Boone v. Gomez ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VELTON LAMONT BOONE, Case No. 21-cv-08160-JSW 8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. SUMMARY JUDGMENT 10 RAMIRO GOMEZ, et al., Re: Dkt. No. 32 Defendants. 11 12 INTRODUCTION 13 Plaintiff is a California prisoner proceeding pro se. He filed this civil rights action under 14 42 U.S.C. § 1983 against six officials at California Training Facility (“CTF”). He has voluntarily 15 dismissed his claims against one of them, D. Mulhern. The remaining Defendants have filed a 16 motion for summary judgment. Plaintiff filed an opposition, and Defendants filed a reply brief. 17 For the reasons discussed below, Defendants’ motion is GRANTED. 18 BACKGROUND 19 Plaintiff was at relevant times a prisoner at CTF. In September 2019, he obtained a job at 20 CTF in a furniture factory overseen by the California Prison Industries Authority (“CALPIA”), 21 which is a subdivision of the California Department of Corrections and Rehabilitation. Defendant 22 Flores was a correctional counselor at CTF, and Defendants Micheli, Blades, Deditius, and Gomez 23 worked for CALPIA. 24 Plaintiff had several medical conditions during the relevant time period: degenerative disc 25 disease which caused him to use chair with lumbar support, a knee replacement, which caused him 26 to walk with a cane, and arthritis in his shoulder, which limited him to lifting up to 19 pounds. In 27 September 2019, Plaintiff began working in a position taping drawers, which required him to lift 1 requirements of the position. Shortly after starting the job, he requested an adjustable chair for 2 lumbar support. He received it within five days. On November 6, 2019, Defendants Blades and 3 Micheli replaced the chair with a stationary chair. They state that they believed the adjustable 4 chair, which had wheels, would be unsafe for Plaintiff because of his mobility limitations. Plaintiff 5 requested the adjustable chair be returned to him because the stationary chair was too low. On 6 November 18, 2019, Defendants returned the adjustable chair. Plaintiff did not thereafter ask for a 7 different chair while working in that position. Shortly thereafter, Micheli and Blades also replaced 8 the chairs of other inmates; they deemed the chairs unsafe because they had factory defects. 9 In February and March 2020, Plaintiff also requested a lower work table. According to 10 Defendants, one was made available to Plaintiff, and he took it to his work station. Plaintiff was 11 not allowed to keep the lower table, however, because he created a safety hazard by placing the 12 table in front of a fire hose box --- against the instructions of his superiors. Plaintiff denies ever 13 having received a lower work-table. 14 On March 10, 2020, Blades gave Plaintiff a performance evaluation for the previous three 15 months stating that Plaintiff’s attitude towards staff, work quality and quantity, attendance, and 16 relationship with others were below average. The same day, Micheli reassigned Plaintiff to a 17 position in the tool room, a position that did not require lifting more than 19 pounds, the limit of 18 Plaintiff’s shoulder arthritis. The position gave him the same amount of pay, the same work 19 hours, and the same opportunities for advancement as his drawer taping position. Plaintiff did not 20 want to work in the tool room. Shortly thereafter, the factory was closed due to COVID 21 restrictions, and it reopened in October 2020. Plaintiff did not report to work, and consequently 22 Blades issued him a Rules Violation Report (“RVR”). Plaintiff disputes the validity of that RVR. 23 Following a hearing, the RVR was dismissed as a misunderstanding. 24 DISCUSSION 25 I. Standard of Review 26 Summary judgment is proper where the pleadings, discovery and affidavits show that there 27 is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a 1 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material fact is 2 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 3 party. 4 The moving party for summary judgment bears the initial burden of identifying those 5 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 6 issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving party 7 has met this burden of production, the nonmoving party must go beyond the pleadings and, by its 8 own affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. 9 If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, 10 the moving party wins. Ibid. 11 Exhaustion must ordinarily be decided in a summary judgment motion. Albino v. Baca, 12 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). If undisputed evidence viewed in the light most 13 favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment 14 under Rule 56. Id. 15 II. Analysis 16 Plaintiff claims that Defendants violated his rights under the Americans with Disability 17 Act (“ADA”) by not accommodating his disabilities for his position as a drawer-taper. He also 18 claims that they retaliated against him for requesting those accommodations by replacing 19 transferring him to the tool room, replacing the chairs of other inmates and thereby creating a 20 hostile work environment, giving him a poor performance evaluation, and issuing him a meritless 21 Rules Violation Report.1 22 1. Exhaustion 23 Defendants argue that Plaintiff has not administratively exhausted his claims. The Prison 24 Litigation Reform Act (“PLRA”) provides that "[n]o action shall be brought with respect to prison 25 conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, 26 27 1In his opposition, Plaintiff for the first time claims that the temporary replacement of his 1 prison, or other correctional facility until such administrative remedies as are available are 2 exhausted." 42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement is mandatory. 3 Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 739-40 & n.5 (2001). 4 The inmate must “properly” exhaust administrative remedies, moreover, to comply with the 5 PLRA, which means the inmate must comply with the state’s regulations and procedures 6 concerning its administrative appeals process before filing suit. Jones v. Bock, 549 U.S. 199, 218 7 (2007). 8 The California Department of Corrections and Rehabilitation (“CDCR”) provides its 9 inmates and parolees the right to appeal administratively “any policy, decision, action, condition, 10 or omission by the department or its staff that the inmate or parolee can demonstrate as having a 11 material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, 12 § 3084.1(a).2 It also provides its inmates the right to file administrative appeals alleging 13 misconduct by correctional officers. Id. The applicable California regulations allows an inmate to 14 submit a healthcare grievance to two levels of review, one at the institution and then an appeal to 15 the headquarters. 15 Cal. Code Regs. § 3999.226(a)(1). 16 Under California’s Code of Regulations, each issue that is appealed must be “addressed 17 through all required levels of review . . .” Cal. Code Regs. tit. 15, § 3084.1(b); see Sapp v. 18 Kimbrell, 623 F.3d 813, 818, 825 (9th Cir. 2010) (raising an issue for the first time at the second 19 level of appeal does not exhaust the issue.) The California Code of Regulations require an inmate 20 to “list all staff members involved” and to “describe their involvement in the issue.” Cal. Code 21 Regs. tit. 15, § 3084.2(a)(3)(2018). 22 It is undisputed that Plaintiff did not file any grievances during the relevant time period 23 that named Gomez or Deditius. It is also undisputed that Plaintiff did not name Flores in any 24 grievance related to his claims against her in this case. His only asserted grievance against her 25 (No. CTF-S-19-03456) concerned his request for chair with lumbar support. His claims against 26 2 The regulations regarding inmate health care appeals were renumbered, effective August 6, 2018. 27 Former California Code of Regulations Title 15, Sections 3087.1 through 3087.12 were 1 her in this case are that she “contributed” to the assertedly retaliatory removal of other inmates’ 2 chairs and issuance of an RVR against him; it is undisputed that filed no grievance asserting these 3 claims in which he named Flores. Consequently, there is no triable issue of fact as to whether 4 Plaintiff exhausted his administrative remedies on any of his claims against Gomez, Deditius, and 5 Flores. 6 It is also undisputed that Plaintiff did not file any grievances regarding three of the 7 instances of Defendants’ alleged retaliation. Of the 28 administrative complaints Plaintiff filed 8 during the relevant time period, four concerned the allegations in the complaint. Plaintiff does not 9 dispute the evidence that none of these complaints assert that Defendants retaliated against him by 10 replacing other inmates’ chairs, giving him a bad performance evaluation, or issuing him a false 11 Rules Violation Report. As there are no triable factual questions that, if resolved in Plaintiff’s 12 favor, would establish that he exhausted his administrative remedies on these three retaliation 13 claims, Defendants are entitled to summary judgment on those claims on exhaustion grounds. 14 Plaintiff’s assertion that other administrative appeals have not been granted does not 15 establish that the administrative remedies were not available to him or otherwise excuse him from 16 the exhaustion requirement. Exhaustion is mandatory and not left to the discretion of the district 17 court. Woodford, 548 U.S. at 84 (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). Courts 18 may not create their own “special circumstances” exceptions to the exhaustion requirement. Ross 19 v. Blake, 578 US. 632, 638 (2016). The undisputed evidence establishes the California 20 administrative appeal system was available to him, that he took advantage of it on many 21 occasions, and that he obtained accommodations when he submitted requests. There are no 22 grounds for excusing the PLRA’s exhaustion requirement in this case. 23 Defendants are entitled to summary judgment on exhaustion grounds on all of Plaintiff’s 24 claims against Defendants Deditius3, Gomez, and Flores, and his retaliation claims against 25 Defendants Blades and Micheli based upon Plaintiff’s performance review, his RVR, and the 26 replacement of other inmates’ chairs. The remaining claims are that Blades and Micheli violated 27 1 Plaintiff’s rights under the ADA by replacing his rolling chair with a stationary chair and failing to 2 provide him a lower work-table, and that they retaliated against him by transferring him to a new 3 position in the tool room. 4 Those claims are addressed below. 4 2. ADA 5 Plaintiff claims that Defendants violated his rights under the ADA by replacing his 6 rolling chair with a stationary chair and failing to provide him a lower work-table. Title II of the 7 ADA provides that “no qualified individual with a disability shall, by reason of such disability, be 8 excluded from participation in or be denied the benefits of the services, programs, or activities of a 9 public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The 10 elements of a cause of action under Title II are that: 11 1. the plaintiff is an individual with a disability; 2. the plaintiff is otherwise qualified to participate in or receive the benefit 12 of some public entity’s services, programs, or activities; 3. the plaintiff was either excluded from participation in or denied the 13 benefits of the public entity’s services, programs or activities, or was otherwise discriminated against by the public entity; and 14 4. such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability. 15 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). To avoid discrimination: 16 [a] public entity shall make reasonable modifications in policies, practices, 17 or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that 18 making the modifications would fundamentally alter the nature of the service, program, or activity. 19 28 C.F.R. § 35.130(b)(7). Moreover, monetary damages, which are the only form of relief 20 Plaintiff seeks, with a showing that Defendants acted with deliberate indifference to Plaintiff’s 21 need for accommodations. See Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). 22 Deliberate indifference requires: (1) knowledge that a harm to a federally protected right is 23 substantially likely, and (2) a failure to act upon that likelihood. Id. at 1139. 24 There are no triable factual issues that, if resolved in Plaintiff’s favor, show that 25 Defendants were deliberately indifferent to Plaintiff’s need for reasonable accommodations for a 26 27 4 In light of the conclusion that Blades and Micheli are entitled to summary judgment on these 1 prison job. The first prong is satisfied when the plaintiff identifies a specific, reasonable and 2 necessary accommodation that the entity has failed to provide, and the plaintiff notifies the public 3 entity of the need for accommodation, or the need is obvious even if no request is made or 4 required by statute or regulation. Id. The second prong is satisfied by showing that the entity 5 deliberately failed to fulfill its duty to act in response to a request for accommodation. Id. at 1139- 6 40. The entity’s duty is to undertake a fact-specific investigation to gather from the disabled 7 individual and qualified experts sufficient information to determine what constitutes a reasonable 8 accommodation, giving “primary consideration” the requests of the disabled individual. Id. The 9 second prong is not satisfied if the failure to fulfill this duty to accommodate is a result of mere 10 negligence, such as “bureaucratic slippage” or where the entity simply “overlooked” a duty to act. 11 Id. 12 The undisputed evidence shows no instance in which Defendants knew that Plaintiff did 13 not receive a reasonable accommodation to access the prison’s job program. Initially, he indicated 14 that he was physically capable of performing the job requirements of a drawer taper. When he 15 indicated that his back injury prevented from doing it because of the chair provided, Defendants 16 provided him a chair that could be adjusted for height within five days. Plaintiff argues that 17 Defendants violated the ADA because they thereafter replaced that adjustable chair with a chair 18 that was too low. The only evidence of Defendants’ state of mind in replacing his chair is their 19 evidence that they thought that the adjustable chair, which had wheels, could be unsafe for an 20 inmate with mobility concerns like Plaintiff. In addition, the evidence that Defendants returned 21 the adjustable chair to Plaintiff within days of his informing them that the replacement chair was 22 too low indicates that they intended that he would have a chair that accommodated his disabilities. 23 Similarly, the undisputed evidence that Defendants have allowed him to keep the adjustable chair, 24 including at his subsequent position in the tool room, also indicates that Defendants did not 25 knowingly deprive him of a chair that accommodated his disabilities. Plaintiff’s argument that 26 Defendants intended to deprive him of a suitable chair is purely speculative insofar as it is not 27 supported by any evidence of such intent. Speculation is not sufficient to create a triable factual 1 There is similarly no triable question as to whether Defendants’ failure to provide Plaintiff 2 a lower table in his drawer-taper position violated the ADA.5 Within a month of requesting the 3 lower table, Defendants transferred him to another position in which he would not have to lift 4 objects that were heavier than his arthritis allowed. The new position was a better accommodation 5 for Plaintiff’s disabilities than a lower table as a drawer-taper because even with a lower table, the 6 position required Plaintiff to lift objects that weighed as much as 25 pounds --- six pounds over the 7 19-pound limit indicated by his arthritic shoulder. It is undisputed that the new position did not 8 require him to lift more than 19 pounds. Plaintiff’s preference for the drawer-taper position over 9 the new position in the tool room does not mean the ADA required Defendants to ensure his 10 access to the drawer-taper position. Plaintiff’s claim rests on the faulty premise that the ADA 11 required Defendants to ensure his access to a particular job position, as opposed to a position in 12 the prison work program. As noted above, the ADA simply requires access to a “program,” in this 13 case the prison’s work program. There is no evidence that new position was objectively worse; to 14 the contrary the new position had the same pay, hours, and opportunities for advancement made it 15 an even more reasonable accommodation. Plaintiff’s subjective preference does not alter this 16 conclusion. Moreover, in the new position, Plaintiff would not have to lift heavier objects than his 17 physical condition safely allowed. No reasonable fact-finder could conclude that even if 18 Defendants did not provide Plaintiff with a lower table in the drawer-taper position, as Plaintiff 19 asserts, that their transfer of him to an equivalent, but more physically suitable, position in the tool 20 room amounted to an unreasonable accommodation and was an intentional denial of access to the 21 prison’s job program. 22 For the foregoing reasons, there is no triable issue as to whether Defendants violated 23 Plaintiff’s ADA right of access to the prison’s job program with respect Plaintiff’s request for an 24 adjustable chair and lower table. 25 3. Retaliation 26 27 5 Although Defendants state that Plaintiff was given a lower work-table until he put it in an unsafe 1 Plaintiff claims that Defendants retaliated against him for requesting accommodations by 2 transferring him to the tool-room position. “Within the prison context, a viable claim of First 3 Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some 4 adverse action against an inmate (2) because of (3) that prisoner's protected conduct,6 and that 5 such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did 6 not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 7 (9th Cir. 2005). 8 There is no evidence supporting a conclusion by a reasonable fact-finder that Defendants 9 transferred Plaintiff to his new position because of his request of accommodations. An inmate 10 must show that the protected conduct was the substantial or motivating factor behind the alleged 11 retaliation. Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). There is no evidence that 12 Defendants were motivated by Plaintiff’s request for accommodations; the fact that the transfer 13 occurred after Plaintiff some time after Plaintiff requested accommodations is not enough on its 14 own to establish a retaliatory motive because retaliation is not established simply by showing 15 adverse activity by defendant after protected speech; rather, plaintiff must show a nexus between 16 the two. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim 17 cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., “after this, therefore because 18 of this”). There is no evidence of such a nexus. Rather, the only evidence regarding Defendants’ 19 reason for the transfer is the undisputed evidence that the new position did not require Plaintiff 20 more than his arthritis allowed, as described above, and that Plaintiff had received a poor 21 performance evaluation in his prior position. These are both legitimate penological reasons, 22 moreover, for the transfer. Consequently, Defendants are entitled to summary judgment on 23 Plaintiff’s retaliation claim. 24 CONCLUSION 25 The motion for summary judgment is GRANTED. The claims that have been found 26 unexhausted, described above, are DISMISSED without prejudice to refiling in a new action after 27 ] they have been properly exhausted. 2 The clerk shall enter judgment and close the file. 3 IT IS SO ORDERED. 4 Dated: December 7, 2022 ~ a | C/ □□□□ / / 6 \ 7 JAFFREY SVWHITE 7 // jrted Stayés District Judge 9 10 1] 13 15 16 Oo Z 18 19 20 21 22 23 24 25 26 27 28