(PC) Burton v. Foulk

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 HARRISON BURTON, No. 2:13-cv-2123 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 F. FOULK, et al., 15 Defendants. — 16 — 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 18 action pursuant to 42 U.S.C. § 1983 . Plaintiff alleges defendants interfered with his access to the 19 courts, retaliated against him, and used excessive force in violation of his constitutional rights. 20 Before the court is defendants’ motion for summary judgment. For the reasons set forth below, 21 this court will recommend defendants’ motion be granted in part and denied in part. 22 BACKGROUND 23 I. Allegations in the SAC 24 This case is proceeding on plaintiff’s second amended complaint (“SAC”) filed here on 25 October 2, 2015. (ECF No. 15.) His allegations involve conduct that occurred in 2011, 2012, and 26 2013 when he was incarcerated at High Desert State Prison (“HDSP”). 27 //// 28 //// 1 A. Allegations against Correctional Officer Chenoweth 2 In June 2011, plaintiff was told by defendant Chenoweth that library technical assistant 3 (“LTA”) Davis was afraid of him and, therefore, he was barred from the law library. (ECF No. 4 15 at 10.) Chenoweth told plaintiff that if he visited the law library, Chenoweth would write him 5 up for a rules violation. In July 2011, plaintiff filed a suit in Lassen County Superior Court 6 against LTA Davis for denial of access to the law library. (Id.) That case was Burton v. Davis, 7 No. 54414. He contends he had no law library access until the superior court judge ordered the 8 prison to provide him access on February 24, 2012. (Id. at 11.) 9 Plaintiff prepared a subpoena for Chenoweth to get his statement that plaintiff was barred 10 from the law library. On March 29, 2012, the sheriff’s office served the subpoena “for a hearing 11 to be held on April 16, 2012.” (Id.) Plaintiff also alleges that he had subpoenaed “multiple 12 correctional officers” in that suit. (Id. at 8.) 13 On June 26, 2012, plaintiff was pushing his cellmate in a wheelchair when defendant 14 Chenoweth stated “for no good reason, ‘Burton you need to stop talking shit.’” As plaintiff was 15 walking away, Chenoweth called his name twice. Plaintiff walked back towards Chenoweth and 16 Chenoweth sprayed plaintiff with pepper spray. (Id. at 10-11.) Plaintiff filed a grievance 17 complaining of Chenoweth’s conduct. (Id. at 36.) 18 In December 2012, Chenoweth refused to give plaintiff a food tray, laughed and mocked 19 plaintiff, and asked plaintiff “what’s your phone no. big boy.” (Id. at 11.) 20 B. Allegations against Correctional Officer Whitaker 21 On September 26, 2012, defendant Whitaker escorted plaintiff to a security holding cell 22 for about two hours. Whitaker then searched plaintiff’s cell. When plaintiff returned to his cell, 23 he found that some of his legal papers had been torn and some had been destroyed. Some of the 24 destroyed documents related to plaintiff’s opposition to a summary judgment motion in his 25 Lassen County Superior Court suit. Plaintiff appears to allege that the missing documents 26 prevented him from showing that a subpoena duces tecum was properly served. (ECF No. 15 at 727 8.) 28 //// 1 C. Allegations against Correctional Officers Pine and Cisneros 2 On April 17, 2013 plaintiff was escorted from his cell for an attorney visit. During that 3 time, Pine and Cisneros searched his cell and destroyed some legal papers and books. When 4 plaintiff asked why they had done so, Cisneros said “think about it” and Pine said “we will be 5 back.” Plaintiff also discovered that Pine and Cisneros had destroyed other property, including 6 plaintiff’s typewriter. At that time, plaintiff was working on a brief for his appeal of the Lassen 7 County case. His appellate brief in this case, no. C072451, was due in May 2013. Because of 8 this destruction, plaintiff was “unable to finish as he started on the open brief.” (ECF No. 15 at 89 9.) 10 II. Procedural Background 11 On screening, the court found plaintiff stated the following cognizable claims against the 12 following defendants: (1) interference with plaintiff’s access to the courts against defendant 13 Whitaker; (2) interference with access to the courts against defendants Cisneros and Pine; (3) 14 retaliation against defendant Chenoweth; and (4) excessive force against defendant Chenoweth. 15 (ECF No. 18 at 5.) In June 2018, defendants filed an answer. (ECF No. 24.) 16 On January 18, 2019, defendants filed a motion for summary judgment. (ECF No. 33.) 17 Plaintiff opposed the motion (ECF No. 37) and defendants filed a reply (ECF No. 41). 18 MOTION FOR SUMMARY JUDGMENT 19 Defendants move for summary judgment on the following grounds: (1) plaintiff’s 20 excessive force claim against Chenoweth is barred by Heck v. Humphrey; (2) plaintiff fails to 21 establish he suffered an actual injury as a result of either of his access to courts claims; (3) 22 plaintiff failed to exhaust his administrative remedies for his access to courts claim against 23 Cisneros and Pine; and (4) plaintiff failed to exhaust his retaliation claim against defendant 24 Chenoweth. 25 I. Summary Judgment Standards under Rule 56 26 Summary judgment is appropriate when the moving party “shows that there is no genuine 27 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 28 Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of 1 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litigation, 627 2 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 3 moving party may accomplish this by “citing to particular parts of materials in the record, 4 including depositions, documents, electronically stored information, affidavits or declarations, 5 stipulations (including those made for purposes of the motion only), admissions, interrogatory 6 answers, or other materials” or by showing that such materials “do not establish the absence or 7 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 8 support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). 9 When the non-moving party bears the burden of proof at trial, “the moving party need 10 only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle 11 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325 .); see also Fed. R. Civ. P. 56(c)(1)(B). 12 Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 13 against a party who fails to make a showing sufficient to establish the existence of an element 14 essential to that party's case, and on which that party will bear the burden of proof at trial. See 15 Celotex, 477 U.S. at 322 . “[A] complete failure of proof concerning an essential element of the 16 nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a 17 circumstance, summary judgment should be granted, “so long as whatever is before the district 18 court demonstrates that the standard for entry of summary judgment . . . is satisfied.” Id. at 323 . 19 If the moving party meets its initial responsibility, the burden then shifts to the opposing 20 party to establish that a genuine issue as to any material fact actually does exist. See Matsushita 21 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 22 existence of this factual dispute, the opposing party typically may not rely upon the allegations or 23 denials of its pleadings but is required to tender evidence of specific facts in the form of 24 affidavits, and/or admissible discovery material, in support of its contention that the dispute 25 exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. However, a complaint that 26 is submitted in substantial compliance with the form prescribed in 28 U.S.C. § 1746 is a “verified 27 complaint” and may serve as an opposing affidavit under Rule 56 as long as its allegations arise 28 from personal knowledge and contain specific facts admissible into evidence. See Jones v. 1 Blanas, 393 F.3d 918, 923 (9th Cir. 2004); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 2 1995) (accepting the verified complaint as an opposing affidavit because the plaintiff 3 “demonstrated his personal knowledge by citing two specific instances where correctional staff 4 members . . . made statements from which a jury could reasonably infer a retaliatory motive”); 5 McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987); see also El Bey v. Roop, 530 F.3d 6 407, 414 (6th Cir. 2008) (Court reversed the district court’s grant of summary judgment because 7 it “fail[ed] to account for the fact that El Bey signed his complaint under penalty of perjury 8 pursuant to 28 U.S.C. § 1746 . His verified complaint therefore carries the same weight as would 9 an affidavit for the purposes of summary judgment.”). The opposing party must demonstrate that 10 the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the 11 governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury 12 could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 13 242, 248 (1986). 14 To show the existence of a factual dispute, the opposing party need not establish a 15 material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be 16 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 17 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626 , 631 (9th Cir. 1987). 18 Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in 19 order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations 20 omitted). 21 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 22 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 23 party.” Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the 24 opposing party’s obligation to produce a factual predicate from which the inference may be 25 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 26 aff’d, 810 F.2d 898 , 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing 27 party “must do more than simply show that there is some metaphysical doubt as to the material 28 facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the 1 nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation 2 omitted). 3 II. Is Plaintiff’s Excessive Force Claim Barred by Heck? 4 Defendants argue that plaintiff’s claim that Chenoweth used excessive force when he 5 pepper-sprayed plaintiff is barred under Heck v. Humphrey, 512 U.S. 477 (1994). Defendants 6 contend that plaintiff was found guilty of a rules violation, assault on a peace officer, for the 7 pepper spray incident and that he must receive a favorable termination of that rules violation 8 through a habeas proceeding before he may seek damages regarding Chenoweth’s conduct. 9 A. Legal Standards for Heck Bar 10 In Heck v. Humphrey, the Supreme Court held that “habeas corpus is the exclusive 11 remedy for a state prisoner who challenges the fact or duration of his confinement and seeks 12 immediate or speedier release, even though such a claim may come within the literal terms of § 13 1983.” Heck, 512 U.S. at 481 . A plaintiff cannot maintain a § 1983 action to recover damages 14 for “harm caused by actions whose unlawfulness would render [his] conviction or sentence 15 invalid” when his sentence and conviction have not previously been reversed, expunged, declared 16 invalid, or called into question upon issuance of a writ of habeas corpus by a federal court. Id. at 17 486–87. The Supreme Court has extended this holding to civil-rights actions in which the 18 plaintiff seeks declaratory or injunctive relief as well as damages. Edwards v. Balisok, 520 U.S. 19 641, 648 (1997). 20 In Smith v. City of Hemet, the Ninth Circuit reiterated: “[I]f a criminal conviction arising 21 out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for 22 which section 1983 damages are sought, the 1983 action must be dismissed.” 394 F.3d 689 , 695 23 (9th Cir. 2005) (quotation omitted). “Consequently, ‘the relevant question is whether success in a 24 subsequent § 1983 suit would necessarily imply or demonstrate the invalidity of the earlier 25 conviction or sentence.’” Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) 26 (quoting Heck, 512 U.S. at 487 ). 27 In 2016, an en banc panel of the Ninth Circuit clarified the scope of habeas actions under 28 Heck. In Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016), the court held that where success on 1 the merits of a prisoner’s claim would not necessarily impact the fact or duration of his 2 confinement, the claim would not fall within “the core of habeas corpus,” and therefore is not 3 appropriate in a habeas action. Nettles, 830 F.3d at 934–35. Thus, habeas jurisdiction is only 4 established where the form of relief sought “would necessarily accelerate the prisoner's release 5 from prison, or terminate his custody, or reduce his level of custody.” See Pratt v. Hedrick, No. C 6 13-4557 SI(pr), 2015 WL 3880383 , at *2 (N.D. Cal. June 23, 2015) (citing Nettles, 830 F.3d at 7 930). 8 B. Undisputed Facts 9 Plaintiff is incarcerated for a 1995 second degree murder conviction. (Plt.’s Depo. at 18.1) 10 He is serving a sentence of twenty-five years to life. (Id.) Plaintiff will be eligible for parole in 11 2021. (See id. (Plaintiff testified at his October 2018 deposition that he will be eligible for parole 12 in three years.)) At that 2021 parole hearing, plaintiff will be given a parole date. (Id. at 19.) 13 Plaintiff received a rules violation report (“RVR”) for the incident on June 26, 2012. He 14 was charged with assault on a peace officer, a violation of Cal. Code Regs. tit. 15, § 3005 (d)(1). 15 At an RVR hearing held in July 2012, plaintiff was found guilty. (ECF No. 1 at 103.) He was 16 assessed a ninety-day loss of good-time credits. (Id. at 105.) 17 C. Analysis 18 The Heck analysis requires this court to consider two questions in this case. First, are the 19 facts underlying plaintiff’s excessive force claim so intertwined with the facts underlying 20 plaintiff’s disciplinary conviction that resolution of the excessive force claim would necessitate 21 reversal of the disciplinary conviction? Second, if plaintiff’s disciplinary conviction is reversed 22 and his good time credits are restored, would that necessarily affect his sentence? If both 23 questions are answered in the affirmative, then Heck should bar plaintiff from proceeding with his 24 excessive force claim in this § 1983 action. 25 Defendants address only the first question. However, because this court finds the second 26 question dispositive, it is addressed here. That second question asks whether the restoration of — 27 — 1 Defendants lodged a complete copy of plaintiff’s deposition with this court on January 18, 2019. 28 (See ECF No. 34.) 1 good-time credits would necessarily affect plaintiff’s sentence. The facts establish that plaintiff is 2 serving an indeterminate sentence, is eligible for parole, and does not have a parole date. 3 Defendants do not specify plaintiff’s minimum eligible parole date (“MEPD”), which is the date 4 for his initial parole hearing. However, it appears from plaintiff’s 2018 deposition testimony that 5 it is currently two years away. 6 Good conduct credits could advance plaintiff’s MEPD. Cal. Code Regs. tit.15, § 3043.2. 7 Therefore, should plaintiff’s good conduct credits be restored, he may receive an earlier initial 8 parole consideration date. However, “an earlier MEPD/initial parole hearing does not bear upon 9 a state parole board’s determination as to whether an inmate is suitable to be released on parole.” 10 Roberts v. Warden, No. EDCV 17-62 CJC(JC), 2017 WL 5956666 , at *1 (C.D. Cal. Nov. 8, 11 2017), rep. and reco. adopted, 2017 WL 5905507 (C.D. Cal. Nov. 30, 2017). Thus, the fact that 12 plaintiff may have a parole hearing sooner does not “necessarily” mean he will receive an earlier 13 release on parole. 14 The court in Roberts noted that other district courts have similarly found that the 15 “potential for an earlier MEPD is not sufficient to confer habeas jurisdiction.” Roberts, 2017 WL 16 5956666, at *5 (collecting cases); see also Burton v. Adams, No. 1:09-cv-0354 JLT HC, 2010 17 WL 703182 , at *6-7 (E.D. Cal. Feb. 25, 2010) (also finding no habeas jurisdiction; explaining: 18 “[A]ny credits earned on his indeterminate life sentences can only affect the ultimate 19 establishment of a MEPD; they can have no real impact on the actual sentence eventually set for 20 petitioner or on his eventual release date on parole, should that time ever come.”), aff’d, 415 F. 21 App’x 816 (9th Cir. 2011). 22 Defendants fail to present undisputed facts which require an affirmative answer to the 23 second question under Heck. They have not shown that restoration of plaintiff’s good-time 24 credits would necessarily result in a reduced sentence. Because this second question regarding 25 the potential effect on plaintiff’s sentence is answered in the negative, this court need not consider 26 the question regarding the relationship between plaintiff’s excessive force claim and his RVR 27 conviction. Therefore, this court will recommend defendants’ motion for summary judgment be 28 //// 1 denied with respect to their argument that the excessive force claim against defendant Chenoweth 2 is barred by Heck.2 3 III. Access to Courts Claims 4 Defendants argue that plaintiff fails to establish he suffered an adequate injury under the 5 First Amendment as a result of the destruction of his legal property by defendants Cisneros, Pine, 6 and Whittaker. 7 //// — 8 — 2 Plaintiff also raised this excessive force claim against Chenoweth in another case in this district: 9 Burton v. Chenoweth, No. 2:14-cv-2331 KJN P. On a motion to dismiss, Chenoweth asserted the Heck bar to that claim. In an order filed April 7, 2016, Magistrate Judge Newman held that the — 10 — court lacked jurisdiction to consider plaintiff’s excessive force claim under Heck and dismissed 11 the claim. In July 2016, the Ninth Circuit issued its decision in Nettles, which both explained and significantly restricted courts’ application of the Heck bar. While Judge Newman’s decision was 12 correct under then-existing law, as explained above in the text Nettles requires this court to conclude that Heck does not bar plaintiff’s excessive force claim. 13 This court recognizes that there could be a question whether it is precluded by Judge Newman’s prior decision from re-considering the Heck issue. It is not. Resolution of a subject — 14 — matter jurisdiction question is not a resolution on the merits. See Fed. R. Civ. P. 41(b) (dismissal 15 for lack of jurisdiction does not operate as an adjudication on the merits); Northeast Erectors Ass’n of BTEA v. Secretary of Labor, Occup. Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 16 1995) (dismissal under Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction) is not a dismissal on the merits). Therefore, principles of res judicata do not apply. Northeast Erectors, — 17 — 62 F.3d at 39 (because a Rule 12(b)(1) dismissal is not on the merits, it is “without res judicata effect”); see also Coors Brewing Co. v. Mendez-Torres, 562 F.3d 3, 11 (1st Cir. 2009) (same), — 18 — abrogated on other grounds in Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010); cf. United 19 States v. Tohono O’Odham Nation, 563 U.S. 307, 315 (2011) (doctrine of res judicata or claim preclusion “bars repetitious suits involving the same cause of action once a court of competent 20 jurisdiction has entered a final judgment on the merits”). The doctrine of collateral estoppel, or issue preclusion, is subject to an exception for a change of law. See Coors Brewing, 562 F.3d at 21 11-12 (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4418 (2d ed. 2008)); see also Herrera v. Wyoming, 139 S. Ct. 1686, 1697 (2019) — 22 — (“Even when the elements of issue preclusion are met, however, an exception may be warranted if 23 there has been an intervening change in the applicable legal context.” (Citations and internal quotation marks omitted.)). Accordingly, after Nettles, this court is not collaterally estopped from 24 considering the Heck question. And, in any event, defendants have waived the affirmative defense of issue preclusion by failing to raise it in their answer, filed in 2018, or in their pending — 25 — motion for summary judgment. See Taylor v. Sturgell, 553 U.S. 880, 907 (2008) (“Claim preclusion, like issue preclusion, is an affirmative defense. Ordinarily, it is incumbent on the — 26 — defendant to plead and prove such a defense, and we have never recognized claim preclusion as 27 an exception to that general rule.” (Citations omitted.)); Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321 , 328 (9th Cir. 1995) (“Claim preclusion is an affirmative defense which may be 28 deemed waived if not raised in the pleadings.”). 1 A. Legal Standards 2 Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 3 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). The right, however, “guarantees no 4 particular methodology but rather the conferral of a capability - the capability of bringing 5 contemplated challenges to sentences or conditions of confinement before the courts.” Lewis, 6 518 U.S. at 356–57. In order to state a denial of access claim under the First Amendment, a 7 prisoner must allege that he suffered an “actual injury” as a result of the defendants’ alleged 8 actions, by explaining how the challenged official acts or omissions hindered plaintiff’s efforts to 9 pursue a nonfrivolous legal claim. Lewis, 518 U.S. at 351–55. Actual injury may be shown if the 10 alleged shortcomings “hindered his efforts to pursue a legal claim,” such as having his complaint 11 dismissed “for failure to satisfy some technical requirement,” or if he “suffered arguably 12 actionable harm that he wished to bring before the courts.” Id. at 351. 13 The right of access to the courts applies to nonfrivolous direct criminal appeals, habeas 14 corpus proceedings, and civil rights actions. Lewis, 518 U.S. at 353 n.3, 354-55. Where a 15 prisoner asserts a backward-looking denial of access claim - one seeking a remedy for a lost 16 opportunity to present a legal claim - he must show the loss of a “nonfrivolous” or “arguable” 17 underlying claim, “the official acts frustrating the litigation,” and “a remedy that may be awarded 18 as recompense but not otherwise available in some suit that may yet be brought.” Christopher v. 19 Harbury, 536 U.S. 403, 415, 417 (2002). 20 B. Analysis 21 Plaintiff contends that the legal papers destroyed by defendant Whittaker related to Burton 22 v. Davis, case no. 54414 – the suit he brought in Lassen County Superior Court against LTA 23 Davis for denial of access to the HDSP law library. (SAC (ECF No. 15 at 7-8, 10).) Plaintiff 24 contends the destroyed legal papers were necessary to demonstrate he properly served a subpoena 25 duces tecum. 26 With respect to his claim against defendants Cisneros and Pine, plaintiff contends they 27 ripped pages from an appellate brief in Third District Court of Appeal case no. C072451, 28 //// 1 plaintiff’s appeal of case no. 54414. Plaintiff further contends that Cisneros and Pine destroyed 2 his typewriter so that he had to finish his appellate brief by hand. (SAC (ECF No. 15 at 9-10).) 3 1. Denial of Access in Superior Court Suit 4 Plaintiff fails to demonstrate how the loss of papers for the superior court suit may have 5 affected his ability to litigate it. The case resulted in a grant of summary judgment in favor of the 6 defendant. (See Nov. 2, 2012 Order in Burton v. Davis, (ECF No. 33-4 at 5-13).3) At his 7 deposition, plaintiff testified that the papers that were destroyed related to a subpoena duces 8 tecum plaintiff had attempted to serve on “Ronda, the technical services lady at High Desert.” 9 (Plt.’s Depo. at 34.) According to plaintiff, when the sheriff’s department served the subpoena on 10 Ronda, “the court was saying the process was wrong.” (Id.) Plaintiff then testified that his failure 11 to provide a copy of the subpoena duces tecum allowed the superior court to grant summary 12 judgment. He described the subject of the documents sought by his subpoena as being 13 information regarding defendant Chenoweth’s threats that if he went back to the law library, 14 Chenoweth would cite him for a rules violation. (Id.) 15 Attached to his opposition to defendants’ motion, plaintiff attaches a copy of the superior 16 court docket for his case no. 54414 and a copy of a notice from the superior court. (ECF No. 37 17 at 210-212, 221.) Both show that defendant Davis moved to quash plaintiff’s subpoena duces 18 tecum and filed a motion for summary judgment. After the hearing on both motions, the superior 19 court noted that plaintiff had submitted no formal opposition to either motion and that both would 20 be granted. (Id. at 221.) 21 In its order, the superior court provided a detailed description of the undisputed facts that 22 showed: (1) during the time periods plaintiff claimed to have been denied law library access he 23 had actually physically accessed the law library multiple times (ECF No. 33-4 at 6, 11); (2) 24 plaintiff’s other assorted allegations that Davis denied him access were refuted by evidence 25 showing Davis only required plaintiff to provide additional, appropriate information to obtain 26 services and that she provided plaintiff with information about how to obtain legal materials even — 27 — 3 Defendants’ request that the court take judicial notice of this superior court decision and of the 28 Court of Appeal’s decision is granted. Fed. R. Evid. 201(d). 1 when he did not have physical library access (id. at 8-10); and (3) plaintiff completed numerous 2 legal documents during the time he complained that he lacked access to the law library (id. at 123 13). The court concluded that plaintiff failed to present any evidence to create a material issue of 4 fact. 5 Plaintiff has failed to do so here as well. He does not show that he would have been 6 successful on the motion to quash if he had had a copy of the subpoena nor does he show how the 7 information he sought may have helped him to oppose defendant Davis’s motion for summary 8 judgment. Even if, as best this court can discern, plaintiff intended to show that Chenoweth had 9 threatened him if tried to return to the law library, that fact does not show that Davis, the superior 10 court defendant, bore responsibility for any denial of law library access. Plaintiff’s contentions 11 do not show he had an “arguable” position to make in the superior court. Because plaintiff has 12 failed to demonstrate a triable issue of fact regarding his access to court claim against Whitaker, 13 this court will recommend defendants’ summary judgment motion on this claim be granted. 14 2. Denial of Access in Appellate Case 15 Plaintiff further fails to demonstrate how the loss of papers for his appeal affected that 16 result. He states only that part of a legal brief was destroyed but does not explain that the 17 destruction caused him to be unable to file a brief or how his brief would have been substantively 18 any different had part of it not been destroyed.4 At his deposition, plaintiff testified that he was 19 able to file a brief with the Court of Appeal. (Plt.’s Depo. at 51.) In his opposition brief, plaintiff 20 argues that the destruction prevented him from being able to “present his case in full.” (ECF No. 21 37 at 25.) However, plaintiff does not explain what was missing or why the missing documents 22 mattered. 23 //// — 24 — 4 Defendants describe plaintiff’s allegation as contending that the destruction of his typewriter — 25 — prevented plaintiff from filing an appellate brief. (See ECF No. 33-2 at 2.) However, this court does not interpret plaintiff’s allegations in that way. Plaintiff appears to be alleging that he had to — 26 — complete his brief by hand because he no longer had a typewriter to use. (See SAC (ECF No. 15 27 at 9).) In his opposition to the summary judgment motion, plaintiff includes a copy of a certificate he filed with the Court of Appeal that states that part of his brief was prepared using a 28 typewriter and part of it was handwritten. (ECF No. 37 at 207.) 1 The Court of Appeal denied plaintiff’s appeal for two alternative reasons. First, the court 2 held that plaintiff failed to provide an adequate record on appeal to assess any claim that the trial 3 court erred in granting summary judgment. (ECF No. 33-4 at 25, 28-29.) Second, the court held 4 that plaintiff failed to show Davis denied him access to the courts. (Id. at 25, 29-32.) Plaintiff 5 makes no showing that the partial destruction of his brief by Cisneros and Pine may have affected 6 the Court of Appeal’s determination. Accordingly, plaintiff fails to make a showing that there are 7 any disputes of material fact regarding his access to courts claim against these two defendants. 8 Defendants should be granted summary judgment on that claim. 9 Because this court finds defendants should be granted summary judgment on his two 10 access to courts claims, it does not reach the issue of whether or not plaintiff properly exhausted 11 those claims through the prison’s administrative procedures. 12 IV. Exhaustion of Retaliation Claim 13 Plaintiff’s claim for retaliation is not entirely clear from the allegations of his SAC. To 14 state a claim for retaliation under the First Amendment, a prisoner must state facts showing the 15 following five basic elements: “(1) An assertion that a state actor took some adverse action 16 against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) 17 chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 18 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 19 2005) (footnote and citations omitted). In other words, plaintiff must show he took part in 20 conducted protected by the First Amendment. He must then describe what adverse action a 21 defendant took against him. Finally, plaintiff must allege facts showing a connection between his 22 conduct and the adverse action – he must show the reason for the defendant’s adverse action was 23 plaintiff’s protected conduct. 24 In reconsidering the allegations of plaintiff’s SAC, this court finds that it was overly 25 generous in interpreting plaintiff’s SAC as stating a claim for retaliation. Plaintiff alleged no 26 causal connection between any exercise of his First Amendment rights and Chenoweth’s actions. 27 Plaintiff alleged he subpoenaed Chenoweth for documents relevant to his state law claim against 28 LTA Davis and, a few months later, Chenoweth pepper-sprayed him. Plaintiff fails to allege facts 1 connecting these two events. Plaintiff also alleges he filed a grievance about the pepper spray 2 incident and several months later, Chenoweth refused to provide him a meal and mocked him. In 3 his statement of facts in opposition to the summary judgment motion, plaintiff identifies this 4 conduct as retaliatory. (See ECF No. 37 at 34.) Again, plaintiff does not make a connection 5 between Chenoweth’s conduct and plaintiff’s grievance. This court finds now that plaintiff failed 6 to state a claim for retaliation. 5 Further, leave to amend would be futile because any possible 7 retaliation claim in the SAC against Chenoweth was not exhausted. 8 A. Legal Standards for Exhaustion of Administrative Remedies 9 1. PLRA Exhaustion Requirement 10 The Prison Litigation Reform Act of 1995 (PLRA) mandates that “[n]o action shall be 11 brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a 12 prisoner confined in any jail, prison, or other correctional facility until such administrative 13 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Compliance with deadlines and 14 other critical prison grievance rules is required to exhaust. Woodford v. Ngo, 548 U.S. 81 , 90 15 (2006) (exhaustion of administrative remedies requires “using all steps that the agency holds out, 16 and doing so properly”). “[T]o properly exhaust administrative remedies prisoners ‘must 17 complete the administrative review process in accordance with the applicable procedural rules,’— 18 rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. 19 Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88 ); see also Marella v. Terhune, — 20 — 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison system's requirements ‘define the 21 boundaries of proper exhaustion.’”) (quoting Jones, 549 U.S. at 218 ). — 22 — 23 5 In his opposition brief, plaintiff also appears to allege Chenoweth’s use of excessive force in June 2012 was done in retaliation for plaintiff threatening to file a grievance against him earlier 24 that day. (ECF No. 37 at 2.) However, plaintiff never raised that issue in his SAC and, therefore, it is not before the court. To the extent plaintiff may seek to amend his complaint to state this — 25 — claim, the time for doing so has passed. See Gonzalez v. City of Federal Way, 299 F. App’x 708 (9th Cir. 2008) (claim raised for first time in opposition to summary judgment motion did not — 26 — provide fair notice to defendants and was properly rejected); Roberts v. Arizona Bd. of Regents, — 27 — 661 F.2d 796, 798 (9th Cir. 1981) (affirming district court where request to amend complaint was “raised at the eleventh hour, after discovery was virtually complete and the Board's motion for 28 summary judgment was pending before the court”). 1 Although “the PLRA's exhaustion requirement applies to all inmate suits about prison 2 life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), the requirement for exhaustion under the PLRA 3 is not absolute, Albino v. Baca, 747 F.3d 1162, 1172-72 (9th Cir. 2014) (en banc). As explicitly 4 stated in the statute, “[t]he PLRA requires that an inmate exhaust only those administrative 5 remedies ‘as are available.’” Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (quoting 42 6 U.S.C. § 1997e(a)) (administrative remedies plainly unavailable if grievance was screened out for 7 improper reasons); see also Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (“Remedies 8 that rational inmates cannot be expected to use are not capable of accomplishing their purposes 9 and so are not available.”). “We have recognized that the PLRA therefore does not require 10 exhaustion when circumstances render administrative remedies ‘effectively unavailable.’” Sapp, — 11 — 623 F.3d at 822 (citing Nunez, 591 F.3d at 1226 ); accord Brown v. Valoff, 422 F.3d 926 , 935 12 (9th Cir. 2005) (“The obligation to exhaust ‘available’ remedies persists as long as some remedy 13 remains ‘available.’ Once that is no longer the case, then there are no ‘remedies . . . available,’ 14 and the prisoner need not further pursue the grievance.”). 15 Dismissal of a prisoner civil rights action for failure to exhaust administrative remedies 16 must generally be brought and decided pursuant to a motion for summary judgment under Rule 17 56, Federal Rules of Civil Procedure. Albino, 747 F.3d at 1168 . “Nonexhaustion” is “an 18 affirmative defense” and defendants have the burden of “prov[ing] that there was an available 19 administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 117120 72. A remedy is “available” where it is “capable of use; at hand.” Williams v. Paramo, 775 F.3d 21 1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1171 ). Grievance procedures that do not 22 allow for all types of relief sought are still “available” as long as the procedures may afford 23 “some relief.” Booth v. Churner, 532 U.S. 731, 738 (2001). If a defendant meets the initial 24 burden, a plaintiff then must “come forward with evidence showing that there is something in his 25 particular case that made the existing and generally available administrative remedies effectively 26 unavailable to him.” Albino, 747 F.3d at 1172 . Remedies are “effectively unavailable” where 27 they are “ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Id. 28 //// 1 (quoting Hilao v. Estate of Marcos, 103 F.3d 767 , 778 n.5 (9th Cir. 1996)). “[T]he ultimate 2 burden of proof,” however, never leaves the defendant. Id. 3 2. California’s Inmate Appeal Process 4 In California, prisoners may appeal “any policy, decision, action, condition, or omission 5 by the department or its staff that the inmate or parolee can demonstrate as having a material 6 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1 (a). 7 Inmates in California proceed through three levels of appeal to exhaust the appeal process: (1) 8 formal written appeal on a CDC 602 inmate appeal form; (2) second level appeal to the institution 9 head or designee; and (3) third level appeal to the Director of the California Department of 10 Corrections and Rehabilitation (“CDCR”). Cal. Code Regs. tit. 15, § 3084.7 . Under specific 11 circumstances, the first level review may be bypassed. Id. The third level of review constitutes 12 the decision of the Secretary of the CDCR and exhausts a prisoner's administrative remedies. See — 13 — id. § 3084.7(d)(3). However, a cancellation or rejection decision does not exhaust administrative 14 remedies. Id. § 3084.1(b). 15 A California prisoner is required to submit an inmate appeal at the appropriate level and 16 proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181 , 1183 17 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). In submitting a grievance, 18 an inmate is required to “list all staff members involved and shall describe their involvement in 19 the issue.” Cal. Code Regs. tit. 15, § 3084.2 (3). Further, the inmate must “state all facts known 20 and available to him/her regarding the issue being appealed at the time,” and he or she must 21 “describe the specific issue under appeal and the relief requested.” Id. §§ 3084.2(a)(4). The 22 appeal should not involve multiple issues that do not derive from a single event. Id. § 23 3084.6(b)(8). 24 An inmate has thirty calendar days to submit his or her appeal from the occurrence of the 25 event or decision being appealed, or “upon first having knowledge of the action or decision being 26 appealed.” Cal. Code Regs. tit. 15, § 3084.8 (b). 27 //// 28 //// 1 B. Undisputed Background Facts re Exhaustion 2 1. Appeal No. HDSP-D-12-03061 3 Plaintiff submitted inmate appeal HDSP-D-12-03061 on August 19, 2012. (ECF No. 33-7 4 at 22.) Plaintiff described the appeal as involving a lost confidential appeal regarding issues of 5 inmate safety that he had filed in March or April of 2012. (Id.) He described an incident in 6 which a correctional officer gave another inmate’s arrest history and “bio” to a third inmate in 7 exchange for information. (Id. at 22, 24.) His specific complaint in the appeal was that Captain 8 Perry and Associate Warden Plainer had lost his confidential appeal and/or had failed to respond 9 to it. (Id. at 20, 22, 24.) He requested the following actions: (1) to receive a response on the 10 CDC Form 602; (2) to be interviewed regarding who printed the bio; (3) to be interviewed by the 11 Office of Internal Affairs (“OIA”); (4) to receive a polygraph examination; (5) to receive no 12 retaliation for the filing of this appeal; (6) for Perry and Plainer to be investigated regarding the 13 lost appeal; and (7) to be transferred.6 (Id. at 24.) 14 In the first level response to this appeal, plaintiff was informed that his appeal had been 15 referred for a formal OIA investigation. (ECF No. 33-7 at 30.) It also indicated that in October 16 2012, plaintiff was interviewed for the appeal by Lieutenant Fackrell. According to the report, 17 plaintiff told Fackrell that he had nothing to add. (Id.) Plaintiff was informed that after the OIA 18 completed its investigation, plaintiff would be given some notice of the result. (Id. at 30-31.) He 19 was also advised that staff misconduct issues were personnel matters and, as such, were 20 confidential and that an allegation of staff misconduct did not limit plaintiff’s right to seek further 21 relief via the inmate appeals process. (Id. at 31.) — 22 — 23 6 In his statement of facts, plaintiff alleges that in February 2012 he filed a 602 appeal in which he alleged that Chenoweth retaliated against him. (See ECF No. 37 at 34.) Plaintiff references 24 exhibit C as the evidence supporting this allegation. However, exhibit C contains the documents regarding plaintiff’s appeal no. HDSP-D-12-3061, which is described in the text. To the extent — 25 — plaintiff is alleging that the missing grievance referred to in that appeal involved an allegation of retaliation by Chenoweth, this court finds nothing in exhibit C to support that interpretation. — 26 — While plaintiff expressed a concern in HDSP-D-12-3061 that he would be retaliated against for 27 his allegation of staff misconduct, he made no allegation in his initial grievance that Chenoweth had done anything to him in retaliation for filing the missing grievance. (See ECF No. 37 at 79, 28 81.) 1 Section D of the inmate appeal form is the section for a prisoner to express his 2 dissatisfaction with the first level response. There, plaintiff stated that after he was interviewed 3 by Perry and Plainer, he was assaulted on June 26, 2012 by Chenoweth. Plaintiff stated that 4 Chenoweth “is one of the officers who is responsible for the bio getting out.” (ECF No. 33-7 at 5 23, 25.) He then stated that he feared Chenoweth “is waiting for an opportunity to ambush me 6 and possibly kill me.” (Id. at 25.) 7 In the second level response, the report detailed plaintiff’s original complaint regarding 8 staff misconduct and the actions of Peery and Plainer in responding to plaintiff’s complaint. 9 (ECF No. 33-7 at 32.) The report noted that in his statement regarding the first level result, 10 plaintiff had complained of actions by Chenoweth. The report then stated that the allegation of 11 staff misconduct was referred to OIA. However, the report went on to make clear that this appeal 12 addressed only the allegations of staff misconduct and “other issue[s] raised in the appeal must 13 be filed separately in order to be addressed.” (Id. (Emphasis in original.)) The report then 14 informed plaintiff that the result of the OIA investigation concluded that his allegations were 15 “NOT SUSTAINED.” (Id. at 33.) 16 Section F of the inmate appeal form is the section dedicated to the prisoner’s challenge to 17 a decision at the second level of review. Plaintiff alleged there that he was being constantly 18 threatened by Chenoweth. He included a description of the incidents in December 2012 that he 19 references in his SAC. (ECF No. 33-7 at 23, 25.) In the third level decision denying plaintiff’s 20 appeal, the appeals examiner noted that plaintiff had “added new issues and requests to his 21 appeal. The additional requested action is not addressed herein as it is not appropriate to expand 22 the appeal beyond the initial problem and the initially requested action.” (Id. at 20.) 23 2. Appeal No. HDSP-A-12-03124 24 Plaintiff submitted this appeal on September 3, 2012. He alleged that on June 26, 2012, 25 defendant Chenoweth assaulted him with pepper spray. (ECF No. 33-7 at 47, 49.) He further 26 alleged that at his RVR hearing, the senior hearing officer discriminated against him because he is 27 bipolar and handicapped. (Id. at 49.) Finally, he alleged that earlier on June 26, Chenoweth 28 inappropriately searched him as he was leaving the law library by grabbing his buttocks. (Id.) He 1 stated that he was afraid of Chenoweth; asked that his RVR be dismissed; and asked that he be 2 transferred. (Id.) 3 The appeal was split into two separate appeals. Appeal No. HDSP-A-12-03124 was 4 considered to be the challenge to the hearing officer’s treatment of the RVR. It was denied at the 5 first and second levels of review. (ECF No. 33-7 at 55.) The appeal was rejected at the third 6 level of review based on plaintiff’s failure to provide appropriate documentation. (Id. at 88.) 7 3. Appeal No. HDSP-12-02848 8 This is the second of plaintiff’s appeals submitted on September 3, 2012. (ECF No. 33-7 9 at 133.) Here, he alleged excessive force by Chenoweth in the pepper spray incident on June 26, 10 2012. Plaintiff, again, raises the issues of Chenoweth’s December 2012 conduct in section F of 11 this appeal (basis for dissatisfaction with second level decision). He described the conduct as 12 harassment and “unprofessional conduct,” not as retaliation for the exercise of his First 13 Amendment rights. (See id. at 134, 136 .) 14 C. Analysis of Exhaustion 15 1. Exhaustion of Claim Involving December 2012 Meal and Mocking 16 Plaintiff argues that his inmate appeal no. HDSP-D-12-03061 involved a complaint of 17 retaliation by Chenoweth. He points to legal standards that a prisoner need not identify his claims 18 with a high level of specificity to exhaust them. While that is true, a prisoner must, at the very 19 least, put the defendant on notice of the nature of his claim. See Griffin v. Arpaio, 557 F.3d 1117 , 20 1120 (9th Cir. 2009). Further, in doing so, plaintiff must comply with the state’s requirements for 21 raising issues. Plaintiff failed to comply with state requirements when he raised the issues of 22 alleged retaliation by Chenoweth for the first time in his challenges to the first and second level 23 decisions. Plaintiff was specifically informed in both the second and third level decisions that he 24 must raise any complaints he had besides his allegation of staff misconduct in a separate 25 grievance. The allegations of staff misconduct clearly involved plaintiff’s contention that an 26 officer had released a rap sheet and bio of another inmate and that Peery and Plainer failed to take 27 appropriate action regarding plaintiff’s allegations. That staff misconduct that was the subject of 28 appeal no. HDSP-D-12-03061 did not involve plaintiff’s allegations of retaliation by Chenoweth. 1 With respect to plaintiff’s argument in his opposition brief that appeal no. HDSP-122 02848 included allegations of retaliation, the court’s review of that appeal shows that plaintiff did 3 not allege retaliation as the basis for that appeal. Further, plaintiff submitted that appeal in 4 September 2012 before the December 2012 conduct. His attempt to add Chenoweth’s December 5 2012 conduct in his statement of dissatisfaction with the second level review, does not exhaust a 6 retaliation claim because it was not raised appropriately and because plaintiff did not identify the 7 conduct as retaliatory. 8 2. Exhaustion of Claim Involving Pepper Spray Incident 9 With respect to any claim that Chenoweth pepper-sprayed plaintiff in retaliation of 10 issuance of a subpoena, plaintiff failed to exhaust this claim as well. Plaintiff mentioned the 11 subpoena in the grievance regarding the pepper-spray incident. (See ECF No. 33-7 at 133, 135.) 12 However, he made no attempt to show that Chenoweth pepper-sprayed him as a result of that 13 subpoena. 14 Further, in the first level response to this grievance, plaintiff was informed that the 15 grievance was considered to address the pepper-spray incident and a complaint that Chenoweth 16 improperly searched plaintiff earlier that day. (Id. at 141.) The response made no mention of 17 retaliation or the issuance of the subpoena and warned plaintiff that any issues not addressed in 18 the response would not exhaust his remedies for that claim. (Id.) Plaintiff did not file a separate 19 grievance alleging Chenoweth pepper-sprayed him because of the subpoena. 20 The basis for a claim of retaliation is that a state actor took an adverse action in response 21 to a prisoner’s exercise of his First Amendment rights, thereby chilling the exercise of those 22 rights. See Rhodes, 408 F.3d at 567-68 (claim of retaliation requires a prisoner show, among 23 other things, that defendant took an adverse action against him because of prisoner’s exercise of 24 protected conduct). Plaintiff failed to properly put Chenoweth on notice in his submitted appeals 25 that he was challenging Chenoweth’s actions as having been motivated by any exercise of 26 plaintiff’s First Amendment rights. Plaintiff failed to exhaust any retaliation claim alleged in the 27 SAC against defendant Chenoweth. 28 //// 1 For the foregoing reasons, the Clerk of the Court is HEREBY ORDERED to randomly 2 assign a district judge to this case. 3 Further, IT IS RECOMMENDED that: 4 1. Defendants’ motion for summary judgment (ECF No. 33) be granted in part and 5 denied in part; 6 2. Defendants be denied summary judgment on their contention that plaintiff’s excessive 7 force claim against defendant Chenoweth is barred by Heck. 8 3. Defendants be granted summary judgment on plaintiff’s access to courts claims and on 9 plaintiff’s retaliation claim. 10 These findings and recommendations will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within fourteen days 12 after being served with these findings and recommendations, either party may file written 13 objections with the court. The document should be captioned “Objections to Magistrate Judge's 14 Findings and Recommendations.” The parties are advised that failure to file objections within the 15 specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 16 Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: September 24, 2019 — 18 — — 19 — /s/ DEBORAH BARNES — 20 — UNITED STATES MAGISTRATE JUDGE — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — DLB:9/ DLB1/prisoner-civil rights/burt2123.msj fr — 28 —