Opinion
3:20-cv-00691-MK
06-07-2022
CODY MAYNARD, Plaintiff, v. LT. CISNEROS; CORRECTION OFFICER R. MARTIN; and MRS. CHAPMAN, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a federal inmate formerly housed at the Federal Correctional Institution in Sheridan, Oregon (FCI Sheridan), filed this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and alleged violations of his Eighth Amendment rights arising from defendants' failure to protect him from assault and provide him with adequate medical care. Defendants move for dismissal or summary judgment on grounds of exhaustion and failure to state a claim. Plaintiff fails to raise a genuine issue of fact to defeat summary judgment, and defendants' motion should be granted.
BACKGROUND
After his conviction for the offense of Bank Robbery, plaintiff was housed at FCI Sheridan from October 19, 2018 to October 22, 2019. Hernandez Decl. ¶¶ 4-5 (ECF No. 33).
Plaintiff alleges that on June 4, 2019, Officer Martin placed plaintiff, an inmate once classified as transgendered, in a recreation cage with two inmates who were “active” members of a white prison gang and presumably hostile to transgendered prisoners. Am. Compl. at 1 (ECF No. 28); see also Compl. at 1 (ECF No. 1). Plaintiff alleges that once in the recreation cage, the gang members called him a “sexual offender” and “faggot” and physically assaulted him. Pl.'s Resp. at 2 (ECF No. 36). Plaintiff alleges that Officer Chapman witnessed the other inmates attacking him and simply yelled at them to stop hitting each other. Plaintiff further alleges that Lt. Cisneros refused to call the medical department when plaintiff complained of pain from injuries suffered during the attack.
Plaintiff used the pronouns “he” and “him” in his original Complaint.
Plaintiff was charged with violating rules against fighting with other inmates. See Hernandez Decl. Ex. B. During plaintiff's disciplinary proceeding, the Hearings Officer rejected plaintiff's claim that he did not fight with other prisoners and imposed a disciplinary sanction. Id. ¶ 11 & Ex. B.
DISCUSSION
Construing plaintiff's allegations liberally, plaintiff alleges that Officers Martin and Chapman failed to protect him from assault and Lt. Cisneros denied him adequate medical care. Defendants move for dismissal or summary judgment on grounds that plaintiff failed to exhaust available administrative remedies and cannot sustain a cognizable claim for relief under Bivens. Because defendants presented documents outside of the pleadings, their motion is construed as a motion for summary judgment. Fed.R.Civ.P. 12(d) (if matters outside the pleadings are considered by the Court, the motion must be construed as one for summary judgment).
To prevail on their motion, defendants must show there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (“If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.”). The Court must construe the evidence and draw all reasonable inferences in the light most favorable to plaintiff. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).
Under the Prison Litigation Reform Act (PLRA), inmates must exhaust all available administrative remedies before filing a federal action to redress prison conditions or incidents. See 42 U.S.C § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, 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.”); Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding that “the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong”).
The exhaustion requirement is mandatory and requires compliance with both procedural and substantive elements of the prison administrative process. Woodfordv. Ngo, 548 U.S. 81, 85, 90 (2006). Inmates must exhaust all available grievance remedies before filing a § 1983 complaint, including appealing grievance decisions to the highest level. Jackson v. Fong, 870 F.3d 928, 933 (9th Cir. 2017). If the defendant shows that the inmate did not exhaust an available administrative remedy, “the burden shifts to the prisoner 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.” Albino, 747 F.3d at 1172. This burden is met when the prisoner shows that he or she took “reasonable and appropriate steps” to pursue administrative remedies, but prison officials nonetheless interfered with the prisoner's attempts to exhaust or failed to follow correct grievance protocol. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010).
The Bureau of Prisons (BOP) employs a four-step Administrative Remedy Program. See 28 C.F.R. §§ 542.10-19. First, the inmate must seek informal resolution of the issue by submitting Form BP-8 with the institution's staff. Id. § 542.13 (providing that “an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue”); Hernandez Decl. ¶ 13. If the inmate is dissatisfied with the response, the inmate may file a formal Administrative Remedy Request to the warden by submitting a Form BP-9 within twenty days of the alleged condition or incident. Id. § 542.14. If dissatisfied with the warden's response, the inmate may appeal by filing a Form BP-10 with the Regional Director within twenty days of the warden's decision. Id. § 542.15(a). Finally, the inmate may file a final appeal, a Form BP-11, with BOP's General Counsel in Washington, D.C. within thirty days of the Regional Director's decision. Id. The inmate may receive extensions of time for filing a Form BP-9 or subsequent appeal if a “valid reason for delay” is shown. Id. §§ 542.14(b), 542.15(a).
Defendants argue that plaintiff failed to exhaust available BOP remedies because he did not file a Form BP-8 or BP-9 to complain that he was placed in a recreational cage with hostile gang members or was denied adequate medical care. See Hernandez Decl. ¶¶ 14-16. In response, plaintiff maintains that he submitted either a Form BP-8 or Form BP-9 shortly before he was transferred from FCI Sheridan in October 2019. Pl.'s Resp. at 1; see also Am. Compl. at 2.Plaintiff does not specify what issues he raised in his remedy request.
In his Response, plaintiff also asserts that FCI Sheridan officials retaliated against him by transferring him to another institution and dismissed disciplinary proceedings against the prisoners who assaulted him. Plaintiff did not allege these claims in his complaint and they are not properly before this Court.
Regardless, the record shows that plaintiff failed to comply with the procedural requirements of BOP's Administrative Remedy Program. See Woodford, 548 U.S. at 83 (holding that a prisoner cannot exhaust administrative remedies “by filing an untimely or otherwise procedurally defective administrative grievance”). By his own admission, plaintiff did not pursue any type of administrative resolution until October 2019, more than four months after the alleged assault. Because plaintiff did not seek informal resolution or request an administrative remedy within twenty days of the incident, as required by BOP regulations, a Form BP-8 or BP-9 submitted in October 2019 would have been untimely. See 28 C.F.R. § 542.14. Plaintiff does not contend that he received an extension of time to pursue administrative remedies or that a “valid reason” excused his delayed filing.
Accordingly, plaintiff fails to show that he took reasonable and appropriate steps to exhaust the BOP Administrative Remedy Program.
CONCLUSION
Plaintiff failed to exhaust his administrative remedies as required by the PLRA, and defendants' Motion for Summary Judgment (ECF No. 32) should be GRANTED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of this recommendation to file specific written objections with the Court. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed.R.Civ.P. 72, 6. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).