Opinion
Case No. 12-cv-01024-WHO (PR)
08-11-2015
CHAUNCEY REENE SIMPSON, Plaintiff, v. K. SATHER, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Dkt. No. 43
INTRODUCTION
Chauncey Simpson, a state prisoner proceeding pro se, alleges in this federal civil rights action that his jailors at Soledad State Prison rendered constitutionally inadequate dental care. Defendants assert that this 42 U.S.C. section 1983 suit is barred by Simpson's failure to exhaust his claims through the prison's administrative grievance process. Simpson does not dispute the material facts showing that he did not complete the exhaustion process as required by prison regulations. Instead, he asserts that his failure to exhaust should be excused.
A prerequisite to exhaustion of the administrative grievance procedure of the California Department of Corrections and Rehabilitation (CDCR) is that the grievant sit for a face-to-face interview on his claim. 15 C.C.R. § 3084.7(e). Simpson refused to do so on both claims. Accordingly, he failed to exhaust, and his failure to do so cannot be excused. Defendants' motion for summary judgment is GRANTED.
DISCUSSION
I. Background
The following factual allegations are undisputed unless specifically noted otherwise.
Simpson alleges that in 2007 and 2008 employees of Soledad State Prison (defendants K. Sather, David Varela, and Nguyen-Dinh) failed to provide him with constitutionally adequate dental care. He filed two inmates grievances containing such allegations, one in 2010 (HCARTS Log # CTF HC 10002597/CTF HC 11034792), and the other in 2011 (HCARTS Log # CTF HC 11034998). (Defs.' Mot. for Summ. J. ("MSJ") at 3, 4.)
In the first, he alleged that defendant Nguyen-Dinh caused him unnecessary pain when he extracted two teeth. He also alleged that dental staff failed to treat his swollen gums. As part of the grievance review, the Health Care Appeals Office scheduled an interview between Dr. Marlais and Simpson. (MSJ, Robinson Decl. ¶ 7.) Simpson refused to participate in the interview, and his appeal was consequently cancelled. (Id. ¶ 8.) He was informed of the cancellation, the reasons for it, and given instructions that he had to file a new grievance to challenge the cancellation before he could appeal the merits of his health care claims. He was later sent a letter which incorrectly informed him that he could appeal the cancellation by completing a certain section of the form and submitting it to the second level of review. (Id.) The second level reviewer rejected the appeal because the grievance had been cancelled at the first level. (Id. ¶ 9.) After Simpson was informed that his appeal had been rejected, he was correctly informed that he had to file a new and separate grievance in order to appeal the cancellation. (Id.) Rather than doing so, he sent his cancelled and rejected appeal to the Office of Third Level Appeals, which rejected it because it had been cancelled at the first level. (Id. ¶ 10.)
In the second grievance, filed a year later, Simpson alleged that since 2007, he had received inadequate dental care. (Id. ¶ 13.) He again refused to agree to an interview (this one with Nguyen-Dinh, who was the subject of his prior grievance), and his appeal was again cancelled. (Id.) He did not pursue the grievance or file another grievance to appeal the cancellation. (Id.)
II. Motion for Summary Judgment on Grounds of Exhaustion
Defendants assert that Simpson failed to exhaust his administrative remedies prior to filing this federal civil rights action. Defendants have properly raised this issue through a motion for summary judgment, Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), and have given Simpson the required warnings about opposing such a motion (Docket No. 45).
A. Summary Judgment Standard
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate 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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue for which the opposing party by contrast will have the burden of proof at trial the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
The Court is only concerned with disputes over material facts and "factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. It is not the task of the Court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with reasonable particularity, the evidence that precludes summary judgment. Id. If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex, 477 U.S. at 323.
B. Exhaustion Standard
Prisoners must exhaust properly their administrative remedies before filing suit in federal court. "No 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 mandatory and is no longer left to the discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).
An inmate's obligation to exhaust persists as long as some remedy is available; when that is no longer the case, the prisoner need not further pursue the grievance. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). The prison's requirements define the boundaries of proper exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007). The exhaustion requirement cannot be satisfied "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Ngo, 548 U.S. at 84.
The State of California provides its prisoners the right to appeal administratively "any policy, decision, action, condition, or omission by the [CDCR] or its staff that the inmate . . . can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." 15 C.C.R. § 3084.1(a). In order to exhaust available administrative remedies within this system, a prisoner must proceed through several levels of appeal: (1) informal review, submitted on a CDC 602 inmate appeal form; (2) first formal level appeal, to an institution appeals coordinator; (3) second formal level appeal, to the institution warden; and (4) third formal level appeal, to the Director of the CDCR. See 15 C.C.R. § 3084.7; Brodheim v. Cry, 584 F.3d 1262, 1264-65 (9th Cir. 2009). A final decision from the Director's level of review satisfies the exhaustion requirement under § 1997e(a). Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010).
At least one face-to-face interview with the inmate is required at the first level of review. 15 C.C.R. § 3084.7(e). If the inmate refuses to be interviewed or to cooperate with the interviewer, the appeal may be cancelled. Id. § 3084.6(c)(8). Although a cancelled appeal may not be submitted for further review, the inmate may separately appeal the cancellation. Id. § 3084.6(e). A cancelled appeal does not exhaust administrative remedies. Id. § 3084.1(b).
C. Simpson's Use of the Exhaustion Process
Simpson refused to sit for the face-to-face interview on either claim, which made it impossible for him to complete the exhaustion process. He contends that the exhaustion requirement should be excused because (1) appeals are never granted, (2) he and other inmates should not be required to challenge a cancellation, rather than pursuing a grievance on the merits, (3) the cancellations serve to exhaust his remedies, and (4) he objected to being interviewed by Nguyen-Dinh, who was the subject of one of his grievances. (Pl.'s Opp. to MSJ at 3, 4, 5.) None of these reasons has merit.
Simpson's first argument, that the process is futile, does not excuse a requirement firmly and clearly established by statute and reinforced by case law. Exhaustion is mandatory, regardless of Simpson's belief about its efficacy. See 42 U.S.C. § 1997e(a); Ngo, 548 U.S. at 84.
Simpson's opinion that he should not be required to pursue a cancellation, his second argument, cannot overcome the state regulations on point. Exhaustion is mandatory, and an inmate is obliged to pursue the process as long as some remedy is available. Brown, 422 F.3d at 934-35.
His third ground is based on a misunderstanding of the regulations. A cancelled appeal does not exhaust administrative remedies, see 15 C.C.R. § 3084.1(b), and a cancelled appeal may not be submitted for further review, id. § 3084.6(e). Simpson's resubmission of the first cancelled appeal (HCARTS Log # CTF HC 10002597/CTF HC 11034792) did not meet the prison's requirements for exhaustion. On his second grievance (HCARTS Log # CTF HC 11034998), Simpson filed no appeal of any kind. He did not exhaust his administrative remedies.
Finally, Simpson contends that no further administrative remedies were available to him once prison authorities told him that his cancelled grievance could not be appealed. (Opp. at 7.) He cites Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010), but that case does not stand for the proposition for which Simpson wants to use it.
In Harvey, prison authorities partially granted an inmate's appeal. The inmate did not pursue his grievance because he was satisfied with the result. When the promised relief was not forthcoming, the inmate filed another grievance. It was rejected as untimely and with the following language: "The screening action may not be appealed." The Ninth Circuit held that an inmate need not pursue an appeal that has been granted to his satisfaction. Id. at 685.
Simpson's case is distinguishable. Unlike the plaintiff in Harvey, Simpson was not granted partial (or any relief) and therefore he was not excused from completing the exhaustion process. Also unlike Harvey, though Simpson was told that the cancelled grievance could not be appealed, he was told that he could appeal the cancellation itself.
Moreover, his fourth reason does not excuse the exhaustion requirement. Although Nguyen-Dinh was the subject of a prior grievance, he was not the interviewer for the investigation into that grievance. Simpson's refusal to be interviewed by Nguyen-Dinh regarding the second grievance does not excuse the requirement. Meeting with an interviewer is required by prison procedure. 15 C.C.R. § 3084.7(e). Simpson could have easily complied with this requirement by meeting with Nguyen-Dinh and declaring his objection to such an interviewer. His failure to comply with this procedural requirement dooms any contention that he exhausted his claims. Id. § 3084.6(c)(8).
Under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, courts are to consider whether an administrative remedy is available in the prison involved, not whether the remedy is effective. Conception v. Morton, 306 F.3d 1347, 1353-54 (3d Cir. 2002) (remedy need not be formally adopted through regulations in order for it to be considered an "administrative remedy" under the PLRA); Nyhuis v. Reno, 204 F.3d 65, 72 (3d Cir. 2000) (holding that there is no futility exception to the PLRA's exhaustion requirement); Alexander v. Hawk, 159 F.3d 1321, 1326 (11th Cir. 1998) (prison required to exhaust claims even if the relief did not appear to be "plain, speedy, and effective"). Here, there is an administrative remedy available, and the process to obtain it starts with a face-to-face interview. Simpson's refusal to consent to the interview means that he could never exhaust his administrative remedies. He had every opportunity to sit for the interview. He was told in writing at least three times on his first grievance that he was required to have the interview. (MSJ, Robinson Decl. ¶¶ 7-10, 13.) Because he did not, his claims cannot proceed.
Defendants have presented undisputed evidence that Simpson failed to exhaust his administrative remedies before filing suit. Simpson has not shown that the exhaustion requirement should be excused. Accordingly, defendants' motion for summary judgment is GRANTED.
CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment (Docket No. 43) is GRANTED. The claims against David Varela are DISMISSED because he was never served with the complaint. (Docket No. 24.)
The Clerk shall terminate Docket No. 43, enter judgment in favor of defendants K. Sather and Nguyen-Dinh as to all claims, and close the file.
IT IS SO ORDERED. Dated: August 11, 2015
/s/_________
WILLIAM H. ORRICK
United States District Judge