The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 LUIS PRADO, Case No. 22-cv-02517-AMO (PR)
8 Plaintiff, ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT;
9 v. AND ADDRESSING OTHER PENDING
MOTIONS
10 OFFICER T. SULLIVAN,
Re: Dkt. Nos. 33, 40, 43
Defendant.
11
12 Before the Court is Defendant Officer T. Sullivan’s motion for summary judgment under
13 Federal Rule of Civil Procedure 56 on the grounds that Plaintiff Luis Prado failed to properly
14 exhaust available administrative remedies before filing suit, as required by the Prison Litigation
15 Reform Act (“PLRA”).1 Dkt. 33.
16 I. BACKGROUND
17 A. Prado’s Eighth Amendment Claim
18 On April 26, 2022, Prado, a prisoner at the Correctional Training Facility (“CTF”), filed a
19 pro se complaint under 42 U.S.C. § 1983 alleging an Eighth Amendment claim against Defendant.
20 Dkt. 1.
21 Prado alleges the following: On or about November 30, 2020, Prado was assigned to a
22 single cell when Defendant ordered him to take a cellmate from B-yard. Id. at 4.2 Prado tried to
23 refuse the cellmate to protect himself from COVID-19 and noted that inmates from B-yard were
24
25
1 Defendant also moves for summary judgment on alternative grounds that: (1) there is no genuine
dispute of material facts to support Prado’s Eighth Amendment claim for deliberate indifference,
26
and (2) she is entitled to qualified immunity. See Dkt. 33. Because the Court grants the motion on
exhaustion grounds, it does not consider these alternate bases.
27
1 testing positive for COVID-19. Id. Defendant forced Prado to accept the cellmate who had a
2 “runn[y] nose and coughed a lot.” Id. On or about December 5, 2020, Prado tested positive for
3 COVID-19, and he continues to experience chest pain, shortness of breath, dizziness and
4 confusion. Id. at 4-5.
5 On May 13, 2022, Magistrate Judge Laurel Beeler found that, liberally construed, the
6 complaint stated a cognizable Eighth Amendment claim against Defendant for exposing Prado to
7 COVID-19. Dkt. 7 at 3. Thereafter, this action was reassigned to the undersigned judge. Dkt. 36.
8 B. Prado’s Efforts to Exhaust His Administrative Remedies
9 On July 8, 2021—seven months after he tested positive for COVID-19—Prado submitted
10 grievance log number 000000137705 to the Office of Grievances (“OOG”) at CTF for the first
11 institution-level review. Monroy Decl. ¶ 6, Ex. A (Dkt. 33-5 at 5-8). Prado complained that he
12 was forced to take a cellmate, and later contracted COVID-19 on December 9, 2020. Id. The
13 grievance does not mention Defendant by name. Id. CTF’s Grievance Coordinator R. Monroy
14 received the grievance on July 9, 2021. Id. ¶ 6, Ex. A (Dkt. 33-5 at 9-10). Grievance Coordinator
15 Monroy divided the grievance into two separate claims: claim 1 for issues relating to “CTF
16 expos[ing] [Prado] to Covid as they brought another inmate from another yard to his cell,” and
17 claim 2 for issues relating to “medi[c]al issues with Covid.” Id. at 9.
18 Claim 1 was “rejected at the first level because it was untimely under [the] California Code
19 of Regulations, title 15 since Prado failed to submit it within 30 calendar days of the alleged
20 conduct that is the subject of the grievance.” Monroy Decl. ¶ 6. Meanwhile, claim 2 was
21 “exhausted and it was disposed of with no intervention.” Id.
22 On July 9, 2021, Grievance Coordinator Monroy issued two documents in which he
23 specifically noted the decision as to claim 1. Monroy Decl., Ex. A (Dkt. 33-5 at 11, 14). First, he
24 issued a document entitled, “Claim Action Taken,” in which he rejected claim 1 at the first level,
25 and he noted the following reason: “Claim Exceeded Time Limit for Submission.” Id. at 11.
26 Grievance Coordinator Monroy included the following instructions for Prado:
27 This serves as your response by the Office of Grievances. If you are
1 Do not resubmit this claim to the Office of Grievances at CTF-Facility
A.
2
Id. Second, Grievance Coordinator Monroy issued a document entitled, “OOG Acknowledgement
3
of Receipt and Closure of Grievance,” in which he further explained why claim 1 of Prado’s
4
grievance had not been assigned for review and response, stating as follows:
5
Claim # 001:
6
Your claim concerning COVID-19; Other issues – NOS is being
7 rejected by Office of Grievances for the reason(s) indicated below:
8 You did not submit the claim within the timeframe required by
California Code of Regulations, title 15. The date you discovered the
9 adverse policy decision, action, condition, or omission by the
Department was 12/9/2020; the date you submitted the claim was
10 07/09/2021. You should have submitted your claim on or by
01/08/2021 to meet the 30 calendar day requirement set forth in the
11 regulations.
12 This serves as your response by the Office of Grievances. If you are
dissatisfied with this response, you may appeal the rejection decision
13 to CDCR’s Office of Appeals.
14 Do not resubmit this claim to the Office of Grievances at Correctional
Training Facility.
15
Id. at 14. Thus, these two documents informing Prado of the rejection decision as to claim 1
16
advised that he could separately appeal the rejection decision. Id. Prado did not do so. See
17
Monroy Decl. ¶ 6. Instead, Prado filed the instant action, in which he raises allegations similar to
18
claim 1, involving an Eighth Amendment claim against Defendant for exposing him to COVID-
19
19.
20
C. Defendant’s Motion for Summary Judgment
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Defendant moves for summary judgment under Federal Rule of Civil Procedure 56 on
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grounds that Prado failed to properly exhaust available administrative remedies before filing suit,
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as required by the PLRA. Dkt. 30. Prado filed an opposition, in which he requests an evidentiary
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hearing. Dkt. 40. Defendant filed a reply, in which he opposes an evidentiary hearing because
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“Prado has not given any indication he can close the evidentiary gaps in his case relating to
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deliberate indifference and causation, much less exhaustion or qualified immunity.” Dkt. 41 at 5.
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Finally, Prado filed an unsolicited surreply to Defendant’s motion for summary judgment, see Dkt.
1 42, which Defendant seeks to strike, see Dkt. 43.
2 For the reasons outlined below, the Court GRANTS Defendant’s motion for summary
3 judgment, and it DENIES as moot the motion for an evidentiary hearing and motion to strike.
4 II. DISCUSSION
5 A. Standard of Review
6 “The PLRA mandates that inmates exhaust all available administrative remedies before
7 filing ‘any suit challenging prison conditions,’ including, but not limited to, suits under § 1983.”
8 Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (citing Woodford v. Ngo, 548 U.S.
9 81, 85 (2006)). To the extent that the evidence in the record permits, the appropriate procedural
10 device for pretrial determination of whether administrative remedies have been exhausted under
11 the PLRA is a motion for summary judgment under Rule 56. Id. at 1168. The burden is on the
12 defendant to prove that there was an available administrative remedy that the plaintiff failed to
13 exhaust. Id. at 1172. If the defendant meets that burden, the burden shifts to the prisoner to
14 present evidence showing that there is something in his particular case that made the existing and
15 generally available administrative remedies effectively unavailable to him. Id. The ultimate
16 burden of proof remains with the defendant, however. Id.
17 If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to
18 exhaust, a defendant is entitled to summary judgment under Rule 56. Id. at 1166. But if material
19 facts are disputed, summary judgment should be denied and the district judge rather than a jury
20 should determine the facts in a preliminary proceeding. Id.
21 B. Analysis
22 The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with
23 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
24 confined in any jail, prison, or other correctional facility until such administrative remedies as are
25 available are exhausted.” 42 U.S.C. § 1997e(a). Section 1997e(a) requires “proper exhaustion” of
26 available administrative remedies. Ngo, 548 U.S. at 93. A prisoner not only must pursue every
27 available step of the prison appeal process but also must adhere to “deadlines and other critical
1 Compliance with prison grievance procedures is all that is required by the PLRA to
2 “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). The level of detail necessary in
3 a grievance to comply with the grievance procedures will vary from system to system and claim to
4 claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper
5 exhaustion. Id. at 218. In California, the regulation requires the prisoner “to lodge his
6 administrative complaint on CDC[R] Form 602 and ‘to describe the problem and action
7 requested.’” Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (quoting former Cal. Code Regs.
8 tit. 15 § 3084.2(a)).
9 A prisoner must “exhaust his administrative remedies prior to sending his complaint to the
10 district court.” Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (emphasis added). The
11 prisoner cannot comply with the PLRA’s exhaustion requirement “by exhausting available
12 remedies during the course of the litigation.” Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012)
13 (citation omitted).
14 The CDCR provides its inmates and parolees the right to administratively grieve and
15 appeal any “policy, decision, action, condition, or omission by the Department or departmental
16 staff that causes some measurable harm to their health, safety, or welfare.” Cal. Code Regs. tit.
17 15, § 3481(a).3
18 Under the regulations effective June 1, 2020, there are two levels of review for non-health-
19 care appeals by inmates, referred to as a grievance and an appeal. At the first level, the inmate
20 submits a form CDCR 602-1 to the Institutional Office of Grievances at the prison or other facility
21 where he is housed. See id. at § 3482(a), (c) (repealed eff. June 1, 2020). “In response, a claimant
22 shall receive a written decision” from the Institutional Office of Grievances “clearly explaining the
23 reasoning for the Reviewing Authority’s decision as to each claim.” Id. at § 3481(a) (repealed eff.
24 June 1, 2020). At the second level, an inmate dissatisfied with the Institutional Office of
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26 3 The regulations that set out the features of the administrative remedies process for California
prisoners underwent a substantial restructuring in 2020. On March 25, 2020, and effective June 1,
27 2020, California Code of Regulations Title 15, sections 3084 through 3084.9 were repealed and
1 Grievances’ decision at first level submits a form CDCR 602-2 to the CDCR’s Office of Appeals
2 in Sacramento. Id. at §§ 3481(a), 3485(a) (repealed eff. June 1, 2020).
3 Prisoners also may file complaints regarding healthcare policies, decision, actions,
4 conditions, or omissions using a form CDCR 602 HC. Cal. Code Regs. tit. 15, § 3999.226(a),
5 3999.227. Such complaints are subject to two levels of review – an institutional level of review
6 and a headquarters level of review. Id.
7 A grievance should include sufficient information “to allow prison officials to take
8 appropriate responsive measures.” Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009) (citation
9 and internal quotation omitted). To initiate the grievance process, an inmate must submit a CDCR
10 Form 602 within thirty calendar days of the event or decision being appealed. See Cal. Code
11 Regs. tit. 15, § 3482(b)-(d). The PLRA’s exhaustion requirement cannot be satisfied “by filing an
12 untimely or otherwise procedurally defective administrative grievance or appeal.” Ngo, 548 U.S.
13 at 84.
14 There are “three kinds of circumstances in which an administrative remedy, although
15 officially on the books, is not capable of use to obtain relief.” Ross v. Blake, 578 U.S. 632, 643
16 (2016). First, “an administrative procedure is unavailable when (despite what regulations or
17 guidance materials may promise) it operates as a simple dead end—with officers unable or
18 consistently unwilling to provide any relief to aggrieved inmates.” Id. Second, “an administrative
19 scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Third, an
20 administrative remedy is not available “when prison administrators thwart inmates from taking
21 advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at
22 644.
23 A prisoner must provide evidence, not just make conclusory allegations, to meet his burden
24 to show that existing and generally available administrative remedies were effectively unavailable.
25 See Draper v. Rosario, 836 F.3d 1072, 1079-80 (9th Cir. 2016). A prisoner’s “unsupported
26 allegations” regarding impediments to exhaustion are insufficient to create a triable issue of fact.
27 Id.
1 challenging the rejection of claim 1 of grievance log number 000000137705, in which he claimed
2 that he was infected with COVID-19 due to staff action. Monroy Decl. ¶ 6. The response to
3 Prado’s grievance informed him that claim 1 was untimely and further explained the steps he
4 needed to take in order to exhaust available administrative remedies as to claim 1, but yet he failed
5 to do so. Monroy Decl., Ex. A (Dkt. 33-5 at 11). There is no evidence that Prado was prevented
6 from taking these steps by officers unable or unwilling to provide any relief, that the
7 administrative scheme was incapable of use, or that he was thwarted by prison administrators from
8 taking advantage of the grievance process. See Ross, 578 U.S. at 643-44.
9 In sum, the evidence submitted by Defendant meets her burden of proving that there was
10 an available administrative remedy that Prado failed to properly exhaust in connection with his
11 Section 1983 claim before filing this action. See Albino, 747 F.3d at 1172. The burden then shifts
12 to Prado to present evidence that there was something in this particular case that made existing and
13 generally available administrative remedies effectively unavailable to him. See id. In his
14 opposition, Prado seems to argue in a conclusory fashion that the grievance process was
15 unavailable to him, stating as follows:
16 Plaintiff Luis Prado was (and still is) housed at [CTF] during the
entire State of Emergency COVID-19 Pandemic Lockdowns at CTF.
17 The danger to Mr. Prado was both imminent, and in many areas of
CTF occurring already at the time he was irreparably harmed. These
18 undisputed facts of the conditions were present during the time period
Plaintiff was harmed meets more than one of the elements, one only
19 being required, for exemption from the need to exhaust all State
remedies, laid out by the [PLRA]. Plaintiff[’]s 42 U.S.C. § 1983 shall
20 proceed under these circumstances, and exempting the Plaintiff from
exhaustion requirement.
21
See Dkt. 40 at 2-3. In his surreply, Prado again makes the following conclusory arguments:
22
The Plaintiff was [in] imminent danger of being infected, and the[re]
23 is no grievance process available to the Plaintiff that CDCR could
provide to prevent, or remedy, an act of deliberate indifference by the
24 Defendant. The Plaintiff, by case law, regarding being forced to
receive an infected cell-mate, as evidenced by the Defendants
25 logbook, requires no exhaustion of these unavailable remedies.
26 Dkt. 42 at 2. However, such conclusory statements that the grievance process was unavailable to
27 him are insufficient to create a triable issue of fact because Prado fails to specifically explain how
1 (holding that plaintiffs statements that prison officials had “engaged in impeding and unethical
2 || conduct of obstructing” his inmate appeals “from being exhausted in a timely manner,” and had
3 “prohibited and impeded” his efforts to exhaust were insufficient to create a triable issue because
4 || the prisoner did not explain what kinds of impeding and unethical conduct occurred).
5 Accordingly, Defendant is entitled to summary judgment under Rule 56. See Albino, 747 F.3d at
6 1166.
7 || I. CONCLUSION
8 For the foregoing reasons, the Court orders as follows:
9 1. The Court GRANTS Defendant’s motion for summary judgment on grounds that
10 || Prado failed to properly exhaust available administrative remedies before filing suit.t Dkt. 33.
11 Pursuant to the law of the circuit, Prado’s Eighth Amendment claim is DISMISSED without
12 || prejudice.
g 13 2. Defendant’s motion to strike the surreply and Prado’s request for an evidentiary
14 || hearing are DENIED as moot. Dkts. 40, 43.
3 15 3. The Clerk of the Court shall terminate all pending motions and close the file.
a 16 4. This Order terminates Docket Nos. 33, 40, and 43.
17 IT IS SO ORDERED.
18 || Dated: December 22, 2023
19 Qeacck Mele
ARACELI MARTINEZ-OLGUIN
20 United States District Judge
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27 |) 4 Because the Court has granted Defendant’s motion for summary judgment based on Prado’s
28 failure to exhaust available administrative remedies, it need not address Defendant’s alternative
arguments in support of summary judgment. See Dkt. 33 at 13-18.