only those facts material under Saddozai are set forth here. 11 1. At all times relevant to the First Amended Complaint, Plaintiff was a state inmate in the 12 custody of the California Department of Corrections and Rehabilitation (“CDCR”), 13 incarcerated at California State Prison – Corcoran (“CSP-COR”) in Corcoran, California. 14 (First Am. Compl, ECF No. 13, p. 6.) 15 2. Plaintiff claims that on June 17, 2019, Defendants Navarro, Medina, Ramos-Martinez, 16 Allison, and Barrera-Pacheco punched and kicked him in the head, face, and ribs and 17 stomped on his legs and feet while he laid face down in restraints on the tier in front of his 18 cell. (Id. at 3–4.) 19 3. CDCR has an inmate grievance process for non-medical inmate grievances. (Williams 20 Decl., ¶¶ 2–4; Moseley Decl., ¶¶ 3–5.) 21 4. The grievance process contains three levels of review: an inmate must proceed through the 22 third level of review in order to complete the grievance process. (Williams Decl., ¶ 2.) 23 2 See Defendants’ Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (Exhaustion). (ECF No. 26-2.) Plaintiff did not comply with the rules in preparing his opposition, including by 24 failing to reproduce Defendants’ Statement of Undisputed Facts and providing “a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support” of any 25 disputed facts, or providing a statement of disputed facts. Local Rule 260(b). As a result, Defendants’ Statement of Undisputed Facts is accepted except where brought into dispute by Plaintiff’s verified first amended complaint or 26 portions of Plaintiff’s opposition to the summary judgment motion that are signed under penalty of perjury. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified complaint may be used as an opposing affidavit if it 27 is based on pleader’s personal knowledge of specific facts which are admissible in evidence); Johnson v. Meltzer, 134 F.3d 1393, 1399–1400 (9th Cir. 1998) (same, with respect to verified motions). Unless otherwise indicated, 28 disputed and immaterial facts are omitted from this statement and relevant objections are overruled. 1 5. From June 17, 2019 (the day of the incident) through April 30, 2020 (the date Plaintiff 2 filed his initial Complaint), Plaintiff filed only one non-medical appeal to the first and 3 second level of review at CSP-COR that concerned the allegations at issue in the Second 4 Amended Complaint—Appeal No. CSP-19-04353. (Id. ¶ 6.) 5 6. Plaintiff submitted Appeal No. CSP-COR-04353 on July 2, 2019. (Id. ¶ 7.) 6 7. In Appeal No. CSP-COR-04353, Plaintiff claimed that on June 17, 2019, he was attacked 7 by Defendants Navarro, Medina, Ramos-Martinez, Barrera-Pacheco, and Allison during a 8 cell extraction at CSP-COR. (Id.) 9 8. Plaintiff filed his Complaint on April 30, 2020, while the OOA was still in the process of 10 reviewing Appeal No. CSP-COR-04353 at the third level of review. (Compl., ECF No. 1, 11 p. 6; see Moseley Decl., ¶¶ 6–7.) 12 9. On June 4, 2020, the OOA issued its Third Level Response. Appeal No. CSP-COR- 13 04353 was denied, and it was determined that CDCR policy was not violated. (Moseley 14 Decl., ¶ 7, Ex. B at Moseley.009.) 15 10. The Third Level Decision dated June 4, 2020 stated: “This decision exhausts the 16 administrative remedies available to the claimant with CDCR.” (Moseldy Decl., Ex. B at 17 Moseley.010.) 18 11. Plaintiff filed his First Amended Complaint, the operative complaint, on December 3, 19 2020. (First Am. Compl., ECF No. 13.) 20 C. Parties’ Positions 21 Defendant seeks summary judgment on the ground that CSP-COR and CDCR had an 22 administrative grievance process for addressing issues affecting inmates, Plaintiff availed himself 23 of that process and was able to fully exhaust his administrative remedies on June 4, 2020, but he 24 did not do so before filing the Complaint in this case on April 30, 2020. The existing and 25 generally available administrative remedies were also not rendered “effectively unavailable” to 26 Plaintiff by fears of retaliation or by delay. (ECF No. 26-1.) 27 Plaintiff argues that summary judgment should be denied because this suit was filed and 28 accepted by the Court under the “imminent danger” exception, extensive delays by reviewers and 1 due to the COVID-19 epidemic made any reasonable relief by CDCR unavailable, and Plaintiff 2 was given false information by a CDCR staff member claiming that his remedies were in fact 3 exhausted. Plaintiff therefore acted in good faith when he filed his civil action seeking relief. 4 (ECF No. 36.) 5 In reply, Defendant contends that the “imminent danger” exception does not excuse 6 Plaintiff’s failure to exhaust his administrative remedies prior to filing suit, any delay in 7 responding to Plaintiff’s grievance did not render his available administrative remedies 8 unavailable, and Plaintiff did not receive false information by a CDCR staff member regarding 9 the exhaustion of his administrative remedies. (ECF No. 40.) 10 D. Analysis 11 The Court need not reach the parties’ arguments regarding the applicability of the 12 “imminent danger” exception, or whether any retaliation or delay made the administrative 13 grievance process effectively unavailable to Plaintiff. The Court finds that Defendants have not 14 satisfied the initial burden of demonstrating non-exhaustion. See Albino, F.3d at 1172. 15 Plaintiff initiated this action on April 30, 2020, with the filing of the initial Complaint, 16 before Plaintiff’s administrative remedies were exhausted. UMF No. 8. Plaintiff’s administrative 17 remedies as to the claims at issue in this action were exhausted on June 4, 2020, when the OOA 18 issued its Third Level Response. UMF Nos. 9, 10. Plaintiff filed his First Amended Complaint, 19 which became and remains the operative complaint in this action, on December 3, 2020. UMF 20 No. 11. 21 “[A]n amended complaint supersedes the original, the latter being treated as thereafter 22 non-existent.” Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (citations 23 omitted). Where an amended pleading has been filed in a prisoner case, the Ninth Circuit 24 accordingly has treated its filing date as the relevant date for purposes of PLRA exhaustion 25 analysis. First, in Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010), the Court of Appeals held 26 that newly-exhausted claims could be added by amendment in a pending case. Next, in Jackson 27 v. Fong, 870 F.3d 928 (9th Cir. 2017), the court held that an amended complaint filed after a 28 plaintiff’s release from custody was no longer subject to the exhaustion requirement at all, 1 because at the time of filing the plaintiff was no longer a prisoner. Id. at 934. Most recently, in 2 Saddozai, the Ninth Circuit held that initial non-exhaustion could be cured by amendment 3 following exhaustion. 35 F.4th at 708. 4 Pursuant to Saddozai v. Davis, the Court finds that because Plaintiff’s claims were 5 exhausted on June 4, 2020, six months before the operative first amended complaint was filed on 6 December 3, 2020—facts undisputed by either party—the non-exhaustion defense necessarily 7 fails. 8 IV. Order 9 Based on the foregoing, IT IS HEREBY ORDERED as follows: 10 1. Defendants’ motion for summary judgment for failure to exhaust, (ECF No. 26), is 11 DENIED; 12 2. The stay of discovery is LIFTED; 13 3. The deadline for the completion of all merits-based discovery, including filing all motions 14 to compel discovery, shall be December 8, 2023. Absent good cause, discovery motions 15 will not be considered if filed after the discovery deadline. Therefore, discovery requests 16 and deposition notices must be served sufficiently in advance of the discovery deadline to 17 permit time for a response and time to prepare and file a motion to compel; 18 4. The deadline for filing all dispositive motions (other than a motion for summary judgment 19 for failure to exhaust) shall be February 9, 2024; and 20 5. Any request for an extension of these deadlines must be filed on or before the expiration 21 of the deadline. However, the parties are advised that an extension of time will only be 22 granted upon a clear showing of good cause. 23 IT IS SO ORDERED. 24 25 Dated: September 6, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28