Opinion
Civil 2:20-cv-00105-AC
02-03-2022
RODOLFO CERVANTES, JR., Plaintiff, v. SAM SUTTON, et al., Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Plaintiff Rodolfo Cervantes, Jr. (“Cervantes”), an adult in the custody (“AIC”) of the Oregon Department of Corrections (“ODOC”), brings this civil right action pursuant to 42 U.S.C. § 1983 against Defendants Sam Sutton (“Sutton”), Kautz, Kammerzell, Farrell, Henderson, Marcum-Pryor, Vaafusuaga, Sabotta, Fritzpatrick, Stewart, and Hazen (“Defendants”), and Unknown SRCI John/Jane Doe(s) (“Doe Defendants”). Currently before the court is Defendants' Motion for Summary Judgment (ECF No. 34). For the reasons that follow, Defendants' Motion should be GRANTED, and this action should be DISMISSED.
On May 3, 2021, District Judge Michael H. Simon issued an Order (ECF No. 46) dismissing Defendants Wayne Courtain, Gary Myers, and the Unknown Jane/John Does from this case, without prejudice, based upon Cervantes's failure to effect service of process on Courtain and Myers, and failure to identify or serve with process the Jane/John Doe Defendants.
BACKGROUND
I. Summary of Claims
Cervantes's Amended Complaint alleges four claims for relief arising from the conditions of his confinement at the Snake River Correctional Institution (“SRCI”). In his first claim, Cervantes alleges that the unknown Doe Defendants violated his rights under the Fourteenth Amendment when they “intentionally lost, destroyed, or mistakenly gave Cervantes's personal property to others.” In his second claim, Cervantes describes the personal property involved, and when and where the alleged deprivation occurred. Cervantes alleges the Doe Defendants violated Cervantes's right of access to the courts and his Sixth Amendment right to communicate privately with counsel when they intentionally lost his legal materials. He alleges that the loss of those materials interfered with his ability to file his direct appeal within 30 days or to file post-conviction and habeas petitions.
Cervantes's third claim for relief alleges that he was the subject of false allegations made by Defendant Sutton, which led to Cervantes's transfer from the Eastern Oregon Correctional Institution (“EOCI”) to SRCI. Cervantes alleges he asked Defendants Kautz, Kamerzell, and Vaafusuaga for assistance in refuting Defendant Sutton's false allegations, but that they refused to help him. Cervantes's fourth claim for relief alleges that each of the named Defendants failed to protect him, in violation of his Eighth Amendment right to be free from cruel and unusual punishment, by failing to intervene in the false allegations from Defendant Sutton, which placed Cervantes at risk for harm from other AICs who heard the allegations and may have harmed Cervantes as a result.
Defendants move for summary judgment on the basis that Cervantes failed to exhaust all available administrative remedies for the claims alleged in his Amended Complaint before filing it, as required under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). On February 12, 2021, the court advised Cervantes of the standards governing disposition of summary judgment motions. (Summ. J. Advice Notice, ECF No. 36). In response to Defendants' motion, Cervantes contends he was unable to exhaust the administrative grievance process due to a series of transfers among different institutions.
II. Summary of Facts
Cervantes entered ODOC's custody on September 8, 2016. (Decl. of Kelcie Main in Supp. of Defs.' Mot. for Summ. J. (“Main Decl.”) at ¶ 3, ECF No. 35). He was housed at SRCI from May 23, 2018, to July 23, 2018, when he was sent out of ODOC custody to be re-sentenced on his crimes of conviction. (Main Decl. ¶ 3). Cervantes returned to ODOC custody on September 13, 2018, and has been housed at EOCI since October 16, 2018. (Main Decl. ¶ 3).
On December 3, 2018, Cervantes filed Grievance SRCI.2018.12.119, which was received on December 4, 2018. (Main Decl. ¶ 12). In it, Cervantes stated that on October 15, 2018, he arrived at EOCI from SRCI after being transported to Malheur County for re-sentencing, and upon his arrival he discovered that his legal paperwork was missing. (Main Decl. ¶ 12). Cervantes stated he was facing a November 2, 2018, deadline to file his appeal to his re-sentenced convictions. (Main Decl. ¶ 12).
Although Cervantes's grievance states he returned to EOCI on October 15, 2018, his housing history demonstrates his actual date of return was October 16, 2018.
Cervantes does not indicate in his Complaint or response to Defendants' Motion whether a notice of appeal was filed. The court's docket in Malheur County Circuit Court Case No. 09122662C, however, shows a Notice of Appeal filed on October 30, 2018.
On December 21, 2018, the grievance was returned to Cervantes because it was not received within 30 days of the complained-of incident. (Main Decl. ¶ 13). Cervantes did not re-submit a corrected grievance. (Main Decl. ¶ 14). Cervantes did not file any other grievances while housed at SRCI and did not file any grievances during the period he was housed at EOCI. (Main Decl. ¶ 15).
LEGAL STANDARDS
I. Summary Judgment Standard
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law Fed.R.Civ.P. 56(a). The moving party must establish the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in favor of that party. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014); Porter v. Cal. Dep 't of Corr., 419 F.3d 885. 891 (9th Cir. 2005) (citations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
Because Cervantes is proceeding pro se, the court construes his pleadings liberally and affords him the benefit of any doubt. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Lopez v. Dep 't of Health Servs., 939 F.2d 881, 882-83 (9th Cir. 1991). However, “there is no authority for the proposition that, on motion for summary judgment, that rule operates to lighten the pro se litigant's obligation to show a genuine issue of material fact for trial through the presentation of specific, admissible evidence.” Epling v. Komathy, No. CV 10-5862-GAF (RNB). 2011 WL 13142131, at *1 (CD. Cal. Dec. 5, 2011).
II. PLRA Standards for Exhaustion of Administrative Remedies
Under the PLRA, inmates are required to exhaust all available administrative remedies before filing a suit under § 1983 to challenge prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006). To properly exhaust administrative remedies, prisoners “must complete the administrative review process in accordance with the applicable procedural rules.” Id. at 88. Procedural rules are not defined by the PLRA, but rather by a prison's specific grievance process requirements. Jones v. Bock, 549 U.S. 199, 218 (2007). The exhaustion requirement “applies to all inmate suits about prison life” that do not involve the duration of a prisoner's sentence. Nettles v. Grounds, 830 F.3d 922, 932 (9th Cir. 2016) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)).
If an inmate files suit without first exhausting their administrative remedies, defendants may move for summary judgment under a failure to exhaust defense. Albino, 747 F.3d at 1166. “Failure to exhaust under the PLRA is ‘an affirmative defense that the defendant must plead and prove.'” Id. (quoting Jones, 549 U.S. at 204). Defendants have the burden of producing evidence to prove an inmate failed to exhaust all available administrative remedies. Id. Once a defendant meets that burden, “the burden shifts to the [inmate] 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. at 1172. If, when viewed in the light most favorable to the inmate, the evidence shows a failure to exhaust, the defendant is entitled to summary judgment under Rule 56. Id. “If summary judgment is not appropriate, the district judge may decide disputed questions of fact in a preliminary proceeding.” Id. at 1168.
DISCUSSION
The inmate grievance system for AICs in the custody of ODOC is governed by Or. Admin. R. Chapter 291. In 2018, ODOC employed a three-step grievance and appeal process. See former Or. Admin. R. 291-109-0140. Under that process, the inmate could file a grievance within thirty days of the alleged condition or incident. Former Or. Admin. R. 291-109-0150(2).A grievance that was returned to the inmate on procedural grounds could not be appealed. Instead, if the procedural errors could be corrected, the inmate could resubmit the grievance within fourteen days from the date it was returned. Id. 291-109-0160(5). If the grievance was accepted, the inmate could appeal any response to the grievance within fourteen days from the date the response was sent to the inmate. Id. 291-109-0170(1)(b). If the first appeal was denied, the inmate could file a second appeal within fourteen days. Id. 291-109-0170(2)(c). A decision following a second appeal was final. Id. 291-109-0170(2)(f).
ODOC's grievance system now requires inmates to file a grievance within fourteen days of the relevant condition or incident, unless the inmate “can satisfactorily demonstrate why the grievance could not be timely filed.” Or. Admin. R. 291-109-0205(1). The rule change does not apply to this case.
Here, Cervantes filed Grievance SRCI.2018.12.119 dated December 3, 2018, which was received on December 4, 2018. The grievance stated that upon his arrival at EOCI on October 15, 2018, he discovered that his legal paperwork was missing. On December 21, 2018, the grievance was returned to Cervantes because it was not received within 30 days of the complained of incident. Cervantes did not resubmit a corrected grievance. Accordingly, he failed to exhaust his administrative remedies as to the claims alleged in his first and second claims of his Amended Complaint.
Cervantes did not file any other grievances while housed at SRCI or during the period he was housed at EOCI from October 16, 2018, through June 2, 2020. Accordingly, Cervantes did not exhaust his administrative grievances as to his claims three and four of his Amended Complaint.
As noted, in response to Defendants' motion, Cervantes contends he was prevented from exhausting his administrative remedies due to a series of transfers between ODOC institutions. He contends the transfers were ordered for the purpose of retaliation, with the specific intention of disrupting his access to the administrative procedures. In his grievance, however, Cervantes stated: “I arrived to E.O.C.I. on or about 10-15-18 on transport. I'd gone for resentencing from S.R.C.I. to Malheur Co. then to C.C.C.F. from there to E.O.C.I.” Main Decl., Att. 4, p. 2. Cervantes's housing history, moreover, demonstrates that he remained at EOCI from October 16, 2018 through February 14, 2020, so a “transfer” could not have prevented him from correcting and re-submitting his untimely grievance. Finally, Cervantes's housing history demonstrates that he was housed at EOCI from October 4, 2016, through May 23, 2016. Main Decl., Att. 1, p.2. He was transferred to SRCI on May 23, 2016, and then sent out of custody to Malheur County for resentencing on July 10, 2018. Main Decl., Att. 1, p. 2. After re-sentencing, he was returned to ODOC custody at the Coffee Creek Intake Center (“CCIC”) on September 13, 2018, and then transferred from CCIC to EOCI on October 16, 2018. This evidence belies Cervantes's conclusory statements that he was transferred in retaliation and in an effort to thwart his access to the administrative grievance system.
Viewing the evidence in the light most favorable to Cervantes as the non-moving party, the evidence does not show that ODOC's grievances procedures were effectively unavailable to him. Thus, Cervantes has failed to raise a genuine issue of material fact whether he properly exhausted his administrative remedies, and has failed to demonstrate that his administrative remedies were effectively unavailable. Accordingly, Defendants are entitled to summary judgment.
CONCLUSION
Based on the foregoing, Defendants' Motion for Summary Judgment (ECF No. 34) should be GRANTED and a judgment of dismissal should be entered.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.