Opinion
No. 2:18-cv-03163-KJM-CKD
07-22-2020
TIMOTHY D. WILKINS, Plaintiff, v. SCOTT KERNAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se in this civil rights action that was removed from state court. This action is proceeding on an Eighth Amendment claim of deliberate indifference to plaintiff's safety against defendants Nelson, Bayonetta, Winsauer, and Martin and a supplemental state law claim under the Bane Act against the same defendants. ECF No. 8 at 4 (screening order). Currently pending before the court is defendants' motion for summary judgment based on the plaintiff's failure to exhaust his administrative remedies. ECF No. 34. Plaintiff has filed an opposition along with 389 pages of exhibits in support thereof. ECF Nos. 37, 38. Defendants filed a reply rendering this matter fully briefed. ECF No. 39. For all the reasons described herein, the undersigned recommends that defendants' motion for summary judgment be granted.
I. Allegations in the Complaint
Plaintiff alleges that defendants were putting his life in danger by intentionally moving inmates from a rival prison group into his cell in order to "stage a conflict in violation of his Eighth Amendment right to safety." ECF No. 1-1 at 5. This happened on two occasions in July 2015 while plaintiff was an inmate at California State Prison-Solano ("CSP-Solano"). The first rival gang member was housed with plaintiff on July 17, 2015 by defendants Winsauer, Martin, and Bayonetta. The second inmate was escorted to plaintiff's cell on July 21, 2015 by defendant Nelson.
II. Defendants' Motion for Summary Judgment
In their motion, defendants contend that plaintiff failed to exhaust any administrative grievance related to the asserted Eighth Amendment violations by Winsauer, Martin, Bayonetta and Nelson as required by the Prison Litigation Reform Act ("PLRA"). ECF No. 34 at 2. The exhibits attached to defendants' motion demonstrate that plaintiff only submitted four administrative appeals between 2008 and 2018 and that none of these concerned any events occurring in July 2015. ECF No. 34-1 at 4, 6. Accordingly, defendants request that judgment be entered in their favor and this action dismissed without prejudice.
By way of opposition, plaintiff asserts that a federal "[d]istrict [c]ourt has already ruled the [p]laintiff exhausted his administrative remedies in his related [h]abeas proceeding, Case [N]o. 2:17-cv-4322-VAP-E." ECF No. 38 at 2. Plaintiff requests that the court take judicial notice of his federal habeas proceeding in the Central District of California in which he challenged a disciplinary conviction for refusing to accept his assigned housing. See ECF No. 36. This disciplinary action was issued against plaintiff on August 6, 2015 and the administrative hearing in which plaintiff was found guilty occurred on September 9, 2015. See ECF No. 37 at 79, 88-90. Plaintiff requests that the summary judgment motion be denied in light of the record of his federal habeas action. ECF No. 38 at 3.
In their reply, defendants counter that plaintiff does not "cite[] to any grievance that satisfied the exhaustion requirement" because his federal habeas petition only challenged his prison disciplinary conviction that resulted in a 90-day loss of good-time credit and not defendants' conduct alleged in the instant complaint. ECF No. 39 at 3. ///// /////
III. Summary Judgment Standards
Summary judgment is appropriate when it is demonstrated 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). A party asserting that a fact cannot be disputed must support the assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials...." Fed. R. Civ. P. 56(c)(1)(A).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587.
In a summary judgment motion for failure to exhaust administrative remedies, the defendants have the initial burden to prove "that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Albino, 747 F.3d at 1172. If the defendants carry that burden, "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." Id. The ultimate burden of proof remains with defendants, however. Id. "If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts." Id. at 1166.
IV. Exhaustion Standard
The Prison Litigation Reform Act of 1995 ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). A prisoner must exhaust his administrative remedies before he commences suit. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Compliance with this requirement is not achieved by satisfying the exhaustion requirement during the course of a civil action. See McKinney, 311 F.3d 1198 (9th Cir. 2002). Failure to comply with the PLRA's exhaustion requirement is an affirmative defense that must be raised and proved by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). In the Ninth Circuit, a defendant may raise the issue of administrative exhaustion in either (1) a motion to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of the complaint, or (2) a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc). An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006).
In order to defeat a properly supported motion for summary judgment based on a prisoner's failure to exhaust pursuant to 42 U.S.C. § 1997e(a), plaintiff must "come forward with some evidence showing" that he has either (1) properly exhausted his administrative remedies before filing suit or (2) "there is something in his particular case that made the existing and generally available remedies unavailable to him by 'showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.'" Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5) (9th Cir. 1996)); Jones, 549 U.S. at 218. "Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of" Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). 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 of the Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). If there is at least a genuine issue of material fact as to whether the administrative remedies were properly exhausted, the motion for summary judgment must be denied. See Fed. R. Civ P. 56(a).
When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, "the proper remedy is dismissal of the claim without prejudice." Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by Albino, 747 F.3d at 1168-69.
V. Undisputed Material Facts
At the outset, the court notes that defendants failed to file a separate document containing a Statement of Undisputed Facts as required by Local Rule 260(a). While plaintiff filed a one-page Statement of Undisputed Facts in Support of Plaintiff's Opposition, it also fails to "cite the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon to establish that fact." ECF No. 38-1. Instead, plaintiff cites to all of his exhibits in toto which comprise 389 pages. Id. As a result of these omissions and failures by both parties, the court has reviewed the entire record in this case in order to resolve the pending motion. However, only those factual assertions which have evidentiary support in the record are considered.
A. CDCR Administrative Appeals Procedure
The California Department of Corrections and Rehabilitation ("CDCR") provides inmates with an administrative appeals process that permits an inmate to appeal any "policy, decision, action, condition, or omission" made by the Department or its staff which have had "a material adverse effect" on an inmate's "health, safety, or welfare." See ECF No. 34-1 at 2 (Declaration of J. Spaich); see also Cal. Code Regs. tit. 15, § 3084.1(a) (repealed effective June 1, 2020). The appeals process during the relevant time period of the case at bar, consists of three levels of administrative review: 1) a first-level appeal; 2) a second-level appeal to the institutional head or designee; and, 3) a third-level of appeal to the Secretary of the CDCR. ECF No. 34-1 at 2; see also Cal. Code Regs. tit. 15, § 3084.7 (repealed effective June 1, 2020). For all non-medical related appeals, the first two levels of administrative review are handled by staff located at the institution. ECF No. 34-1 at 2. The third-level of administrative appeals are received and decided by CDCR staff at the Office of Appeals located in Sacramento. ECF No. 34-1 at 2. A substantive decision on an appeal at the third level exhausts CDCR's administrative remedies. ECF No. 34-1 at 2.
B. Plaintiff's Use of Administrative Appeals Procedure
During his incarceration, plaintiff had administrative appeals accepted and denied at the third level of review in August 2008 (SOL-08-01303), September 2008 (SOL-08-00978), June 2009 (SOL-09-00477), and May 2018 (CMC-18-00985). ECF No. 34-1 at 4, 6. The administrative appeals filed in 2008 and 2009 concerned issues that occurred long before the July 2015 events giving rise to plaintiff's complaint in the instant case. ECF No. 34-1 at 4, 6. Plaintiff's last administrative appeal which was properly exhausted in August 2018 concerned an incident that occurred in January 2018, more than two years after the events at issue in the complaint. Id.
Plaintiff also submitted a 602 inmate appeal on September 20, 2015 (CSP-S-15-01898) which complained about his August 6, 2015 administrative segregation placement resulting from an alleged false rules violation report ("RVR"). ECF No. 37 at 94-97. The hearing on the RVR was held on September 9, 2015 and resulted in plaintiff being found guilty. ECF No. 37 at 96. Plaintiff's administrative appeal in CSP-S-15-01898 challenged this prison disciplinary finding by asserting that he was denied his right to call witnesses and present documentary evidence and that the guilty finding was not supported by sufficient evidence. ECF No. 37 at 96. As a remedy, plaintiff requested that the RVR be dismissed, his good time credits and privileges be restored, and that he be compensated for the false disciplinary action. ECF No. 37 at 96.
This administrative appeal (CSP-S-15-01898) was screened out, or rejected, at the first level of review on September 28, 2015 because it was missing necessary supporting documentation. ECF No. 37 at 102 (citing Cal. Code Regs. tit. 15 § 3084.3). Plaintiff re-submitted the appeal along with a CDC 1858 form on November 3, 2015. ECF No. 37 at 98. The second level of administrative review received it on November 16, 2015 and cancelled the appeal on December 1, 2015 indicating that it "should be processed as a routine appeal." ECF No. 37 at 94 , 96, 99. Plaintiff re-submitted this appeal to the second level of administrative review which was cancelled once again on January 28, 2016 based on plaintiff's failure to return it within the required time frames. ECF No. 37 at 103 (citing Cal. Code Regs. tit. 15 § 3084.6(c)(10)). Plaintiff was informed that he could appeal this cancellation. ECF No. 37 at 103. On June 7, 2016, the third level of administrative review screened out appeal number SOL-15-01898 pertaining to plaintiff's disciplinary conviction based on the repetitious submission of an appeal that had been previously cancelled. ECF No. 37 at 107 (citing Cal. Code Regs. tit. 15 § 3084.6(e)); ECF No. 34-1 at 6.
VI. Analysis
This case was removed from state court on December 7, 2018. ECF No. 1. Accordingly, plaintiff was required to exhaust his administrative remedies prior to that date. See 42 U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
Defendants' undisputed evidence establishes that plaintiff did not properly exhaust any administrative appeal concerning his Eighth Amendment right to safety claims raised in the complaint through the third level of administrative review. The court finds that defendants have carried their initial burden of proving the availability of administrative remedies as well as plaintiff's failure to exhaust those remedies. See Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citations omitted). Therefore, the burden shifts to plaintiff to come forward with evidence that there was something in his particular case that made the existing administrative remedies effectively unavailable to him or that he has otherwise properly exhausted his claims with respect to the claims against defendants. Id.
Plaintiff's only argument concerns his administrative appeals and subsequent federal habeas challenge to his disciplinary conviction from September 9, 2015. However, even assuming that plaintiff properly exhausted his administrative appeals related to this disciplinary conviction (CSP-S-15-01898) through the third level of review, that would not establish that plaintiff has exhausted his administrative remedies with respect to his Eighth Amendment right to safety claims against defendants. Plaintiff's due process challenges to his disciplinary conviction are not the same Eighth Amendment claims raised in the pending complaint. Furthermore, the federal habeas court did not conclude, as plaintiff indicates, that he had properly exhausted his administrative remedies with respect to his disciplinary conviction. The federal habeas court assumed "arguendo," or assumed without deciding in non-legal parlance, that plaintiff (referred to in this context as petitioner) had not procedurally defaulted his disciplinary challenges for failing to exhaust them. ECF No. 37 at 367 n. 1 (Report and Recommendation of United States Magistrate Judge Feb. 1, 2018) (citations omitted) (adopted by Order of March 15, 2018). It chose instead to deny relief on the merits of the due process claims raised in the federal habeas application. Id. Therefore, this court is not bound by the federal habeas court's decision to bypass the procedural default question concerning the exhaustion of plaintiff's administrative remedies for his disciplinary conviction. See Liberty Mutual Ins. Co. v. E.E.O.C., 691 F.2d 438, 441 (9th Cir. 1982) (emphasizing that for law of the case doctrine to apply the issue in dispute must have been "decided explicitly or by necessary implication in [the] previous disposition."); Ducey v. United States, 830 F.2d 1071, 1072 (9th Cir. 1987) (concluding that the dicta of a case has no preclusive effect under the law of the case doctrine). More importantly, the nature of the wrongs identified in the disciplinary grievance did not put prison officials on notice of the particular wrong alleged in this lawsuit: defendants' transfer of rival gang members into plaintiff's cell on two occasions in July 2015 in violation of his Eighth Amendment right to safety. See Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (emphasizing that "[u]nder the PLRA, a grievance 'suffices if it alerts the prison to the nature of the wrong for which redress is sought.'") (citations omitted). Plaintiff has failed to demonstrate the unavailability of administrative remedies or his proper exhaustion of them with respect to his Eighth Amendment claims against the defendants.
The court further assumes without deciding that prison officials improperly screened plaintiff's grievance concerning his disciplinary conviction (CSP-S-15-01898). See Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010). Therefore, the only remaining issue before this court is whether this grievance, if pursued through all three levels of administrative review, would have sufficed to properly exhaust the claims at issue in this case.
The court will grant plaintiff's request to take judicial notice of his federal habeas action in Wilkins v. Gastelo, No. 2:17-cv-04322-VAP-E (C.D. Cal.). See ECF No. 36 (Plaintiff's Request for Judicial Notice); see also Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir. 2002) (stating that "we may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue[.]") (internal quotation omitted). --------
Defendants have carried their burden of demonstrating the absence of a genuine dispute about plaintiff's failure to exhaust his administrative remedies as to the Eighth Amendment claims against them. Albino, 747 F.3d at 1172. Defendants are therefore entitled to summary judgment and the undersigned recommends granting their motion and dismissing plaintiff's complaint without prejudice.
VII. Plain Language Summary for Pro Se Party
The following information is meant to explain this order in plain English and is not intended as legal advice.
After reviewing all of the arguments and exhibits filed in connection with defendants' motion for summary judgment, the magistrate judge has concluded that you have not exhausted your administrative remedies with respect to the Eighth Amendment right to safety claims against defendants. As a result, the magistrate judge is recommending that the defendants' motion for summary judgment be granted. If adopted by the district court judge assigned to your case, this means that your case will be dismissed without prejudice.
If you disagree with this outcome, you have twenty-one days to explain to the court why it is not correct. If you choose to do this, you should label your explanation as "Objections to Magistrate Judge's Findings and Recommendations." The district court judge assigned to your case will review any objections that are filed and will make a final decision on the motion for summary judgment.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Defendants' motion for summary judgment (ECF No. 34) be granted.
2. This case be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that 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). ///// ///// Dated: July 22, 2020
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 12/wilk3163.msj.CJRA.docx