(PC) Correa v. Bravdrick

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 ANGELO CORREA, Case No. 1:19-cv-00369-DAD-JLT (PC)

12 Plaintiff, ORDER SETTING EVIDENTIARY

HEARING ON DEFENDANTS’ MOTION

13 v. FOR SUMMARY JUDGMENT

14 BRAUDRICK, et al., Date: April 26, 2021

Time: 8:30 a.m.

15 Defendants.

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17 Defendants move for summary judgment on the grounds that Plaintiff failed to exhaust

18 administrative remedies prior to filing suit. (Doc. 37.) For the reasons set forth below, the Court

19 sets this matter for an evidentiary hearing.

20 I. SUMMARY OF FACTS

21 At all times relevant to this action, Plaintiff was incarcerated at Wasco State Prison. Defs.’

22 Separate Statement of Undisputed Facts (“SUF”) ¶ 1 (Doc. 37-3 at 1). Defendants Braudrick,

23 Maddux, and Salinas were employed at the prison as a correctional officer, a correctional

24 sergeant, and a psychiatric technician, respectively. Id. ¶ 2; Pl.’s Compl. 2-3 (Doc. 24 at 2-3). In

25 his operative, first amended complaint, Plaintiff alleges that Defendants subjected him to

26 excessive force and deliberate indifference to his serious medical needs on March 22, 2017. Pl.’s

27 Compl. 2-8; Defs.’ SUF ¶¶ 3-6. Plaintiff filed his first amended complaint in this action on

February 26, 2020.

1 Plaintiff filed a grievance regarding the alleged incident of excessive force and deliberate

2 indifference on September 20, 2017. Feliciano Decl. Ex. B (Doc. 37-6 at 9-13). In the grievance,

3 Plaintiff states that he filed three other “602 complaints” (i.e., grievances) against Defendants

4 Braudrick, Maddux, and Salinas, on April 10, 2017, but that he had not received a response. Id.

5 Prison authorities cancelled the September 20, 2017 grievance at the second level of review for

6 exceeding time limitations. Id.

7 In his supporting declaration, Plaintiff states that he submitted three “602 complaints” on

8 April 10, 2017, to a correctional officer “working second shift” in the “ad.-seg. building D6 - B

9 side.” Pl.’s Decl. 1 (Doc. 42 at 33.) Plaintiff states that he was then transferred to California State

10 Prison, Corcoran, and did not return to Wasco State Prison until four months later. Id. Plaintiff

11 states that he filed a “22 request form” inquiring about not having received a response to his

12 complaints. Id. 2. An exhibit to a declaration submitted in support of Defendants’ motion for

13 summary judgment includes a CDCR 22 form, or an “Inmate/Parolee Request for Interview, Item,

14 or Service,” filed by Plaintiff, in which Plaintiff wrote that he submitted “3 602 complaints”

15 against Defendants “about an incident that happen[ed] on 3/22/2017.” Feliciano Decl. Ex. B

16 (Doc. 37-6 at 15.)

17 Plaintiff filed an appeal of the September 2017 cancellation on December 7, 2017.

18 Feliciano Decl. Ex. E (Doc. 37-6 at 133-35.) Therein, Plaintiff states that he submitted an appeal

19 of the cancellation on September 28, 2017, but that had not received a response. Id. Prison

20 authorities cancelled the appeal for exceeding time limitations on December 8, 2017. Id.

21 Plaintiff then submitted an appeal directly to the third level of review by the California

22 Department of Corrections and Rehabilitation Office of Appeals. Moseley Decl. Ex. B (Doc. 37-5

23 at 8-39). The Office of Appeals rejected the appeal, in part, because Plaintiff had bypassed the

24 lower levels of review. Id. Between the date of the incident and the date Plaintiff filed his first

25 amended complaint, the Office of Appeals did not accept or adjudicate on the merits any of

26 Plaintiff’s grievances concerning the incident underlying this action. See Defs.’ SUF ¶¶ 8-9.

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1 II. LEGAL STANDARDS

2 A. Summary Judgment

3 Summary judgment is appropriate when the moving party “shows that there is no genuine

4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

5 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine

6 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing

7 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by

8 “citing to particular parts of materials in the record, including depositions, documents,

9 electronically stored information, affidavits or declarations, stipulations …, admissions,

10 interrogatory answers, or other materials,” or by showing that such materials “do not establish the

11 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible

12 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears

13 the burden of proof at trial, “the moving party need only prove that there is an absence of

14 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex,

15 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

16 Summary judgment should be entered against a party who fails to make a showing

17 sufficient to establish the existence of an element essential to that party’s case, and on which that

18 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of

19 proof concerning an essential element of the nonmoving party’s case necessarily renders all other

20 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted,

21 “so long as whatever is before the district court demonstrates that the standard for the entry of

22 summary judgment … is satisfied.” Id. at 323.

23 B. Exhaustion of Administrative Remedies

24 The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect

25 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in

26 any jail, prison, or other correctional facility until such administrative remedies as are available

27 are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and

1 Inmates are required to “complete the administrative review process in accordance with the

2 applicable procedural rules, including deadlines, as a precondition to bringing suit in federal

3 court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all

4 inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the

5 relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S.

6 731, 741 (2001).

7 The failure to exhaust administrative remedies is an affirmative defense, which the

8 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of

9 producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if

10 the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff

11 failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). On a motion for summary

12 judgment, the defendant must prove (1) the existence of an available administrative remedy and

13 (2) that Plaintiff failed to exhaust that remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir.

14 2015) (citations omitted). If the defendant meets this burden, “the burden shifts to the plaintiff,

15 who must show that there is something particular in his case that made the existing and generally

16 available administrative remedies effectively unavailable to him.” Id. (citations omitted). If the

17 plaintiff fails to meet this burden, the court must dismiss the unexhausted claims or action without

18 prejudice. See Lira v. Herrera, 427 F.3d 1164, 1175 (9th Cir. 2005).

19 C. CDCR Grievance Process

20 The CDCR has an administrative grievance system for prisoners to appeal a policy,

21 decision, action, condition, or omission by the department or staff if it has an adverse effect on

22 prisoner health, safety, or welfare. Cal. Code Regs. tit. 15, § 3084.1(a) (2017). Compliance with

23 42 U.S.C. § 1997e(a) requires California state prisoners to utilize CDCR’s grievance process to

24 exhaust their claims prior to bringing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th

25 Cir. 2010); see also Woodford, 548 U.S. at 85-86. In 2017, administrative grievances were subject

26 to three levels of review before the remedy was deemed exhausted. Cal. Code Regs. tit. 15, §

27 3084.1(b) (2017); see also Sapp, 623 F.3d at 818.

1 III. DISCUSSION

2 A. Plaintiff failed to exhaust administrative remedies before initiating this action

3 The PLRA requires “proper exhaustion,” which means that “the prisoner must complete

4 the administrative review process in accordance with the applicable procedural rules, including

5 deadlines, as a precondition to bringing suit in federal court.” Woodford, 548 U.S. at 88, 93. The

6 rules that must be followed, in other words, “are defined not by the PLRA, but by the prison

7 grievance process itself.” Jones, 549 U.S. at 218. “The level of detail necessary in a grievance to

8 comply with the grievance procedures will vary from system to system …, but it is the prison’s

9 requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id.

10 In 2017, California regulations required that inmates pursue administrative grievances

11 through three levels of review in order to exhaust their administrative remedies. Cal. Code Regs.

12 tit. 15, §§ 3084.1(b) (2017), 3084.7(d)(3) (2017). The regulations also required that inmates

13 submit a grievance within 30 days of the subject incident or decision being appealed. Id. §

14 3084.8(b)(1) (2017). Grievances that failed to abide by these time constraints were subject to

15 cancellation. Id. § 3084.6(c)(4) (2017).

16 On September 20, 2017, Plaintiff filed a grievance regarding the alleged incident of

17 excessive force and deliberate indifference on March 22, 2017. Feliciano Decl. Ex. A. Since

18 Plaintiff filed this grievance more than 30 days after the incident, prison authorities cancelled the

19 grievance, pursuant to state regulations. See Sapp, 623 F.3d at 826 (concluding that screening of

20 grievance was proper when inmate failed to comply with time limitations). Plaintiff does not deny

21 that he submitted this grievance 6 months after the incident underlying this action. See Pl.’s Decl.

22 2. Given the cancellation, Plaintiff never submitted a grievance about the incident that was

23 adjudicated on the merits at the third level of review. See Defs.’ SUF ¶¶ 8-9.

24 Based on the above, the Court finds that Defendants have met their burden of showing

25 that Plaintiff failed to exhaust generally available administrative remedies before initiating this

26 action. The burden now shifts to Plaintiff to show that “something particular in his case … made

27 … administrative remedies effectively unavailable to him.” Williams, 775 F.3d at 1191.

1 B. Plaintiff contends he is excused from failing to exhaust

2 Prisoners must only exhaust administrative remedies that are “available;” they “need not

3 exhaust unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). The Supreme Court has

4 identified three circumstances under which a remedy is unavailable: (1) the remedy “operates as a

5 simple dead end,” (2) the “administrative scheme … [is] so opaque that …. no ordinary prisoner

6 can discern or navigate it,” and (3) “prison administrators thwart inmates from taking advantage

7 of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60.

8 Plaintiff contends that he submitted three grievances to a correctional officer on April 10,

9 2017, regarding the alleged incident of excessive force and deliberate indifference on March 22,

10 2017. Pl.’s Opp’n 6-7 (Doc. 42 at 6-7). This was before the 30-day deadline. See Cal. Code Regs.

11 tit. 15, § 3084.8(b)(1) (2017). Plaintiff states that he gave the three “complaint forms to turn … in

12 and [the officer] did not,” and that “appeal staff was delaying and loosing [sic] [his] appeals in

13 order to stop [him] from exhausting administrative remedies.” Pl.’s Opp’n 12. Although Plaintiff

14 maintains that, given his efforts, he “did exhaust administrative remedies,” id. 6, his argument is

15 more precisely that prison officials thwarted his efforts to complete the administrative review

16 process by failing to submit or respond to his initial grievances.

17 Defendants argue that CDCR and authorities’ cancellation “letters show that CDCR

18 provided Plaintiff with an open and available grievance process that Plaintiff failed to properly

19 utilize,” and that “Plaintiff’s self-serving assertion that he did not receive responses to his

20 grievances, effectively rendering the process unusable, does not change the result.” Defs.’ Reply

21 2-3 (Doc. 43 at 2-3).

22 The Court notes that prison officials’ failure to submit an inmate grievance for review, or

23 failure to respond to a grievance, makes the administrative remedy effectively unavailable. It is

24 well established that “[w]hen prison officials improperly fail to process a prisoner’s grievance,

25 …. [they] have ‘thwart[ed] [the prisoner] from taking advantage of [the] grievance process,’

26 making that process unavailable.” Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017)

27 (citations omitted). Hence, “‘an inmate can show that administrative remedies are … unavailable

1 notice of or justification for the delay, and 3) the inmate has no other available avenues to seek

2 administrative relief.’” Thornton v. Grissom, No. 1:16-cv-00498-AWI-MJS, 2017 WL 5158624,

3 at *4 (E.D. Cal. 2017) (citation omitted); see also Brown v. Valoff, 422 F.3d 926, 943 n.18 (9th

4 Cir. 2005) (prison officials may not “exploit the exhaustion requirement through indefinite delay

5 in responding to grievances”) (internal quotation marks and citations omitted).

6 Plaintiff alleges that he submitted three grievances in April 2017 and that prison officials

7 never responded. Though he notified officials of these earlier-filed grievances in his later-filed

8 September 2017 grievance, officials never responded to this claim or provided justification for the

9 apparent delay. These facts are directly counter to the assertion of the defendants that the plaintiff

10 failed to timely submit a 602 related to the events underlying this action. Because there is a

11 credibility determination the Court must make, the Court will set this matter for an evidentiary

12 hearing.

13 ORDER

14 The Court sets an evidentiary hearing on April 26, 2021 at 8:30 a.m. At that time, either

15 side may present evidence addressing whether the plaintiff timely submitted a grievance related to

16 the events that give rise to this action.

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IT IS SO ORDERED.

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19 Dated: December 28, 2020 /s/ Jennifer L. Thurston

UNITED STATES MAGISTRATE JUDGE

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