1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DEANDRE BOLDEN, Case No. 20-cv-04254-SK

8 Plaintiff,

ORDER REGARDING CROSS-

9 v. MOTIONS FOR SUMMARY

JUDGMENT

10 ALFONSO ACOSTA, et al., 11 Defendants. Regarding Docket Nos. 86, 92

12 On April 15, 2022, Plaintiff Deandre Bolden (“Plaintiff”) moved for summary judgment. 13 (Dkt. No. 86.) Defendants Contra Costa County (“the County”), Sheriff’s Deputy Alfonso Acosta 14 (“Acosta”), Sheriff’s Deputy Nathaniel Cope (“Cope”), and Sheriff’s Deputy D. Gonzalez 15 (“Gonzalez”) (collectively, “Defendants”) opposed the motion and cross-moved for summary 16 judgment. (Dkt. No. 92.) Plaintiff in turn opposed Defendants’ cross-motion for summary 17 judgment. (Dkt. No. 96.) The Court heard oral argument on the parties’ cross-motions for 18 summary judgment on June 13, 2022. All parties have consented to the jurisdiction of a 19 magistrate judge pursuant to 28 U.S.C. § 636. (Dkt. Nos. 2, 13.) Having considered the 20 submissions of the parties, the record in the case, and the relevant legal authorities, and having had 21 the benefit of oral argument, the Court HEREBY DENIES Plaintiff’s motion for summary 22 judgment and GRANTS Defendant’s cross-motion for summary judgment, for the reasons set 23 forth below. 24 BACKGROUND 25 Plaintiff is a citizen of Richmond, California. (Dkt. No. 79 ¶ 1.) As of April 28, 2022, 26 Plaintiff is incarcerated in a Contra Costa County jail. (Dkt. No. 93-5 (Francisco Dec. ¶ 13).) 27 Plaintiff alleges that on November 17, 2019, he was an inmate at the Martinez Detention Center, 1 of that day, Plaintiff was using free time to heat up breakfast in the microwave at around 8:30 a.m. 2 (Id.) Plaintiff has been diagnosed with mental illnesses, including schizophrenia, delusional 3 disorder, and psychosis. (Id. ¶ 11.) As Plaintiff was heating up his food, Defendant Nathaniel 4 Cope (“Cope”) informed inmates that free time was over, lockdown was being imposed, and 5 inmates must return to their cells. (Id. ¶ 13.) Plaintiff, remembering his food, decided to go 6 downstairs from his cell toward the microwave rather than returning to his cell as ordered. (Id. ¶ 7 14.) Defendant Alfonso Acosta (“Acosta”) ordered Plaintiff to return to his cell, grabbed his arm 8 to make him return to his cell, and began escorting him back toward the stairs. (Id. ¶ 15.) At the 9 foot of the stairs, Plaintiff alleges that he turned around to face Acosta in order to ask him a 10 question, without striking, lunging, or making a verbal threat directed at Acosta. (Id. ¶ 16.) 11 Acosta, Cope, and Gonzalez attempted to take Plaintiff to the ground by grabbing his leg, pushing 12 him against the wall, and knocking him over. (Id. ¶¶ 17-18.) With Plaintiff on his stomach, 13 Acosta straddled his back, Gonzalez placed his legs in a figure-four lock, and Cope attempted to 14 gain control of his right arm. (Id. ¶ 19.) Plaintiff alleges that his only noncompliance at this point 15 consisted of tensing the muscles in his arms, which he was holding away from his torso. (Id. ¶ 16 20.) Plaintiff alleges that, in order to get control of Plaintiff’s arms, Cope issued a knee strike, 17 which hit Plaintiff in the face. (Id. ¶ 21.) As a result of the knee strike, Plaintiff alleges that he 18 suffered swollen black eyes, bruises on his face, headaches, memory loss, a displaced bone 19 fracture, and emotional distress. (Id. ¶ 22.) 20 Plaintiff further alleges that he suffers severe mental impairment which prevented him 21 from understanding the nature of the Contra Costa County grievance process and from complying 22 with the requirements of that process to file a grievance. (Id. ¶¶ 24-25.) Plaintiff alleges that only 23 when he was released from custody did he understand, through consulting with family and an 24 attorney, that he could seek redress for the incident. (Id. ¶ 26.) Plaintiff alleges that the Contra 25 Costa County custodial grievance process was unavailable to him because, by the time he realized 26 he wanted to file a claim, he was no longer incarcerated, and while he was incarcerated, he could 27 not understand the process. (Id. ¶ 27.) Separate from the grievance process with Contra Costa 1 Government Code § 910, et seq., on April 13, 2022, and his claim was rejected on May 13, 2020. 2 (Id. ¶ 28.) 3 Plaintiff brings four claims based on the alleged incident. First, Plaintiff brings a claim 4 under the Fourteenth Amendment for excessive force pursuant to 42 U.S.C. § 1983. (Id. ¶¶ 29- 5 32.) Second, Plaintiff brings a common law claim for battery. (Id. ¶¶ 33-37.) Third, Plaintiff 6 brings a claim for violation of California’s Bane Act. (Id. ¶¶ 38-43.) Fourth, Plaintiff brings a 7 common law claim for negligence. (Id. ¶¶ 44-48.) Plaintiff seeks compensatory, general, and 8 punitive damages, and attorneys’ fees. (Id.) 9 Plaintiff was incarcerated at the Martinez Detention Center on October 28, 2019. (Dkt. 10 No. 93-5 (Francisco Dec. ¶ 4).) The incident at issue occurred on November 17, 2019, while 11 Plaintiff was incarcerated at the Martinez Detention Center. (Dkt. No. 79.) At a medical 12 examination at approximately 10:00 a.m. directly following the 8:30 a.m. incident, Plaintiff’s 13 mood and affect were reported to be normal. (Dkt. No. 93-12 (Rodriquez Dec. Ex. L).) At a 14 medical examination at 8:50 a.m. on the following day, November 18, 2019, Plaintiff showed a 15 clear thought process, answered questions coherently, was alert and oriented, and denied auditory 16 and visual hallucinations. (Dkt. No. 93-11 (Rodriquez Dec. Ex. K).) On November 19, 2019, at 17 8:30 a.m., Plaintiff’s 48-hour time frame for filing a formal grievance under Contra Costa County 18 policy expired. (Dkt. No. 93-3 (Normandin Dec. ¶¶ 6-7).) Both before and after the period of 19 incarceration in question here, Plaintiff acknowledged his understanding of the Contra Costa 20 County grievance procedure by signing a form each time he was incarcerated in Contra Costa 21 County, for a total of 17 acknowledgements beginning on July 6, 2011, and ending December 23, 22 2020. (Dkt. No. 93-5 (Francisco Dec. ¶¶ 4-5).) Plaintiff was released from Contra Costa County 23 custody on January 15, 2020. (Dkt. No. 33-1 (Rodriquez Dec. Ex. A).) Plaintiff was rebooked 24 into custody in Contra Costa County on April 10, 2020. (Dkt. No. 93-5 (Francisco Dec. ¶ 4).) On 25 June 24, 2020, Sacramento County records indicate that Plaintiff was arrested for robbery and 26 obstructing a peace officer. (Dkt. 103-5.) 27 Plaintiff alleges that he was incarcerated in Sacramento County, rather than Contra Costa 1 ¶ 3).) Plaintiff filed his original Complaint in his matter on June 26, 2020. (Dkt. 1.) 2 Plaintiff was reincarcerated in Contra Costa County on December 23, 2020. (Dkt. No. 93-5 3 (Francisco Dec. ¶ 4).) Plaintiff filed his First Amended Complaint on January 3, 2021. (Dkt. No. 4 28.) Plaintiff filed his Second Amended Complaint on March 2, 2021. (Dkt. No. 48.) Plaintiff 5 filed his Third Amended Complaint on September 30, 2021. (Dkt. No. 79.) On the date that the 6 Third Amended Complaint was filed, Plaintiff was incarcerated in Contra Costa County. (Dkt. 7 No. 93-5 (Francisco Dec. ¶ 4).) Plaintiff remains incarcerated in Contra Costa County as of April 8 28, 2022. (Dkt. No. 93-5 (Francisco Dec. ¶ 13).) None of Plaintiff’s Contra Costa County 9 booking files contains a grievance report related to the incident at issue. (Dkt. No. 93-5 (Francisco 10 Dec. ¶ 4).) The Third Amended Complaint does not incorporate any of the prior complaints, 11 including the Original Complaint, First Amended Complaint, and Second Amended Complaint, by 12 reference. (Dkt. No. 79.) Plaintiff claims in a declaration submitted in support of his opposition 13 to Defendant’s cross-motion for summary judgment that he was unable to exhaust the Contra 14 Costa County grievance procedures because he is severely mentally ill. (Dkt. No. 97 (Bolden Dec. 15 ¶ 2).) Plaintiff declares that he hears voices and the voices instructed him not to comply with the 16 grievance procedure. (Id. (Bolden Dec. ¶ 4).) Due to his general level of mental illness and the 17 voices, Plaintiff claims that the Contra Costa County grievance procedure was effectively not 18 available to him while he was incarcerated. (Id. (Bolden Dec. ¶ 5-6).) Plaintiff submits no 19 evidence in support of his statements contained in the declaration. 20 Plaintiff moves for summary judgment, arguing that Cope’s knee strike to Plaintiff’s face 21 constituted excessive force in violation of the Fourteenth Amendment, and that Acosta and 22 Gonzalez were integral participants in the incident. (Dkt. No. 86-1.) Plaintiff argues that the 23 defendant officers are not entitled to qualified immunity, and that all Defendants are liable for 24 battery, negligence, and violation of the Bane Act. (Id.) Plaintiff does not address the issue of 25 exhaustion under the Prison Litigation Reform Act, 42 U.S.C. § 1997(e)a, (“PLRA”), which the 26 Court had previously instructed was essential to demonstrating the viability of his claims (Dkt. 27 No. 63). 1 under both 42 U.S.C. § 1883 and state common law are barred by his failure to exhaust the Contra 2 Costa County custodial grievance process under the PLRA. (Dkt. No. 92.) In the alternative, 3 Defendants argue that summary judgment is inappropriate because the reasonableness of the knee 4 strike is an issue for the jury, which could find the knee strike reasonable. Defendants also argue 5 that Acosta and Gonzalez are not liable under the integral participant doctrine, and that all three 6 officer Defendants are entitled to qualified immunity. (Id.) In support of their cross-motion for 7 summary judgment, Defendants adduce further facts aimed at controverting Plaintiff’s allegations 8 that he was not threatening prior to and during his November 17, 2019 encounter with the 9 Defendant officers, as relevant to Plaintiff’s substantive claims. (Dkt. 93.) However, the Court 10 does not describe that evidence here because the Court finds below that the procedural facts 11 related to the timing of plaintiff’s incarceration and filing of complaints, as relevant to whether 12 Plaintiff properly exhausted his claims under the PLRA, are dispositive in this case. 13 DISCUSSION 14 A. Legal Standards. 15 Summary judgment is proper “if the movant shows that there is no genuine dispute as to 16 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 17 “In considering a motion for summary judgment, the court may not weigh the evidence or make 18 credibility determinations, and is required to draw all inferences in a light most favorable to the 19 non-moving party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). The party moving for 20 summary judgment bears the initial burden of identifying those portions of the pleadings, 21 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex 22 Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Once the moving party meets his or her initial 23 burden, the non-moving party must go beyond the pleadings and, by its own evidence, set forth 24 specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 25 U.S. 242, 247 (1986); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 26 2000). 27 B. Analysis. 1 Plaintiff’s claims are subject to the exhaustion requirement imposed by the PLRA, 42 2 U.S.C. § 1997e(a). The PLRA requires that “a prisoner confined in any jail, prison, or other 3 correctional facility” exhaust all administrative remedies before filing suit based on prison 4 conditions pursuant to 42 U.S.C. § 1983 or any other federal law. 42 U.S.C. § 1997e(a). 5 Exhaustion is mandatory, Booth v. Churner, 532 U.S. 731, 739-40 (2001), and proper exhaustion 6 that “complies with the system’s critical procedural rules” must be observed, Woodford v. Ngo, 7 548 U.S. 81, 95 (2006). Failure to exhaust available procedural remedies under the PLRA is not 8 interpreted in a draconian manner, but rather constitutes an affirmative defense that a defendant 9 must plead and prove. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014) (citing Jones v. Bock, 10 549 U.S. 199, 204, 216 (2007)). The Court looks to the custody status of the Plaintiff when the 11 operative complaint was filed to determine whether the Plaintiff is subject to the exhaustion 12 requirement imposed by the PLRA. Jackson v. Fong, 870 F.3d 928, 937 (9th Cir. 2017) (“A 13 plaintiff who was a prisoner at the time of filing his suit but was not a prisoner at the time of his 14 operative complaint is not subject to a PLRA exhaustion defense.”) 15 Here, the question is whether Plaintiff was incarcerated in Contra Costa County jail when 16 his “operative complaint” was filed. Plaintiff argues that the operative complaint was the original 17 Complaint, when he was incarcerated in Sacramento County jail – not Contra Costa County jail - 18 and thus that he was not required to exhaust his claim through Contra Costa County before he filed 19 this suit. Defendants argue that the operative complaint is the Third Amended Complaint, which 20 Plaintiff filed when he was incarcerated in Contra Costa County jail, and thus that the PLRA 21 required Plaintiff to file a grievance before he filed this suit. 22 The analysis thus turns on the question of which of the complaints is the “operative 23 complaint.” “[T]he general rule is that an amended complaint supersedes the original complaint 24 and renders it without legal effect.” Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 25 2012); see also § 1476 Effect of an Amended Pleading, 6 Fed. Prac. & Proc. Civ. § 1476 (3d. ed.) 26 (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and 27 remains in effect throughout the action unless it subsequently is modified.”) “Nothing in the 1 pleadings.” Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010). “[I]t is well-established 2 that an amended pleading supersedes the original pleading and renders it of no legal effect, unless 3 the amended complaint incorporates by reference portions of the prior pleading.” Williams v. 4 County of Alameda, 26 F. Supp. 3d 925, 936 (N.D. Cal. 2014). 5 Here, Plaintiff’s Third Amended Complaint does not incorporate any of the prior three 6 complaints, including the original Complaint, First Amended Complaint, and Second Amended 7 Complaint, by reference. (Dkt. No. 79.) Though the Court did find that the Third Amended 8 Complaint relates back to the original Complaint as required by Rule 15(c)(1)(B) for purposes of 9 allowing amendment under Rule 15(a)(2) (see Dkt. No. 78), once filed, the Third Amended 10 Complaint became the operative complaint, superseding prior complaints. As both parties agreed 11 at oral argument and as the undisputed facts show, Plaintiff was incarcerated when the operative 12 Third Amended Complaint was filed on September 30, 2021. (Dkt. No. 93-5 (Francisco Dec. ¶ 13 4).) Because Plaintiff was incarcerated at the time the operative Third Amended Complaint was 14 filed, PLRA required Plaintiff to file a grievance with the Contra Costa County jail before filing 15 this suit. 16 2. Plaintiff failed to exhaust his claims as required by the PLRA. 17 Plaintiff failed to exhaust his administrative remedies under the PLRA. The parties do not 18 dispute that Plaintiff did not file a grievance within 48 hours of the incident at issue and that 19 Plaintiff has never filed a grievance based on the incident while in Contra Costa County custody. 20 (Dkt. No. 93-5 (Francisco Dec. ¶ 4).) 21 In opposition to Defendants’ cross-motion for summary judgment, Plaintiff makes the 22 novel assertion that he did in fact exhaust his remedies related to the new factual allegations added 23 to the Third Amended Complaint. (Dkt. No. 99-1.) Plaintiff points out that a prisoner may amend 24 a complaint without first complying with the PLRA if the complaint is amended to add new claims 25 or factual allegations, provided that the remedies for the new claims are exhausted prior to 26 amendment. Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2010). Plaintiff argues that the Third 27 Amended Complaint added substantial new factual allegations based on evidence revealed during 1 Toscano, as here, plaintiff exhausted his claims between the filing of the original complaint and 2 the FAC.” (Id.) However, as noted above, the undisputed evidence shows that Plaintiff never 3 filed a grievance of any kind (Dkt. No. 93-5 (Francisco Dec. ¶ 4).), and Plaintiff has not pointed to 4 any evidence that he ever filed a grievance. Thus, his failure to file a grievance at any time before 5 he filed either the original Complaint, the First Amended Complaint, the Second Amended 6 Complaint, and the Third Amended Complaint shows that he did not exhaust his claims as 7 required by the PLRA. 8 3. There is no mental health exception to the exhaustion requirements of the

PLRA.

9 Finally, Plaintiff argues that the custodial grievance process was unavailable to him 10 because he was too mentally ill to understand the process while incarcerated and because the 11 process became inaccessible to him once he was no longer in custody. (Dkt. No. 99-1.) There is 12 no mental health exception to the PLRA’s exhaustion requirement. Johnson v. D.C., 869 F. Supp. 13 2d 34, 39-40 (D.D.C. 2012); Williams v. White, 724 Fed. Appx. 380, 383 (6th Cir. 2018); Pratt 14 v.Gamboa, No. 17-cv-04375-LHK, 2020 U.S. Dist. LEXIS 87109, at *16 (N.D. Cal. May 15 15,2020); Ramirez v. Rose, No 2:19-cv-0827 KNP P, 2020 U.S. Dist. LEXIS 68196, at *15-16 16 (E.D. Cal. Mar. 4, 2020); Provencio v. Parker, No. 2:20-cv-01007-YY, 2021 U.S. Dist. LEXIS 17 137360, at *18 (D. Or. Apr. 12, 2021). Plaintiff’s assertion that the PLRA’s exhaustion 18 requirements should not apply to his claims due to his mental illness is therefore unavailing. 19 Moreover, Plaintiff has not made a compelling case that he was too mentally ill to 20 understand or complete the grievance process. Plaintiff has filed a single declaration indicating 21 that he was unable to exhaust the Contra Costa County grievance procedures because of his severe 22 mental illness. (Dkt. No. 97 (Bolden Dec. ¶ 2).) Unsupported by further evidence, Plaintiff’s 23 declaration conveniently asserts that he hears voices and that the voices he heard around the time 24 of the incident specifically instructed him not to comply with the Contra Costa County custodial 25 grievance procedure. (Id. (Bolden Dec. ¶ 4).) In contrast, Defendants adduce evidence showing 26 that Plaintiff had normal mood and affect directly after the incident and that on the following day, 27 Plaintiff showed a clear thought process, answered questions coherently, was alert and oriented, 1 and denied auditory and visual hallucinations. (Dkt. Nos. 93-12 (Rodriquez Dec. Ex. L); 93-11 2 (Rodriquez Dec. Ex. K).) “A conclusory, self-serving affidavit, lacking detailed facts and any 3 supporting evidence, is insufficient to create a genuine issue of material fact.” Nilsson v. City of 4 Mesa, 503 F.3d 947, 952 n.2 (9th Cir. 2010) (citation omitted). Even if there were a mental health 5 exception to the PLRA exhaustion requirement, which there is not, Plaintiff has not done enough 6 || to demonstrate a genuine issue of material fact regarding whether his mental health prevented him 7 || from filing a grievance. 8 4. Substantive Arguments. 9 Because the Court concludes that the issue of exhaustion under the PLRA is dispositive, 10 || the Court need not and does not reach the parties’ arguments regarding whether Plaintiff is entitled 11 so summary judgment on the substance of his claims. 2 CONCLUSION 5 13 For the reasons set forth above, the Court DENIES Plaintiff's motion for summary S 14 || judgment and GRANTS Defendants’ cross-motion for summary judgment. The Clerk of Court is 3 15 || directed to close the file. a 16 IT IS SO ORDERED. 5 17 || Dated: July 11, 2022 f bes le ‘ 18

SALLIE KIM

19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28