Sidoti v. Solis et al, No. 3:2019cv01028 - Document 42 (S.D. Cal. 2020)
Court Description: ORDER Denying Defendants' 27 Motion for Summary Judgment and Vacating Hearing Date. Signed by Judge Gonzalo P. Curiel on 8/18/20. (dlg)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JAMES SIDOTI, Case No.: 3:19-cv-01028-GPC-NLS Plaintiff, 11 12 13 14 15 ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND VACATING HEARING DATE vs. R. SOLIS; SHEPARD; DANIEL PARAMO; DOES 1-10, Defendants. [ECF No. 27] 16 17 On March 30, 2020, Defendants Correctional Officers A. Shepherd and R. Solis 18 filed a Motion for Summary Judgment. ECF No. 27 (“Mot.”). The Defendants’ motion 19 claimed that Plaintiff James Sidoti (“Plaintiff” or “Sidoti”) failed to exhaust available 20 administrative remedies as to Counts One and Two of the Complaint. Further, Officer 21 Shepard attacked the sufficiency of the facts relating to Count Two which alleges 22 deliberate indifference to medical needs and raised qualified immunity as a defense to the 23 count. Plaintiff filed an opposition on July 17, 2020. ECF No. 38. On July 22, 2020, the 24 Court granted the parties’ joint motion to dismiss Officer A. Shepherd from the case 25 which renders MOOT his motion for summary judgment on Count Two. ECF No. 39. 26 Defendant Solis filed a reply on August 7, 2020. ECF No. 41. Based on review of the 27 factual record, the Court hereby DENIES Defendant Solis’ Motion for Summary 28 Judgment and VACATES the August 21, 2020 hearing date set for this matter. 1 3:19-cv-01028-GPC-NLS 1 2 BACKGROUND Plaintiff, currently incarcerated at the Richard J. Donovan Correctional Facility 3 (“RJD”), California, and represented by counsel, has filed a civil rights complaint 4 pursuant to 42 U.S.C. § 1983, claiming various prison officials at Richard J. Donovan 5 Correctional Facility (“RJD”) violated his Eighth Amendment rights. ECF No. 1 6 (“Compl.”). The Complaint alleged claims for (1) violation of 42 U.S.C. § 1983 for 7 excessive force against Officer Solis; (2) violation of 42 U.S.C. § 1983 for deliberate 8 indifference to serious medical needs against Officers Solis and Shepard; and (3) 9 supervisory liability under 42 U.S.C. § 1983 against Warden Paramo. 10 The Complaint alleges that, on June 2, 2017, Sidoti attended a medical 11 appointment while incarcerated at RJD. Compl. ¶ 1. Sidoti attended the medical 12 appointment in order to address his broken right hand. Id. ¶ 8. Sidoti has a mobility 13 impairment and uses a wheelchair. Id. ¶ 9. Upon arriving at the medical appointment, 14 Sidoti sat in his wheelchair while Officer Solis spoke with the medical staff. Id. ¶ 10. 15 Solis then began pushing Sidoti’s wheelchair, informing Sidoti that he would be seen by 16 the medical staff on another day. Id. Sidoti applied the brakes on the wheelchair and 17 Solis kept pushing the wheelchair forward. Id. ¶ 12. Sidoti tilted forward out of the chair 18 and then rose to his feet. Id. ¶ 13. Plaintiff alleges that he attempted to speak with the 19 medical staff regarding his appointment, and that Solis subsequently “viciously slammed 20 [Plaintiff] to the ground and kneed him in his head numerous times.” Id. ¶ 15. 21 Officers Solis and Shepard then escorted Plaintiff while holding his arms as he 22 walked for about 75 yards to an administrative segregation (“ad-seg”) cell, despite 23 Plaintiff’s request for a wheelchair. Id. ¶¶ 18, 20; ECF No. 38-5 (Plaintiff’s Response to 24 Defendant’s Separate Statement of Undisputed Facts, “SSUF”) ¶¶ 1, 3. Plaintiff can only 25 walk short distances. SSUF ¶ 2. 26 Plaintiff was placed in a holding cell where he was medically evaluated and under 27 constant supervision. Id. ¶¶ 4, 5. At the time, Plaintiff complained of pain in his head 28 and bruises on his back and legs. Id. ¶ 7. 2 3:19-cv-01028-GPC-NLS Plaintiff alleges that Officer Solis wrote a false report about Plaintiff’s attempt to 1 2 assault him and as a result of this report, Plaintiff was placed in ad-seg for five days 3 without any opportunity to speak with a medical provider. Compl. ¶¶ 21, 24. During this 4 period, Plaintiff felt “brain fog and faintness.” Id. ¶ 23. After five days in ad-seg, 5 Plaintiff saw a doctor who sent Plaintiff to an outside hospital. Id. ¶ 25. Upon 6 examination at the outside hospital, Plaintiff’s hand was confirmed broken and his brain 7 was found to be bleeding due to Officer Solis’s knee strikes to Plaintiff’s head. Id. ¶ 26. 8 Plaintiff was placed in a two-week medically-induced coma. Id. ¶ 27. Afterwards, 9 Plaintiff was returned to prison and placed in ad-seg, and after a period of time, returned 10 to a non-segregation unit. Id. ¶¶ 28-29. 11 A. 12 Plaintiff is required to exhaust his administrative remedies before bringing suit. Appeals Process 13 SSUF ¶ 11. The California Code of Regulations, title 15 (“15 CCR”) § 3084.1(a) 14 provides: “Any inmate or parolee under the department's jurisdiction may appeal any 15 departmental decision, action, condition, or policy, which they can demonstrate as having 16 an adverse effect upon their welfare.” 1 17 All inmate grievances are subject to a three-step administrative review process: 18 (1) the first level of review; (2) the second level appeal to the Warden of the prison or 19 their designee; and (3) the third level appeal to the Secretary of CDCR, which is 20 conducted by the Chief of Appeals of the Office of Appeals (“OOA”). 15 CCR §§ 21 3084.1(b), 3084.7(a)-(d). 22 Unless the inmate grievance deals with allegations of sexual violence or staff 23 sexual misconduct, an inmate must submit the CDCR Form 602 and all supporting 24 documentation to each of the three levels of review within 30 calendar days of the 25 26 27 28 1 Sections of California Code of Regulations, title 15, including 15 CCR § 3084.8, were repealed per April 3, 2020 Emergency Regulations, effective June 1, 2020. 2020 CA REG TEXT 551506 (NS), 2020 CA REG TEXT 551506 (NS). All references to the California Code of Regulations in this order are made to the version current through December 27, 2019 accessible via Register 2019. 3 3:19-cv-01028-GPC-NLS 1 occurrence of the event or decision being appealed, of the inmate first discovering the 2 action or decision being appealed, or of the inmate receiving an unsatisfactory 3 departmental response to a submitted administrative appeal. 15 CCR §§ 3084.2(b)-(e), 4 3084.3, 3084.6(a)(2), 3084.8(b). When an inmate submits an administrative appeal at 5 any of the three levels of review, the reviewer is required to reject the appeal, cancel the 6 appeal, or issue a decision on the merits of the appeal within the applicable time 7 limits. 15 CCR §§ 3084.6(a)-(c), 3084.8(c)-(e). If an inmate’s administrative appeal is 8 rejected, the inmate is to be provided clear instructions about how to cure the appeal’s 9 defects. 15 CCR §§ 3084.5(b)(3), 3084.6(a)(1). If an inmate’s administrative appeal is 10 cancelled, the inmate can separately appeal the cancellation decision. 15 CCR § 11 3084.6(a)(3) & (e). 12 1. 13 First Level of Appeal for RJD-17-03297 On June 29, 2017, Plaintiff filed a Request for Interview, Item, or Service 14 (“Inmate/Parolee Request” or “Form 22”) regarding Officer Solis’ excessive force. 15 Spaich Decl., Ex. 2 at 52. 16 On July 3, 2017, the Inmate Appeals Office at RJD received the Form 22 as an 17 attachment to an Inmate/Parolee Appeal Form (“CDCR 602”). Spaich Decl., Ex. 2 at 50.; 18 ECF No. 27-6 (“Frijas Decl.”) ¶6(a), Ex. 3 at 10-12.2 In the Form 22, Sidoti stated that 19 he “would [like] to make a complaint against staff for use of excessive force. 20 Specifically on 6/02/17, I was constantly kneed in the head by Officer Solis” at the clinic 21 and was “consequently hospitalized with severe brain trauma and was diagnosed as 22 having a cerebral hemorrhage. The use of force by Officer Solis was excessive and 23 brutal.” Frijas Decl., Ex. 3 at 12. Plaintiff did not include a CRCR Form 1858 (“Rights 24 and Responsibility Statement” or “R&R”) with this submission. SSUF ¶ 9. This 25 grievance was assigned log number RJD-17-03297. Frijas Decl. ¶ 6(a). 26 27 2 28 Page references to exhibits refer to Bates page numbering. All other page references refer to the CM/ECF pagination. 4 3:19-cv-01028-GPC-NLS 1 2 2. Second Level of Appeal for RJD-17-03297 Prison officials had 30 working days to respond to this appeal per 15 CCR §§ 3 084.8(c) and (e). On September 4, 2017, an Appeal Inquiry was conducted. Frijas Decl., 4 Ex. 3 at 9. On September 8, 2017, the hiring authority considered Sidoti’s allegations 5 that Officer Solis used excessive force and that Officer Solis kneed Sidoti in the head and 6 found that the staff did not violate CDCR policy. Frijas Decl., Ex. 3 at 10. 7 Plaintiff received this second-level response sometime between September 4, 2017 8 and September 30, 2017. Sidoti Decl. ¶ 10; ECF No. 40-1 ¶¶ 3, 4. In this second-level 9 response, Sidoti was advised that in order to exhaust his administrative remedies, he must 10 submit his staff complaint through all levels of appeal up to and including the third level 11 of appeal. Frijas Decl. ¶6(a); Ex. 3 at 9. 12 3. Third Level of Appeal for RJD-17-03297 13 On September 30, 2017, Plaintiff submitted his appeal to the third level of review. 14 Sidoti Decl. ¶ 10; ECF No. 40-1 ¶¶ 3, 4. On October 6, 2017, the OOA received Sidoti’s 15 appeal to the third level. Spaich Decl. ¶9, Ex. 2 at 17.41.) On November 29, 2017, the 16 Office of Appeals (“OOA”) rejected, or “screened out,” Sidoti’s appeal because Sidoti 17 failed to submit a R&R. Spaich Decl. ¶ 9, Ex. 2 at 39. This rejection was mailed to 18 Plaintiff on December 4, 2017. Spaich Decl., Ex. 2 at 15. On or after December 4, 2017, 19 Sidoti received this screen-out decision from the third level stating that he was missing 20 this R&R Statement. Sidoti Decl. ¶ 12. 21 22 4. Plaintiff’s Submission of the R&R Statement In late December or early January, Sidoti approached another inmate, Ernest 23 Holestine, about acquiring a R&R Statement. Sidoti Decl. ¶ 14. In September 2017, 24 Holestine had been assigned by RJD prison staff to work as an inmate assistant to help 25 inmates with disabilities to fill out and submit their inmate appeals forms. Holestine 26 Decl. ¶ 4. In January 2018, Holestine obtained a R&R Statement for Sidoti and Sidoti 27 sent a “corrected appeal” which included this R&R Statement “shortly after.” Sidoti 28 Decl. ¶ 15. The envelope with this corrected appeal is postmarked January 9, 2018. 5 3:19-cv-01028-GPC-NLS 1 Sidoti Decl. ¶ 16. Sidoti claims that he gave this envelope to officials “days before” 2 January 9, 2018. Id. The OOA received this envelope on January 12, 2018. Spaich 3 Decl., Ex. 2 at 15, 29. 4 5. Appeal Cancellation 5 On February 8, 2018, the Office of Appeals canceled Sidoti’s appeal on the basis 6 that it was untimely since it was not submitted within 30 calendar days of the date of its 7 rejection. Spaich Decl. ¶ 9. On April 22, 2018, Plaintiff submitted an appeal of the 8 cancellation of Appeal Log RJD-17-03297. Spaich Decl., Ex. 2 at 11. On May 2, 2018, 9 the OOA received Plaintiff’s submission. On June 6, 2018, the OOA screened out Plaintiff’s attempt to appeal the 10 11 cancellation since Plaintiff failed to correct and return the rejected appeal within 30 12 calendar days of the rejection. Spaich Decl. ¶ 9, Ex. 2 at 10. The June 6, 2018 letter 13 from the OOA states that the “[t]ime constraints begin from the date on the screen out 14 form which cancelled your appeal.” Id. As a result, Sidoti’s appeal of the cancellation was also cancelled as untimely. 15 16 (Spaich Decl. ¶9, Ex. 2 at 10.) 17 6. 18 Other Appeals On July 14, 2017, Sidoti submitted another appeal alleging misuse of force by 19 Officer Solis, and this was assigned log number RJD-D-17-03297. Frijas Decl. ¶ 7(a). 20 The appeal was screened as duplicative of Appeal Log No. RJD-17-03297. Id. 21 On June 25, 2018, the Office of Appeals received an undated appeal from Sidoti, 22 again claiming Solis used excessive force, and this was assigned log number RJD-C-18- 23 3906. Frijas Decl. ¶ 7(b); Ex. 5 at 22-24. The appeal was screened as duplicative of 24 Appeal Log No. RJD-17-03297. Frijas Decl. ¶ 7(b); Ex. 5 at 21. 25 Other than these three appeals, Sidoti has not filed any appeals related to the 26 allegations in his Complaint. Frijas Decl. ¶ 8. 27 /// 28 /// 6 3:19-cv-01028-GPC-NLS 1 2 LEGAL STANDARD Federal Rule of Civil Procedure (“Rule”) 56 empowers the Court to enter summary 3 judgment on factually unsupported claims or defenses, and thereby “secure the just, 4 speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 5 U.S. 317, 325, 327 (1986); Fed. R. Civ. P. 56. Summary judgment is appropriate “if the 6 movant shows that there is no genuine dispute as to any material fact and the movant is 7 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is material when it 8 affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 9 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a 10 reasonable jury to return a verdict for the nonmoving party. Id. 11 On a motion for summary judgment on the issue of exhaustion, the moving party 12 bears the initial burden to prove “that there was an available administrative remedy, and 13 that the prisoner did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 14 1172 (9th Cir. 2014). 15 Once the defendant has met its burden, the prisoner has the burden of production 16 and “the burden shifts to the prisoner to come forward with evidence showing that there 17 is something in his particular case that made the existing and generally available 18 administrative remedies effectively unavailable to him.” Id. (citing Hilao v. Estate of 19 Marcos, 103 F.3d 767, 778 n. 5 (9th Cir. 1996) (the “burden shifts to the plaintiff to rebut 20 by showing that the local remedies were ineffective, unobtainable, unduly prolonged, 21 inadequate, or obviously futile.”)). Ultimately, the defendant bears the burden of proof. 22 Id. For purposes of summary judgment, a court must “view all of the facts in the record in 23 the light most favorable to the non-moving party and rule, as a matter of law, based on 24 those facts.” Id. at 1173 (citing San Diego Police Officers’ Ass’n v. San Diego City 25 Employees’ Ret. Sys., 568 F.3d 725, 733 (9th Cir. 2009)). 26 A court will grant summary judgment under Rule 56 “if undisputed evidence 27 viewed in the light most favorable to the prisoner shows a failure to exhaust.” Albino, 28 747 F.3d at 1166. The court must deny summary judgment “if material facts are 7 3:19-cv-01028-GPC-NLS 1 disputed,” but the district judge, rather than a jury, will determine the facts pertaining to 2 exhaustion. Id. 3 4 5 BACKGROUND I. Administrative Exhaustion Defendants argue that Sidoti’s appeal against Officer Solis has not met the 6 administrative exhaustion requirement since he failed to submit the Rights and 7 Responsibility Statement (“R&R”) within the applicable time limit after his appeal was 8 screened out at the third-level of review. ECF No. 27 at 19-20; Spaich Decl. ¶ 9. 9 Plaintiff counters that the grievance process—including access to the R&R form—was 10 rendered unavailable and therefore, Plaintiff should be excused from meeting the 11 exhaustion requirement. 12 A. 13 Disputed factual questions relevant to exhaustion should be decided at the very Legal Standard 14 beginning of the litigation before reaching the merits of a prisoner's claim. Albino, 747 15 F.3d 1162, 1170-1171 (9th Cir. 2014). If the district judge holds that the prisoner has 16 exhausted available administrative remedies, that administrative remedies are not 17 available, or that a prisoner's failure to exhaust available remedies should be excused, the 18 case may proceed to the merits. Id. 19 The Prison Litigation Reform Act (“PLRA”) mandates that inmates exhaust all 20 available administrative remedies before filing “any suit challenging prison conditions,” 21 including, but not limited to, suits under § 1983. Woodford v. Ngo, 548 U.S. 81, 85 22 (2006); 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison 23 conditions under section 1983 of this title, or any other Federal law, by 24 a prisoner confined in any jail, prison, or other correctional facility until such 25 administrative remedies as are available are exhausted.”). An inmate is required to 26 exhaust only available remedies. Booth, 532 U.S. at 736, 121 S.Ct. 1819; Brown v. 27 Valoff, 422 F.3d 926, 936–37 (9th Cir.2005). To be available, a remedy must be 28 available “as a practical matter”; it must be “capable of use; at hand.” Id. at 8 3:19-cv-01028-GPC-NLS 1 937 (quoting Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002)). The Supreme Court 2 has recognized three contexts in which an administrative procedure is “unavailable”: (1) 3 “when it operates as a simple dead end—with officers unable or consistently unwilling to 4 provide any relief to aggrieved inmates”; (2) when “an administrative scheme might be 5 so opaque that it becomes, practically speaking, incapable of use—i.e., some mechanism 6 exists to provide relief, but no ordinary prisoner can navigate it”; and (3) “a grievance 7 process is rendered unavailable when prison administrators thwart inmates from taking 8 advantage of it through machination, misrepresentation, or intimidation.” Ross v. Blake, 9 136 S. Ct. 1850, 1853–54 (2016). 10 The Ninth Circuit has held that a plaintiff’s failure to timely exhaust was excused 11 because the prisoner took reasonable and appropriate steps to exhaust and was prevented 12 from exhaustion by the Warden’s mistake, and not through his own fault. Nunez v. 13 Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (excusing failure to exhaust because 14 Warden responded with an incorrect citation and inmate spent many unsuccessful 15 attempts to obtain the regulation). The Ninth Circuit has also noted that a prisoner may 16 be excused from exhausting administrative remedies if prison officials improperly screen 17 out inmate grievances. Sapp v. Kimbrell, 623 F.3d 813, 824, 826 (9th Cir. 2010) 18 (“[E]xhaustion might also be excused where repeated rejections of an inmate's grievances 19 at the screening stage give rise to a reasonable good faith belief that administrative 20 remedies are effectively unavailable.”). 21 22 23 B. Analysis i. Submission of R&R in Corrected Appeal 15 CCR § 3084.6(a)(2) provides that an appeal that is rejected may later be 24 accepted if the correction is made and the appeal is returned to the appeals coordinator 25 “within 30 calendar days of rejection.” 15 CCR § 3084.6(a)(5) provides, “Erroneous 26 acceptance of an appeal at a lower level does not preclude the next level of review from 27 taking appropriate action, including rejection or cancellation of the appeal.” The Ninth 28 Circuit has previously stated that an inmate’s lack of access to the necessary forms and 9 3:19-cv-01028-GPC-NLS 1 inability to complete them can qualify as an exception to the timely filing requirement. 2 Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009). 3 On December 4, 2017, the OOA mailed the screen-out to Plaintiff, rejecting 4 Plaintiff’s appeal due to his failure to include the R&R. Spaich Decl., Ex. 2 at 24. 5 Sometime after December 4, 2017, Plaintiff received the screen-out and Plaintiff then 6 asked Holestine about how to acquire the R&R form in “late December or early January.” 7 Sidoti Decl. ¶ 14. Holestine then helped Plaintiff acquire the R&R form. Sidoti Decl. ¶ 8 12. Plaintiff then sent the corrected appeal, which included the R&R, and the envelope 9 containing the corrected appeal was post-marked on January 3, 2018. Spaich Decl., Ex. 2 10 11 at 37. Defendants argue that the OOA properly screened out Sidoti’s corrected appeal 12 submission because he failed to submit it within 30 calendar days of the rejection. 13 Plaintiff counters that the process of obtaining R&R Statement was effectively 14 “unavailable” due to the “machinations and difficulties instituted by the prison staff” and 15 Plaintiff should therefore be excused from meeting this requirement. ECF No. 38 at 19. 16 Plaintiff alleges that obtaining the R&R was more difficult than obtaining other 17 grievance forms since the form was not available in the RJD housing units. ECF No. 38 18 at 9; Holestine Decl. ¶ 6. The R&R form was only available in the Law Library and in 19 order for inmates to acquire access to the Law Library, inmates were required to undergo 20 a process that took several weeks: inmates were first required to sign up for Law Library 21 access through institutional mail, wait to be scheduled for an appointment, and then wait 22 to be escorted to the Law Library. ECF No. 38 at 9; Holestine Decl. ¶ 6. Only upon 23 entering the Law Library could inmates request the R&R form from the Law Library 24 staff. ECF No. 38 at 9; Holestine Decl. ¶ 6. Further, Plaintiff argues he faced an 25 additional challenge since RJD prison officials did not explain these steps to inmates, and 26 inmates were instead required to learn about this process through word of mouth from 27 other inmates. Id. 28 10 3:19-cv-01028-GPC-NLS 1 Defendants counter that throughout 2017 and 2018, it was not necessary to make 2 an appointment for time in order to obtain a R&R form from the Law Library, and that 3 inmates could stop by the Law Library to pick up the R&R form or alternatively, inmates 4 could request the R&R Form using the CDCR Form 22 process. ECF No. 41-2 (“Blahnik 5 Decl.”) ¶ 2. If an inmate used the CDCR Form 22 process, the prison staff were required 6 to reply within three business days. Id. 7 On a motion for summary judgment, the Court is required to view the evidence in 8 the light most favorable to the non-moving party. Albino, 747 F.3d at 1172. Viewing the 9 aforementioned evidence in the light most favorable to Sidoti, the Court finds that there is 10 a genuine issue of material fact as to the process that inmates were required to follow in 11 order to obtain a R&R Form and the degree to which the R&R form was made accessible 12 through the Law Library. Due to this issue of material fact, the Court finds that a jury is 13 better positioned to make factual determinations and accordingly DENIES Defendants’ 14 motion for summary judgment on exhaustion. 15 16 ii. Timeliness of Submission of Corrected Appeal An appeal must be corrected within 30 calendar days of the rejection, regardless of 17 when the inmate received it, see 15 CCR § 3084.6(c)(10), and cancelation of an appeal 18 may be imposed only if “the inmate or parolee had the opportunity to submit within the 19 prescribed time constraints.” 15 CCR § 3084.6(c)(4). 20 Plaintiff argues that he should be excused from this timeliness requirement. 21 Plaintiff alleges that although the screen-out decision was made on November 29, 2017, 22 it was not mailed out until December 4, 2017, and Plaintiff did not receive the decision 23 until several days after December 4, 2017, though the exact date of receipt is not known. 24 ECF No. 38 at 29. Further, although Plaintiff does not dispute that the envelope 25 containing his corrected appeal is postmarked for January 9, 2018, Plaintiff claims he 26 gave the corrected appeal to the jail staff “some time” before January 9, 2018, but the jail 27 staff failed to date the envelope indicating the date when they received it. Sidoti Decl. ¶ 28 16. On this basis, Plaintiff argues that there exists a reasonable dispute of material fact 11 3:19-cv-01028-GPC-NLS 1 exists as to the dates when Plaintiff received the screen-out and when Plaintiff gave the 2 correction to officers for mailing. 3 Defendant counters that the Court should presume that Sidoti received the screen- 4 out decision three days after its mailing—i.e., on December 7, 2017—based on the 5 rebuttable presumption that mail sent within the contiguous United States arrives at its 6 intended destination within three days, citing Dandino, Inc. v. U.S. Dep't of Transp., 729 7 F.3d 917, 921 (9th Cir. 2013), and that Plaintiff does not offer any rebuttal to dispute this. 8 ECF No. 41 at 4. Therefore, since Plaintiff submitted his corrected appeal on January 9, 9 2018—more than 30 calendar days after his rejection—Defendant argues that his appeal 10 was therefore properly canceled. 11 First, the Court notes that Dandino applied to “first class mail” sent through the 12 United States Postal Service. Defendants have not shown that the screen-out decision 13 was delivered through United States Postal Service first class mail. Second, the Court 14 notes that Dandino involved mail delivery between a civil plaintiff and a federal agency 15 and did not involve the delivery of mail within the prison system. The Supreme Court 16 has previously noted that when analyzing the timeliness of submissions, distinct 17 approaches are appropriate for cases involving civil appeals and cases involving 18 prisoners’ appeals. See, e.g., Houston v. Lack, 487 U.S. 266, 274 (1988) (relying on the 19 date that pro se prisoner gave notice of appeal to prison authorities, rather than the date of 20 receipt since the latter method “raises such difficult to resolve questions as whether 21 delays by the United States Postal Service constituted excusable neglect and whether a 22 notice stamped ‘filed’ on one date was actually received earlier.”). Accordingly, the 23 Court finds that a genuine issue of material fact exists as to the date of receipt of the 24 screen-out decision and the date of delivery of the corrected appeal.3 25 26 3 27 28 Plaintiff additionally argues that administrative remedies were rendered unavailable based on (1) erroneous directions from the Law Library; (2) the prison staff’s failure to interview witnesses as part of their investigation of the prisoner’s appeal; (3) intimidation based on regular beatings of inmates in Plaintiff’s housing unit; (4) Plaintiff’s physical and mental disabilities. Since the Court has denied 12 3:19-cv-01028-GPC-NLS 1 2 CONCLUSION For the foregoing reasons, Officer Solis’ motion for summary judgment on the 3 Count One is DENIED and Officer Shepard’s motion for summary judgment on Count 4 Two is DENIED as MOOT. 5 6 7 IT IS SO ORDERED. Dated: August 18, 2020 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ motion for summary judgment on the issue of exhaustion for the reasons outlined above, the Court declines to address these additional arguments. 13 3:19-cv-01028-GPC-NLS
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