Villery v. Beard

          ORDER REGARDING PARTIES' MOTIONS TO MODIFY DISCOVERY AND SCHEDULING ORDER (DOC. NOS. 68, 85) FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. NO. 51)

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction^[1]

         Plaintiff Jared M. Villery is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on Plaintiff's claim against Defendants Kendall, Acosta, Naficy, Jones, Guerrero, Aithal, Seymour, Carrizales, Woodard, Pallares, Hernandez, Fisher, Grimmig, and Miranda for deliberate indifference in violation of the Eighth Amendment, and against Defendant Diaz based on a policy to deny single cell housing for inmates with serious mental disorders, in violation of the Eighth Amendment. The case arises out of Plaintiff's allegations concerning allegedly improper housing decisions at various institutions for Plaintiff, who suffers from Post-Traumatic Stress Disorder (“PTSD”).

         Currently before the Court is Defendants' motion for summary judgment for the failure to exhaust administrative remedies pursuant to Federal Rule of Civil Procedure 56, filed on January 1, 2018. (Doc. No. 51.) Plaintiff filed an opposition, on extension, on April 3, 2018. (Doc. No. 74.) Defendants filed a reply on April 9, 2018. (Doc. No. 81.)

         The parties have also filed motions to modify the discovery and scheduling order based in part on this pending motion. (Doc. Nos. 68, 85.) Defendants filed an opposition to Plaintiff's motion on June 1, 2018, (Doc. No. 87), and Plaintiff filed a reply to that opposition on June 20, 2018, (Doc. No. 92).^[2]

         These motions are now deemed submitted. Local Rule 230(1).

         II. Defendants' Motion for Summary Judgment for the Failure to Exhaust

         As noted above, Plaintiff brings his claim against multiple defendants for events that occurred at several different institutions where he was previously housed-the California State Prison-Los Angeles County “(LAC”), in Lancaster, California; the California Correctional Institution (“CCI”) in Tehachapi, California; and the California Substance Abuse Treatment Facility (“SATF”) in Corcoran, California. This motion is a partial summary judgment motion, concerning the claim brought against Defendants Naficy, Aithal, Seymour, and Carrizales, employed at CCI, and Defendants Pallares, Hernandez, Fisher, and Miranda, employed at SATF.

         In summary, Plaintiff alleges that he was diagnosed with PTSD after an incident on August 3, 2007, in which he was stabbed by two white inmates while he was incarcerated at Kern Valley State Prison. (First Am. Compl., Doc. No. 22.) Plaintiff further alleges that he was later transferred to CCI on January 14 or 15, 2014, and notified Defendant Carrizales, a social worker, about his condition for the first time on January 16, 2014. Plaintiff alleges that he followed up with Defendant Carrizales several times about his severe PTSD symptoms and inability to be housed with other inmates, but Defendant Carrizales refused to make any housing recommendations for Plaintiff, stating that custody staff had instructed mental health staff to refrain from doing so based on overcrowding. Plaintiff also alleges that he discussed his condition with Defendant Naficy, a psychiatrist; Defendant Aithal, a psychologist; and Defendant Seymour, a psychologist, but all of them refused to make any single cell housing recommendations based on instructions from custody staff.

         Plaintiff further alleges that he was transferred from CCI to SATF on or around January 9, 2015. He allegedly met with Defendant Fisher, a correctional counselor, and explained his need for single cell status due to his severe PTSD symptoms. His request was denied. He also explained his condition at classification committee hearings. Defendant Hernandez, a correctional counselor; Defendant Pallares, a facility captain; Defendant Miranda, a correctional counselor; and Defendant Fisher were on the panels at these hearings. Plaintiff's request was again denied.

         These Defendants move for summary judgment with respect to the claims against them, arguing that Plaintiff failed to exhaust his available administrative remedies prior to suing.

         A. Legal Standards

         1.Summary Judgment

         Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) (quotation marks omitted); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014); Washington Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted).

         The failure to exhaust is an affirmative defense, and Defendant bears the burden of raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino, 747 F.3d at 1166. Defendant must “prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the Defendant carries this burden, the burden of production shifts to Plaintiff “to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. “If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. “If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.” Id.

         2. Exhaustion of Administrative Remedies

         Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).

         The California Department of Corrections and Rehabilitation (“CDCR”) has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084.1. The process is initiated by submitting a CDCR Form 602 describing the issue and the relief requested. Id. at § 3084.2(a). Three levels of review are involved-a first level review, a second level review and a third level review. Id. at § 3084.7. Bypassing a level of review may result in rejection of the appeal. Id. at § 3084.6(b)(15). Under § 1997e, a prisoner has exhausted his administrative remedies when he receives a decision at the third level. See Barry v. Ratelle, 985 F.Supp. 1235, 1237-38 (S.D. Cal. 1997).

         The PLRA requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter, 534 U.S. at 524 (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90.

         B. Parties' Arguments

         Defendants assert that the material facts in regarding this summary judgment motion are undisputed, and argue that the appeals that Plaintiff asserts exhausted the claims at issue here- appeal nos. LAC HC 13047307, SATF HC 16062846, SATF E 15-00572, and SATF E 16-00105- did not properly exhaust Plaintiff's claims. Specifically, they argue that appeal nos. LAC HC 13047307 and SATF HC 16062846 were filed at different institutions during different time periods, and do not appeal the individual Defendants' decisions to deny Plaintiff single cell status. Defendants further argue that appeal SATF-E-15-00572 was cancelled at the second level, and although Plaintiff appealed the cancellation, he did not wait until receiving a decision to file suit, and the appeal was never exhausted through the third level. Finally, they argue that appeal no. SATF-E-16-00105 was also cancelled at the second level of screening, and Plaintiff did not appeal that cancellation. Therefore, that appeal was also not fully exhausted prior to filing suit.

         In opposition, Plaintiff does not dispute that he never filed any administrative grievances which specifically challenged the actions of Defendants Naficy, Aithal, Carrizales, or Seymour. However, he argues that because appeal nos. LAC HC 13047307 and SATF HC 16062846 addressed his ongoing PTSD condition and the continuing denial of single cell status, and those matters were fully addressed by CDCR officials, then those appeals were sufficient to exhaust his available administrative remedies against Defendants Naficy, Aithal, Carrizales, and Seymour.

         Plaintiff further argues that his appeal no. SATF-E-15-00572 against Defendants Fisher, Pallares, and Hernandez was improperly screened, rendering administrative remedies unavailable. Finally, Plaintiff argues that his appeal no. SATF-E-16-00105 regarding the conduct of Defendants Fisher and Miranda was properly cancelled as duplicative of appeal no. SATF-E-15-00572. However, when appeal no. SATF-E-15-00572 was improperly screened, his deadline to challenge the cancellation of appeal no. SATF-E-16-00105 had already passed, leaving him without the ability to complete the appeal, and making administrative remedies unavailable for that appeal as well.

         In reply, Defendants argue that Plaintiff has not presented sufficient evidence showing that appeal nos. LAC HC 13047307 and SATF HC 16062846 sufficiently exhausted his administrative remedies for his claim against Defendants Naficy, Aithal, Carrizales, and Seymour. Further, Defendants argue that Plaintiff has also not shown that the narrow exception for unavailable remedies applies in this case.

         C. Analysis

         1. Appeal Nos. LAC HC 13047307 and SATF HC 16062846

         Plaintiff filed his first amended complaint, the operative complaint in this action, on June 16, 2016, while he was housed at SATF, in Corcoran, California, within the custody of the California Department of Corrections and Rehabilitation. (First Am. Compl., Doc. No. 22.) At all times relevant to the allegations against Defendants Naficy, Aithal, Seymour, and Carrizales, Plaintiff was a state prisoner incarcerated at CCI. (FAC ¶¶ 49-63.) Plaintiff was housed at CCI from approximately January 15, 2014, through January 9, 2015. (Id.)

         Here, there is no dispute that there was an administrative appeal process available at Plaintiff's institutions, or that he availed himself of that process. (See, generally, Decl. of M. Voong, Doc. No. 51-2.) Further, as noted above, it is undisputed that Plaintiff never filed or exhausted an appeal which challenged a decision to deny him single cell status by Defendants Nanficy, Aithal, Seymour, or Carrizales. Plaintiff instead asserts that appeal nos. LAC HC 13047307 and SATF HC 16062846 sufficiently exhausted his claims, ...