Opinion
Case No. CV 17-05106-PSG (RAO)
09-10-2019
LEWIS BRUISTER, Plaintiff, v. DEBBIE ASUNCION, et al., Defendants.
ORDER ACCEPTING AMENDED INTERIM REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint; the Motion for Partial Summary Judgment Based On Plaintiff's Failure to Exhaust Administrative Remedies ("Motion") filed by Defendants E. England, C. Parker, C. Spencer, C. Giordano and C. Solorzano ("Defendants"); all of the other records and files herein; and the Amended Interim Report and Recommendation of United States Magistrate Judge ("Amended Interim Report"). Further, the Court has made a de novo determination of those portions of the Amended Interim Report to which objections have been made.
Defendants argue in their Objections that Plaintiff cannot show that administrative remedies were effectively unavailable, or create a factual dispute on that question, based on his self-serving declaration. Dkt. No. 118 ("Objections") at 3-4, 6-7. However, Plaintiff's sworn statements here are not the type of vague and conclusory allegations seen in the cases cited by Defendants. As the Magistrate Judge described in the Amended Interim Report, Plaintiff explained that he did file a second grievance naming Defendants England, Parker, and Giordano, and gave an explanation as to why he could not include these individuals in his first grievance. See Amended Interim Report at 9-10. Plaintiff also declared that he appealed the cancellation of this grievance, but received no response, and inquired about the status of the appeal, but received no response. See id. at 10. These are factual allegations of the specific steps Plaintiff took to exhaust his second grievance, and not just vague and conclusory allegations as argued by Defendants.
The Court is also not persuaded by Defendants' argument that there must always be repeat errors in the administrative process for administrative remedies to be effectively unavailable. See Objections at 5-6. The Ninth Circuit has found that "[w]hen prison officials improperly fail to process a prisoner's grievance, the prisoner is deemed to have exhausted available administrative remedies. In such circumstances, prison officials have thwarted inmates from taking advantage of the grievance process, making that process unavailable." Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017) (citation and punctuation omitted) (reversing dismissal where defendants improperly failed to process plaintiff's timely filed grievance); see also Mendoza v. Aguilar, No. CV 16-6871 FMO (FFM), 2018 WL 2970993, at *3 (C.D. Cal. Mar. 22, 2018) ("Andres stands for the proposition that prison official's improper failure to process a single properly-filed grievance is sufficient to show that the grievance procedure was unavailable with respect to the claim(s) described therein."), report and recommendation adopted, 2018 WL 2966955 (C.D. Cal. June 7, 2018). Here, Plaintiff attests under penalty of perjury that he never received a response to his appeal of the cancellation of the second grievance or to his inquiry into the status of the appeal. This is sufficient for purposes of opposing a motion for summary judgment to show that the administrative process was effectively unavailable to exhaust the claims within Plaintiff's second grievance.
Defendants' objection that Plaintiff should have provided further evidentiary support also fails. See Objections at 8-9. Plaintiff has provided evidence of his attempt to exhaust and the failure of the prison to respond through his sworn statements. Plaintiff was not required to provide additional corroboration as his "statements alone are sufficient to satisfy the burden of production under Albino." Todd v. Johnson, 747 Fed. App'x 583, 584 (9th Cir. Jan. 3, 2019) (citing Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 794 (9th Cir. 2018); Williams v. Paramo, 775 F.3d 1182, 1191-92 (9th Cir. 2015)).
Accordingly, the Court is not persuaded by Defendants' objections. The Court hereby accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge.
IT IS ORDERED that Defendants' Motion for Partial Summary Judgment is DENIED. Defendants may file their request for an evidentiary hearing before the Magistrate Judge. DATED: 9/10/19
/s/_________
PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE