Mitchell v. Silva ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Jerome MITCHELL, Case No.: 3:18-cv-2044-DMS-AGS 11 Plaintiff, AMENDED REPORT AND RECOMMENDATION TO DENY 12 v. DEFENDANTS’ SUMMARY- 13 JUDGMENT MOTION (ECF 33) AND TO GRANT SUMMARY JUDGMENT 14 A. SILVA, et al., FOR PLAINTIFF ON DEFENDANTS’ 15 Defendants. EXHAUSTION DEFENSE 16 17 Inmate Jerome Mitchell used prison-appeal “Form 602” to report correctional- 18 officer brutality. In retaliation, a guard allegedly told him, “If you keep trying to file 602s[,] 19 we[’]re going to f—k you up.” This threat, among others, convinced Mitchell to abandon 20 the prison’s administrative-appeal process and instead bring this civil-rights lawsuit. 21 The guards now move for summary judgment because Mitchell failed to exhaust his 22 administrative appeals. That motion should be denied because the guards’ alleged threats 23 rendered those appeals effectively unavailable. 24 BACKGROUND 25 On July 6, 2018, according to plaintiff Mitchell, various guards at R.J. Donovan 26 Correctional Facility violated his Eighth Amendment rights by using excessive force, 27 including “smearing pepper spray on . . . [his] penis,” and then ignoring his medical needs. 28 (See ECF 33-6, at 4; see generally ECF 1, at 3-4.) Three days later, Mitchell submitted a 1 Form 602 administrative grievance about this alleged misconduct. (See ECF 33-5, at 4; 2 ECF 33-6, at 6-8.) 3 The next month, according to Mitchell, two of the guards implicated in the grievance 4 threatened him for pressing such prison appeals. First, Officer Silva allegedly told Mitchell 5 that if he wrote “anymore 602’s,” he “would get [his] ass beat and disappear.” (ECF 37, 6 at 4.) A few days later, Sergeant Poladian purportedly told Mitchell, “If you keep trying to 7 file 602’s[,] we[’]re going to fuck you up.” (Id. at 4-5, 7.) Mitchell says he filed no 8 grievances about this intimidation because “I feared for my safety and life.” (Id. at 6.) 9 Instead, shortly after these threats, Mitchell sued the officers under 42 U.S.C. § 1983 10 for First and Eighth Amendment violations. (See ECF 1, at 3-5, 8.) The claims were based 11 on the same facts as his still-pending excessive-force grievance, plus the guards’ recent 12 intimidating remarks. (See id.) After filing suit, Mitchell appealed to prison officials for a 13 response to his pending grievance. (See ECF 33-5, at 6; ECF 33-6, at 41.) But when the 14 excessive-force grievance was denied, he never sought final review. 15 DISCUSSION 16 Defendants argue that they are entitled to summary judgment because Mitchell failed 17 to exhaust his administrative remedies. “Summary judgment is appropriate only if the 18 movant shows that there is no genuine issue as to any material fact and the movant is 19 entitled to judgment as a matter of law.” Tolan v. Cotton¸ 572 U.S. 650, 656 (2014). For 20 summary-judgment rulings, courts must view the evidence “in the light most favorable to 21 the opposing party.” Id. at 657. Regarding the failure to exhaust administrative remedies, 22 “[i]f material facts are disputed, summary judgment should be denied, and the district judge 23 rather than a jury should determine the facts.” Albino v. Baca, 747 F.3d 1162, 1166 24 (9th Cir. 2014). 25 A. Administrative Exhaustion 26 A prisoner may not sue under 42 U.S.C. § 1983, “or any other Federal law, . . . until 27 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 28 Because an inmate’s “failure to exhaust is an affirmative defense,” Jones v. Brock, 549 U.S. 1 199, 216 (2007), defendants have the initial burden “to prove that there was an available 2 administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino, 3 747 F.3d at 1172. If defendants do so, the prisoner must “come forward with evidence 4 showing that there is something in his particular case that made the existing and generally 5 available administrative remedies effectively unavailable to him.” Id. “The ultimate burden 6 of proof, however, remains with the defendants.” Williams v. Paramo, 775 F.3d 1182, 1191 7 (9th Cir. 2015). 8 Defendants satisfied their initial burden: An administrative appeal process was 9 generally available, yet Mitchell failed to file any retaliation-based grievance and failed to 10 pursue his excessive-force grievance to its conclusion. (See ECF 33-1, at 4-5; ECF 33-2, 11 at 5, ¶¶21-22; ECF 33-5, at 5, ¶¶11-12; ECF 33-7, at 3-4, ¶¶5-6.) 12 So, Mitchell must provide evidence of unavailability, and he has. A prison’s 13 grievance process is considered effectively “unavailable when prison administrators thwart 14 inmates from taking advantage of it through . . . intimidation.” Ross v. Blake, 136 S. Ct. 15 1850, 1860 (2016). Two witnesses—Mitchell and another inmate—swear that defendants 16 told Mitchell that if he continued to “file 602s,” he would get his “ass beat and disappear” 17 and that “we’re going to fuck you up.” (See ECF 37, at 4-5, 7, 26.) Mitchell asserts that he 18 “did not file any appeals regarding retaliation because I feared for my safety and life,” and 19 that he was “so scared[,] I figured I should file my complaint with the courts” rather than 20 pursue the grievance process. (ECF 37, at 5-6; see also id. at 7 (Mitchell: defendants’ 21 “intimidation . . . made me fearful in the use of the process”); id. at 26 (inmate Catlin: the 22 initial threat “scared [Mitchell] so much [that] Mitchell skipped breakfast”); ECF 33-1, at 4 23 (Mitchell: defendants’ threats “shook me up”).) 24 Then the question is: Have defendants carried their ultimate burden of proving that 25 Mitchell failed to exhaust available administrative remedies? Or did the intimidation make 26 these remedies effectively unavailable? Defendants’ burden is especially daunting because 27 they offer no evidence—or even argument—to refute the accusation that they threatened 28 Mitchell. Their summary-judgment filings simply don’t mention the threats, other than 1 noting that no grievances were filed about them. (See ECF 33-2, at 5, ¶22; see generally 2 ECF 33, 41.) 3 Rather than disputing the threats, defendants argue that Mitchell was “clearly aware 4 that he still had remedies available” because he pursued appeals “with the prison after filing 5 this civil action.” (See ECF 41, at 5.) Yet defendants may not rely on “multiple unrelated 6 [prison] appeals” to carry their burden of proving that administrative remedies were 7 available for the claims Mitchell was scared to bring. See Paramo, 775 F.3d at 1192. For 8 example, after filing this lawsuit, Mitchell wrote up grievances about: “property damage,” 9 a “request to repair [his cell’s] cable outlet,” disputing his “classification score,” the denial 10 of a parole request, and “visitation matters.” (See ECF 33-5, at 6-7; ECF 33-6, at 46-80.) 11 But none of those grievances involved staff misconduct. Viewed in the light most favorable 12 to Mitchell, when the guards told Mitchell not to “file 602s,” they weren’t objecting to 13 filing grievances generally, but to filing grievances against them. So Mitchell could safely 14 complain about his broken cable outlet, whereas elevating guard-related grievances might 15 prove fatal. 16 Yet, after the threats, Mitchell submitted an inmate appeal for an update on his 17 pending excessive-force grievance, which was stalled at second-level review. (See 18 ECF 33-5, at 6, ¶13.c; ECF 33-6, at 41.) Does this prove that Mitchell didn’t take the 19 guards’ threats seriously? Or rebut Mitchell’s contention that he was “fearful in the use of 20 the [prison] process”? (See ECF 37, at 7.) Not really. Since prison officials were still 21 considering this grievance—and the defendant guards had already been questioned about 22 it (ECF 33-6, at 5)—Mitchell could safely assume that requesting a status update wouldn’t 23 trigger violent reprisals. But it would be quite another thing for Mitchell to file new 24 grievances against these guards, which might force them to be questioned (and notified) 25 again. Likewise, he may have feared the expanded scrutiny entailed in elevating his 26 existing grievance to the final-review level. 27 Thus, this Court finds that Mitchell’s administrative remedies were effectively 28 unavailable as to any claims against these guards. Mitchell accused these officers of beating 1 him and “smearing pepper spray on . . . [his] penis.” (ECF 33-6, at 4.) The next month, 2 those same guards told Mitchell that if he pursued inmate appeals, they would “beat” him 3 or make him “disappear.” (ECF 37, at 4.) Under such menacing circumstances, no one 4 could expect Mitchell to prosecute prison grievances to the bitter end against these officers. 5 At least, defendants have not carried their burden of proving otherwise. 6 B. Summary Judgment for Mitchell on Exhaustion 7 When “the party moving for summary judgment has had a full and fair opportunity 8 to prove its case, but has not succeeded in doing so, a court may enter summary judgment 9 sua sponte for the nonmoving party.” Albino, 747 F.3d at 1176. Before doing so, “great 10 care must be exercised to assure that the original movant has had an adequate opportunity 11 to show that there is a genuine issue and that his or her opponent is not entitled to judgment 12 as a matter of law.” Id. at 1177 (alterations omitted). 13 Defendants had that opportunity. As in Albino, there “is nothing in the record to 14 suggest that defendants’ discovery with respect to exhaustion was curtailed in any way,” 15 and “most of the relevant evidence was within their knowledge and control.” Id. Mitchell 16 raised the threats in his complaint, again in his summary-judgment response, and even in 17 his deposition, testifying that Sergeant Poladian’s retaliatory comments “shook me up” and 18 “fucked me up.” (ECF 1, at 5 (complaint); ECF 37, at 4-5, 7, 26 (response); ECF 33-1, at 4 19 (deposition).) While “defendants were on notice of the need to come forward with all their 20 evidence in support of this motion,” and even though “they had every incentive to do so,” 21 they never grappled with—or even mentioned—Mitchell’s fundamental claim, that he 22 abandoned his administrative remedies under threat. Albino, 747 F.3d at 1177; (see, e.g., 23 ECF 33, 33-2, 33-5, 33-6, 33-7, 41). 24 The evidence of those threats is undisputed. Prisoners need not risk life and limb to 25 satisfy administrative exhaustion. Although Mitchell asked for an update on his excessive- 26 force grievance after filing his lawsuit, he was not required to chance the guards’ wrath by 27 pursuing the process further. Thus, Mitchell has carried his burden of proving 28 unavailability, and is entitled to summary judgment. 1 CONCLUSION 2 The Court recommends that defendants’ summary-judgment motion be DENIED. 3 || And because the judge should decide the issue of administrative exhaustion, “if feasible, 4 || before reaching the merits of a prisoner’s claim,” Albino, 747 F.3d at 1170, this Court also 5 ||recommends that Mitchell be GRANTED summary judgment on defendants’ exhaustion 6 ||defense. By August 5, 2020, the parties must file any objections to this report. See 7 U.S.C. § 636(b)(1). A party may respond to any such objection within 14 days of being 8 served with it. See Fed. R. Civ. P. 72(b)(2). 9 Dated: July 22, 2020 10 ma ! ll Hon. ndrew G. Schopler United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28