Opinion
No. CV 16-6510 VBF (FFM)
03-26-2019
KENJUAN ADAMS, Plaintiff, v. F. GARCIA, et al., Defendants.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
On February 27. 2019, the Clerk filed Notice of Filing of Magistrate Judge's Report and Recommendation, which was served on the parties together with copies of the Report and Recommendation ("R&R"). Respondent timely filed objections to the R&R, which are addressed herein at footnote 7.
I. PROCEEDINGS
Plaintiff Kenjuan Adams, a California state prisoner who proceeds pro se, filed the complaint in this action (the "Complaint") on August 30, 2016. (Docket No. 1.) / / / On June 29, 2018, defendants L. Ray, F. Garcia, D. Godfrey, and J. Soto filed a motion for summary judgment (the "Motion" or "Mot.") on failure-to-exhaust grounds. (Docket No. 33.) Plaintiff filed an opposition (the "Opposition" or "Oppo.") on October 15, 2018. (Docket No. 47.) Defendants filed a reply (the "Reply") on October 22, 2018. (Docket No. 49.)
On January 22, 2019, defendants filed a "Notice of Suggestion of Death of Defendant D. Godfrey" under Federal Rule of Civil Procedure 25(a)(1). (Docket No. 57.)
The matter thus stands submitted. For the reasons that follow, the Court recommends that the Motion be granted in part.
II. FACTUAL MATTERS
A. Plaintiff's allegations.
On March 1, 2013, plaintiff was involved in a "basic fist fight" with another inmate on the exercise yard. (Complaint at 10.) Neither inmate used weapons or sustained serious injuries from each other. (Id. at 10, 13.) During the fight, Garcia threw a CTS 5440 expulsion grenade without warning. Plaintiff began choking on a noxious chemical. (Id. at 10, 11, 12.) He felt a stabbing pain and began bleeding from a gash above his right eye. (Id. at 12.)
Without warning, Godfrey and Ray each threw one CTS 5440 expulsion grenade. The grenades exploded directly in front of plaintiff. (Complaint at 12.) Plaintiff was hit two more times with a large dose of the toxic chemical. (Id. at 11, 12.) He dropped to his knees, feeling a burning sensation all over his body. (Id.) As plaintiff lay on the ground, blinded and struggling to breathe, Garcia pepper-sprayed him without warning. (Id. at 11.)
Plaintiff was taken to the medical facility, and the wound to his eye was treated with sutures. (Complaint at 12.) Plaintiff later complained of headaches, eye pain, / / / and impaired vision. (Id.) Upon his request, he was treated by a prison eye doctor. (Id.; see also Ex. D.)
The actions of Garcia, Godfrey, and Ray constituted excessive use of force in violation of the Eighth Amendment. (Complaint at 13-14.) Warden Soto failed to properly train correctional staff on options to, and limits on, the use of force, particularly when CTS 5440 expulsion grenades are used. Further, Soto was deliberately indifferent to a risk of harm to plaintiff. (Id. at 14-15.) Plaintiff seeks declaratory relief, compensatory damages, and punitive damages. (Id. at 8, 16.) B. Undisputed facts - exhaustion.
On March 30, 2013, plaintiff submitted an inmate appeal, Log No. LAC-D-13-01268 ("Appeal 1268"). Plaintiff described the appeal subject as "Injury During Eruption of O.C. Grenade." Plaintiff alleged that during a "fighting incident" between plaintiff and another inmate, an unidentified "officer" "carelessly tossed" an "expulsion grenade" towards him. The grenade exploded in his face, causing injuries. Plaintiff suffered three weeks of nosebleeds, headaches, and dizziness. Plaintiff requested, inter alia, that he be provided with the institution's procedures "on deployment of grenade" and that the officer be "reperimand[ed]" [sic] and "retrain[ed]." (Docket No. 33-3 ("Sanchez Decl."), ¶ 4, Ex. A, ECF # 193-94; Oppo., Ex. A.)
Plaintiff did not identify any defendant by name. (Sanchez Decl., ¶ 4, Ex. A, ECF # 193-94; Oppo., Ex. A.) He did not indicate that he sought redress for the wrongs of more than one officer. Nor did he allege that he was harmed by anything other than the grenade that exploded in his face. (Id.) As well, plaintiff did not indicate that he was appealing the CDC 115 rules violation report (the "CDC 115" or "RVR") issued as result of his participation in the fight. (See id.)
On April 11, 2013, plaintiff was notified that Appeal 1268 had been screened out on the ground that plaintiff had failed to submit "supporting documents," specified / / / as the RVR disposition and certain related documents. (Sanchez Decl., ¶ 5, Ex. B, ECF # 196; Oppo., Ex. B.)
The notice described the "supporting documents" as the "CDC 115 hearing officer's report or disciplinary committee results, supplemental reports to CDC 115, and CDC-115A with I.E./D.A. info." (Sanchez Decl., ¶ 5, Ex. B, ECF # 196; Oppo., Ex. B.) It is not apparent from the record whether the latter two items in fact existed.
In response to the April 11 notice, plaintiff resubmitted Appeal 1268. He attached the RVR disposition to the appeal. (Oppo. at 5, 6; see also id., Ex. B (handwritten note asserting that "Facility D Incident Package" and "CDC-115 and disposition" were attached); see also Sanchez Decl., Ex. B, ECF # 196 (same).)
On May 14, 2013, the hiring authority determined that Appeal 1268's allegations did not meet the criteria for processing as a staff complaint. (Docket No. 33-2 ("Fordham Decl."), ¶ 15(a).) On June 28, plaintiff was notified as such. (Id., Ex. A, ECF #182; Oppo., Ex. C.) (See id.) The rejection notice further stated, "If you wish to appeal your RVR 115, please resubmit your appeal and state your intentions on this CDC 695 [i.e., the rejection notice]." (Id.) No other resubmission instructions were given. (See id.)
Plaintiff again resubmitted Appeal 1268. (Fordham Decl., ¶ 15(a); see Ex. A, ECF #183.) On August 29, 2013, plaintiff was again notified that Appeal 1268 did not meet the criteria for processing as a staff complaint. Plaintiff was again invited to resubmit his appeal if he wished to appeal his RVR. Again, no other resubmission instructions were given. (Id., Ex. A, ECF #183.) The parties appear to dispute whether plaintiff resubmitted his appeal after the August 29 screen-out. (Compare Fordham Decl., ¶ 16 to Pltf. Decl., ¶ 7.)
Appeal 1268 was never accepted for review at the first or second level of review. Nor was any other non-healthcare appeal relating to the March 2013 incident. (Fordham Decl., ¶¶ 14-16, Ex. B, ECF # 186-88.) No non-healthcare appeal relating / / / to the incident reached the third level of review. (Docket No. 33-5 ("Voong Decl."), ¶¶ 12-13.)
Plaintiff reached the third level of review on an appeal ("Appeal 6501") seeking medical treatment for lingering physical complaints resulting from the grenade exploding in his face. (Docket No. 33-4 ("Gates Decl.") ¶ 8(a), Ex. B.) Plaintiff did not describe the circumstances under which the explosion occurred. (See id.) Prior to the grenade incident, plaintiff reached the third level of review on an inmate appeal challenging the disposition of an RVR charging him with having contraband in his cell. (Voong Decl., ¶ 14, Ex. A.)
Plaintiff declares that circa November 2013, he "received a video recorded 'use of force' interview" under section 3268.1(d) of title 15 of the California Code of Regulations. (Pltf. Decl., ¶ 8.) The parties do not dispute that on an unspecified date, an Institutional Executive Review Committee ("IERC") evaluated the allegations in Appeal 1268. (Docket No. 33-3 ("Sanchez Decl."), ¶¶ 4-5.)
DISCUSSION
A. Standards of review.
(1) The PLRA and summary judgment.
The PLRA requires that inmates exhaust all available administrative remedies before filing "any suit challenging prison conditions," including, but not limited to, suits under Section 1983. Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules," Woodford, 548 U.S. at 90. However, an inmate is required to exhaust only available remedies. Booth, 532 U.S. at 736; Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005). To be available, a remedy must be available "as a practical matter"; it must be "capable of use; at hand." Brown, 422 F.3d at 937.
"[F]ailure to exhaust is an affirmative defense under the PLRA," and prisoner plaintiffs are therefore not required to "specially plead or demonstrate" exhaustion in their complaints. Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). Thus, where failure to exhaust is not plain from the face of the complaint, a defendant seeking dismissal on exhaustion grounds must bring a motion for summary judgment under Federal Rule of Civil Procedure 56. Albino v. Baca, 747 F.3d 1162, 1169-71 (9th Cir. 2014).
As with all motions for summary judgment, the Court must rule in favor of the movant "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). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. See id. at 248. Inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
The moving party has the initial burden to demonstrate the absence of a genuine issue of material fact and that summary judgment is proper as a matter of law. Celotex v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In the context of exhaustion, the defendant's initial burden is to 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 that burden, the burden shifts to the prisoner 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. However, the ultimate burden of proof remains with the defendant. Id. / / /
(2) California regulations governing inmate appeals.
An inmate seeking to appeal a CDCR action, decision, or condition must use CDCR Form 602 and describe the specific issue under appeal and the relief requested. § 3084.2(a); see § 3084.1(a). As relevant, appeals must be submitted within 30 days of the action or the inmate's first having knowledge thereof. § 3084.8(b)(1)-(2). Inmates must adhere to all appeal filing time constraints. § 3084.1(g).
In this section, all regulatory references are drawn from title 15 of the California Code of Regulations.
In filling out Form 602, the inmate must state "all facts known and available to him/her" at the time regarding the issue being appealed. § 3084.2(a)(4). In addition, the inmate "shall list all staff member(s) involved and shall describe their involvement in the issue" and the date of the staff members' involvement. Id. at (a)(3). To assist in the identification of staff members, the inmate must include the staff members' names and positions, if known. Id. If the inmate does not have that information, the inmate must provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff members. Id.
The inmate must submit the completed form, and all "supporting documents," to the institution's appeals coordinator for the first level of review. §§ 3084.2(b)-(c), 3084.7(a). Appeals are screened prior to acceptance and are subject to rejection on a number of grounds, including, e.g., untimeliness and the failure to attach supporting documents. § 3084.6(a)-(b); see also §§ 3084.3(c), 3084.5(b). If an appeal is rejected, the appeals coordinator must provide "clear and sufficient instructions" regarding further actions the inmate must take to qualify the appeal for processing. § 3084.6(a)(1). An appeal that is rejected may later be accepted if the error is corrected and the appeal is resubmitted within 30 day of rejection. § 3084.5(a)(2); see also § 3084.3(c) (if an appeal is rejected for failure to attach necessary supporting / / / documents, appeals coordinator "shall" inform plaintiff and allow inmate 30 days to obtain documents and resubmit appeal).
When an appeal describes staff behavior or activity that could be considered "staff misconduct," the matter is referred to the institution's "hiring authority" or designee to determine (inter alia) whether the appeal should be processed as a "staff complaint." §§ 3084.5(b)(4), 3084.9(i)(1)-(i)(3). If the hiring authority determines that the appeal does not constitute a staff complaint, the appeal must be processed as a routine appeal (unless it must be screened out for other reasons). § 3084.9(i)(1); see § 3084.5(b)(4)(A).
"Staff misconduct" is defined as "staff behavior that violates or is contrary to law, regulation, policy, procedure, or an ethical or professional standard." § 3084(g).
Appeals that are denied or not resolved to the inmate's satisfaction at the first level of review may be submitted to the second level of review, and so on to the third level of review. § 3084.7(b)-(c). The third level review constitutes the decision of the CDCR Secretary and is conducted under the supervision of the CDCR's Appeals Chief. § 3084.7(d)(3). The third level of review exhausts administrative remedies. Id.; see also § 3084.1(b).
A staff complaint alleging excessive or inappropriate use of force by prison staff must be addressed pursuant to Sections 3268 through 3268.2 (the "use of force regulations"). § 3084.9(i)(5). As well, any prison employee who uses force on an inmate, or observes a staff member use force on an inmate, must document the incident and report it to a supervisor. § 3268.1(a)(1). Reported use of force incidents are subject to multiple levels of review to determine whether staff members complied with regulations, procedures, and applicable law. Id. at (e). One such level is review by an Institutional Executive Review Committee ("IERC"). Id. at (e)(2)(E). The final level is review by a Department Executive Review Committee ("DERC"). §§ 3268(a)(19), 3268.1(e)(2)(F). Review of an inmate complaint under the use of force regulations does not exhaust the inmate's administrative remedies for claims stemming from the use of force. Compare §§ 3084.7(d)(3), 3084.1(b) to § 3268.1(e). B. A triable issue of fact exists as to whether the grievance procedure was "available" as to certain of plaintiff's claims.
Plaintiff asserts that use of force review does exhaust a prisoner's administrative remedies. (Oppo. at 16 (citing § 3376.1).) The regulation plaintiff cites pertains to administrative review of "classification issues," not use of force incidents. See § 3376.1; see generally §§ 3375 et seq.
The parties do not dispute that (1) Appeal 1268 was the only non-healthcare appeal plaintiff submitted regarding the incident; (2) plaintiff did not reach the third level of review on Appeal 1268; and (3) shortly before the incident, plaintiff reached the third level of review on an unrelated non-healthcare appeal. Accordingly, defendants have met their initial burden on summary judgment of showing that (1) there was an available administrative remedy; and (2) plaintiff did not exhaust that remedy. See Albino, 747 F.3d at 1172.
Contrary to plaintiff's argument (Oppo. at 40), Appeal 6501, which reached the third level of review, did not exhaust his claims. Appeal 6501 challenged plaintiff's medical treatment after the fight, not the force used to stop the fight. As well, plaintiff is incorrect in asserting (id. at 16-18, 32) that his claims were exhausted because Appeal 1268's allegations were reviewed under California's use of force regulations. As noted, such review does not exhaust an inmate's administrative remedies. Moreover, as plaintiff acknowledges (id. at 18), there is no evidence that Appeal 1268 reached the final level of review thereunder (i.e., DERC review).
The burden thus shifts to plaintiff to raise a triable issue of fact regarding the availability of administrative remedies. In that regard, prison officials' improper screening of an inmate's grievances "renders administrative remedies effectively unavailable, such that exhaustion is not required under the PLRA." Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (internal quotation marks omitted). To fall within this exception, the inmate must establish that (1) he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim(s) at issue, and (2) prison officials screened his grievance or grievances for "reasons inconsistent with or unsupported by applicable regulations." Id. at 823-24. Plaintiff makes this showing as to certain of his claims.
(1) The claims.
As to factor (1), a grievance suffices to exhaust a claim "if it puts the prison on adequate notice of the problem for which the prisoner seeks redress." Sapp, 623 F.3d at 824. To provide adequate notice, the prisoner need only provide the level of detail required by the prison's regulations. Id. (citing Jones, 549 U.S. at 218). As set forth above, California's regulations require that the prisoner (1) provide "all facts known and available to [him]" at the time; and (2) provide the involved staff members' names, or sufficient details to identify them.
Here, Appeal 1268 alleged that an officer "carelessly tossed" a grenade, injuring plaintiff's face and causing other harm. Plaintiff requested that the officer who threw it be reprimanded and retrained. These statements were sufficient to inform prison officials that plaintiff believed the deployment of the grenade that injured his face was a wrongful use of force. See Hudson v. McMillian, 503 U.S. 1, 4, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992) (in determining whether use of force is excessive, court may consider, inter alia, whether effort was made to temper use of force, and extent of any injury suffered by plaintiff). Indeed, as plaintiff argues (Oppo. at 31-32, 33), the fact that prison officials treated it as a potential staff complaint demonstrates that prison officials believed his allegations could be considered "staff misconduct." See Cal. Code Regs. tit. 15, §§ 3084.5(b)(4), 3084.9(i)(1)-(i)(3).
Defendants argue that Appeal 1268 "would have failed to put the institution on notice of the allegations raised in the Complaint," because the appeal's allegations "do not suggest that the use of force was unjustified" under California regulations. (Mot. at 10 (citing Cal. Code Regs. tit. 15, § 3268 (providing, inter alia, that use of force options may be utilized in any sequence).) Defendants contend as well that the allegation the grenade was "carelessly" tossed belied an excessive force claim, because "accidental or inadvertent uses of force do not implicate the Eighth Amendment." (Reply at 5 (citing, inter alia, Hudson, 503 U.S. at 9).)
The PLRA's requirements are not as stringent as defendants suggest. An appeal "need not include legal terminology or legal theories, because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (internal quotation marks omitted). "A grievance also need not contain every fact necessary to prove each element of an eventual legal claim." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). Thus, a grievance's allegation that the prisoner needed improved top bunk access because of his medical condition sufficiently conveyed his deliberate indifference claim, even though the grievance did not explicitly allege deliberate indifference. Id. at 1119, 1120. As the Ninth Circuit put it, "[The plaintiff's] problem concerned his unsatisfactory bunking situation. Notifying the prison of that problem did not require him to allege that the problem resulted from deliberate indifference." Id. at 1120. Here, plaintiff's problem concerned the injurious use of a pepper spray grenade. It was not necessary for him to allege every element of an excessive force claim. Nor was he required to negate every defense to such a claim.
Plaintiff did not name defendant Garcia. However, prison authorities should have had little trouble identifying the officer in question, given the stringent documentation requirements in California's use of force regulations. Therefore, had Appeal 1268 been accepted and pursued through all three levels of review, it would have exhausted plaintiff's excessive force claim against Garcia with regard to the grenade that injured plaintiff's face. See Cal. Code Regs. tit. 15, § 3084.2(a)(3); see also Reyes, 810 F.3d at 659 (inmate appeal alleging wrongful denial of pain medication by individual physician was sufficient to exhaust claims against members of pain management committee, where prison officials knew of committee's involvement in decision to deny medication).
As well, Appeal 1268 would have exhausted plaintiff's claims against Soto with respect to Garcia's grenade deployment. As plaintiff contends (see Oppo. at 4, 35), his request that the officer in question be "retrained" informed prison officials that he believed the officer's training was inadequate. Similarly, his request to see the relevant procedures implied that the procedures themselves might be faulty. Moreover, his requests necessarily implied wrongdoing by the supervisory officials responsible for training and procedure - thereby sufficiently identifying them as involved parties. That he did not single out Soto among those officials is irrelevant. See Reyes, supra; Griffin, supra. Indeed, "[t]he grievance process is only required to 'alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.'" Reyes, supra (quoting Jones, 549 U.S. at 219).
Relying on unpublished district court cases, defendants argue in their objections that Appeal 1268's references to retraining and procedures did not alert prison officials to plaintiff's claims against Soto, because plaintiff neither named Soto nor explicitly alleged that the prison's training and procedures were faulty. (Docket No. 61 at 3-8.) The Court is not persuaded. Appeal 1268 unquestionably flags the adequacy of the officer's training and the prison's grenade deployment procedures. And although plaintiff did not state, e.g., "The training and procedures are inadequate, and Warden Soto is liable," Ninth Circuit precedent is clear that such statements are unnecessary where the underlying problem is clearly alleged and the identity of the responsible official(s) would be known to prison officials. See Reyes, supra; Griffin, supra; see also Wisenbaker v. Crawford, 331 F. App'x 494, 495 (9th Cir. 2009) ("By outlining the attack and resulting injuries he suffered and the correctional officers' purportedly deficient response, Wisenbaker's grievance placed the defendants on sufficient notice that he was grieving the existence and absence of policies and procedures that led to his injuries").
Appeal 1268 would not have exhausted plaintiff's claim that Garcia wrongfully pepper-sprayed him as he lay on the ground. Nor would the appeal have exhausted his claims against Ray and Godfrey. Plaintiff was required to state all facts known to him at the time. § 3084.2(a)(4). He did not complain about any other officer or deployment of chemical agents, even though he must have known at the time that multiple officers and devices were involved. Further, plaintiff did not complain about the response to the fight as a whole. Instead, plaintiff focused on a single act by a single officer. Accordingly, prison officials would not have been alerted to plaintiff's other claims. Compare to Wilkerson v. Wheeler, 772 F.3d 834, 837, 839-40 (9th Cir. 2014) (grievance exhausted excessive force claim against defendant officer where grievance described defendant's particular use of force and alleged that "responding officers," who included defendant, assaulted him).
In sum, had Appeal 1268 been pursued through all levels of review, it would have exhausted (1) plaintiff's excessive force claim against Garcia based on the grenade deployment; and (2) plaintiff's failure to train and deliberate indifference claims against Soto with regard to Garcia's grenade deployment. It would not have exhausted plaintiff's other claims. Therefore, plaintiff cannot raise a triable issue of fact as to those other claims.
(2) Screening.
As noted, Appeal 1268 was initially rejected on the ground that plaintiff did not attach the necessary "supporting documents," which were specified as the RVR decision and related documents. The Court is not convinced that the regulations support this ground for rejecting Appeal 1268. First, Appeal 1268, on its face, did not challenge the RVR or the decision thereon. Second, "supporting documents" are defined as "documents that are needed to substantiate allegations made in the appeal . . . ." Cal. Code Regs. tit. 15, § 3084(h) (emphasis added). An RVR centers on the prisoner's alleged wrongful conduct. It is not used to report suspected wrongdoing by a correctional officer. See id., § 3312(a)(3) (describing information to be included in RVR). Thus, while an RVR might bear on officers' use of force against a prisoner (by, e.g., describing the conduct precipitating the use of force), it would not necessarily substantiate the prisoner's allegations that the force used was wrongful.
The Court need not conclusively decide this issue, however. Plaintiff presents evidence that he attached the RVR and disposition when he resubmitted Appeal 1268. Viewing all inferences in his favor, plaintiff thereby corrected the error specified in the rejection notice, in that he produced evidence of the disciplinary charges against him and the decision thereon. See discussion, supra n.1. With the correction of that error, Appeal 1268 should have been accepted for review. See Cal. Code Regs. tit. 15, § 3084.5(a)(2). Instead, circa May 2013, the appeal was rejected for processing as a "staff complaint," and plaintiff was directed to "state [his] intentions" and resubmit it if he wished to appeal his RVR. Plaintiff was given no instructions for resubmitting the appeal if he wished to appeal the officer's use of the grenade.
Conversely, if the attached documents were in fact insufficient, prison officials were obligated to so inform plaintiff and grant him additional time to secure the necessary documents. See Cal. Code Regs. tit. 15, § 3084.3(c).
This second rejection was improper. As plaintiff asserts (Oppo. at 11), if an otherwise acceptable appeal is rejected as a staff complaint, it must be processed as a routine appeal. See Cal. Code Regs. tit. 15, §§ 3084.5(b)(4)(A), 3084.9(i)(1). Here, it appears that prison officials either ignored that regulation entirely, or deemed the appeal unacceptable on the ground that the matter appealed was unclear. The latter ground plainly lacked merit as a rationale for rejecting the appeal. Appeal 1268, on its face, did not appeal the RVR, and prison officials knew (or should have known) that plaintiff had attached the RVR in order to correct the error specified in the April 2013 rejection notice.
If there were other reasons for rejecting the resubmitted appeal as a routine appeal - e.g., the failure to attach still more supporting documents - prison officials did not provide it. Nor did they provide such reasons when they rejected the appeal in August 2013. As plaintiff asserts (Oppo. at 21-23), prison officials thereby violated California regulations. See Cal. Code Regs. tit. 15, §§ 3084.(c), 3084.5(b)(3)). In addition, they deprived plaintiff of the opportunity to correct the error(s) so he could obtain administrative review of the actual appeal subject. Instructing plaintiff on how to appeal his RVR did not suffice, because he was manifestly not appealing his RVR. / / /
In sum, on the record before the Court, there were no regulation-supported grounds for prison officials' failure to accept the resubmitted appeal as a routine appeal after it was rejected as a staff complaint. Moreover, prison officials denied plaintiff the opportunity to obtain administrative review of the actual appeal subject, in further contravention of California regulations. Plaintiff has therefore raised a triable issue of material fact on the availability of administrative remedies for Appeal 1268's claims. See Sapp, 623 F.3d at 823-24; see also discussion, supra.
In light of the Court's holding, the Court need not address plaintiff's additional arguments regarding alleged errors in processing Appeal 1268. (See generally Oppo.) --------
RECOMMENDATION
For the foregoing reasons, the Court recommends that an order be issued (1) approving and accepting this Report and Recommendation; and (2) granting the Motion in part and dismissing without prejudice the following claims:
(1) Plaintiff's claims against L. Ray and D. Godfrey;DATED: March 26, 2019
(2) Plaintiff's claim that F. Garcia used excessive force against him by pepper-spraying him in the face as he lay on the ground; and
(3) Plaintiff's claims against J. Soto to the extent they derive from the foregoing claims.
/s/ Frederick F. Mumm
FREDERICK F. MUMM
United States Magistrate Judge
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to timely file objections as provided in the Local Rules Governing the Duties of the Magistrate Judges, and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.