(PC) Wilson v. Delano State Prison

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 CHRISTOPHER JOHN WILSON, Case No. 1:21-cv-01651-KES-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS’ MOTION FOR 13 v. SUMMARY JUDGMENT CONCERNING EXHAUSTION PENDING HEARING 14 DELANO STATE PRISON, et al., (Doc. 37) 15 Defendants. 14-DAY OBJECTION PERIOD [17] 18 Plaintiff Christopher John Wilson is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983 . This action proceeds on 20 Plaintiff’s Eighth Amendment excessive force claims against Defendants Sharps and Ward. (See 21 Doc. 30.)1 22 I. INTRODUCTION 23 Following service of process, Defendants Sharps and Ward filed a motion for leave to file 24 a pre-answer motion for summary judgment on the grounds that Plaintiff failed to exhaust 25 administrative remedies. (Doc. 32.) On October 5, 2023, the Court issued its Order Granting Ex 26 Parte Motion For Leave To File Early Motion For Summary Judgment And To Extend Time To [27] 1 North Kern State Prison, its warden, and the California Department of Corrections and Rehabilitation 28 were dismissed as parties on August 28, 2023. Id. 1 Respond To Complaint. (Doc. 33.) 2 On October 13, 2023, Plaintiff filed a document titled “Motion No Rule on Summary of 3 Judgement - To Dismiss Motion on Administrative Remedies and Extension.” (Doc. 34.) The 4 Court issued an order denying Plaintiff’s motion as premature on October 17, 2023. (Doc. 36.) 5 Defendants filed their motion for summary judgment alleging a failure to exhaust 6 administrative remedies on November 16, 2023. (Doc. 37.) 7 When more than 30 days passed without the filing of an opposition or statement of non8 opposition by Plaintiff, the Court issued its Order To Show Cause (“OSC”) In Writing Why 9 Action Should Not Be Dismissed For Failure To Obey Court Orders on December 22, 2023, 10 noting the Court previously had ordered Plaintiff to file either an opposition or statement of non11 opposition within 30 days. (Doc. 42 at 1) (citing Doc. 33 at 2.) 12 On December 28, 2023,2 Plaintiff filed his opposition to Defendants’ summary judgment 13 motion. (Doc. 43.) Plaintiff filed a response to the OSC on January 5, 2024. (Doc. 45.) 14 On January 11, 2024, Defendants filed their reply to Plaintiff’s opposition. (Doc. 46.) 15 II. SUMMARY OF FACTS 16 A. The Allegations in Plaintiff’s Complaint 17 Briefly stated, Plaintiff contends that in March 2021, while he was incarcerated at North 18 Kern State Prison (“NKSP”), Plaintiff was assaulted by a correctional officer (“CO”) while 19 handcuffed behind his back. (Doc. 1 at 4.) According to Plaintiff, CO Sharps aggressively slapped 20 Plaintiff across his forehead, while CO Ward held Plaintiff by his handcuffs for the assault by 21 Sharps. (Id. at 4-5.) Plaintiff alleges Ward then grabbed the cuffs and Plaintiff’s shoulder, turned 22 Plaintiff towards a building, and slammed Plaintiff’s face into the cement wall two or three times. 23 (Id. at 5.) Plaintiff contends his face was bloodied until he could barely see. (Id.) Plaintiff states 24 he has permanent scars on his forehead area, has suffered trauma and fears for his life. (Id. at 4-5, 25 15.) 26 /// [27] 28 2 The document was signed and dated December 19, 2023. 1 B. Defendants’ Statement of Undisputed Facts 2 Defendants submit the following separate statement of undisputed material facts: 3 1. Under California Code of Regulations Title 15, § 3480 et seq., which governs the 4 grievance and appeal process, inmates at North Kern State Prison (NKSP) may appeal 5 any adverse decision, action, or omission by the California Department of Corrections 6 and Rehabilitation (CDCR or Department) or any CDCR staff member. 7 2. If an inmate filed a grievance between June 1, 2020, and January 1, 2022, the inmate 8 was required to follow the procedures set forth in California Code of Regulations Title 9 15, §§ 3480–3487. 10 3. Beginning on June 1, 2020, the administrative grievance process consists of two levels 11 of review: (1) the Office of Grievances (OOG) at the institution level, and (2) the 12 Office of Appeals (OOA) in Sacramento, California. 13 4. The NKSP OOG receives all inmate grievances, which are also known as appeals or 14 CDCR Form 602s, submitted by inmates at the institutional level, or first level, of 15 review. 16 5. Inmates were also permitted to submit a written appeal disputing the decision from the 17 OOG to the OOA. 18 6. In May of 2021, and until 2022, an inmate was required to submit a grievance to OOG 19 at their institution within 30 calendar days from the date of event upon first having 20 knowledge of an adverse policy, decision, action, condition, or omission by CDCR or 21 CDCR staff. 22 7. When an inmate grievance is received by the OOG at the institution, it is date-stamped 23 and screened to determine whether it would be accepted and assigned for review. 24 8. An inmate grievance will be rejected by the OOG if it was submitted beyond the 25 required 30 calendar day timeframe. An inmate grievance will also be rejected by the 26 OOG if it concerns harm to a person other than the inmate who signed the grievance. 27 9. Completion of the review process by the OOG resulting in a decision of rejection does 28 not exhaust administrative remedies. 1 10. Plaintiff Christopher John Wilson filed his complaint on November 15, 2021, alleging 2 that, while incarcerated at NKSP, he was assaulted in the month of March 2021 by 3 Defendants Sharp and Ward (Defendants). In screening Plaintiff’s complaint, the 4 Court found that Plaintiff failed to state a claim against the Warden, NKSP, or CDCR. 5 Rather than amending his complaint, Plaintiff elected to proceed on his complaint as 6 screened, against Defendants Sharp and Ward for an alleged use of force in violation 7 of the Eighth Amendment. 8 11. Plaintiff claims he was slapped across the forehead by Defendant Sharp after being 9 handcuffed and held up by Defendant Ward. Then, Plaintiff alleges that Defendant 10 Ward grabbed Plaintiff and slammed Plaintiff into a wall causing a head injury and 11 bleeding. 12 12. Plaintiff checked the boxes on his First Amended Complaint (FAC), which agreed 13 with the Court’s screening order, acknowledging his awareness of the grievance 14 procedure, and the need to exhaust the grievance procedure. 15 13. Plaintiff submitted grievance log number 000000126838 (grievance) to OOG at NKSP 16 on May 31, 2021, which contained two claims. Claim 001 stated that Plaintiff was 17 assaulted by Defendants after asking Defendants to be moved from his cell. Claim 002 18 was unrelated to Plaintiff’s allegations because this claim concerned alleged 19 misconduct towards other inmates. 20 14. NKSP OOG marked that the grievance was received on June 9, 2021. On June 10, 21 2021, NKSP OOG issued a rejection decision for both claims. Claim 001 was rejected 22 as untimely pursuant to Section 3487(a)(1) because the date Plaintiff discovered the 23 action was allegedly March 16, 2021, and Plaintiff should have submitted his 24 grievance on, or by, April 15, 2021, to meet the 30-day requirement in Section 25 3482(b). NKSP OOG also issued a rejection decision for claim 002, pursuant to 26 Section 3487(a)(4), because the grievance concerned alleged harm to another inmate. 27 15. Plaintiff appealed the NKSP OOG decision regarding grievance log number 28 000000126838 in appeal log number 126838, which was received by the OOA on July 1 2, 2021. 2 16. On July 2, 2021, the OOA had sixty calendar days to complete a written response to 3 Plaintiff’s appeal. However, in a letter dated September 1, 2021, the OOA 4 acknowledged that the time period to respond to Plaintiff expired before the OOA was 5 able to respond. Thus, pursuant to Section 3486(m), the decision by the NKSP OOG 6 rejecting the appeal served as the Department’s final response to Plaintiff’s allegation 7 of excessive force. 8 17. While completion of the review process by the OOA generally results in exhaustion of 9 all administrative remedies, a claim is not exhausted if it was rejected pursuant to 10 Section 3487(a). 11 18. The NKSP OOG decision served as the Department’s final response because the OOA 12 time-expired decision did not substantively address Plaintiff’s grievance. Since the 13 NKSP OOG decision served as the Department’s final response, and NKSP OOG’s 14 final response was a rejection decision, pursuant to Section 3487(a)(1), Plaintiff failed 15 to exhaust available administrative remedies. 16 19. Additionally, a review of the NKSP OOG records indicates that Plaintiff was able to 17 submit the additional following four grievances to NKSP from March 16, 2021, 18 through June 9, 2021: (1) grievance log number 000000105908 marked received by 19 NKSP OOG on April 6, 2021, and approved by NKSP OOG on April 26, 2021; (2) 20 grievance log number 000000106559 marked received by NKSP OOG on April 8, 21 2021, and disapproved on April 26, 2021; (3) grievance log 000000107491 marked 22 received by NKSP OOG on April 12, 2021, and redirected by NKSP OOG on April 23 12, 2021; and (4) grievance log number 000000117234 marked received by NKSP 24 OOG on May 11, 2021, and on June 8, 2021, NKSP OOG approved claim 001 and 25 rejected claim 002. None of these four grievances reference allegations that 26 Defendants excessive force. However, these grievances do demonstrate that Plaintiff 27 was able to submit grievances during this time period and also that he knew how to 28 access and use available grievance procedures. 1 20. Moreover, from March 16, 2021, through July 2, 2021, only one additional appeal, 2 appeal log number 105908, was received by the OOA from Plaintiff on May 24, 2021. 3 Appeal log number 105908 was an appeal of grievance log number 000000105908. 4 OOA denied Plaintiff’s appeal log number 105908 on June 24, 2021. Plaintiff filed no 5 appeals from March 16, 2021, through July 2, 2021, except appeal log numbers: (1) 6 105908 and (2) 126838. 7 21. NKSP OOG also conducted a review of the Bed Movement History of Plaintiff. NKSP 8 OOG provided that Plaintiff was housed in: (1) Facility B-2 at NKSP from March 16, 9 2021, to April 1, 2021; (2) Facility D-1 at NKSP from April 1, 2021, to April 5, 2021; 10 and (3) Facility D-4 at NKSP from April 5, 2021, to May 26, 2021. 11 22. A review of NKSP OOG records from March 1, 2021, through May 31, 2021, 12 indicates that inmates from the same housing units as Plaintiff, during the same time 13 periods, were able to file grievances. This demonstrates that there was an accessible 14 lock box, which boxes are permanently affixed to a wall or podium in the housing 15 units, for Plaintiff to submit grievances, and that other inmates were able to submit 16 grievances during this time period. 17 (Doc. 37-1 [hereafter “UDF”].) 18 III. LEGAL STANDARDS 19 A. Summary Judgment 20 Summary judgment is appropriate when the moving party “shows that there is no genuine 21 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 22 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 23 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 24 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by 25 “citing to particular parts of materials in the record, including depositions, documents, 26 electronically stored information, affidavits or declarations, stipulations …, admissions, 27 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 28 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 1 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 2 the burden of proof at trial, “the moving party need only prove that there is an absence of 3 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, [4] 477 U.S. at 325 ); see also Fed. R. Civ. P. 56(c)(1)(B). 5 Summary judgment should be entered against a party who fails to make a showing 6 sufficient to establish the existence of an element essential to that party’s case, and on which that 7 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322 . “[A] complete failure of 8 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 9 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 10 “so long as whatever is before the district court demonstrates that the standard for the entry of 11 summary judgment … is satisfied.” Id. at 323 . 12 B. Exhaustion of Administrative Remedies 13 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 14 respect to prison conditions under [ 42 U.S.C. § 1983 ], or any other Federal law, by a prisoner 15 confined in any jail, prison, or other correctional facility until such administrative remedies as are 16 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is 17 mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199 , 18 211 (2007). Inmates are required to “complete the administrative review process in accordance 19 with the applicable procedural rules, including deadlines, as a precondition to bringing suit in 20 federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies 21 to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of 22 the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 23 U.S. 731 , 741 (2001). 24 The failure to exhaust administrative remedies is an affirmative defense, which the 25 defendant must plead and prove. Jones, 549 U.S. at 204, 216 . The defendant bears the burden of 26 producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if 27 the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff 28 failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 1 On a motion for summary judgment, the defendant must prove (1) the existence of an 2 available administrative remedy and (2) that the plaintiff failed to exhaust that remedy. Albino, [3] 747 F.3d at 1172 (citation omitted). If the defendant meets this burden, the plaintiff then “has the 4 burden of production. That is, the burden shifts to the prisoner to come forward with evidence 5 showing that there is something in his particular case that made the existing and generally 6 available administrative remedies effectively unavailable to him.” Id. (citation omitted). 7 “However, … the ultimate burden of proof remains with the defendant.” Id. 8 An inmate “need not exhaust unavailable [remedies].” Ross v. Blake, 578 U.S. 632 , 642 9 (2016). An administrative remedy is unavailable “when (despite what regulations or guidance 10 materials may promise) it operates as a simple dead end with officers unable or consistently 11 unwilling to provide any relief to aggrieved inmates”; or when “an administrative scheme [is] so 12 opaque that it becomes, practically speaking, incapable of use, [i.e.,] some mechanism exists to 13 provide relief, but no ordinary prisoner can discern or navigate [the mechanism]”; or “when 14 prison administrators thwart inmates from taking advantage of a grievance process through 15 machination, misrepresentation, or intimidation.” Id. at 643-44 . 16 When the district court concludes that the prisoner has not exhausted administrative 17 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 18 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 19 Albino, 747 F.3d at 1168-69 . “If a motion for summary judgment is denied, disputed factual 20 questions relevant to exhaustion should be decided by the judge.” Albino, 747 F.3d at 1170 . If the 21 court finds that remedies were not available, the prisoner exhausted available remedies, or the 22 failure to exhaust available remedies should be excused, the case proceeds to the merits. Id. at 23 1171. 24 C. CDCR Grievance Process 25 The California Department of Corrections and Rehabilitation (“CDCR”) has an 26 administrative grievance system for prisoners to appeal a policy, decision, action, condition, or 27 omission by the department or staff if it has an adverse effect on prisoner health, safety, or 28 welfare. Cal. Code Regs. tit. 15, §3480 , et seq. Compliance with 42 U.S.C. § 1997e(a) requires 1 California-state prisoners to utilize CDCR’s grievance process to exhaust their claims prior to 2 filing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010); see also Woodford, [3] 548 U.S. at 85-86 . Administrative appeals are generally subject to two levels of review before the 4 remedy is deemed exhausted. Cal. Code Regs. tit. 15, §§ 3481 (a)-(b), 3485(a)-(b)); see Sapp, 623 5 F.3d at 818. 6 IV. EVIDENTIARY MATTERS 7 Plaintiff has failed to properly respond to Defendants’ Statement of Undisputed Facts in 8 support of the motion for summary judgment. Plaintiff was served with a Rand warning that 9 included the following language: 10 In accordance with Local Rule 260(a), Defendants have filed a Statement of Undisputed Facts that contains discrete, specific 11 materials facts to support their entitlement to summary judgment. In response to this Statement, Local Rule 260(b) requires you to 12 “reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are 13 disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, 14 admission, or other document relied upon in support of that denial.” You may also “file a concise Statement of Disputed Facts, and the 15 source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment or 16 adjudication.” Id. 17 (Doc. 37-14 at 2.) 18 Plaintiff neither reproduced Defendants’ itemized facts, nor admitted or denied those 19 facts. (See Doc. 43.) Nor did Plaintiff file a concise statement of disputed facts. (Id.) Because 20 Plaintiff has not complied with Rule 260(b), the Court deems Plaintiff to have admitted those 21 facts. See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by failing specifically to challenge 22 the facts identified in the defendant’s statement of undisputed facts, [plaintiff] is deemed to have 23 admitted the validity of the facts contained in the [defendant's] statement.”); Brito v. Barr, No. 24 2:18-cv-00097-KJM-DB, 2020 WL 4003824 , at *6 (E.D. Cal. July 15, 2020) (deeming 25 defendants undisputed facts as admitted after plaintiff failed to comply with Local Rule 260(b)). 26 Nevertheless, where Plaintiff’s verified complaint or evidence submitted in support of his 27 opposition to Defendants’ motion for summary judgment bring Defendants’ proffered facts into 28 dispute, the Court considers the complaint and any evidence. Jones v. Blanas, 393 F.3d 918 , 923 1 (9th Cir. 2004) (court is to consider evidence submitted by pro se prisoner in opposition to 2 summary judgment only to the extent it is based on personal knowledge and “attested [to] under 3 penalty of perjury” as true and correct)). 4 V. DISCUSSION 5 The question before the Court is whether Plaintiff exhausted his administrative remedies 6 concerning his Eighth Amendment claims against Defendants Sharps and Ward. 7 Grievance Log No. 1268383 8 Grievance Log No. 126838 was submitted on May 31, 2021, and received by the 9 institution on June 9, 2021. (UDF ¶¶ 13-14.) The grievance presented two claims: one asserting 10 Plaintiff was assaulted by Sharps and Ward after asking to be moved, and the second being 11 unrelated to the first because it concerned alleged misconduct toward other inmates. (UDF ¶ 13.) 12 NKSP rejected the grievance on June 10, 2021. (UDF ¶ 14.) Claim one was rejected as untimely 13 pursuant to Title 15 of the California Code of Regulations4 section 3487(a)(1) because the 14 grievance should have been submitted on or before April 15, 2021, but was not submitted until 15 May 31, 2021. (UDF ¶¶ 8, 14.) Claim two was also rejected pursuant to section 3487(a)(4). (UDF 16 ¶¶ 8, 14.) No other grievances were filed during the relevant period. (UDF ¶ 19.) 17 Appeal Log No. 126838 18 Plaintiff appealed the rejection of the grievance in Appeal Log No. 126838, received by 19 the Office of Appeals on July 2, 2021. (UDF ¶ 15.) The Office of Appeals had 60 days5 within 20 which to complete a written response to Plaintiff’s appeal. (UDF ¶ 16.) In correspondence dated 21 September 1, 2021, that office acknowledged the relevant time period had expired and that the 22 institutional level response served as the final response because the Office of Appeals did not 23 substantively respond to the appeal within sixty days. (UDF ¶¶ 16, 18.) Generally, such a 24 response results in the exhaustion of administrative remedies; however, exhaustion does not occur [25] 3 The Court elects to omit the six zeros preceding the grievance or appeal log numbers for ease of 26 reference. 27 4 All future references are to the Title 15 of the California Code of Regulations unless otherwise indicated. 28 5 Or until August 31, 2021. 1 where a grievance was rejected as untimely pursuant to section 3487(a). (UDF ¶ 17.) Thus, 2 because Grievance Log No. 126838 was rejected as untimely under that same section, the claim 3 involving Defendants Sharps and Ward is not exhausted. (UDF ¶ 18.) No other appeals were filed 4 during the relevant period. (UDF ¶ 20.) 5 The undersigned finds Defendants have met their initial burden of showing there is no 6 genuine issue of material of fact because there exists an available administrative remedy and 7 Plaintiff failed to exhaust his administrative remedies. (See UDF ¶¶ 1, 3-6, 13-18.) See In re 8 Oracle Corp. Sec. Litig., 627 F.3d at 387 ; Albino, 747 F.3d at 1172 . More specifically, 9 Defendants have shown that an available remedy exists, that Grievance Log No. 126838 was 10 rejected as untimely, that Appeal Log No 126838 adopted the institutional level untimeliness 11 determination, and that a grievance rejected for untimeliness is not considered exhausted. Thus, 12 Defendants have met their initial burden to show Plaintiff’s claims against Defendants Sharp and 13 Ward are not exhausted and are subject to dismissal. 14 Therefore, the burden shifts to Plaintiff “to come forward with evidence showing that 15 there is something in his particular case that made the existing and generally available 16 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172 . 17 In his opposition,6 Plaintiff argues he did exhaust his administrative remedies and states 18 the “OOA does exhaust all remedies. When it reaches the Inmate Appeals at Office of Appeals 19 Department of Corrections and Rehabilitation P.O. Box 942883 Sacramento CA 95811.” (Doc. 20 43 at 1.) Essentially, Plaintiff contends staff misconduct allegations are not subject to time 21 constraints. (Id. at 72 [Exhibit F].) He acknowledges he “did not file [Grievance Log No. 126838] 22 promptly” and states that was “due to fear and safety exspecially [sic] when these officers Sharp 23 and Ward targetted [sic] this petition due to my prior criminal history as a sex offender and also 24 threatened if I file a grievance at the time of the incadent [sic] they stated wherever I go they 25 would make sure that I will be targetted [sic] again so this petitioner waited till I was transferred [26] 6 Plaintiff argues the merits of his claims against Defendants Sharp and Ward. (See, e.g., Doc. 43 at 2-4, 5-7, 9-14.) [27] The Court will not address merits-based arguments and focuses only on those assertions pertaining to the exhaustion of administrative remedies. [28] 1 out of the reception center.” (Id. at 1-2.) Plaintiff asserts he “was in complete fear of [his] 2 personal safety due to” the Defendants’ excessive force. (Id. at 4.) He states if he had filed a 3 grievance his life would have been “more severly [sic] in danger.” (Id.) He states they are “part of 4 a Correctional Prison Gang called the ‘Green Wall’ and ‘Blue Wall of Silence.’” (Id.) Plaintiff 5 contends Sharps and Ward assaulted him and he witnessed assaults upon other inmates wherein 6 Sharps and Ward “stood and watched.” (Id.) Thus, Plaintiff was “in fear of [his] life and safety as 7 to a retaliation.” (Id.) Plaintiff argues he “lacked the opportunity” to submit a timely grievance 8 following the March 2021 incident (id. at 15) and states he has “proven-established and such all 9 during the court documents-proceedings as to prima facie facts, evidence, proof of facts to 10 sufficient to establish – introducing as evidence – showing of assault by correctional officers – 11 suffering tramaticly [sic] …” (id at 15-16). Plaintiff asks the Court “to proceed with this case and 12 not deprive [him] of [his] rights under the United States Constitution to be free from any cruel 13 and unusual punishment.” (Id. at 17.) 14 Plaintiff’s assertion that his grievance was not untimely because staff misconduct 15 allegations are not subject to time constraints is incorrect. In March 2021, section 3482(b) 16 unconditionally required a grievance be filed within thirty days of the date of the incident. (UDF 17 ¶ 6.) Plaintiff’s untimeliness in submitting his grievance could only be excused if the grievance 18 process was effectively unavailable to him. 19 “[T]he threat of retaliation for reporting an incident can render the prison grievance 20 process effectively unavailable and thereby excuse a prisoner’s failure to exhaust administrative 21 remedies.” McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015). In McBride, the Court of 22 Appeals noted: 23 “To show that a threat rendered the prison grievance system unavailable, a prisoner must provide a basis for the court to find that he actually believed prison officials 24 would retaliate against him if he filed a grievance. If the prisoner makes this showing, he must then demonstrate that his belief was objectively reasonable. That 25 is, there must be some basis in the record for the district court to conclude that a reasonable prisoner of ordinary firmness would have believed that the prison 26 official's action communicated a threat not to use the prison's grievance procedure and that the threatened retaliation was of sufficient severity to deter a reasonable 27 prisoner from filing a grievance.” [1] Id. Physical violence or explicit threats of punishment for filing a grievance can satisfy 2 the objective prong. Sealy v. Busichio, 696 F. App'x 779, 780-81 (9th Cir. 2017) 3 In McBride, the plaintiff alleged that after an altercation with prison guards left him 4 “bleeding and swelling,” and the defendants “came by his cell and told him that he was ‘lucky’ 5 because his injuries ‘could have been much worse.’” McBride, 807 F.3d at 985 . The Court of 6 Appeals held that while the plaintiff’s view that defendant’s words were a warning against filing a 7 complaint was subjectively legitimate, it was not objectively reasonable because the defendants 8 made no direct reference to the grievance process in their comments. Id. at 988 . The Court held 9 the interaction between the guards and the plaintiff, though “hostile,” did not render the grievance 10 system unavailable. Id. 11 Here, the Court notes that in his verified complaint, Plaintiff stated: “I was in complete 12 fear of my safety if I would have filed a grievance at the time my life would not have been 13 protected.” (Doc. 1 at 4.) Further, Plaintiff stated: “And the reason I didn’t file a grievance right 14 away is if I did the condoning and retaliation and corruptness would have put my life into more 15 fear and danger, fear of death.” (Id. at 5.) Jones, 393 F.3d at 923 . 16 Further, Plaintiff contends in his opposition7 that he delayed submitting Grievance Log 17 No. 1268388 because Defendants Sharps and Ward “threatened” that if he filed a grievance 18 “wherever [he went] they would make sure that [he would] be [targeted] again.” Liberally 19 construed, Plaintiff’s allegation that Sharps and Ward’s comments that he would be targeted 20 “wherever” he went if he filed a grievance following the March 2021 incident is sufficient to 21 meet the first, subjective prong of the McBride test. McBride, 807 F.3d at 988 . [22] 23 7 Plaintiff’s opposition is signed under penalty of perjury. (Doc. 43 at 17.) Thus, the facts Plaintiff has set forth in opposition are evidence to be considered when deciding a motion for summary judgment. See Jones, 393 F.3d at 923 ; 24 Johnson v. Meltzer, 134 F.3d 1393, 1399-1400 (9th Cir. 1998). [25] 8 In Grievance Appeal Log No. 126838 and Appeal Log No. 126838, Plaintiff wrote: “Didn’t file this while in Northern Kern State Prison due to fear, safety, [retaliation] by all staff members of CDC also filing a 1983 civil complaint by a prisoner.” (See Doc. 37-5 at 2 & Doc. 37-12 at 2.). And, in the lengthy statement attached in support [26] of his grievance and appeal, Plaintiff states: “Correctional Officers Mr. Sharps and Mr. Z Ward Defendants did in fact make specific and direct threats with excessive force to cause great bodily injury ….” (Doc. 37-5 at 6 & Doc. 3727 12 at 6.) To be clear, the Court did not consider, for any purpose, Plaintiff’s numerous references to other purported assaults against other inmates in his grievance. [28] 1 Next, liberally construing Plaintiff’s verified opposition, the Court finds Plaintiff has 2 demonstrated his belief was objectively reasonable and thus meets the second, objective prong of 3 the test. Id. This is so because Plaintiff’s assertions are more than general hostilities. Rodriguez v. 4 County of Los Angeles, 891 F.3d 776, 794 (9th Cir. 2018) (allegations of “general and 5 unsubstantiated fears about possible retaliation” insufficient to satisfy inmate's burden to produce 6 evidence of something in the particular case that rendered administrative remedies effectively 7 unavailable). Given the alleged threat by Sharps and Ward—that if Plaintiff filed a grievance, he 8 would be targeted wherever he went—there is a basis in this record to conclude that a reasonable 9 prisoner of ordinary firmness would have believed the Defendants’ actions communicated a threat 10 not to use NKSP’s grievance procedure and that the threatened retaliation was of sufficient 11 severity to deter a reasonable prisoner from filing a grievance. Unlike McBride, the statements 12 allegedly made by Sharps and Ward specifically reference Plaintiff’s use of the prison grievance 13 process and raise the specter of future attacks. See, e.g., DeArmitt v. Clackamas County, No. 3:1614 cv-00583-YY, 2019 WL 1497042 , at *4 (D. Or. Jan. 18, 2019) (recommendations finding 15 genuine issue of material fact regarding defendant’s threat— “If you want to start filing 16 grievances, I’ll make sure your time here is living hell. And that goes for any time you come back 17 also”—where plaintiff’s statements that he feared for his safety and did not file a grievance right 18 away constituted evidence he believed defendant would retaliate against him, citing McBride), 19 adopted at 2019 WL 1497028 (D. Or. Apr. 4, 2019); Miramontes v. Gower, No. 2:15-cv-1544 20 CKD P, 2016 WL 4001211 , at *2 (E.D. Cal. July 25, 2016) (finding genuine issue of material fact 21 as to whether plaintiff was actually threatened with retaliation for further use of inmate grievance 22 process and whether that actually stopped him from filing a grievance where defendant told 23 plaintiff “he did not ‘tolerate’ accusations made against other correctional officers via the inmate 24 grievance process at CCC,” asked plaintiff if he knew “’what happens to snitches in prison’” and 25 told him “‘maybe I should move you to Lassen…for your own safety’”). 26 The Court acknowledges the fact Plaintiff filed four grievances and an appeal following 27 the incident giving rise to this litigation. (UDF ¶¶ 19-20; Docs. 37-4 & 37-8 thru 37-11; see Doc. 28 37-3 [Grievance and Appeal History].) However, a review of those documents reveals they 1 concerned matters unrelated to any staff misconduct complaint. Rather, those grievances and 2 appeal were directed to a correctional counselor concerning sentencing enhancements and the 3 applicability of Proposition 57 to Plaintiff’s underlying conviction and sentence, concerned 4 property allegedly lost during a building move, and concerned issues related to law library access 5 directed to the “Records Department” and “Administration.” (See Doc. 37-2 at ¶ 9; Docs. 37-8 6 through 37-11.)9 Thus, the Court finds the four grievances and one appeal allegedly filed after the 7 March 16, 2021 incident were not likely to draw outside attention to Plaintiff’s complaints 8 involving Sharps and Ward. See Kaba v. Stepp, 458 F.3d 678, 684-86 (7th Cir. 2006) (the fact 9 that a prisoner filed other appeals when he alleges fear of retaliation if he pursued the subject 10 appeal is not, ipso facto, dispositive whether the grievance system was effectively available on 11 the subject grievance). Accord Rinaldi v. United States, 904 F.3d 257, 269-70 (3d Cir. 2018) 12 (“Rinaldi’s willingness to file grievances concerning unrelated and far less inflammatory subjects 13 like cleaning supplies is hardly dispositive of whether he was subjectively deterred from pursuing 14 his Retaliation Request at the Institution”) (relying on Kaba); cf. Arocha v. Sauceda, No. 1:11-cv15 2959 LKK KJN P, 2013 WL 6782842 , at *6 (E.D. Cal. Dec. 19, 2013) (finding plaintiff’s threats 16 of retaliation undermined by his filing seventeen grievances during relevant period, several of 17 which involved named defendants and allegations of sexual assault). 18 Here too, Defendants’ exhibits indicate that when Plaintiff submitted Grievance Log No. 19 126838 on May 31, 2021, he was housed at the Substance Abuse Treatment Facility, not NKSP. 20 (See Doc. 37-7 at 3; Doc. 37-12 at 2, 15-16; Doc. 37-13 [as of 5/26/21, housed at SATF].) Hence, 21 Plaintiff’s contention that he did not file a grievance concerning the incident in March 2021 while 22 he was housed at NKSP due to threats and a fear for his safety is supported by this record. 23 The Court is not persuaded by Defendants’ arguments in reply to Plaintiff’s opposition. In 24 particular, the Court finds Defendants’ reliance on Crane v. Rodriguez, No. 2:15-cv-0208 TLN 25 KJN P, 2023 WL 113773 (E.D. Cal. Jan. 5, 2023) to be misplaced. (See Doc. 46 at 3-4.) There, 26 the plaintiff asserted defendants had conspired, between December 31, 2009, and March 1, 2013, [27] 9 Although two of the submissions were received after the March 16, 2021 incident, those submissions are neither 28 dated nor signed by Plaintiff. (See Docs. 37-9 & 37-10.) 1 to set plaintiff up for assault by other inmates in retaliation for his litigation activities. Id. at *2 . 2 Crane also alleged in his second amended complaint that certain other defendants used excessive 3 force on March 1, 2013. Id. In considering whether plaintiff exhausted his claims arising out of a 4 January 16, 2013, assault based upon a fear of retaliation, the Court found plaintiff pursued 5 several other appeals, including appeals regarding incidents at issue in the plaintiff’s complaint. 6 The Crane Court found that “Plaintiff's filing of the motions for injunctive relief and submission 7 of the grievances discussed above undermine plaintiff's claim that he actually believed prison 8 officials would retaliate against him for filing a grievance regarding the January 16, 2013 9 incident.” Id. at *10 (record citations omitted). Here, unlike Crane, none of Plaintiff’s later 10 grievances involved allegations relating to Plaintiff’s claims here. Nor do there exist other 11 motions filed by Plaintiff that undermine his retaliation defense and the question of exhaustion. 12 See Kaba, 458 F.3d at 685 (“The ability to take advantage of administrative grievances is not an 13 ‘either-or’ proposition. Sometimes grievances are clearly available; sometimes they are not; and 14 sometimes there is a middle ground where, for example, a prisoner may only be able to file 15 grievances on certain topics.”). 16 Lastly, and briefly, any argument by Plaintiff concerning a lack of “boxes” in which to 17 submit grievances at NKSP as it concerns any claim to unavailability is without merit. Plaintiff 18 failed to meet his burden in that regard. See Celotex, 477 U.S. at 322 . (See also UDF ¶ 22.) 19 In sum, considering all evidence, including the verified complaint and opposition 20 submitted by Plaintiff, the types of grievances filed by Plaintiff subsequent to the March 2021 21 incident involving Sharps and Ward, the statements attributed to Sharps and Ward by Plaintiff in 22 Grievance Log No. 126838, and the fact Plaintiff only submitted his grievance after he had been 23 transferred from NKSP to another facility, the Court finds Defendants have not met their burden 24 of proof regarding the exhaustion of administrative remedies and will recommend their motion 25 for summary judgment be denied. Fordley v. Lizarraga, 18 F.4th 344, 350-51 (9th Cir. 2021) 26 (“Because the failure to exhaust is an affirmative defense that defendants must plead and prove, 27 the ultimate burden ... remains with the defendants”). [28] 1 V. ALBINO HEARING 2 Because the undersigned finds Defendants have not met their ultimate burden to prove 3 | that Plaintiff failed to exhaust his administrative remedies and will recommend Defendants’ 4 | motion for summary judgment be denied, an evidentiary hearing is warranted. The Court finds it 5 | must resolve: (1) whether Defendants Sharps and Ward verbally threatened Plaintiff that if he 6 | were to file a grievance concerning the incident in March 2021 that he would be targeted; (2) 7 | whether the alleged threat was the cause of Plaintiff's delay in submitting Grievance Log No. 8 | 126838; and (3) whether the alleged threat would have deterred a reasonable inmate of ordinary 9 | firmness and fortitude from filing a grievance. Such disputed fact are material as to whether such 10 | actions, if they occurred, rendered administrative remedies unavailable to Plaintiff. Accordingly, 11 | an evidentiary hearing to address these issues is appropriate. See Albino, 747 F.3d at 1170 -71 12 (court shall hold evidentiary hearing to decide disputed factual questions relevant to 13 | administrative exhaustion). 14 VI. CONCLUSION AND RECOMMENDATIONS 15 Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants’ motion 16 | for summary judgment for a failure to exhaust administrative remedies (Doc. 37) be DENIED, 17 || subject to an evidentiary hearing. 18 These Findings and Recommendations will be submitted to the United States District 19 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(). Within 14 days 20 || of the date of service of these Findings and Recommendations, the parties may file written 21 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 22 | Findings and Recommendations.” Failure to file objections within the specified time may result in 23 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 24 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 | IT IS SO ORDERED. Dated: _March 27, 2024 | ha 27 UNITED STATES MAGISTRATE JUDGE