The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 STEVEN SANTIAGO, Case No. 1:19-cv-00566-NONE-SKO (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS
TO GRANT DEFENDANTS’ MOTION FOR
13 v. SUMMARY JUDGMENT FOR FAILURE
TO EXHAUST
14 J. CALDWELL, et al.,
(Doc. 42)
15 Defendants.
21-DAY DEADLINE
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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. 42.) For the reasons set forth below, the Court
19 recommends that Defendants’ motion be granted.
20 I. SUMMARY OF FACTS1
21 At all times relevant to this case, Plaintiff Steven Santiago was incarcerated at California
22 State Prison, Corcoran. Pl.’s Sec. Am. Compl. (Doc. 14). Plaintiff alleges the defendant-
23 correctional officers subjected him to excessive force on August 2, 2018. Id. 3. On that same date,
24 Plaintiff was transported to Mercy Hospital in Bakersfield, California, where he remained until
25 August 8, 2018. Joint Statement of Undisputed Facts (“J. SUF”) ¶¶ 3-7 (Doc. 42-4 at 2). After he
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1 Despite receiving notice of the requirements for opposing a motion for summary judgment, (Doc. 42-1), Plaintiff
27 fails to admit or deny the facts in Defendants’ Separate Statement of Undisputed Facts (Doc. 42-3) and to support any
denials with citations to evidence, as required by Local Rule 260(b). More generally, Plaintiff fails to provide any
1 was discharged from the hospital, Plaintiff was transported to Corcoran Correctional Treatment
2 Center, where he remained until August 15, 2018. Id. ¶¶ 8-9. Plaintiff was readmitted to Mercy
3 Hospital on August 17, 2018, where he remained until August 23, 2018. Id. ¶ 10. Plaintiff was
4 then readmitted to Corcoran Correctional Treatment Center. Id. ¶ 11. He was discharged from the
5 treatment center on August 28, 2018. Id.
6 On October 23, 2018, Plaintiff filed an administrative grievance regarding the alleged
7 incident of excessive force on August 2, 2018. Id. ¶ 16. Prison officials cancelled the grievance at
8 the second level of review because it was untimely. Id. ¶ 17. Plaintiff did not appeal the
9 cancellation decision. See id. ¶¶ 19-20. Plaintiff failed to exhaust his administrative remedies with
10 respect to this grievance. Defs.’ Separate Statement of Undisputed Facts (“Defs.’ Sep. SUF”) ¶ 2
11 (Doc. 42-3 at 2).
12 Plaintiff initiated this action on April 26, 2019. Pl.’s Compl. (Doc. 1). This case proceeds
13 on Plaintiff’s second amended complaint for claims of excessive force in violation of the Eighth
14 Amendment. Third Screening Order 1 (Doc. 17 at 1).
15 II. LEGAL STANDARDS
16 A. Summary Judgment
17 Summary judgment is appropriate when the moving party “shows that there is no genuine
18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
19 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine
20 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing
21 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by
22 “citing to particular parts of materials in the record, including depositions, documents,
23 electronically stored information, affidavits or declarations, stipulations . . ., admissions,
24 interrogatory answers, or other materials,” or by showing that such materials “do not establish the
25 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible
26 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A),(B). When the non-moving party bears
27 the burden of proof at trial, “the moving party need only prove that there is an absence of
1 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).
2 Summary judgment should be entered against a party who fails to make a showing
3 sufficient to establish the existence of an element essential to that party’s case, and on which that
4 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of
5 proof concerning an essential element of the nonmoving party’s case necessarily renders all other
6 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted,
7 “so long as whatever is before the district court demonstrates that the standard for the entry of
8 summary judgment . . . is satisfied.” Id. at 323.
9 B. Exhaustion of Administrative Remedies
10 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with
11 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
12 confined in any jail, prison, or other correctional facility until such administrative remedies as are
13 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is
14 mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,
15 211 (2007). Inmates are required to “complete the administrative review process in accordance
16 with the applicable procedural rules, including deadlines, as a precondition to bringing suit in
17 federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies
18 to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of
19 the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532
20 U.S. 731, 741 (2001).
21 The failure to exhaust administrative remedies is an affirmative defense, which the
22 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of
23 producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if
24 the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff
25 failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). On a motion for summary
26 judgment, the defendant must prove (1) the existence of an available administrative remedy and
27 (2) that Plaintiff failed to exhaust that remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir.
1 who must show that there is something particular in his case that made the existing and generally
2 available administrative remedies effectively unavailable to him. . .” Id. If the plaintiff fails to
3 meet this burden, the court must dismiss the unexhausted claims or action without prejudice. See
4 Lira v. Herrera, 427 F.3d 1164, 1175 (9th Cir. 2005).
5 C. CDCR Grievance Process
6 The California Department of Corrections and Rehabilitation (“CDCR”) has an
7 administrative grievance system for prisoners to appeal a policy, decision, action, condition, or
8 omission by the department or staff if it has an adverse effect on prisoner health, safety, or
9 welfare. Cal. Code Regs. tit. 15, §§ 3084.1(a) (2018), 3999.226(a). Compliance with 42 U.S.C. §
10 1997e(a) requires California-state prisoners to utilize CDCR’s grievance process to exhaust their
11 claims prior to filing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010); see
12 also Woodford, 548 U.S. at 85-86. Administrative appeals are generally subject to two to three
13 levels of review before the remedy is deemed exhausted. Cal. Code Regs. tit. 15, §§ 3084.1(b)
14 (2018), 3084.7(d)(3) (2018), 3999.226(g), 3999.230(h); see also Sapp, 623 F.3d at 818.
15 III. DISCUSSION
16 The Prison Litigation Reform Act requires “proper exhaustion,” which means that “the
17 prisoner must complete the administrative review process in accordance with the applicable
18 procedural rules . . . as a precondition to bringing suit in federal court.” Woodford, 548 U.S. at 88,
19 93. The rules that must be followed, in other words, “are defined not by the PLRA, but by the
20 prison grievance process itself.” Jones, 549 U.S. at 218. “The level of detail necessary in a
21 grievance to comply with the grievance procedures will vary from system to system . . ., but it is
22 the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
23 Id.
24 In 2018, California regulations required prisoners to pursue non-health-related grievances
25 through three levels of review in order to exhaust administrative remedies. Cal. Code Regs. tit.
26 15, §§ 3084.1(b) (2018), 3084.7(d)(3) (2018). A prisoner was required to submit a grievance
27 within 30 days of the event or decision of which the prisoner complained. Id. § 3084.8(b) (2018).
1 the appeal are exceeded.” Id. § 3084.6(c)(4) (2018.) A cancellation (as opposed to a denial on the
2 merits) “does not exhaust administrative remedies.” Id. § 3084.1(b) (2018).
3 Plaintiff alleges Defendants subjected him to excessive force on August 2, 2018. Pl.’s Sec.
4 Am. Compl. 3. Plaintiff filed a grievance regarding the subject incident on October 23, 2018. J.
5 SUF ¶ 16. Prison officials cancelled the grievance at the second level of review because it was
6 filed more than 30 days after incident. Id. ¶ 17; Williams Decl. ¶¶ 9-10 (Doc. 42-5 at 3). Pursuant
7 to California Code of Regulations sections 3084.6(c)(4) (2018) and 3084.8(b) (2018), the
8 cancellation was proper. See Sapp v. Kimbrell, 623 F.3d 813, 826 (9th Cir. 2010). Pursuant to
9 California Code of Regulations section 3084.1(b) (2018), the cancellation did not exhaust
10 Plaintiff’s administrative remedies.
11 In his opposition, “Plaintiff maintains that the district court has the equitable power to
12 permit him to exhaust his administrative remedies while his federal claim is pending in this
13 Court.” Pl.’s Opp. 2 (Doc. 44 at 2). As an initial matter, it is unclear how Plaintiff would be able
14 to exhaust administrative remedies more than three years after the deadline for filing a grievance.
15 Second, the Supreme Court has made clear that the “mandatory language [of the PLRA] means a
16 court may not excuse a failure to exhaust.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citation
17 omitted). Per the PLRA’s plain terms, administrative remedies “must be exhausted before a
18 complaint under § 1983 may be entertained.” Booth v. Churner, 532 U.S. 731, 738 (2001)
19 (emphasis added). Thus, Prisoners may not exhaust during the course of litigation. See McKinney
20 v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).
21 Plaintiff also seems to suggest that the PLRA’s exhaustion requirement does not apply to
22 his claims of excessive force. See Pl.’s Opp. 4. The Supreme Court explicitly rejected this
23 argument in Porter v. Nussle, in which it held “that the PLRA’s exhaustion requirement applies to
24 all inmate suits about prison life, whether they involve general circumstances or particular
25 episodes, and whether they allege excessive force or some other wrong.” 534 U.S. 516, 532
26 (2002) (citation omitted).
27 Plaintiff also contends that “there is no indication that anything in this case could have
1 excusing Plaintiff’s failure to exhaust. In Booth v. Churner, the Supreme Court held that
2 exhaustion is mandatory “irrespective of the forms of relief sought and offered through
3 administrative avenues.” 532 U.S. 731, 741 n.6 (2001). That is, “[t]he obligation to exhaust . . .
4 persists as long as some remedy remains ‘available.’” Brown v. Valoff, 422 F.3d 926, 935 (9th
5 Cir. 2005).
6 Lastly, Plaintiff mentions in passing that his “hospitalization and/or coma rendered
7 exhaustion a nullity because he was unable to comply with the prison exhaustion timeline.” Pl.’s
8 Opp. 4. Plaintiff provides no details regarding this one-sentence claim, and he provides no
9 evidence that he was in a coma. “There is no medical evidence showing Plaintiff was ever in a
10 coma during the month of August 2018.” Defs.’ Sep. SUF ¶ 1. More generally, Plaintiff provides
11 no evidence that he was medically incapacitated such that he was unable to submit a grievance by
12 September 1, 2018, or 30 days after the alleged incident of excessive force. As described above,
13 Plaintiff was discharged from Mercy Hospital the second time on August 23, 2018, at which point
14 he returned to Corcoran State Prison J. SUF ¶ 10. However, Plaintiff did not submit a grievance
15 until October 23, 2018—nearly two months later. Id. ¶ 16.
16 Furthermore, Plaintiff did not appeal the cancellation of his grievance, though the
17 “cancellation notice . . . informed [him] of his option to appeal . . . and provided guidance on how
18 to do so.” Id. ¶¶ 18-20. Thus, assuming arguendo that the cancellation of his grievance was
19 erroneous, the “improper cancellation . . . did not render administrative remedies effectively
20 unavailable” because Plaintiff could have appealed the cancellation decision. Cortinas v. Portillo,
21 754 F. App’x 525, 527 (9th Cir. 2018) (citation omitted). In other words, given that Plaintiff
22 failed to appeal the cancellation decision, he cannot now show that administrative remedies were
23 effectively unavailable due to an improper cancellation or screening. See Wilson v. Zubiate, 718
24 F. App’x 479, 482 (9th Cir. 2017).
25 The Supreme Court has explicitly held “that the PLRA exhaustion requirement requires
26 proper exhaustion.” Woodford, 548 U.S. at 93. To properly exhaust, prisoners must comply with
27 the prison’s grievance procedures. Jones, 549 U.S. at 218. That is, “the prison’s requirements . . .
1 deadline for submitting a grievance regarding the alleged incident of excessive force. Therefore,
2 he did not properly exhaust his administrative remedies as required by the PLRA. Woodford, 548
3 U.S. at 90 (“[p]roper exhaustion demands compliance with an agency’s deadlines”).
4 IV. CONCLUSION AND RECOMMENDATION
5 The undisputed evidence shows that Plaintiff failed to exhaust administrative remedies
6 prior to filing suit. Accordingly, the Court RECOMMENDS that Defendants’ motion for
7 summary judgment (Doc. 42) be GRANTED.
8 These Findings and Recommendations will be submitted to the United States District
9 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of the date of
10 service of these Findings and Recommendations, Plaintiff may file written objections with the
11 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and
12 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in
13 waiver of her rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
14 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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17 Dated: October 13, 2021 /s/ Sheila K. Oberto .
UNITED STATES MAGISTRATE JUDGE
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