1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOE SAMUELS, No. 2:18-cv-1107-JAM-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 CHC FACILITY, et al., 15 Defendants. 16 17 Plaintiff is a California Department of Corrections and Rehabilitation inmate proceeding 18 without counsel in an action brought under 42 U.S.C. § 1983. The court determined that his 19 complaint alleged potentially cognizable Eighth Amendment deliberate indifference to medical 20 needs claims against defendants Battle, Barocio, Shadrick, and Samiinia1 (“defendants”). ECF 21 No. 16. Defendants have since filed a motion for summary judgment (“motion”) wherein they 22 argue that plaintiff failed to administratively exhaust the claims against them. ECF No. 28. 23 After review of the pleadings and, for the reasons discussed below, the court concludes 24 that defendants’ motion should be granted. 25 ///// 26 ///// 27 1 The docket currently lists this defendant’s name as “Seninia.” The court will direct that 28 it be changed to reflect the proper spelling. 1 Legal Standards 2 A. Summary Judgment 3 Summary judgment is appropriate when there is “no genuine dispute as to any material 4 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 5 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 6 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 7 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 8 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. 9 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment 10 motion asks whether the evidence presents a sufficient disagreement to require submission to a 11 jury. 12 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 13 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to 14 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 15 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. 16 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary 17 judgment practice, the moving party bears the initial responsibility of presenting the basis for its 18 motion and identifying those portions of the record, together with affidavits, if any, that it 19 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; 20 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets 21 its burden with a properly supported motion, the burden then shifts to the opposing party to 22 present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 23 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995). 24 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 25 to summary judgment procedures. Depending on which party bears that burden, the party seeking 26 summary judgment does not necessarily need to submit any evidence of its own. When the 27 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 28 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National 1 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters 2 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323- 3 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a 4 summary judgment motion may properly be made in reliance solely on the ‘pleadings, 5 depositions, answers to interrogatories, and admissions on file.’”). Summary judgment should be 6 entered, after adequate time for discovery and upon motion, against a party who fails to make a 7 showing sufficient to establish the existence of an element essential to that party’s case, and on 8 which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance, 9 summary judgment must be granted, “so long as whatever is before the district court demonstrates 10 that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 11 323. 12 To defeat summary judgment the opposing party must establish a genuine dispute as to a 13 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 14 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 15 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 16 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 17 determined by the substantive law applicable for the claim in question. Id. If the opposing party 18 is unable to produce evidence sufficient to establish a required element of its claim that party fails 19 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 20 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 21 at 322. 22 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 23 the court must again focus on which party bears the burden of proof on the factual issue in 24 question. Where the party opposing summary judgment would bear the burden of proof at trial on 25 the factual issue in dispute, that party must produce evidence sufficient to support its factual 26 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion. 27 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit 28 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue 1 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to 2 demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such 3 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson, 4 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial. 5 The court does not determine witness credibility. It believes the opposing party’s 6 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; 7 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 8 proponent must adduce evidence of a factual predicate from which to draw inferences. American 9 Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J., 10 dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at 11 issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th 12 Cir. 1995). On the other hand, the opposing party “must do more than simply show that there is 13 some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could 14 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 15 trial.’” Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant 16 summary judgment. 17 B. Administrative Exhaustion 18 The Prison Litigation Reform Act of 1995 (hereafter “PLRA”) states that “[n]o action 19 shall be brought with respect to prison conditions under section 1983 . . . or any other Federal 20 law, by a prisoner confined in any jail, prison, or other correctional facility until such 21 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA 22 applies to all suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), but a prisoner is 23 only required to exhaust those remedies which are “available.” See Booth v. Churner, 532 U.S. 24 731, 736 (2001). “To be available, a remedy must be available as a practical matter; it must be 25 capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (citing Brown v. 26 Valoff, 422 F.3d 926, 937 (9th Cir. 2005)) (internal quotations omitted). 27 Dismissal for failure to exhaust should generally be brought and determined by way of a 28 motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Id. at 1 1168. Under this rubric, the defendant bears the burden of demonstrating that administrative 2 remedies were available and that the plaintiff did not exhaust those remedies. Id. at 1172. If 3 defendant carries this burden, then plaintiff must “come forward with evidence showing that there 4 is something in his particular case that made the existing and generally available administrative 5 remedies effectively unavailable to him.” Id. If, however, “a failure to exhaust is clear on the 6 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id. at 1166. 7 Background 8 Plaintiff alleges that, on February 22, 2018, he met with defendants – all of whom were 9 part of an Interdisciplinary Treatment Team. ECF No. 12 at 6. At that time, plaintiff was on 10 single cell status and had been for some time. Id. Defendants allegedly rescinded that status at 11 the foregoing meeting after concluding that a single cell was no longer medically necessary. Id. 12 Plaintiff alleges that, as a consequence of losing his single cell status, he was overcome by 13 “depression/anxiety” and attempted suicide by swallowing razor blades and pills. Id. 14 A. Formal Grievance Channel 15 Defendants state that plaintiff filed only one administrative appeal – Log Number CHCF 16 HC 18001172 (“appeal 18001172”)– related to the claims at bar. ECF No. 28-2 at 4. That appeal 17 was received on March 26, 2018 and rejected that same day because plaintiff’s single cell status 18 had not yet been revoked. ECF No. 28-4 at 11, 15. Plaintiff was informed that “issues are not 19 appealable until they happen.” Id. at 15. 20 Plaintiff resubmitted the appeal on April 15, 2018 (after filing this suit) and, on April 16, 21 2018, officials cancelled the appeal as untimely. Id. at 4-5 ¶ 12, 10. In the April 16, 2018 22 cancellation, officials also informed plaintiff that he was still on single cell status and, thus, again 23 appealing an action that had not yet been taken. Id. at 10. The foregoing cancellation notified 24 plaintiff that, although he could not resubmit the cancelled appeal, he could file a separate appeal 25 challenging the cancellation decision. Id. Records provide no indication that plaintiff took 26 further action with respect to this cancellation. 27 ///// 28 ///// 1 Next, plaintiff submitted appeal 18001172 to the Office of Appeals for third level review. 2 ECF No. 28-6 at 8. The appeal was rejected due to its previous cancellation at the institutional 3 level. Id. at 7. 4 B. Health Care Grievance Channel 5 Separately, plaintiff submitted appeal 18001172 as a health care grievance. ECF No. 28-5 6 at 10. It was received on March 15, 2018 and rejected on March 20, 2018. Id. In the March 20, 7 2018 rejection letter, plaintiff was informed that his appeal raised “issues outside the health care 8 jurisdiction.” Id. at 12. It went on to note that “health care staff does not have the authority to 9 write a chrono for single cell status.” Id. Finally, the rejection asked plaintiff to “[e]xplain why 10 you believe this issue is within the health care jurisdiction.” Id. Plaintiff was given thirty days to 11 do so and resubmit his appeal. Id. Rather than abiding by those instructions, plaintiff escalated 12 the appeal to the Health Care Correspondence and Appeals Branch. Id. at 9. It was rejected on 13 June 11, 2018 for improperly bypassing the institutional review level. Id. That rejection directed 14 plaintiff to “[c]omply with the instructions provided in the rejection notice dated March 20, 2018, 15 and submit your health care grievance to your institution’s Health Care Grievance office within 16 30 calendar days.” Id. Plaintiff took no further action on this health care appeal. 17 Analysis 18 Based on the foregoing administrative history, the court concludes that plaintiff did not 19 exhaust his administrative remedies against the defendants before filing this action. Plaintiff 20 failed to abide by the procedural requirements of the grievance process and, as a consequence, 21 never fully exhausted any grievance related to the issues at bar. Additionally, given the filing 22 dates of appeal number 18001172, it was temporally impossible for him to exhaust before he filed 23 this suit on March 6, 2018 (ECF No. 1). His initial grievance was only received on March 26, 24 2018 – weeks after he filed suit in federal court. ECF No. 28-4 at 11. Thus, prison officials were 25 not afforded a chance to address plaintiff’s claims before he filed this suit. Nevertheless, plaintiff 26 raises several arguments in his opposition and the court will address each of them infra. 27 In his opposition, plaintiff contends that the March 26, 2018 rejection of his appeal 28 (described supra) was incorrect insofar as his single cell status was stripped from him on 1 February 22, 2018. ECF No. 35 at 5. The February 22, 2018 meeting, however, resulted only in 2 a recommendation that plaintiff’s cell status change. As was noted in the March 20, 2018 3 rejection of the health care grievance: 4 Please note health care staff does not have the authority to write a chrono for single cell status. Single cell status is a custody 5 determination. Health care staff may make a recommendation for a patient-inmate to have temporary single cell status; however, custody 6 must make the final determination through the Institutional Classification Committee process. We suggest you pursue your 7 concerns through the appropriate custody channels. 8 ECF No. 28-5 at 12. It follows that plaintiff’s February 22, 2018 meeting with defendants – none 9 of whom are alleged to sit on the Institutional Classification Committee – did not result in a final 10 decision to revoke his single-cell status. Additionally, in his response to the March 26, 2018 11 cancellation, plaintiff indicated that he remained, at least for the time being, on single cell status: 12 Since I’ve submitted this 602 I have been discharged from [mental health crisis bed]. I’m on the P.W.C. yard single cell status. 13 However, this does not solve the problem. This single cell is only for 6 mon[ths]. I cannot move forward until this issue is resolved 14 completely. 15 ECF No. 28-4 at 16. Thus, he cannot claim that officials were incorrect in their assessment that 16 he was attempting to appeal an event that had not yet occurred. 17 Next, plaintiff argues that officials erred when, on April 16, 2018, they cancelled his 18 appeal as untimely. ECF No. 35 at 5. However, timeliness was only one rationale for cancelling 19 his appeal. Officials also indicated that plaintiff was still on single cell status and, thus, still 20 attempting to appeal an event that had not yet occurred. ECF No. 28-4 at 10. Additionally, there 21 is no indication that plaintiff availed himself of the opportunity to file a separate appeal on the 22 cancellation decision, as the form indicated he could. Id. 23 Finally, plaintiff contends that, with respect to the medical grievance, he was “not only 24 denied a [third level] response but he was threaten[ed] with misuse and/or abuse of [the] appeals 25 process.” ECF No. 35 at 7. Based on the foregoing, he contends that he exhausted all “available” 26 remedies. Id. But, as noted supra, the third level response to plaintiff’s medical grievance clearly 27 directed him to “[c]omply with the instructions provided in the rejection notice dated March 20, 28 1 | 2018, and submit your health care grievance to your institution’s Health Care Grievance office 2 | within 30 calendar days.” ECF No. 28-5 at 9. There is no indication that he did so and, 3 || consequently, he cannot reasonably claim to have exhausted all “‘available” remedies. 4 Conclusion 5 Accordingly, it is ORDERED that the Clerk of Court shall modify the docket to reflect 6 || that defendant “Seninia” is properly “Samiinia.” 7 Further, for the reasons explained above, IT IS HEREBY RECOMMENDED that: 8 1. Defendants’ motion for summary judgment (ECF No. 28) be GRANTED; 9 2. Plaintiff's claims against them be DISMISSED without prejudice for failure to exhaust 10 administrative remedies; and 11 3. The Clerk be directed to close the case. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 14 | after being served with these findings and recommendations, any party may file written 15 || objections with the court and serve a copy on all parties. Such a document should be captioned 16 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: August 8, 2019. x tid, PDEA

EDMUND F. BRENNAN

21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28