The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 KEITH CANDLER, No. 2:17-cv-23-JAM-EFB P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 PRATHER, et al.,
15 Defendants.
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17 Plaintiff is a California Department of Corrections and Rehabilitation (“CDCR”) inmate
18 proceeding without counsel in an action brought under 42 U.S.C. § 1983. He filed this action on
19 January 5, 2017. ECF No. 1. On April 26, 2018, the court determined that plaintiff’s complaint
20 alleged potentially cognizable excessive force claims against defendants Prather and Romney.
21 ECF No. 9. Defendant Romney has filed a motion for summary judgment wherein he argues that
22 plaintiff failed to exhaust administrative remedies with respect to the claim against him. ECF No.
23 20.
24 After review of the pleadings and, for the reasons discussed below, the court concludes
25 that plaintiff failed to administratively exhaust his claim against Romney.
26 /////
27 /////
28 /////
1 Legal Standards
2 A. Summary Judgment
3 Summary judgment is appropriate when there is “no genuine dispute as to any material
4 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary
5 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant
6 to the determination of the issues in the case, or in which there is insufficient evidence for a jury
7 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600
8 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v.
9 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment
10 motion asks whether the evidence presents a sufficient disagreement to require submission to a
11 jury.
12 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims
13 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to
14 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
15 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.
16 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary
17 judgment practice, the moving party bears the initial responsibility of presenting the basis for its
18 motion and identifying those portions of the record, together with affidavits, if any, that it
19 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323;
20 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets
21 its burden with a properly supported motion, the burden then shifts to the opposing party to
22 present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson,
23 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995).
24 A clear focus on where the burden of proof lies as to the factual issue in question is crucial
25 to summary judgment procedures. Depending on which party bears that burden, the party seeking
26 summary judgment does not necessarily need to submit any evidence of its own. When the
27 opposing party would have the burden of proof on a dispositive issue at trial, the moving party
28 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National
1 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters
2 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-
3 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a
4 summary judgment motion may properly be made in reliance solely on the ‘pleadings,
5 depositions, answers to interrogatories, and admissions on file.’”). Summary judgment should be
6 entered, after adequate time for discovery and upon motion, against a party who fails to make a
7 showing sufficient to establish the existence of an element essential to that party’s case, and on
8 which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance,
9 summary judgment must be granted, “so long as whatever is before the district court demonstrates
10 that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at
11 323.
12 To defeat summary judgment the opposing party must establish a genuine dispute as to a
13 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that
14 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at
15 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law
16 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is
17 determined by the substantive law applicable for the claim in question. Id. If the opposing party
18 is unable to produce evidence sufficient to establish a required element of its claim that party fails
19 in opposing summary judgment. “[A] complete failure of proof concerning an essential element
20 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S.
21 at 322.
22 Second, the dispute must be genuine. In determining whether a factual dispute is genuine
23 the court must again focus on which party bears the burden of proof on the factual issue in
24 question. Where the party opposing summary judgment would bear the burden of proof at trial on
25 the factual issue in dispute, that party must produce evidence sufficient to support its factual
26 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.
27 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit
28 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue
1 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to
2 demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such
3 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,
4 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
5 The court does not determine witness credibility. It believes the opposing party’s
6 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;
7 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the
8 proponent must adduce evidence of a factual predicate from which to draw inferences. American
9 Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J.,
10 dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at
11 issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th
12 Cir. 1995). On the other hand, the opposing party “must do more than simply show that there is
13 some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could
14 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for
15 trial.’” Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant
16 summary judgment.
17 B. Administrative Exhaustion
18 The Prison Litigation Reform Act of 1995 (hereafter “PLRA”) states that “[n]o action
19 shall be brought with respect to prison conditions under section 1983 . . . or any other Federal
20 law, by a prisoner confined in any jail, prison, or other correctional facility until such
21 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA
22 applies to all suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), but a prisoner is
23 only required to exhaust those remedies which are “available.” See Booth v. Churner, 532 U.S.
24 731, 736 (2001). “To be available, a remedy must be available as a practical matter; it must be
25 capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (citing Brown v.
26 Valoff, 422 F.3d 926, 937 (9th Cir. 2005)) (internal quotations omitted).
27 Dismissal for failure to exhaust should generally be brought and determined by way of a
28 motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Id. at
1 1168. Under this rubric, the defendant bears the burden of demonstrating that administrative
2 remedies were available and that the plaintiff did not exhaust those remedies. Id. at 1172. If
3 defendant carries this burden, then plaintiff must “come forward with evidence showing that there
4 is something in his particular case that made the existing and generally available administrative
5 remedies effectively unavailable to him.” Id. If, however, “a failure to exhaust is clear on the
6 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id. at 1166.
7 Analysis
8 On March 4, 2016, plaintiff was involved in a fight on the California State Prison –
9 Sacramento yard. ECF No. 1 at 6. Officers responded to the incident by deploying pepper spray
10 and “OC grenades.” Id. Plaintiff claims that he was covered in pepper spray, which caused his
11 eyes to burn and his body to suffer other, unspecified wounds. Id. After the fight, officers
12 allegedly denied plaintiff’s requests for quick decontamination and, instead, conducted a search
13 of his person. Id. at 7.
14 Plaintiff exhausted one grievance – log number SAC-16-01099 - relevant to the foregoing
15 incident. ECF No. 20-5 at 5. The grievance does not specifically identify any correctional
16 officers. ECF No. 20-4 at 20. Instead, he alleged that he was “maced” on March 4, 2016 and
17 “[t]he correction officials took extremely long to decontaminate [him].” Id. Defendant Prather’s
18 involvement was identified by the first level reviewer. Id. at 19. By contrast, Romney’s
19 involvement was never mentioned during the administrative appeals process – either by plaintiff
20 or the reviewing officials. Thus, the sole question before the court is whether plaintiff’s
21 grievances sufficed to exhaust the excessive force claims against Romney.
22 The California Code of Regulations dictates that:
23 The inmate or parolee shall list all staff member(s) involved and shall
describe their involvement in the issue. To assist in the identification
24 of staff members, the inmate or parolee shall include the staff
member’s last name, first initial, title or position, if known, and the
25 dates of the staff member’s involvement in the issue under appeal. If
the inmate or parolee does not have the requested identifying
26 information about the staff member(s), he or she shall provide any
other available information that would assist the appeals coordinator
27 in making a reasonable attempt to identify the staff member(s) in
question.
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1 Cal. Code Regs. tit. 15, § 3084.2(a)(3) (2016). And it is the prison’s regulations that “define the
2 boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). A prisoner’s failure
3 to comply with grievance regulations do not preclude exhaustion, however, if prison officials
4 decline to enforce a procedural bar and instead consider a grievance on its merits. Reyes v. Smith,
5 810 F.3d 654, 657 (9th Cir. 2016).
6 The court concludes that plaintiff has failed to exhaust his claims against Romney. First,
7 the exception of Reyes does not apply here. The record provides no indication that prison
8 officials actually considered Romney’s conduct in the March 2016 incident despite plaintiff’s
9 failure to name him. Thus, the record cannot support a claim that prison officials declined to
10 enforce the exhaustion requirement. Second, the brevity of plaintiff’s grievance makes plain that,
11 to the extent he did not know Romney’s identity, he did not comply with the requirement that he
12 provide available information which would assist the appeals coordinator in making a reasonable
13 attempt to identify him. As noted supra, he simply alleged that unnamed correctional officers had
14 taken too long to decontaminate him. He did not provide a physical description, a rank, or any
15 other information from which a reviewing official might have identified Romney.1
16 The court recognizes that, in Reyes, the Ninth Circuit rejected defendants’ argument that
17 plaintiff’s failure to name two individuals in his grievance precluded exhaustion of his claims
18 against them. 810 F.3d at 658-59. The circumstances in Reyes are different from the case at bar,
19 however. In that case, plaintiff made reference to the Pain Management Committee and alleged
20 wrongdoing by its members. Id. at 659. The two unnamed individuals were part of that
21 committee and thus, the Reyes court concluded, prison officials had full notice of the contours of
22 his claim. Id. Nothing so specific was referenced in the grievance relevant to this case. An
23
24 1 The court recognizes that, assuming the truth of plaintiff’s allegations, he might have
had difficulty discerning specifics about the officers involved from his observations after the
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spraying due to the pepper spray in his eyes. Plaintiff’s potentially inhibited vision does nothing
26 to mitigate the difficulty a reviewing official would have in identifying Romney from the
grievance, however. To fit the circumstances of Reyes plaintiff’s grievance, at a minimum,
27 should have included some type of indirect identifying information that would assist the
correctional officials in identifying the correctional staff who allegedly engaged in the actions for
28 which plaintiff complains.
1 unadorned reference to “correctional officers” simply does not provide the same type of indirect
2 identification contemplated by Reyes.2
3 Plaintiff raises a number of unconvincing arguments in his opposition. First, he argues
4 that prison officials did waive the foregoing procedural requirement when they accepted and
5 processed his grievance. ECF No. 25 at 6. This contention makes little sense, however, insofar
6 as the deficient grievance was obviously accepted only with respect to those officers actually
7 identified by reviewers. It cannot be the case that prison officials’ success in identifying one
8 relevant staff member exhausts plaintiff’s claims against every other staff member he
9 subsequently chooses to sue.
10 Second, plaintiff argues that he “told the appeals interviewer the names of staff involved.”
11 Id. at 7. Even if this is true, it does not excuse his failure to name Romney in his grievance as the
12 regulations required. And prison officials clearly did not waive this procedural deficiency insofar
13 as they did not subsequently refer to Romney at the second or third levels of review. Finally, as
14 Romney points out, plaintiff did not name him in his requests for second or third level review.
15 ECF No. 20-4 at 8, 14.
16 Third, plaintiff argues that he required assistance – due to his problems with writing -
17 from prison officials in completing his appeal and did not receive it. ECF No. 25 at 6. This
18 argument is unconvincing insofar as the requirement plaintiff failed to adhere to was not complex.
19 Plaintiff – as evidenced by both the grievance he submitted and the filings in this case – is
20 capable of writing. The only thing required of him was to either name Romney or provide
21 sufficient information from which reviewing officials could reasonably identify him.3
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2 Clearly prison officials were, despite the lack of provided information, able to identify
23 defendant Prather. It makes little sense, however, to extrapolate from this finding and conclude
that they should have also identified Romney. The more logical assumption is that prison
24 officials did their best to identify the relevant staff and could only determine that Prather was
involved.
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3 Plaintiff does argue that he provided sufficient information to identify Romney, namely
the date of the incident. ECF No. 25 at 7. But this was evidently not the case insofar as prison
27 officials were only able to identify Prather based on the information he provided. Moreover, it is
unclear that this subsection is even applicable insofar as plaintiff avers in his opposition that he
28 knew the names of the staff members involved. Id. (“Plaintiff told the appeals interviewer the
1 Fourth, plaintiff argues that the grievance system was effectively unavailable to him. /d.
2 || at 8. His argument is so broad and shallow that it is difficult to meaningfully consider it. He
3 || points to the contention that each of the appeals he has filed within the CDCR has been denied at
4 | the third level of review. Jd. The fact that some inmates have had their administrative grievances
5 || consistently denied — that is, considered and determined to be without merit - is insufficient to
6 || show that the grievance system totally precludes relief. An available remedy requires □□□□
7 || possibility of some relief for the action complained of ....” Booth v. Churner, 532 U.S. 731, 738
8 || (2001). Here, plaintiff has failed to show that there was no possibility of relief. Nothing in the
9 | record convincingly establishes that, if prison officials had determined that Prather (or Romney
10 | had he been named and investigated) acted wrongly, relief would have been unavailable to
11 | plaintiff.
12 Conclusion
13 For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
14 1. Defendant Romney’s motion for summary judgment (ECF No. 20) be GRANTED;
15 and
16 2. Plaintiff's claims against him be DISMISSED without prejudice for failure to exhaust
17 administrative remedies.
18 These findings and recommendations are submitted to the United States District Judge
19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days
20 || after being served with these findings and recommendations, any party may file written
21 || objections with the court and serve a copy on all parties. Such a document should be captioned
22 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
23 || within the specified time may waive the right to appeal the District Court’s order. Turner v.
24 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).
25 || Dated: August 8, 2019.
26 Mittal
EDMUND F. BRENNAN
27 UNITED STATES MAGISTRATE JUDGE
28 | names of staff involved .. .”).