Bolton v. Sodergren
| Decision Date | 31 January 2019 |
| Docket Number | Case No. 1:16-cv-00298-LJO-SKO (PC) |
| Court | U.S. District Court — Eastern District of California |
| Parties | WAYNE BOLTON, Plaintiff, v. E. SODERGREN, et al., Defendants. |
FINDINGS AND RECOMMENDATIONS ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(Doc. 34)
Plaintiff, Wayne Bolton, a state prisoner proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. § 1983. On May 3, 2018, Defendants K. Moser, W. Steadman and E. Sodergren, ("Defendants"), filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 561 raising: (1) Plaintiff's failure to exhaust the available administrative remedies in compliance with 42 U.S.C. § 1997e(a); (2) the cognizability of Plaintiff's Eighth Amendment claim for asbestos exposure; and (3) qualified immunity. (Doc. 34.)2 After multiple extensions of time, Plaintiff filed his opposition.3 (Docs 37, 40, 41.) Defendants filed a reply. (Doc. 42.) The motion is deemed submitted. L.R. 230(l).
For the reasons discussed below, the Court finds that Plaintiff failed to exhaust available administrative remedies before filing suit in violation of 42 U.S.C. § 1997e(a), that this action should not be dismissed for Plaintiff's failure to state a claim, and that Defendants are entitled to qualified immunity. While failure to exhaust results in dismissal without prejudice, qualified immunity entitles Defendants to dismissal with prejudice.
The failure to exhaust is an affirmative defense which the defendants bear the burden of raising and proving on summary judgment under Rule 56 of the Federal Rules of Civil Procedure.4 Jones, 549 U.S. at 216; Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).
On summary judgment, Defendants must first prove that there was an available administrative remedy which Plaintiff failed to exhaust before filing suit. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino, 747 F.3d at 1172). If Defendants carry their burden of proof, 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.
Plaintiff's filings must be liberally construed because he is a pro se prisoner. Thomas v. Ponder, 611 F3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). All inferences must be drawn in the light most favorable to Plaintiff as the nonmoving party. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted). Inferences, however, are not drawn out of the air; the nonmoving party must produce a factual predicate from which the inference may reasonably be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
A defendant is only entitled summary judgment if the undisputed evidence viewed in the light most favorable to the prisoner demonstrates that administrative remedies were available to Plaintiff which he failed to exhaust. Williams, at 1166. The action should then be dismissed without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
Pursuant to the Prison Litigation Reform Act of 1995, "[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). Prisoners are required to exhaust available administrative remedies before filing suit. Jones, 549 U.S. at 211; McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Where, as here, a prisoner proceeds in an action under § 1983 on an amended complaint, the PLRA is satisfied if the inmate exhausted administrative remedies after the filing of the original complaint, but before the filing of the amended complaint. Rhodes v. Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010). The claims must be "new." The events giving rise to them must not have occurred until after the filing of the original complaint, and the precipitating events of the new claim(s) must be related to the events alleged in the original complaint. Id. Accordingly, where the events on which a claim is based occurred before the filing of the original complaint, the claim is not "new" and must have been exhausted before the filing of the original complaint. Id.
Inmates are required to "complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81, 88 (2006). Inmates must adhere to the "critical procedural rules" specific to CDCR's process. Reyes v. Smith, 810 F.3d 654, 567 (9th Cir. 2016). The exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002), regardless of the relief both sought by the prisoner and offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001).
// "Under § 1997e(a), the exhaustion requirement hinges on the "availability' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Ross v. Blake, --- U.S. ---, 136 S. Ct. 1850, 1858 (June 6, 2016). An inmate is required to exhaust those, but only those, grievance procedures that are "capable of use" to obtain "some relief for the action complained of." Id. at 1858-59, citing Booth v. Churner, 532 U.S. 731, 738 (2001). However, "a prisoner need not press on to exhaust further levels of review once he has [ ] received all 'available' remedies." See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).
On summary judgment, Defendants must first prove that there was an available administrative remedy which Plaintiff did not exhaust before filing suit. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino, 747 F.3d at 1172). If Defendants carry their burden of proof, 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 the 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." Williams, at 1166. The action should then be dismissed without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
The California Department of Corrections and Rehabilitation ("CDCR") has a generally available administrative grievance system for prisoners to appeal any departmental decision, action, condition, or policy having an adverse effect on prisoners' welfare, Cal. Code Regs., tit. 15, § 3084, et seq. Compliance with section 1997e(a) requires California state prisoners to use that process to exhaust their claims. Woodford v. Ngo, 548 U.S. 81, 85-86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010).
As of 2011, a CDCR inmate initiates the grievance process by submitting a Form 602, also known as an inmate appeal ("IA"), describing "the problem and action requested." Cal. Code Regs., tit. 15, § 3084.2(a).5 An IA must be submitted within 30 calendar days of the event or decision being appealed, first knowledge of the action or decision being appealed, or receipt of an unsatisfactory departmental response to an appeal filed. Tit. 15 § 3084.8(b). The inmate is limited to raising one issue, or a related set of issues, per IA, in the space provided on the first page of the IA form and one attached page (which must be on the prescribed Attachment form "602-A") in which the inmate must state all facts known on that issue. Tit. 15 § 3084.2(a)(1),(2), & (4). All involved staff members are to be listed with a description of their involvement in the issue. Tit. 15 § 3084.2(a)(3). Originals of supporting documents must be submitted with the IA; if they are not available, copies may be submitted with an explanation why the originals are not available, and are subject to verification at the discretion of the appeals coordinator. Tit. 15 § 3084.2(b). With limited exceptions, an inmate must initially submit the IA to the first-level. Tit. 15 § 3084.7. If dissatisfied with the first-level response, the inmate must submit the IA to the second-level within thirty days, and thereafter to the third-level. Tit. 15 § 3084.2, & .7. First and second-level appeals must be submitted to the appeals coordinator at the institution for processing. Tit. 15 § 3084.2(c). Third-level appeals must be mailed to the Appeals Chief via the United States Postal Service. Tit. 15 § 3084.2(d).
Defendants contend that Plaintiff did not exhaust available administrative remedies on his claims in this action under § 1983 before he filed suit. (Doc. 34.) The Court must determine if Plaintiff filed any IAs concerning the allegations on which he is proceeding in this action; if so, whether Plaintiff complied with CDCR's process; and if Plaintiff did not comply with CDCR's process, whether it was because the process had been rendered unavailable to him. Ross, 136 S. Ct. at 1859; Sapp, 623 F.3d at 823.
Defendants correctly state that, on March 4, 2016, Plaintiff filed the verified original Complaint in this action alleging deliberate indifference to his safety. (Doc. 1.) Plaintiff alleged that, on December 26, 2014, while assigned to work as an inmate plumbing assistant, Defendants Moser and Steadman instructed him to remove asbestos-containing materials without providing him CDCR mandated safety...
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