(PC) Robertson v. Krause ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WAYNE JEROME ROBERTSON, No. 2:17-cv-01426 WBS DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 T. KRAUSE, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff claims defendant T. Krause was deliberately indifferent to plaintiff’s medical 19 needs in violation of his Eighth Amendment rights. Currently pending before the court is 20 defendant’s motion for summary judgment for plaintiff’s failure to exhaust his available 21 administrative remedies. (ECF No. 48.) Plaintiff filed an opposition to that motion (ECF No. 49) 22 and defendant filed a reply (ECF No. 50). Plaintiff subsequently filed a sur-reply. (ECF No. 51.) 23 For the reasons stated below, the undersigned will recommend that defendant’s motion for 24 summary judgment (ECF No. 48) be granted. 25 //// 26 //// 27 //// 28 //// 1 BACKGROUND 2 I. Procedural History 3 This action proceeds on plaintiff’s First Amended Complaint (“FAC”) filed November 18, 4 2019. (ECF No. 23.) On December 3, 2020, the court screened plaintiff’s FAC and found that it 5 stated a cognizable Eighth Amendment deliberate indifference claim against defendant T. Krause. 6 (ECF No. 25.) The court found the FAC did not contain any other cognizable claims against 7 defendant Krause or any other defendant. (Id.) Following waiver of service by defendant, this 8 action was referred to the court’s Alternative Dispute Resolution program for a settlement 9 conference. (ECF No. 35.) The case did not settle. (See ECF No. 41.) On October 1, 2021, 10 defendant filed answer. (ECF No. 43.) The court issued a discovery scheduling order on October 11 5, 2021. (ECF No. 47.) 12 Defendant has since filed the present motion for summary judgment. (ECF No. 58.) 13 Plaintiff filed opposition to that motion (ECF No. 49) and defendant filed a reply to plaintiff’s 14 opposition (ECF No. 50). Plaintiff submitted an additional, unauthorized sur-reply. (ECF No. 15 51.) 16 II. Allegations in the Complaint 17 In the FAC, plaintiff alleges the following: At all times relevant to the complaint, plaintiff 18 was housed at High Desert State Prison (“HDSP”). (ECF No. 23 at 1.) On January 30, 2016, 19 defendant deployed an expulsion grenade next to plaintiff’s cell door. (Id. at 3.) Plaintiff was 20 “exposed to a chemical agent from head to foot” and removed from his cell to be taken to 21 medical. (Id.) “Plaintiff was not given a shower until 4 or 5 hours later, was not allowed to 22 decontaminate, nor given clean linens for five days.” (Id.) Plaintiff asked defendant for a 23 shower, decontamination of his cell, and clean linens but defendant denied the request stating, “I 24 have to complete my report of the incident of January 30, 2016.” (Id.) 25 Plaintiff claims that as a result of defendant denying his request, he was unable to 26 decontaminate his cell and “continued to burn for five days….” (Id. at 4.) Plaintiff argues that 27 defendant’s denial amounts to deliberate indifference to plaintiff’s serious medical needs in 28 violation of his Eighth Amendment rights. (Id.) 1 MOTION FOR SUMMARY JUDGMENT 2 Defendant argues that their motion for summary judgment should be granted because 3 plaintiff failed to exhaust administrative remedies for plaintiff’s claim. (ECF No. 48 at 4.) 4 Defendant contends that, while plaintiff did submit a grievance following the January 30, 2016 5 incident, plaintiff did not complain that defendant denied him decontamination in that grievance 6 and subsequent appeals. (Id.) Defendant argues that, as plaintiff failed to raise this issue at each 7 level of review, plaintiff failed to satisfy the exhaustion requirements of the Prison Litigation 8 Reform Act (“PLRA”). (Id.) 9 In his opposition, plaintiff argues that he complied with the PLRA by exhausting 10 administrative remedies at all levels and raising concerns at all levels “that defendant T. Krause 11 failed to comply with CDCR policy pretaining [sic] to decontamination procedure….” (ECF No. 12 49 at 1.) As evidence of exhaustion, plaintiff largely focuses on CDCR’s determination, in 13 response to plaintiff’s grievances and appeals, that defendant did not violate institutional policy. 14 (See Id. at 3, 6.) 15 Defendant filed a reply in which he reiterates that plaintiff’s grievance and appeals do not 16 contain a factual allegation that plaintiff was refused decontamination or defendant Krause’s 17 involvement with plaintiff’s lack of decontamination. (ECF No. 50 at 3.) Defendant also argues 18 that plaintiff’s references to violation of California Department of Corrections and Rehabilitation 19 (“CDCR”) policy do not refer to defendant’s duty to provide decontamination and fails to put the 20 prison on notice. (Id.) 21 Finally, plaintiff submitted a sur-reply in response to defendant’s reply.1 (ECF No. 51.) 22 In the sur-reply, plaintiff restates many of the same points raised in his opposition. He reaffirms 23 that he believes he exhausted administrative remedies by informing the prison “that defendant as 24 well as the prison failed to follow institutional and CDCR policy.” (Id. at 2.) 25 1 The Local Rules and the Federal Rules of Civil Procedure do not permit parties to file a sur- 26 reply without first obtaining leave of the court to do so. See L.R. 230; Fed. R. Civ. P. 27. 27 Plaintiff did not receive permission from the court to file a sur-reply in response to defendant’s reply. However, in light of plaintiff’s pro-se status, the court has reviewed and considered 28 plaintiff’s sur-reply. 1 I. Legal Standard - Exhaustion 2 A. Prison Litigation Reform Act 3 Because plaintiff is a prisoner challenging the conditions of his confinement, his claims 4 are subject to the PLRA, 42 U.S.C. § 1997e(a). The PLRA mandates that “[n]o action shall be 5 brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a 6 prisoner confined in any jail, prison, or other correctional facility until such administrative 7 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement 8 “applies to all inmate suits about prison life, whether they involve general circumstances or 9 particular episodes, and whether they allege excessive force or some other wrong.” Porter v. 10 Nussle, 534 U.S. 516, 532 (2002). 11 Regardless of the relief sought, a prisoner must pursue an appeal through all levels of a 12 prison’s grievance process as long as some remedy remains available. “The obligation to exhaust 13 ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no longer 14 the case, then there are no ‘remedies . . . available,’ and the prisoner need not further pursue the 15 grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis and alteration in 16 original) (citing Booth v. Churner, 532 U.S. 731, 736 (2001)). 17 “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of 18 administrative remedies: An inmate . . . must exhaust available remedies, but need not exhaust 19 unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (brackets in original). In 20 discussing availability in Ross the Supreme Court identified three circumstances in which 21 administrative remedies were unavailable: (1) where an administrative remedy “operates as a 22 simple dead end” in which officers are “unable or consistently unwilling to provide any relief to 23 aggrieved inmates;” (2) where an administrative scheme is “incapable of use” because “no 24 ordinary prisoner can discern or navigate it;” and (3) where “prison administrators thwart inmates 25 from taking advantage of a grievance process through machination, misrepresentation, or 26 intimidation.” Id. at 1859-60. “[A]side from [the unavailability] exception, the PLRA’s text 27 suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special 28 //// 1 circumstances.’” Id. at 1856. “[M]andatory exhaustion statutes like the PLRA establish 2 mandatory exhaustion regimes, foreclosing judicial discretion.” Id. at 1857. 3 “[F]ailure to exhaust is an affirmative defense under the PLRA.” Jones v. Bock, 549 U.S. 4 199, 216 (2007). It is the defendant’s burden “to prove that there was an available administrative 5 remedy.” Albino, 747 F.3d at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th 6 Cir. 1996)). The burden then “shifts to the prisoner to come forward with evidence showing that 7 there is something in his particular case that made the existing and generally available 8 administrative remedies unavailable to him.” Id. 9 A prisoner is required to exhaust administrative remedies before filing suit. McKinney v. 10 Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curium). Section 1997e(a) mandates that “[n]o 11 action shall be brought . . . until [the prisoner’s] administrative remedies . . . are exhausted. 42 12 U.S.C. § 1997e(a). “The ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint under § 13 1983 may be entertained.” Booth, 532 U.S. at 738. “Exhaustion subsequent to the filing of suit 14 will not suffice.” McKinney, 311 F.3d at 1199. 15 B. California Regulations Governing Exhaustion of Administrative Remedies 16 “The California prison system’s requirements ‘define the boundaries of proper 17 exhaustion.’” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Jones, 549 U.S. 18 at 218). In order to exhaust, the prisoner is required to complete the administrative review 19 process in accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 90 20 (2006). In 2016, the time relevant for exhaustion purposes, California regulations allowed a 21 prisoner to “appeal” any action or inaction by prison staff that has “a material adverse effect upon 22 his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a) (2016).2 The appeal 23 process was initiated by the inmate’s filing a “Form 602” the “Inmate/Parolee Appeal Form,” “to 24 describe the specific issue under appeal and the relief requested.” Id. § 3084.2(a). At the time of 25 plaintiff’s grievances, “[t]he California prison grievance system ha[d] three levels of review: an 26 inmate exhaust[ed] administrative remedies by obtaining a decision at each level.” Reyes v. 27 2 All citations to the California Code of Regulations refer to the 2016 version of the code as that is 28 the portion relevant to this action. 1 Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b); Harvey v. 2 Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). 3 II. Discussion 4 It is uncontested that plaintiff filed a grievance in connection with the January 30, 2016 5 incident and that he filed two subsequent inmate appeals. (ECF No. 48 at 1-2; ECF No. 49 at 6- 6 7.) Both parties include as exhibits plaintiff’s initial grievance as well as his requests for first 7 level and second level appeal responses. (ECF No. 48-2 at 9-12, 26-27; ECF No. 49 at 9-11.) 8 Both parties also provide as exhibits the first, second, and third level responses that were given to 9 plaintiff. (ECF No. 48-2 at 18-25; ECF No. 49 at 16-19.) 10 A. Initial Grievance 11 In reviewing plaintiff’s initial grievance, it appears clear it did not provide sufficient 12 notice of plaintiff’s claims. The grievance raised a number of concerns regarding the January 30, 13 2016 incident. (See ECF No. 48-2 at 9, 11; ECF No. 49 at 9-10.) These do include complaints 14 about the lack of decontamination showers and the fact that prisoners should “be allowed to 15 decontaminate before being placed inside the program office holding cages.” (ECF No. 48-2 at 16 11; ECF No. 49 at 10.) Plaintiff also requests an investigation into “why this prison is not in 17 compliance with…CDCR policy concerning decontamination.” (Id.) However, plaintiff fails to 18 describe any actions taken by defendant Krause in failing to provide decontamination to plaintiff. 19 Instead, plaintiff’s complaints about defendant Krause focus on the original usage of the 20 expulsion grenade. 21 In order to fully exhaust administrative remedies an appeal must put prison officials on 22 notice of the claim. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (“A grievance suffices 23 to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner 24 seeks redress.”). The regulations in place at the time required the inmate to “describe [the staff 25 member’s] involvement in the issue.” Cal. Code Regs. tit. 15, § 3084.2(a)(3). Viewed in the 26 light most favorable to the plaintiff, his initial grievance does not provide any description of 27 defendant Krause’s involvement in the denial of decontamination to plaintiff. The complaints 28 raised in the grievance instead focus almost entirely on the prison’s policies and procedures on 1 decontamination. At no point does plaintiff connect any action by defendant Krause to a denial of 2 plaintiff’s ability clean himself and his cell. (ECF No. 48-2 at 11; ECF No. 49 at 10.) In fact, 3 plaintiff does not appear to even address that plaintiff was allegedly denied access to a shower or 4 cleaning supplies/linens at all. (See ECF No. 48-2 at 9, 11; ECF No. 49 at 9-10.) Plaintiff’s 5 broad claims regarding prison policy, as well as the prison eventually finding that defendant 6 Krause did not violate CDCR policy, as not sufficient to provide the prison with enough 7 information to put prison officials on even broad notice about plaintiff’s claim. Sapp, 623 F.3d at 8 824. 9 Given the above, plaintiff’s grievance would not put the prison on notice that the wrong 10 that plaintiff sought to address was defendant Krause’s refusing plaintiff’s request to 11 decontaminate himself and his cell. As such, this grievance is insufficient to exhaust his claim. 12 Sapp, 623 F.3d at 824. 13 B. Second and Third Level Appeals 14 Even if plaintiff’s initial grievance was sufficient, plaintiff’s subsequent appeals fail to 15 completely exhaust plaintiff’s administrative options as to this claim. To properly exhaust this 16 deliberate indifference claim, plaintiff must have submitted an inmate appeal regarding this claim 17 and obtained a third level decision prior to July 6, 2017, the date he filed this action. Woodford, 18 548 U.S. at 85-86; McKinney, 311 F.3d at 1199–1201. Administrative remedies that are not 19 exhausted at all three levels of review may not be considered appropriately exhausted. Cal. Code 20 Regs. tit. 15, §§ 3084.1(b) (“Administrative remedies shall not be considered exhausted relative 21 to any new issue . . . later named by the appellant that was not included in the originally 22 submitted CDCR Form 602 . . . and addressed through all required levels of administrative review 23 up to an including the third level.”). See also Brazier v. Beard, 1:13-cv-00787-LJO-BMK, 2017 24 WL 202036, *3 (E.D. Cal. Jan. 17, 2017) (plaintiff did not raise claim until third level of review 25 and therefore the court recommended dismissal). So, while “[a]n [administrative] appeal need not 26 lay out the facts, articulate legal theories, or demand particular relief[,]” Schultz v. Cal. Dept. of 27 Corr., No. 1:11–cv–00988–LJO–MJS, 2013 WL 5883677, *2 (E.D. Cal. Oct. 30, 2013), all issues 28 still must be raised at all levels of review in order to be considered exhausted by the courts. 1 Here, plaintiff’s second and third level appeals fail to raise plaintiff’s claim regarding 2 plaintiff’s refusal to permit plaintiff to decontaminate himself and his cell. In its entirety, 3 plaintiff’s request for a second level review states: 4 I am dissatisfied with first level response. This prisoner stated this prisoner states that T. Krause, correctional officer was deliberate 5 indifference disregard to human live. [sic] Not negligently and institutional policy of the department was violated [sic] as well as 6 many violation [sic] of the Coleman decision in which this prison fail to uphold. I was not involved in the incident. I was lock in my 7 assigned cell. No way I should have been exposed to (OC). Someone have to be held accountable for their action! 8 9 (ECF No. 48-2 at 10; ECF No. 49 at 11.) Plaintiff’s request for third level of review states the 10 following: 11 I am dissatisfied with second level response. I request a third level decision. I have been subject to cruel and unusual punishment by 12 way of chemical agents. I was not in the day room. However, I was locked behind a cell door. No way I should have been exposed to 13 any type of chemicals. I request two hundred thousand dollars for my rights being violated. 14 15 (ECF No. 48-2 at 25; ECF No. 49 at 11.) 16 Plaintiff does not raise or even reference the issue of decontamination in either request. 17 Instead, plaintiff’s appeals focus on the usage of the expulsion grenade. Even if plaintiff’s initial 18 grievance was sufficient, he failed to address his present claim at the second and third level of 19 appeal. As such, plaintiff has failed to exhaust as he was required to present his claim at all levels 20 of administrative review. See Schultz, 2013 WL 5883677, *2. 21 C. Exhaustion of Plaintiff’s Claims 22 As stated above, plaintiff failed to exhaust his claims at all levels. His initial grievance 23 did not provide the prison with any indication that defendant Krause was involved in plaintiff’s 24 inability to decontaminate. Further, his second and third level appeals fail to raise his claims 25 regarding decontamination at all. Though plaintiff argues that his claims should be considered 26 exhausted because he stated in his grievance and appeals that prison policy was violated (See 27 ECF No. 49 at 1, 3, 6), these broad statements are simply not sufficient to satisfy the exhaustion 28 //// 1 | requirements plaintiff was under. See Cal. Code Regs. tit. 15, $ 3084.2(a). Accordingly, it will 2 | be recommended that defendant’s motion for summary judgment be granted. 3 CONCLUSION 4 For the reasons set forth above, IT IS HEREBY RECOMMENDED that defendant’s 5 | motion for summary judgment (ECF No. 48) be granted. 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days 8 | after being served with these findings and recommendations, any party may file written 9 | objections with the court and serve a copy on all parties. Such a document should be captioned 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 | objections shall be served and filed within fourteen days after service of the objections. The 12 | parties are advised that failure to file objections within the specified time may waive the right to 13 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 || Dated: November 22, 2022 15 16 U7 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 21 DB/DB Prisoner Inbox/Civil Rights/R/robe1426.msj.fr 23 24 25 26 27 28