Opinion
No. C 00-040 SI (pr)
April 15, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
Gregory Williams, a California prison inmate, filed this pro se civil rights action under 42 U.S.C. § 1983. The court reviewed Williams' complaint and determined that it appeared to state an Eighth Amendment claim against correctional lieutenant Maxwell for deliberate indifference to Williams' safety and against correctional officer MacNamara for using excessive force on Williams. The complaint was ordered served on defendants. Defendant Maxwell's motion for summary judgment was granted. The matter is now before the court for consideration of defendant MacNamara's motion for summary judgment filed on February 5, 2002. For the reasons discussed below, the motion will be granted.
BACKGROUND
The following facts are undisputed, unless otherwise noted, and concern an incident that occurred at Pelican Bay State Prison. Williams alleged in his verified complaint that on June 14, 1999, he was physically assaulted by correctional officer MacNamara, who was escorting him to the yard at the security housing unit. Williams alleged that MacNamara did not like something Williams was doing so he slammed him into a wall and twisted both of his arms while Williams was handcuffed. Williams further alleged that he kicked MacNamara in self-defense and was thrown to the floor. Williams allegedly received multiple injuries from the encounter with MacNamara, including an injured left shoulder, bruised back, hand and thigh, and a bruised' and swollen knee.
Williams attempted to pursue an administrative grievance and appeal about the matter in the administrative appeal system established by the California Department of Corrections ("CDC") His informal appeal and first formal level appeal were bypassed. His second level appeal was denied on September 21, 1999. Complaint, p. 2; Declaration of Matthew D. Mandelbaum In Support of Defendants' Motion For Summary Judgment, Exh. A. In response to the question on the form civil rights complaint about the result of the third formal level appeal, Williams wrote "November 1, 1999 99-01404 signed rights responsibilities form. Tort claim #G345990." Complaint, p. 2. Williams did not file a third level appeal with the CDC and did not obtain a third level review of his inmate appeal in the CDC's administrative appeal process. Declaration of Linda L. Rianda In Support of Defendants' Motion For Summary Judgment, ¶¶ 2-3.
Defendant MacNamara now moves for summary judgment on the affirmative defense that Williams did not exhaust his administrative remedies before filing this action. See generally Wyatt v. Terhune, 280 F.3d 1244, 1245 (9th Cir. 2002) (PLRA's exhaustion requirement is an affirmative defense). Williams opposes the motion.
Both defendants MacNamara and Maxwell are listed as the moving defendants. Summary judgment already has been entered in favor of Maxwell and defendants' brief does not explain the legal authority for him to continue making motions in this action. Also, the evidence before the court concerns only Williams' exhaustion efforts vis-a-vis his claim against MacNamara.
The court also notes with dismay that the apparently poor communications between defense counsel and CDC representatives have required an unnecessary consumption of judicial resources. Defense counsel represented in his declaration in support of defendants' request for leave to file dispositive motion that the motion now before the court was being made late because he had earlier received incorrect information about Williams' administrative appeals history and had only recently received correct information when he double-checked in preparation for the upcoming trial. The court considered three separate motions for dismissal/summary judgment from one or both defendants in this action, held a settlement conference, held case management conferences, and issued several discovery orders — most of which occurred after the legal basis for the exhaustion defense, i.e., the Booth v. Churner case, became evident last May. A t least one summary judgment order, a settlement conference, a case management conference, and two discovery orders would not have necessary had counsel originally obtained accurate information about the exhaustion issue from CDC representatives and included the exhaustion argument in the second motion for summary judgment from defendants.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because the events or omissions giving rise to the claims occurred here. This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Where, as here, the moving party bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. Smith, 965 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") Once the moving party has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 nn. 10-11 (9th Cir. 1995) (treating plaintiffs verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge).
The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party and the inferences must be drawn in the light most favorable to the nonmoving party. See id. at 630-31.
DISCUSSION
The Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996) ("PLRA"), amended 42 U.S.C. § 1997e to provide 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). The phrase "no action shall be brought" means that the action must be dismissed unless the prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner fully exhausts while the suit is pending. See Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); Perez v. Wisconsin Dep't of Corr, 182 F.3d 532, 535 (7th Cir. 1999). But see Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir. 1999) (reversing dismissal for failure to exhaust where plaintiff completed prison grievance procedure by the time the district court had ruled on the motion to dismiss).
Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." Porter v. Nussle, 122 S.Ct. 983, 988 (2002); Booth v. Churner, 532 U.S. 731, 739-40 n. 5 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id. at 741. That the administrative procedure cannot result in the particular form of relief requested by the prisoner does not excuse exhaustion because some sort of relief or responsive action may result from the grievance. See id. at 737; see also Porter, 122 S.Ct. at 988 (purposes of exhaustion requirement include allowing prison to take responsive action, filtering out frivolous cases, and creating administrative records).
The State of California provides its inmates and parolees the right to appeal administratively "any departmental decision, action, condition or policy perceived by those individuals as adversely affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right to file administrative appeals alleging misconduct by correctional officers. See id. § 3084.1(e). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level appeal to the Director of the California Department of Corrections. See id. § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the administrative remedies exhaustion requirement under § 1997e(a). See id. at 1237-38.
It is undisputed that Williams did not file a third level appeal to the Director of the California Department of Corrections and did not obtain a decision therefrom on his claims that defendant had subjected him to excessive force. Williams did not pursue his administrative grievance to the highest level available under the prison administrative grievance and appeal system before filing this action as required by 42 U.S.C. § 1997e(a). He thus failed to satisfy the plain language of § 1997e(a) which makes exhaustion a precondition to filing in federal court.
Williams raises several arguments in opposition to the motion for summary judgment to attempt to surmount his undisputed failure to complete the administrative appeal process. First, he argues that he did present his claim to the California State Board of Control. That does not matter, however. Presentation of a claim to the State Board of Control does not exhaust remedies within the prison appeal system because the State Board of Control is not part of the prison appeal system. In passing section 1997e, while "Congress certainly intended to require prisoners to exhaust available administrative grievance procedures, there is no indication that it intended prisoners also to exhaust state tort claim procedures." Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999),overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001). Second, Williams contends that he could not appeal at the third level because prison staff refused to return his inmate appeal from the second level appeal. No evidence supports this naked assertion in Williams' opposition; indeed, his verified complaint strongly suggests that the second level appeal response was returned to him because he did note in the complaint the correct date on which his second level review was denied — a fact he does not explain how he would have known unless he had received the response. Also, the unsupported assertion that the second level review response was not returned does not preclude summary judgment because defendant presents undisputed evidence that, even if the second level appeal response was not returned, Williams could have obtained a copy of the decision upon request to use to file the third level appeal. Declaration of Matthew Nimrod In Support of Reply To Plaintiff's Opposition To Defendants' Motion For Summary Judgment, ¶¶ 2-4. Third, Williams argues that at the time he filed this action, exhaustion of administrative remedies was not required for a claim such as his. Even though Booth was decided after Williams filed this action, it applies to him. When the Supreme Court applies a rule of federal law to the parties before it, as it did in Booth, that rule is the controlling interpretation of federal law and must be given full effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate the announcement of the rule.See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 94-99 (1993). Finally, Williams appears to argue that exhaustion is not required for excessive force claims. This argument has no merit in light of the Supreme Court's recent ruling 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." Porter, 121 S.Ct. at 992.
MacNamara has come forward with uncontroverted evidence establishing that Williams had not filed an appeal at the third level and received a response thereto before filing this action. That evidence would entitle him to a directed verdict if uncontradicted at trial. He has established the absence of a genuine issue of fact on each issue material to his affirmative defense. Even viewing the evidence in the light most favorable to Williams and drawing the inferences therefrom in his favor, no reasonable jury could return a verdict in favor of Williams and against MacNamara. Defendant MacNamara is entitled to summary judgment. The decision in this action does not forever terminate Williams' ability to seek redress for the wrongs he allegedy suffered. Williams may return to court to file a new action and purse his legal remedies if he ever exhausts his administrative remedies.
CONCLUSION
Defendant MacNamara's motion for judgement is GRANTED (Docket #66). Defendant Maxwell's motion for summary judgment was previously granted. Because both defendants are entitled to judgment in their favor, judgment will be entered. The clerk shall close the file.