“An 13 inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”
How later courts described this case
- “An 13 inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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10 PRESTON TAYLOR, Case No. 1:20-cv-00798-ADA-SAB (PC)
11 Plaintiff,
FINDINGS AND RECOMMENDATION
12 v. REGARDING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
13 COMMISSIONER OF CALIFORNIA
DEPARTMENT OF CORRECTIONS AND (ECF No. 71)
14 REHABILITATION, et al.,
15 Defendants.
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17 Plaintiff Preston Taylor is proceeding in forma pauperis in this civil rights action filed
18 pursuant to 42 U.S.C. § 1983.
19 Currently before the Court is Defendant Burden’s motion for summary judgment, filed
20 July 22, 2022.
21 I.
22 BACKGROUND
23 This action is proceeding against Defendant Turner for excessive force and against
24 Defendant Burden for deliberate indifference to a serious medical need.
25 On December 14, 2020, Defendant Turner filed an answer to the complaint. (ECF No.
26 21.)
27 On February 19, 2021, the Court issued the discovery and scheduling order. (ECF No.
31.)
1 On April 14, 2022, Defendant Burden filed an answer to the complaint. (ECF No. 67.)
2 On July 22, 2022, Defendant Burden filed a motion for summary judgment for failure to
3 exhaust the administrative remedies. (ECF No. 71.)
4 On July 22, 2022, Plaintiff filed a statement of non-opposition to Defendant’s motion for
5 summary judgment, which the Court interprets as an acknowledgement that did not exhaust the
6 administrative remedies as to Defendant Burden. (ECF No. 72.)
7 II.
8 LEGAL STANDARD
9 A. Statutory Exhaustion Requirement
10 The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such
11 administrative remedies as are available” before commencing a suit challenging prison
12 conditions.” 42 U.S.C. § 1997e(a); see also Ross v. Blake, 578 U.S. 632, 638 (2016) (“An
13 inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”).
14 Exhaustion is mandatory unless unavailable. “The obligation to exhaust ‘available’ remedies
15 persists as long as some remedy remains ‘available.’ Once that is no longer the case, then there
16 are no ‘remedies … available,’ and the prisoner need not further pursue the grievance.” Brown
17 v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532
18 U.S. 731, 739 (2001)).
19 This statutory exhaustion requirement applies to all inmate suits about prison life, Porter
20 v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by
21 the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. at 741, and
22 unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing
23 Porter, 534 U.S. at 524).
24 The failure to exhaust is an affirmative defense, and the defendants bear the burden of
25 raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino v. Baca, 747 F.3d
26 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the face of
27 the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at
1 are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the
2 light most favorable to the plaintiff, shows he failed to exhaust. Id.
3 B. Summary Judgment Standard
4 Any party may move for summary judgment, and the Court shall grant summary
5 judgment if the movant shows that there is no genuine dispute as to any material fact and the
6 movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks
7 omitted); Albino, 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir.
8 2011). Each party’s position, whether it be that a fact is disputed or undisputed, must be
9 supported by (1) citing to particular parts of materials in the record, including but not limited to
10 depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not
11 establish the presence or absence of a genuine dispute or that the opposing party cannot produce
12 admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The
13 Court may consider other materials in the record not cited to by the parties, although it is not
14 required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237
15 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017
16 (9th Cir. 2010).
17 The defendants bear the burden of proof in moving for summary judgment for failure to
18 exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available
19 administrative remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172.
20 If the defendants carry their burden, the burden of production shifts to the plaintiff “to come
21 forward with evidence showing that there is something in his particular case that made the
22 existing and generally available administrative remedies effectively unavailable to him.” Id. “If
23 the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to
24 exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However,
25 “[i]f material facts are disputed, summary judgment should be denied, and the district judge
26 rather than a jury should determine the facts.” Id.
27 In arriving at this Findings and Recommendation, the court carefully reviewed and
1 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of
2 reference to an argument, document, paper, or objection is not to be construed to the effect that
3 this court did not consider the argument, document, paper, or objection. This court thoroughly
4 reviewed and considered the evidence it deemed admissible, material, and appropriate.
5 III.
6 DISCUSSION
7 A. Description of CDCR’s Administrative Remedy Process
8 Plaintiff is a state prisoner in the custody of the California Department of Corrections and
9 Rehabilitation (“CDCR”), and CDCR has an administrative remedy process for inmate
10 grievances. Cal. Code Regs. tit. 15, § 3084.1 (2014). Compliance with section 1997e(a) is
11 mandatory and state prisoners are required to exhaust CDCR’s administrative remedy process
12 prior to filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); Sapp v.
13 Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). CDCR’s administrative grievance process for non-
14 medical appeals consists of three levels of review: (1) first level formal written appeals; (2)
15 second level appeal to the Warden or designees; and (3) third level appeal to the Office of
16 Appeals (OOA). Inmates are required to submit appeals on a standardized form (CDCR Form
17 602), attach necessary supporting documentation, and submit the appeal within thirty days of the
18 disputed event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). The California Code of
19 Regulations also requires the following:
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The inmate or parolee shall list all staff member(s) involved and shall describe their
21 involvement in the issue. To assist in the identification of staff members, the inmate or
parolee shall include the staff member’s last name, first initial, title or position, if known,
22 and the dates of the staff member’s involvement in the issue under appeal. If the inmate
or parolee does not have the requested identifying information about the staff member(s),
23 he or she shall provide any other available information that would assist the appeals
coordinator in making a reasonable attempt to identify the staff member(s) in question.
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25 Cal. Code Regs. tit. 15, § 3084.2(a)(3).1
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1 Effective June 1, 2020, the new rules are set out in Cal. Code Regs. tit. 15, §§ 3480–3486. For purposes of these
Findings and Recommendations, all citations refer to the 2015-2016 version of the regulations which were effective
at the time relevant to Plaintiff's claims.
1 B. Summary of Plaintiff’s Allegations
2 On October 13, 2019, Plaintiff was released from assigned cell C2-210 to participate in
3 the evening dayroom recreation program. As Plaintiff headed downstairs, an altercation between
4 inmates ensued approximately thirty feet away from him. Officer Turner yelled, “Get down!”
5 When Plaintiff made it down the stairs, he complied with officer Turner’s order. Officer Turner
6 then began firing a 40 MM Block gun and Plaintiff was shot in the back of his head. Neither of
7 the two inmates involved in the altercation were struck by officer Turner’s gunfire. Plaintiff’s
8 head became swollen and he suffered pain and dizziness.
9 Plaintiff was eventually escorted to the medical department where nurse Smith informed
10 lieutenant Burden that Plaintiff needed to be transported to the hospital due to his injuries.
11 Plaintiff was given an ice pack and sent back to his cell. Plaintiff was never medically
12 examined, interviewed or photographed on the date of the incident. Plaintiff was called back to
13 the medical department on October 14, 2019 due to severe migraines. Plaintiff was not
14 transported to the hospital until four months after he was shot.
15 On information and belief, officer Turner has a history of recklessly dislodging firearms.
16 As a direct and proximate result of the above acts and omissions, Plaintiff has suffered and
17 continues to suffer severe physical injuries, including but not limited to, head pain and
18 migraines, as well as emotion distress, anxiety, depression, insomnia and mental anguish.
19 C. Statement of Undisputed Facts2
20 1. Plaintiff is an inmate housed at the California Substance Abuse Treatment Facility
21 (SATF). (Second Am. Compl., ECF No. 64.)
22 2. Plaintiff filed his second amended complaint, the operative complaint, on March
23 25, 2022. (Id.)
24 3. Plaintiff alleges in the operative complaint that officer Turner used excessive
25 force by “aimlessly firing his Block gun” on October 13, 2019, causing Plaintiff to be hit in the
26 head. (Id. at ¶ 22.)
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1 4. Plaintiff also alleges that lieutenant Burden violated his Eighth Amendment rights
2 by way of deliberate indifference, because he “told [a nurse] not to send Plaintiff to the hospital”
3 following the incident. (Id. at ¶ 14.)
4 5. As an incarcerated inmate, Plaintiff is subject to the Prison Litigation Reform Act
5 (PLRA), which requires inmates to exhaust all available administrative remedies before filing
6 any civil lawsuit under 42 U.S.C. § 1983. 42 U.S.C. § 1997(e)(a).
7 6. Plaintiff filed one administrative appeal regarding the allegations in this case,
8 appeal log number SATF-C-19-06370. (Declaration of Howard E. Moseley (Moseley Decl.) ¶¶
9 7-10 Exs 1-3, ECF No. 71-4.)
10 7. The administrative appeal was exhausted through the Third Level of Review on
11 April 14, 2020. (Moseley Decl. ¶ 9 Ex. 4.)
12 8. The administrative appeal only addressed officer Turner’s firing of the Block gun,
13 where Plaintiff was allegedly hit in the head. (Moseley Decl. ¶ 9 Ex. 2.)
14 9. There is no reference to lieutenant Burden or his alleged actions in this written
15 allegation. (Moseley Decl. ¶ 9, Ex. 2.)
16 10. Plaintiff filed one other administrative appeal referencing the incident; however,
17 this was health care appeal SATF-HC-20000191. (Declaration of K. Martin (Martin Decl.) ¶¶ 8-
18 10 Exs. 1-2, ECF No. 71-3.)
19 11. Plaintiff did not reference lieutenant Burden or his alleged actions in health care
20 appeal SATF-HC-210000191, either. (Martin Decl. ¶ 10 Ex. 2.)
21 12. Plaintiff has not filed any other administrative appeals regarding the subject of
22 this lawsuit. (Moseley Decl. ¶ 10.)
23 D. Analysis of Defendant’s Motion
24 Defendant Burden argues that Plaintiff failed to exhaust the administrative remedies for
25 the claims against him.
26 Here, Defendant has submitted undisputed evidence that Plaintiff filed one administrative
27 appeal regarding the allegations in this case, appeal log number SATF-C-19-06370. (UF 6.) The
1 | 7.) The administrative appeal only addressed officer Turner’s firing of the Block gun, where
2 | Plaintiff was allegedly hit in the head. (UF 8.) There is no reference to lieutenant Burden or his
3 | alleged actions in this written allegation. (UF 9.) Plaintiff filed one other administrative appeal
4 | referencing the incident; however, this was health care appeal SATF-HC-20000191. (UF 10.)
5 | Plaintiff did not reference lieutenant Burden or his alleged actions in health care appeal SATF-
6 | HC-210000191, either. (UF 11.) Plaintiff has not filed any other administrative appeals
7 | regarding the subject of this lawsuit. (UF 12.)
8 Based on the evidence submitted by Defendant Burden and Plaintiff's non-opposition to
9 | the motion for summary judgment, it is HEREBY RECOMMENDED that Defendant Burden’s
10 | motion for summary judgment be granted and Defendant Burden be dismissed from the action.
11 This Findings and Recommendation will be submitted to the United States District Judge
12 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14)
13 | days after being served with this Findings and Recommendation, the parties may file written
14 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
15 | Findings and Recommendation.” The parties are advised that failure to file objections within the
16 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
17 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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19 IT IS SO ORDERED. DAM Le
20 | Dated: _ August 31, 2022 _ ef
UNITED STATES MAGISTRATE JUDGE
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