(PC) Rogers v. Warden ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PHILIP JAMES ROGERS, Case No. 1:18-cv-00846-JLT-BAK (HBK) (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT RODRIGUEZ’S 13 v. MOTION FOR SUMMARY JUDGMENT 14 YURIDIAN RODRIGUEZ, (EXHAUSTION) AND TO DISMISS ACTION 15 Defendant. (Doc. No. 61) 16 FOURTEEN (14) DAY DEADLINE 17 18 19 Plaintiff Paul Nivard Beaton, a state prisoner proceeding pro se and in forma pauperis, 20 filed this civil rights action under 42 U.S.C. § 1983. (Doc. No. 1.) This action proceeds on an 21 Eighth Amendment deliberate indifference claim against Defendant Yuridian Rodriguez 22 (“Defendant Rodriguez” or “Defendant”), a cook at Kern Valley State Prison.1 (Doc. Nos. 19, 23 43.) 24 On August 4, 2021, Defendant Rodriguez filed a motion for summary judgment based on 25 a failure to exhaust administrative remedies. (Doc. No. 61.) Plaintiff filed a response in 26 opposition, to which Defendant filed reply. (Doc. Nos. 67, 68.) For the reasons set forth below, 27 28 1 The parties refer to this defendant as “Correctional Officer Rodriguez” or “Defendant Rodriguez.” The Court 2 favor. 3 I. FACTS 4 A. Plaintiff’s Factual Allegations 5 On June 22, 2017, Plaintiff was working in the kitchen when his supervisor, Defendant 6 Rodriguez, directed him to stack boxes of ice in the walk-in freezer. Plaintiff explained that the 7 freezer had frozen water on the floor, and walking in there without rubber boots was dangerous, 8 particularly while carrying heavy boxes of ice. Defendant directed Plaintiff to take the boxes 9 into the freezer or else he would write up Plaintiff for not following a direct order. Plaintiff 10 further explained to Rodriguez that a few other inmates had fallen hard trying to walk on that 11 floor, and Plaintiff requested the proper boots. When Defendant asked why Plaintiff did not have 12 them already, Plaintiff stated that Sergeant Bettencourt2 refused to get them even after someone 13 fell on the freezer floor two days earlier. Defendant stated that she did not have time to get the 14 boots, and again threatened Plaintiff with a write-up if he did not comply with her order. 15 Plaintiff then approached Sgt. Bettencourt to get proper boots to work in the freezer, but 16 Bettencourt refused to get any boots and simply told plaintiff to be careful. 17 Not wanting to be written-up, Plaintiff walked into the freezer without boots and began 18 loading the ice into the freezer. He was almost finished, and as he was walking to the freezer 19 door, he lost his footing on the ice and fell hard onto his head and back. Defendant had been 20 standing at the freezer door and saw Plaintiff fall. Defendant immediately called for medical 21 assistance, and medical staff took Plaintiff to the clinic. 22 Plaintiff states that he was in excruciating pain from back and head injuries. X-rays 23 indicated no broken bones. However, the impact of the fall rendered Plaintiff unable to walk or 24 stand. Plaintiff was issued a wheelchair, which he used for four months, and he has used a cane 25 since then. Plaintiff asserts that he has suffered permanent nerve damage that limits his mobility 26 and causes back pain and migraine headaches. 27 28 2 Sgt. Bettencourt was named as Rodriguez’s co-defendant in Plaintiff’s first amended complaint. On March 8, 2021, 2 Plaintiff submitted two inmate grievances and one CDCR 22 form related to his June 22, 3 2017, fall in the freezer. On June 29, 2017, Plaintiff filed a non-health care inmate grievance, 4 Log No. KVSP-0-17-02006, stating that he fell in the kitchen freezer due to a small layer of ice 5 build-up on the freezer floor. (Doc. No. 67 at 12–13.) Plaintiff further stated that Defendant 6 Rodriguez witnessed the fall, asked Plaintiff how he was, and notified her supervisor. As relief, 7 Plaintiff sought a sign that would warn of icy floors and a daily inspection of the freezer by staff. 8 Several sentences in Log No. KVSP-0-17-02006 were stricken by hand, apparently 9 because of instructions within the screening responses. For example, Plaintiff was instructed to 10 remove any reference related to medical care from his form 602 and instead file a form 602-HC 11 to appeal the adequacy of his medical treatment. Plaintiff also sought monetary compensation, 12 but this portion of the grievance is also crossed out, presumably because Plaintiff was repeatedly 13 informed that compensation is beyond the scope of the appeals process. (Id. at 12, 15.) 14 On July 10, 2017, Plaintiff’s grievance was screened and rejected at the first level of 15 review. (Id.) Plaintiff was informed that he needed to submit a CDCR Form 22 directly to 16 Central Operations (Central Kitchen). He was also informed that any requests related to medical 17 treatment must be made on a 602-HC form and submitted to Health Care Appeals. Lastly, he 18 was told that compensation is beyond the scope of the appeals process. (Id. at 15.) 19 On July 13, 2017, Plaintiff submitted a CDCR 22 form stating, “I slipped on ice built up 20 in central kitchen.” (Doc. No. 61-2 at 24.) He requested a “Slippery when icy &/or wet” sign on 21 the freezer door, daily inspections, medical treatment, and compensation for his injuries. In a 22 July 21, 2017, response, Plaintiff was informed that a slippery floor sign had been ordered. (Id.) 23 After he submitted his CDCR 22 form, Plaintiff responded to the July 10, 2017, screening order 24 stating that he had informed Central Kitchen with a form 22, which he attached to his appeal. 25 (Doc. No. 67 at 15.) 26 On July 27, 2017, Plaintiff’s grievance, Log No. KVSP-0-17-02006, was again screened 27 at the first level of review. (Doc. No. 67 at 17.) The screening determination, on a CDCR 695 28 form, stated that the appeal was rejected because it was not submitted on departmentally 2 the request for compensation in the form of medical treatment; request medical treatment on a 3 form 602-HC; and continue use the form 22 process, accurately complete section C, and forward 4 to Central Operations (Central Kitchen). The determination again informed Plaintiff that 5 compensation is beyond the scope of the appeals process. 6 Plaintiff responded to the screening determination by stating, “Your CDCR 695 form is 7 indicisive [sic] on the actions your [sic] telling me to take. I completed the request process, as 8 recommended. Now I’m being informed to do other [things] . . . .” (Id.) 9 On August 9, 2017, Plaintiff’s grievance, Log No. KVSP-0-17-02006, was again 10 screened and rejected at the first level of review. (Id. at 19.) The screening determination 11 informed Plaintiff that he again failed to submit his appeal on the departmentally approved 12 appeal forms; advised that requests relating to medical treatment needed to be submitted on a 13 form 7362 or 602-HC; and advised Plaintiff that he must remove his request for compensation. 14 Finally, Plaintiff was cautioned that failure to follow instructions may result in a canceled appeal. 15 Plaintiff responded, “I corrected all error[s] and filed a medical 602-HC upon your request.” 16 (Id.) 17 On August 15, 2017, Plaintiff submitted a health care inmate grievance on a 602-HC 18 form, assigned Log No. KVSP-HC-17038725, writing, “I fell in Central Kitchen, due to ice built 19 up on freezer floor, I was sent to CTC for x-rays, they found no broken bones but said something 20 about my back. I only received a[n] ice pack and no treatment.” (Id. at 21.) Plaintiff requested a 21 sign warning of icy floors, daily inspections, medical treatment, and damages. Plaintiff’s 602- 22 HC was granted at the first level of review. (Id.) 23 On August 22, 2017, Plaintiff’s non-health care grievance, Log No. KVSP-0-17-02006, 24 was again screened at the first level of review: “Sir your issue is being addressed by central 25 kitchen based on the response from the CDCR 22 form. Explain how the issue continues to be 26 an adverse effect.” (Id. at 23.) 27 On June 15, 2018, Plaintiff initiated this action by filing a civil rights complaint in the 28 United States District Court for the Central District of California. (Doc. No. 1.) On June 18, 2 and found no cognizable claims. (Doc. No. 10.) In response, Plaintiff filed a first amended 3 complaint against Defendants Bettencourt and Rodriguez alleging deliberate indifference in 4 violation of the Eighth Amendment. (Doc. No. 13.) 5 On December 14, 2020, Defendant Bettencourt filed a motion for summary judgment 6 based on Plaintiff’s failure to exhaust administrative remedies. (Doc. No. 36.) Plaintiff filed a 7 response in opposition and a cross-motion for summary judgment. (Doc. No. 39.) On March 8, 8 2021, the Court granted Defendant Bettencourt’s motion for summary judgment and denied 9 Plaintiff’s motion for summary judgment. (Doc. No. 47.) In accordance with the order, 10 judgment was entered in favor of Defendant Bettencourt, leaving only the deliberate indifference 11 claim against Defendant Rodriguez. (See Doc. No. 48.) 12 Defendant Rodriguez filed the instant motion for summary judgment on August 4, 2021. 13 (Doc. No. 61.) Plaintiff filed a response in opposition, to which Defendant filed a reply. (Doc. 14 Nos. 67, 68.) 15 II. LEGAL STANDARDS 16 A. Summary Judgment 17 Summary judgment is appropriate when the moving party “shows that there is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 19 Civ. P. 56(a). The moving party bears the initial burden of proving the absence of a genuine 20 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party 21 may accomplish this by presenting evidence that negates an essential element of the non-moving 22 party’s case. Id. Alternatively, the movant can demonstrate that the non-moving party cannot 23 produce evidence to support an essential element of his claim that must be proven at trial. Id.; 24 Fed. R. Civ. P. 56(c)(1)(B). “[A] complete failure of proof concerning an essential element of 25 the non-moving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 26 322–23. 27 If the moving party meets this initial showing, the burden shifts to the non-moving party 28 to establish “specific facts showing a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 2 conclusory allegations in an affidavit. Lujan v. Nat’1 Wildlife Fed’n, 497 U.S. 871, 888 (1990); 3 see also Celotex, 477 U.S. at 324. “Where the record taken as a whole could not lead a rational 4 trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita 5 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, when deciding a 6 motion for summary judgment, the court must view any inferences drawn from the underlying 7 facts in a light most favorable to the non-moving party. Id. 8 The Ninth Circuit has “held consistently that courts should construe liberally motion 9 papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules 10 strictly.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (quoting Thomas v. Ponder, 611 11 F.3d 1144, 1150 (9th Cir. 2010)). While prisoners are relieved from strict compliance, they still 12 must “identify or submit some competent evidence” to support their claims. Soto, 882 F.3d at 13 872. Plaintiff’s verified complaint may serve as an affidavit in opposition to summary judgment 14 if based on personal knowledge and specific facts admissible in evidence. Lopez v. Smith, 203 15 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). 16 B. Exhaustion of Administrative Remedies 17 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 18 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 19 prisoner confined in any jail, prison, or other correctional facility until such administrative 20 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative 21 remedies is mandatory, and “unexhausted claims cannot be brought in court.” Jones v. Bock, 22 549 U.S. 199, 211 (2007); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). “The level 23 of detail necessary in a grievance to comply with the grievance procedures will vary from system 24 to system . . . , but it is the prison’s requirements, and not the PLRA, that define the boundaries 25 of proper exhaustion.” Id. The exhaustion requirement allows prison officials to have an 26 opportunity to resolve disputes before the filing of a court action against them. Jones, 549 U.S. 27 at 204. The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 28 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 2 exhaust all available remedies: ‘Exhaustion is no longer left to the discretion of the district 3 court.’” Fordley v. Lizarraga, 18 F.4th 344, 367 (9th Cir. 2021) (quoting Woodford v. Ngo, 548 4 U.S. 81, 85 (2006)). 5 The PLRA requires “proper exhaustion,” which means that “the prisoner must complete 6 the administrative review process in accordance with the applicable procedural rules, including 7 deadlines, as a precondition to bringing suit in federal court.” Woodford, 548 U.S. at 88, 93. 8 The rules that must be followed, in other words, “are defined not by the PLRA, but by the prison 9 grievance process itself.” Jones, 549 U.S. at 218. 10 The amount of detail in an administrative grievance necessary to properly exhaust a claim 11 is determined by the prison’s applicable grievance procedures. Id. at 218; Ngo, 548 U.S. at 90. 12 California prisoners are required to lodge their administrative complaint on a CDCR 602 form 13 for non-health care matters or a CDCR 602-HC form for a health care matter. The level of 14 specificity required in the appeal is described by regulation: 15 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, 16 the inmate or parolee shall include the staff member's last name, first initial, title 17 or position, if known, and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying 18 information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable 19 attempt to identify the staff member(s) in question. . . . The inmate or parolee 20 shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if 21 needed, the Inmate/Parolee Appeal Form Attachment. 22 Cal. Code Regs. tit. 15, § 3084.2(a)(3)–(4) (emphasis added); see also Sapp, 623 F.3d at 824 23 (“To provide adequate notice, the prisoner need only provide the level of detail required by the 24 prison’s regulations”). 25 The failure to exhaust administrative remedies is an affirmative defense that the 26 defendant must plead and prove. Id. at 204, 216. The defendant bears the burden of producing 27 evidence that proves a failure to exhaust; summary judgment is appropriate only if the 28 undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff failed 2 judgment, the defendant bears the initial burden of proving (1) the existence of an available 3 administrative remedy, and (2) the plaintiff failed to exhaust that remedy. Id. at 1172. If the 4 defendant makes this showing, the burden shifts to the prisoner to present evidence showing 5 “that there is something in his particular case that made the existing and generally available 6 administrative remedies effectively unavailable to him.” Id. (citation omitted). A prisoner may 7 not file a complaint raising non-exhausted claims. Rhodes v. Robinson, 621 F.3d 1002, 1004 8 (9th Cir. 2010). 9 The ultimate burden of proof, however, remains with the defendant. Albino, 747 F.3d at 10 1172. “If a motion for summary judgment is denied, disputed factual questions relevant to 11 exhaustion should be decided by the judge.” Id. at 1170. If the court finds that remedies were 12 not available, the prisoner exhausted available remedies, or the failure to exhaust available 13 remedies should be excused, the case proceeds to the merits. Id. at 1131. 14 III. DISCUSSION 15 Plaintiff does not dispute that Defendant has met his initial burden of showing that an 16 available administrative remedy exists. The California Department of Corrections and 17 Rehabilitation (“CDCR”) has an administrative grievance system for prisoners to appeal a 18 policy, decision, action, condition, or omission by the department or staff having an adverse 19 effect on prisoner health, safety, or welfare. Cal. Code Regs. tit. 15, § 3084.1(a) (2017).3 20 Compliance with 42 U.S.C. § 1997e(a) requires California state prisoners to utilize CDCR’s 21 grievance process to exhaust their claims prior to filing a lawsuit in court. See Sapp v. Kimbrell, 22 623 F.3d 813, 818 (9th Cir. 2010); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) 23 (holding that exhaustion is a precondition to suit). At times relevant to Plaintiff’s complaint, 24 25 26 27 3 Effective June 1, 2020, the new rules are set out in Cal. Code Regs. tit. 15, §§ 3480–3486. For purposes of these 28 Findings and Recommendations, all citations refer to the version of the regulations effective at times relevant to 2 exhausted. Cal. Code Regs. tit. 15, § 3084.1(b) (2017); see also Sapp, 623 F.3d at 818.4 3 Next, Defendant must show that Plaintiff failed to exhaust the administrative remedies. 4 Defendant argues that the Plaintiff’s appeal failed to allege that the named Defendant had done 5 anything to contribute to the incident other than to witness the fall. Plaintiff also failed to submit 6 his grievance to the second or third levels of review. According to Defendant, because of 7 Plaintiff’s failure to comply with CDCR’s administrative process, he has failed to exhaust the 8 claims against Defendant. 9 In the CDCR 602 form at issue, Log No. KVSP-0-17-02006, Plaintiff alleges as 10 follows: 11 On 6/22/2017 I fell in the central kitchen freezer, due to a small layer of ice built up on the freezer floor, making the floor very slippery. . . . I slipped loosing [sic] 12 my footing and landing straight on my back. The floor was icy. The acting 13 supervisor at the time, not a regular, Ms. Rodriguez who was standing at the freezer door witness me slip and fall. She ask[ed] was I okay, I let her know I had pain in 14 my lower back and left arm. She notified her supervisor and I was tak[en] to CTC.5 15 (Doc. No. 67 at 12–13.) This is the only mention of Defendant in Plaintiff’s inmate appeal. This 16 description of events indicates that Defendant’s only role in Plaintiff’s fall was to witness it and 17 call for assistance. The appeal contains no allegations that support Plaintiff’s claim of deliberate 18 indifference to Plaintiff’s health by Defendant.6 Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 19 2016) (“The primary purpose of a grievance is to alert the prison to a problem and facilitate its 20 resolution, not to lay the groundwork for litigation or provide personal notice to a particular 21 official that he may be sued”); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). 22 Moreover, Plaintiff did not submit Log No. KVSP-0-17-02006 for second or third level review. 23 24 4 Effective September 1, 2017, the CDCR adopted a two-level review procedure for healthcare grievances. See id. §§ 25 3084.1(a), 3999.225–.237. A health care grievance would undergo an institutional level of review and an appeal to a headquarters level of review that exhausts the appeal. Id. 26 5 CTC stands for “Correctional Treatment Center.” 27 6 On August 15, 2017, Plaintiff filed a CDCR 602-HC, Log No. 17038725, concerning the fall. In this appeal, 28 Plaintiff alleged, “I fell in Central Kitchen, due to ice built up on freezer floor. I was sent to CTC for x-rays . . . .” 2 Plaintiff, the Court finds that Defendant has met his burden of showing that Plaintiff failed to 3 exhaust administrative remedies prior to filing suit. Upon this showing, the burden shifts to the 4 prisoner to present evidence showing “that there is something in his particular case that made the 5 existing and generally available administrative remedies effectively unavailable to him.” Albino, 6 747 F.3d at 1172. “The obligation to exhaust ‘available’ remedies persists as long as some 7 remedy remains ‘available.’” Cortinas v. Portillo, 754 F. App’x 525, 527 (9th Cir. 2018) 8 (quoting Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005)). 9 Plaintiff argues that the administrative process was made unavailable by prison officials. 10 Plaintiff contends that “prison official[s] placed unreasonable restrictions and limits on what the 11 plaintiff could state in his inmate appeal. Directed him to seek other forms of redress which 12 were fully granted.” (Doc. No. 67 at 2.) Plaintiff argues further that prison officials repeatedly 13 rejected his appeal without cause; he filed a health care appeal as instructed, and the appeal was 14 fully granted; he filed a form 22 as instructed, and the issue was addressed by central kitchen. 15 Plaintiff’s appeals and the prison’s responses, however, demonstrate that remedies 16 remained available. Plaintiff utilized a 602 form to appeal his slip and fall Log No. KVSP-0-17- 17 02006. As instructed in the screening orders, he filed a 22 form and 602-HC to appeal his 18 medical treatment; these were each granted to the extent that the prison officials ordered a 19 “slippery floor” sign. (Id. at 23, 25.) The screening responses clearly indicated the reasons why 20 his appeal was rejected and how Plaintiff could cure the deficiencies. Rather than placing 21 unreasonable restrictions and limits on Plaintiff’s appeal, the screeners were following 22 institutional procedures and informing Plaintiff of those procedures. Under these circumstances, 23 Plaintiff has not met his burden to show that the administrative remedies were unavailable to 24 him. 25 Thus, Plaintiff failed to exhaust his remedies in two ways: (1) he failed to appeal Log No. 26 KVSP-0-17-02006 to the second and third levels of review; and (2) his grievance only mentioned 27 Defendant as a witness who called for assistance but did not allege facts that would support a 28 claim of deliberate indifference. Defendant has met her burden to show that Plaintiff failed to 1 | exhaust his remedies before filing this action. Because the facts regarding exhaustion are 2 | undisputed and Defendant is entitled to judgment as a matter of law under the PLRA, summary 3 | judgment in Defendant’s favor is appropriate. 4 For the foregoing reasons, it is RECOMMENDED: 5 1. The Court GRANT Defendant Rodriguez’s motion for summary judgment 6 (exhaustion) (Doc. No. 61); and 7 2. Direct the Clerk of Court to enter judgment in Defendant’s favor and to close the 8 case. 9 NOTICE TO PARTIES 10 These findings and recommendations will be submitted to the United States district judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 12 || days after being served with these findings and recommendations, a party may file written 13 | objections with the Court. The document should be captioned, “Objections to Magistrate 14 || Judge’s Findings and Recommendations.” Parties are advised that failure to file objections 15 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 16 | F.3d 834, 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 17 1991)). 18 19 99 | Dated: _March 18, 2022 _ slaw Nh foares Zack HELENA M. BARCH-KUCHTA 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 11