ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(ECF No. 17)
BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Carlos Manuel Flores is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's claim against Defendant Cruz for excessive force in violation of the Eighth Amendment, and against Defendants Cruz, Gonzales, Custer and Rivera for failure to decontaminate Plaintiff. Plaintiff has consented to magistrate judge jurisdiction, (ECF No. 8), but Defendants have neither consented to nor declined such jurisdiction.
Currently before the Court is Defendants' motion for summary judgment on the grounds that Plaintiff has failed to exhaust his available administrative remedies before bringing this action. Fed. R. Civ. P. 56(c);
II. Legal Standards
A. Summary Judgment Standard
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);
B. Statutory Exhaustion Requirement
Section 1997e(a) of the Prison Litigation Reform Act of 1995 ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process,
The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising and proving the absence of exhaustion.
A. Summary of Relevant Complaint Allegations
The events at issue occurred while Plaintiff was housed at Kern Valley State Prison. Plaintiff alleges that on January 31, 2015, Defendant Cruz removed Plaintiff from his cell in retaliation for filing inmate grievances against unit staff. Defendant Cruz then placed Plaintiff in mechanical restraints, which caused Plaintiff pain. Plaintiff was placed in a holding cage in the unit rotunda. Plaintiff became extremely distraught, and began to suffer a panic attack due to his mental health disorder.
According to Plaintiff, his panic attack caused Defendant Cruz to "fly into a fit of rage" and douse Plaintiff with pepper-spray while Plaintiff was in restraints and in the holding cage. (Compl. p. 3.) Defendants Custer, Gonzales and Rivera all witnessed the incident and refused to decontaminate Plaintiff "for 30 min. to 1 hour." (
B. Undisputed Material Facts
On February 18, 2015, Plaintiff submitted Appeal Log No. KVSP-O-15-00408, which states among other things, that on January 31, 2015, Defendant Cruz "harassed [Plaintiff] by placing [him] in cuff's and a holding cage and using O.C. pepper sprayed while [Plaintiff] suffered in the grip of a psychosis." (Form 602 KVSP-O-15-00408, ECF No. 17-4, p. 9) (errors in original). The appeal does not contain any allegations of misconduct against Defendants Custer, Gonzales, or Rivera, nor does it contain allegations concerning decontamination or deliberate indifference. (
Plaintiff's Appeal Log No. KVSP-O-15-00408 was characterized as a staff complaint and bypassed the first level of review and was sent directly to the second level of review. (Lucas Decl. ¶ 15.) On March 11, 2015, the second level of review granted the appeal in part in that an investigation was conducted, which determined that staff did not violate the California Department of Corrections and Rehabilitation's ("CDCR") policy through the actions alleged in the inmate appeal. (
Plaintiff submitted Appeal Log No. KVSP-O-15-00408 to the third level of review. (Voong Decl. ¶ 4.) On June 26, 2015, the third level of review rejected Plaintiff's appeal because he did not comply with regulations governing the appeal process. (
Defendant argues that Plaintiff's claim should be dismissed because his appeal against Defendant Cruz for excessive force was screened out, and did not include any reference to his allegations against Defendants Custer, Gonzales, and Rivera. Thus, Plaintiff failed to exhaust his administrative remedies with respect to any of the claims that he is pursuing in this case.
The CDCR has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. Pursuant to this system, an inmate may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate . . . can demonstrate as having a material adverse effect upon his . . . health, safety, or welfare."
The process is initiated by submitting a CDCR Form 602, Inmate/Parolee Appeal.
Three levels of review are involved—a first level review, a second level review and a third level review.
The exhaustion requirement under the PLRA demands "proper" exhaustion.
In this case, Defendants have presented evidence showing that Plaintiff's inmate appeal concerning the events which are the subject of this action only addressed the alleged use of excessive force by Defendant Cruz on January 31, 2015. None of the other Defendants were named or referenced in Plaintiff's appeal. "[F]or administrative remedies to be exhausted by California prisoners as to defendants who were not identified in the inmate grievance, there must be a `sufficient connection' between the claim in the appeal and the unidentified defendants such that prison officials can be said to have had `notice of the alleged deprivation' and an `opportunity to resolve it.'"
Furthermore, although Plaintiff identified Defendant Cruz and complained of excessive force by that officer in his appeal, Defendants have shown that the appeal was rejected at the third level of review for non-compliance with the regulations, and no complaint appeal was ever submitted by Plaintiff. Thus, Plaintiff did not receive any response at the third level, which is necessary to fully exhaust his available administrative remedies against Defendant Cruz.
Based on the foregoing, Defendants have met their burden to establish that Plaintiff did not exhaust the available administrative remedies with respect to any of the claims in this case. The burden therefore shifts to Plaintiff "to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him."
In Plaintiff's opposition, he makes two conflicting arguments, neither of which meets his burden to provide evidence showing that the administrative remedies were unavailable to him. First, Plaintiff declares that he submitted his appeal to the third level, but he "believes" that the "CDCR staff" destroyed it in an attempt to delay his lawsuit. (ECF No. 28, at pp. 2-3.) These speculations are undermined by the evidence submitted by Defendants that Plaintiff's appeal was reviewed and rejected for non-compliance with the regulations.
Plaintiff also argues that if CDCR staff simply chose not to process his appeal for their own reasons, then he should be deemed to have exhausted his administrative remedies. (
Here, the reason given for rejecting Plaintiff's appeal at the third level was that he was required to remove a citizen's complaint form attached to his submission. The regulations provide that only support documents that are necessary to clarify the appeal shall be attached to the appeal. Cal. Code Regs. tit. 15, § 3084.2(b)(1). The regulations further define supporting documents as:
Cal. Code Regs. tit. 15, § 3084(h). The regulations also provide that an inmate may not use a citizen's complaint to exhaust his or her administrative remedies properly because it is not part of the CDCR's prescribed grievance process,
Under the regulations, Plaintiff's appeal was properly screened out for failing to comply with the regulations limiting him to only including certain supporting documents, and not allowing the use of a citizen's complaint form. Defendants have also presented evidence that Plaintiff was informed of this issue and directed to resubmit his rejected appeal. Plaintiff provides no evidence that he resubmitted an appeal without the citizen's complaint within the required time frames, nor does Plaintiff explain a reason or justification for failing to conform his appeal to the regulatory requirements.
Based on the foregoing, Plaintiff has not provided evidence that the administrative remedies were unavailable to him. Rather, the undisputed facts demonstrate that Plaintiff failed to exhaust the available administrative remedies for any of the claims in this case. Therefore, Defendants' motion for summary judgment for the failure to exhaust available administrative remedies should be granted, and Plaintiff's case should be dismissed, without prejudice, on that ground.
IV. Conclusion and Recommendation
For these reasons, the Court HEREBY DIRECTS the Clerk of the Court to assign a Fresno District Judge to this action.
The Court also HEREBY RECOMMENDS that Defendants' motion for summary judgment for the failure to exhaust available administrative remedies, (ECF No. 17), be GRANTED.
These Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
The parties are advised that the failure to file objections within the specified time may result in the waiver of the "right to challenge the magistrate's factual findings" on appeal.
IT IS SO ORDERED.