Clark v. Perez-Pantoja

• Court: District Court, N.D. California
• Decided: December 22, 2023
• Docket: 5:22-cv-04460
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 CLARK CHESTER, 10 Case No. 22-cv-04460 BLF (PR) Plaintiff, 11 ORDER GRANTING MOTION FOR v. SUMMARY JUDGMENT 12

13 I. PEREZ-PANTOJA,

14 Defendant. (Docket No. 16) 15 16 Plaintiff, a state prisoner, filed the instant pro se civil rights complaint under 42 17 U.S.C. § 1983, against Sgt. I. Perez-Pantoja for unconstitutional acts against him at the 18 Correctional Training Facility (“CTF”). Dkt. No. 1. The Honorable Magistrate Judge 19 Kandis A. Westmore found the complaint stated cognizable claims under the First and 20 Eighth Amendments and ordered the matter served on the sole Defendant. Dkt. No. 14. 21 The matter was reassigned to this Court on December 27, 2022. Dkt. No. 10. 22 Defendant Perez-Pantoja filed a motion for summary judgment on the grounds that 23 he is entitled to summary judgment on the merits, Plaintiff has failed to exhaust 24 administrative remedies with respect to some of the claims, and he is entitled to qualified 25 immunity.1 Dkt. No. 16. Plaintiff did not file an opposition although given an opportunity 26

27 1 In support of his motion, Defendant submits declarations from the following: Defendant I. Perez-Pantoja (“Perez Decl.”) with Ex. I (cell search property receipt), Dkt. No. 16-2; R. 1 to do so. However, the complaint is verified and therefore may be treated as an opposing 2 affidavit.2 Dkt. No. 1 at 3. 3 For the reasons discussed below, Defendant’s motion for summary judgment is 4 GRANTED. 5 6 DISCUSSION 7 I. Statement of Facts3 8 At the time of the alleged events, Plaintiff was housed at CTF, specifically in 9 Building/Wing B. Call Decl., Ex. J (Pl. Dep. at 11:6-8, 18:10-14); Dkt. No. 16-4 at 15, 22. 10 Defendant Perez-Pantoja was the correctional officer assigned to Building/Wing D. Perez 11 Decl. ¶ 3. In order to access the yard for recreation time, inmates have to exit their wings 12 into the corridor and walk down the corridor to the recreation yard at one end. Perez Decl. 13 ¶ 5, Dkt. No. 16-2 at 2; Pl. Dep. at 29:17-30:16, Dkt. No. 16-4 at 33-34. 14 When inmates are released from the housing units to access the yard, correctional 15

16 Monroy (Grievance Coordinator at CTF) with Exhibits G and H related to Plaintiff’s grievances, Dkt. No. 16-1; E. Galvan (Litigation Coordinator at CTF), Dkt. No. 16-3; and 17 Defendant’s counsel, Deputy Attorney General Audra C. Call with a copy of Plaintiff’s deposition (Ex. J) and Exs. B thru E at the end, Dkt. No. 16-4. 18 2 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is 19 based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff's 20 verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and 21 correct, and allegations were not based purely on his belief but on his personal knowledge); see also Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996), amended, 22 135 F.3d 1318 (9th Cir. 1998) (treating allegations in prisoner’s verified amended complaint as opposing affidavit). 23 On the other hand, the exhibits attached to the complaint will not be considered as they contain declarations and documents from other inmates which are not relevant to 24 Plaintiff’s claims against Defendant. Dkt. No. 1 at 14-54. Whether or not Defendant violated the rights of these other inmates has no tendency to make a fact more or less 25 probable with respect to Defendant’s actions towards Plaintiff than it would without the evidence nor is it of any consequence in determining this action. See Fed. R. Evid. 401. 26 3 The following facts are taken from Defendant’s factual background and are undisputed 27 by Plaintiff who has not filed an opposition. However, Plaintiff’s version of events from his complaint are also included where the accounts differ. 1 officers from each of the wings are required, and expected, to exit the housing units and 2 stand in the corridor to provide security for inmates exiting the housing units. Perez Decl. 3 ¶¶ 4, 6, Dkt. No. 16-2 at 2; Galvan Decl. ¶ 5, Dkt. No. 16-3 at 2; Pl. Dep. at 27:18-28:5, 4 Dkt. No. 16-4 at 31-32. When inmates are in the corridors heading to the yard, there are 5 typically numerous unsecured inmates filling the corridor. Perez Decl. ¶ 9; Pl. Dep. at 6 28:16-19, 32:4-19, Dkt. No. 16-4 at 32, 36. 7 Part of the duties and expectations of correctional officers providing security in the 8 corridor at yard time is to randomly pull inmates from the crowds exiting the building and 9 conduct random clothed body searches of the inmates for the purpose of detecting 10 contraband and/or weapons. Perez Decl. ¶¶ 7, 8; Galvan Decl. ¶¶ 3, 5; Pl. Dep. at 35:25- 11 36:6, Dkt. No. 16-4 at 39-40. While inmates are on the yard, they are unsecured and able 12 to interact freely with hundreds of inmates, from their own buildings and from others. 13 Perez Decl. ¶ 7; Galvan Decl. ¶ 4; Pl. Dep. at 34:15-19, 35:6-14, Dkt. No. 16-4 at 38, 39. 14 These circumstances create a situation where other inmates have greater opportunity to 15 pass and move contraband between buildings and/or assault other inmates or staff, 16 including with the use of weapons. Perez Decl. ¶¶ 7, 8; Galvan Decl. ¶ 4. One of the 17 primary job duties of correctional officers is to monitor the safety and security of other 18 inmates. Galvan Decl. ¶ 3. It is also a primary job duty of correctional officers to attempt 19 to locate and confiscate contraband, thereby preventing the free movement of contraband 20 throughout a facility. Id.; Perez Decl. ¶ 7. 21 A. May 12, 2021 - Clothed Body Search 22 According to Plaintiff, there were numerous “inappropriate” clothed body searches 23 by Defendant. Dkt. No. 1 at 6. In this action, Plaintiff alleges that on May 12, 2021, 24 Defendant conducted another clothed body search tantamount to a sexual assault, by 25 squeezing Plaintiff’s penis and causing sharp pain. Id. Plaintiff alleges that prior to this 26 incident, Defendant would come to his cell several times and stare at Plaintiff for “five 27 seconds at a time.” Id. 1 During his deposition, Plaintiff provided a more detailed description of what 2 occurred. Plaintiff was in the corridor heading for yard time. Pl. Dep. at 56:2-11, Dkt. No. 3 16-4 at 60. Just as he had on prior occasions, Defendant ordered Plaintiff to submit to a 4 clothed body search. Id. at 56:11-13. At the time of the search, Plaintiff was wearing 5 boxers along with long, loose basketball shorts and a T-shirt. Id. at 56:14-15, 57:11-58:3. 6 Plaintiff got against the wall and Defendant proceeded to search Plaintiff in the following 7 manner: “[Defendant] pulled my shorts all the way up, and he reached between my legs 8 from the back of me, and he grabbed and squeezed my penis.” Id. at 56:12-17. This 9 clothed search of Plaintiff was entirely over his clothing and lasting no more than two to 10 three minutes. Id. at 65:24-66:3, 69:25-70:5. Defendant did not make any comments of a 11 sexual nature or otherwise speak to Plaintiff while he was conducting the search. Id. at 12 59:5-8, 62:5-10. Plaintiff stated that though the squeeze caused him pain, it subsided after 13 a couple of minutes. Id. at 64:25-65:1-15. Plaintiff did not seek or receive any medical 14 treatment because of this incident. Id. at 65:11-15, 125:8-10. 15 Plaintiff has seen Defendant searching other inmates in the hallway. Pl. Dep. at 16 39:2-3. Plaintiff has also seen other correctional officers searching other inmates in the 17 hallway. Id. at 33:20-25. Plaintiff admits that searching inmates in the hallway on their 18 way to the yard was not outside of policy and was done for security purposes. Id. at 38:1- 19 11, 34:10-14. 20 According to Defendant, he was not particularly familiar with Plaintiff at the time 21 of the searches alleged by Plaintiff in April and May 2021, nor did he have personal 22 knowledge of Plaintiff or have any issues with him. Perez Decl. ¶ 10. Defendant states 23 that the searches of Plaintiff were random. Id. A standard clothed body search per policy 24 includes retrieval of all items from clothing pockets, patting down the inmate’s entire body 25 over their clothing, and seizing any prohibited items or contraband. Id. at ¶ 11. A standard 26 clothed body search of a male inmate may include brief and incidental contact with an 27 inmate’s groin and a sweep between the glutes to eliminate the possibility that an inmate is 1 hiding something in that area. Id. In Defendant’s training and experience, the genital and 2 anal areas are common areas for inmates to conceal prohibited areas. Id. Defendant states 3 that he conducted the clothed body search of Plaintiff in May 2021, in accordance with his 4 normal clothed body search procedures pursuant to policy. Id. at ¶ 13. Defendant disputes 5 the way Plaintiff claims the search occurred. Id. Defendant Perez denies squeezing 6 Plaintiff’s penis while conducting the search. Id. at ¶ 14. Defendant denies conducting the 7 search in a sexual manner or with sexual intent or having any sexual purpose for 8 conducting the search of Plaintiff. Id. at ¶ 15. Defendant also denies ever making any 9 comments to Plaintiff of a sexual or suggestive nature during this particular search or at 10 any time. Id. at ¶ 16. 11 On May 19, 2021, Plaintiff filed a grievance (Log No. 120920) alleging that 12 Defendant conducted a sexually inappropriate search of him on May 12, 2021. Dkt. No. 1 13 at ¶ 9; Pl. Dep., Ex. B at AGO000073-AGO000079, Dkt. No. 16-4 at 146-152; Monroy 14 Decl. ¶ 8, Dkt. No. 16-1. Plaintiff submitted the grievance by placing it in a locked box in 15 the housing unit specifically intended for the submission of grievances. Pl. Dep. at 70:16- 16 71:15, Dkt. No. 16-4 at 74-75. The Grievance Office at CTF received this grievance on 17 May 24, 2021. Monroy Decl. at ¶ 8, Ex. G, Dkt. No. 16-1 at 6. A response was issued to 18 Plaintiff on July 17, 2021, which rejected the claim. Pl. Dep., Ex. B at AGO000077, Dkt. 19 No. 16-4 at 150. On October 25, 2021, Plaintiff’s appeal of the matter was denied, 20 exhausting his administrative remedies. Id. at AGO000079, Dkt. No. 16-4 at 152. 21 B. May 22, 2021 - Cell Search 22 According to Plaintiff, after he filed grievance Log No. 120920 on May 19, 2021, 23 Defendant Perez retaliated against him on May 22, 2021, by trashing his cell while 24 Plaintiff was at the recreational yard. Dkt. No. 1 at 7; Monroy Decl. ¶ 8, Dkt. No. 16-1 at 25 2. Plaintiff claims Defendant poured coffee on his bed and floor, opened several bags of 26 potato chips and poured the contents on the floor, as well as threw linen and sheets onto 27 the floor. Id. 1 According to Defendant, he searched Plaintiff’s cell on that day with a partner, as 2 evidenced by the cell search slip he left in the cell after the search. Perez Decl. ¶ 19, Ex. I. 3 As part of his duties, Defendant was expected to conduct three (3) random searches per 4 shift during morning and afternoon shifts. Perez Decl. ¶ 18; Galvan Decl. ¶ 6 (policy in 5 2021 for correctional officers to conduct a certain number of cell searches during each 6 shift). Defendant did not locate any contraband during the search of Plaintiff’s cell. Perez 7 Decl. ¶ 19, Ex. G. Defendant denies dumping coffee grounds or chips on the floor and bed 8 or throwing things around the cell. Id. Furthermore, Defendant states that he was not 9 aware at the time he conducted the cell search that Plaintiff had filed a grievance against 10 him related to the May 12, 2021, clothed body search of Plaintiff. Id. at ¶ 20. Defendant 11 was approached about the grievance on May 22, 2021, after he had already searched 12 Plaintiff’s cell. Id. at ¶ 22. 13 Plaintiff admitted in deposition that nobody actually saw Defendant “trash” 14 Plaintiff’s cell or throw anything onto the ground of his cell; rather, Plaintiff assumed that 15 Defendant was the one who “tore up” his cell. Pl. Dep. at 87:6-88:11. 16 Plaintiff filed a grievance (Log No. 141446) claiming that Defendant “trashed” his 17 cell on May 22, 2021. Dkt. No. 1 at ¶ 12; Pl. Dep. at 93:13-94:8, Ex. B at AGO000080- 18 AGO000086, Dkt. No. 16-4 at 153-159. The grievance was received by the Grievance 19 Office at CTF on July 2, 2021. Dkt. No. 16-4 at 153. The Grievance Office issued 20 Plaintiff a response on August 17, 2021. Dkt. No. 16-4 at 155-156; Monroy Decl. ¶ 9. 21 Plaintiff did not appeal this grievance to the Office of Appeals until October 20, 2021. 22 Dkt. No. 16-4 at 159. The appeal of Log No. 141446 was rejected by the Office of 23 Appeals for being untimely. Id.; Pl. Dep. at 101:23-102:14. Plaintiff did not appeal the 24 rejection of this grievance to the Office of Appeals. Pl. Dep. at 102:15-103:4. 25 C. August 27, 2021 – Clothed Body Search and Rules Violation Report 26 On August 27, 2021, Defendant Perez stopped Plaintiff on his way to the yard. Dkt. 27 No. 1 at 7; Pl. Dep. at 104:4-8; id., Ex. D at AGO000059, Dkt. No. 16-4 at 160; Perez 1 Decl. ¶¶ 23, 26. Defendant ordered Plaintiff to submit to a clothed body search. Id. 2 According to Defendant, he pulled Plaintiff randomly from the line and was not aware of 3 who Plaintiff was at the time, nor did he have any understanding then or now that he was 4 prohibited from searching Plaintiff for any reason. Perez Decl. ¶¶ 23, 24. 5 According to Plaintiff, Defendant stated the following when he stopped Plaintiff: 6 “You know I need to search you when I see you[,] Clark, you wrote me up!” Dkt. No. 1 at 7 7; Pl. Dep. at 104:9-11. Fearing another sexual assault, Plaintiff refused to submit to a 8 search by Defendant and requested that another officer search him. Id.; Pl. Dep. at 107:11- 9 14, 104:13-15. Defendant “immediately got upset,” then handcuffed Plaintiff and escorted 10 him to a holding cage. Dkt. No. 1 at 7-8. 11 According to Defendant, Plaintiff refused to comply with Defendant’s direct order 12 to submit to a search, stating: “Fuck you and your pat down! I got PREA4 on you, call a 13 Sergeant, call the Lieutenant!” Perez Decl. ¶¶ 23, 26; Ex. D at AGO000059, Dkt. No. 16-4 14 at 160. Defendant again gave Plaintiff a direct order to be searched, and Plaintiff again 15 refused to allow Defendant to search him, stating: “Fuck No! I’ll choose who pats me 16 down.” Id. Based upon Plaintiff’s disruption and failure to comply with direct orders, 17 Defendant stopped all movement of inmates in the hallway and handcuffed Plaintiff. Perez 18 Decl. ¶ 30; Pl. Dep. at 109:2-8, Ex. D at AGO000059. Defendant’s actions were 19 consistent with policy in response to an inmate who disobeys a direct order to submit to a 20 search. Galvan Decl. ¶ 11; Perez Decl. ¶ 31. Plaintiff was escorted to a holding cell. Id.; 21 Pl. Dep. at 104:18-21, 107:17-25, 108:22-109:2, Ex. D at AGO000059. Defendant had no 22 further interaction with Plaintiff after he took Plaintiff into custody and had him escorted 23 to the holding cell. Perez Decl. ¶ 32; Pl. Dep. at 108:22-109:11. It was Defendant’s 24 understanding that Plaintiff would be contacted by a supervisor while in the holding cell to 25

26 4 “PREA” refers to the “Prison Rape Elimination Act,” which prohibits abusive sexual contact and nonconsensual sex acts within correctional facilities throughout the country. It 27 includes sexual harassment by inmates against other inmates as well as by staff. See Cal. Code Regs. tit. 15 § 3401.5 https://www.cdcr.ca.gov/prea/prea/ 1 discuss the incident. Perez Decl. ¶ 31; Galvan Decl. ¶ 11. Defendant had no authority or 2 power over when Plaintiff would be released from the holding cell and whether he would 3 be permitted to attend any portion of yard. Perez Decl. ¶ 32. It was a supervisor’s 4 responsibility to determine when Plaintiff would be released from the holding cell. Id.; 5 Galvan Decl. ¶ 11. A supervisor, Sgt. Abanico, came to meet with Plaintiff within thirty 6 (30) minutes of Plaintiff being placed in the holding cell, and eventually released Plaintiff 7 back to his housing. Pl. Dep. at 108:1-5, 14-21, 109:12-20. 8 At the time this incident occurred on August 27, 2021, the PREA investigation into 9 Plaintiff’s allegations related to the clothed body search of Plaintiff from May 12, 2021, 10 had concluded on or about July 21, 2021, and the allegations were found to be 11 unsubstantiated. Galvan Decl. ¶ 8; Pl. Dep. at 82:3-8, Ex. B at AGO000077, Dkt. No. 16- 12 40 at 150. Therefore, there were no prohibitions against Defendant searching Plaintiff, and 13 Defendant was aware of none. Perez Decl. ¶ 24; Galvan Decl. ¶ 7; Pl. Dep. at 103:14- 14 106:10. Specifically, there is no policy under PREA that mandates that an officer accused 15 of sexual assault cannot search the reporting inmate in perpetuity or once the investigation 16 has been concluded with the allegations being unfounded. Id. An inmate is required by 17 statute to comply with direct orders given by custody staff, including orders to submit to a 18 clothed body search. Cal. Code. Regs., tit. § 3005(b); Galvan Decl. ¶ 9; Perez Decl. ¶¶ 28- 19 29. An inmate is not permitted to dictate who searches them. Galvan Decl. ¶ 10; Perez 20 Decl. ¶ 28. Because Defendant had to deal with the disruption caused by Plaintiff’s failure 21 to comply with direct orders to be searched, Defendant was delayed in his duties and the 22 other inmates were delayed from going to yard. Perez Decl. ¶ 33; Pl. Dep. at 109:1-8, Ex. 23 D at AGO000059. 24 As a result of Plaintiff’s actions, Defendant issued Plaintiff a Rules Violation 25 Report (“RVR”) (Log No. 7115761) charging Plaintiff with “Delaying a Peace Officer in 26 Performance of His Duties,” pursuant to Cal. Code Regs., tit. § 3005(a). Perez Decl. ¶ 34; 27 Pl. Dep., Ex. D at AGO 000059, Dkt. No. 16-4 at 160. Plaintiff claims Defendant 1 fabricated the RVR, falsely accusing Plaintiff of refusing a pat down and acting 2 aggressively. Dkt. No. 1 at 8. Plaintiff was subsequently found guilty of this charge at a 3 disciplinary hearing and was assessed sixty-one (61) days credit loss. Pl. Dep. at 112:10- 4 113:6, Ex. D at AGO000068, Dkt. No. 16-4 at 172. 5 On September 22, 2021, Plaintiff filed a grievance (Log No. 168099) related to the 6 August 27, 2021 clothed body search incident, claiming ongoing aggravated staff 7 misconduct and retaliation. Dkt. No. 1 at 8; Pl. Dep. at 115:12-22, Ex. E at AGO000087- 8 AGO000092, Dkt. No. 16-4 at 174. The grievance made no mention of the RVR, nor raise 9 any claims that Defendant issued Plaintiff a fabricated RVR or that the issuance of an RVR 10 was retaliatory in nature. Monroy Decl. ¶ 10; Pl. Dep., Ex. E at AGO000087- 11 AGO000088. 12 Plaintiff filed another grievance under Log No. 181321, which was received by the 13 Grievance Office on October 29, 2021. Monroy Decl. ¶ 11, Ex. H, Dkt. No. 16-1 at 8-23. 14 The focus of the grievance was Plaintiff’s claim that his due process rights were violated 15 during the hearing on the RVR issued by Defendant for the August 27, 2021 incident. Id. 16 at 10, 13. Plaintiff also complained that Defendant issued him a false RVR for the August 17 27, 2021 incident. Id. On December 2, 2021, the Grievance Office issued a response to 18 Log No. 181321, rejecting the portion of the grievance related to Plaintiff’s claim that 19 Defendant issued him a false RVR in retaliation for protected activity as being untimely. 20 Monroy Decl. ¶ 11, Ex. H, Dkt. No. 16-1 at 8-9. Plaintiff did not appeal the rejection of 21 that portion of Log No. 181321 addressing allegations against Defendant to the Office of 22 Appeals. Monroy Decl. ¶ 12. 23 Plaintiff claims Defendant’s actions were “pervasive, willful, wanton, reckless, 24 deliberate, retaliatory, sadistic, done with evil motive and a total disregard for the rights of 25 Plaintiff.” Dkt. No. 1 at 8. Plaintiff also claims generally that Defendant’s actions did not 26 advance any legitimate penological goal and had a “‘chilling effect’” on his rights. Id. at 27 8-9. Plaintiff claims he suffered wanton and unnecessary excruciating pain, suffering, 1 permanent emotional and psychological injuries. Id. at 9. The Court found Plaintiff’s 2 allegations were sufficient to state cognizable claims under the First and Eighth 3 Amendments. Dkt. No. 5 at 2. 4 II. Summary Judgment 5 Summary judgment is proper where the pleadings, discovery and affidavits show 6 that there is “no genuine dispute as to any material fact and the movant is entitled to 7 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 8 “against a party who fails to make a showing sufficient to establish the existence of an 9 element essential to that party’s case, and on which that party will bear the burden of proof 10 at trial . . . since a complete failure of proof concerning an essential element of the 11 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 12 Catrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 13 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 14 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 16 Generally, the moving party bears the initial burden of identifying those portions of 17 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 18 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 19 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 20 than for the moving party. But on an issue for which the opposing party will have the 21 burden of proof at trial, the moving party need only point out “that there is an absence of 22 evidence to support the nonmoving party’s case.” Id. at 325. 23 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 24 his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 25 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 26 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 27 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. If the 1 evidence in opposition to the motion is merely colorable, or is not significantly probative, 2 summary judgment may be granted. See Liberty Lobby, 477 U.S. at 249-50. 3 The Court’s function on a summary judgment motion is not to make credibility 4 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 5 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 6 The evidence presented and the inferences to be drawn from the facts must be viewed in a 7 light most favorable to the nonmoving party. See id. at 631. The nonmoving party has the 8 burden of identifying with reasonable particularity the evidence that precludes summary 9 judgment. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996). If the nonmoving party 10 fails to do so, the district court may properly grant summary judgment in favor of the 11 moving party. See id. 12 A. Eighth Amendment – Sexual Assault 13 Plaintiff claims Defendant’s actions on May 12, 2021, constitute sexual assault in 14 violation of the Eighth Amendment. 15 “Sexual harassment or abuse of an inmate by a corrections officer is a violation of 16 the Eighth Amendment.” Wood v. Beauclair, 692 F.3d 1041, 1046, 1048-51 (9th Cir. 17 2012) (citations omitted). In evaluating a prisoner’s claim of sexual harassment or abuse, 18 courts consider whether “the officials act[ed] with a sufficiently culpable state of mind” 19 and if the alleged wrongdoing was objectively “harmful enough” to establish a 20 constitutional violation. Id. (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). 21 “A prisoner presents a viable Eighth Amendment claim where he or she proves that 22 a prison staff member, acting under color of law and without legitimate penological 23 justification, touched the prisoner in a sexual manner or otherwise engaged in sexual 24 conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, 25 degrading, or demeaning the prisoner.” Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th 26 Cir. 2020). “[A]ll of the elements of a Section 1983 sexual assault claim are established if 27 a prisoner proves that a sexual assault occurred.” Id. at 1145. There are occasions when 1 legitimate penological concerns require invasive searches, and the courts owe prison staff 2 deference because of prisons’ “unique security concerns.” Id. Thus, when the assault 3 begins as a legitimate, albeit invasive, penological procedure, the prisoner must show that 4 the official’s “conduct exceeded the scope of what was required to satisfy whatever 5 institutional concern justified the initiation of the procedure.” Id. 6 Sexual assault, coercion and harassment certainly may violate contemporary 7 standards of decency and cause physical and psychological harm, see Jordan v. Gardner, 8 986 F.2d 1521, 1525-31 (9th Cir. 1993) (en banc); Women Prisoners of the District of 9 Columbia Dep’t of Corrections v. District of Columbia, 877 F. Supp. 6 34, 664-67 (D.D.C. 10 1994); however, not every malevolent touch by a prison guard or official gives rise to an 11 Eighth Amendment violation - the Eighth Amendment's prohibition against cruel and 12 unusual punishment necessarily excludes from constitutional recognition de minimis uses 13 of force. See Hudson, 503 U.S. at 9-10. Mere humiliation does not rise to the level of 14 severe psychological pain required to state an Eighth Amendment claim. Watison v. 15 Carter, 668 F.3d 1108, 1112-14 (9th Cir. 2012) (no 8th Amendment violation against 16 officer who was alleged to have rubbed his thigh against plaintiff’s thigh while plaintiff 17 was on toilet and to have begun smiling before leaving cell laughing because the alleged 18 wrongdoing was not objectively harmful enough to establish a constitutional violation); 19 Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc) (plaintiff must show more 20 than de minimis injury), cert. denied, 513 U.S. 1114 (1995); Berryhill v. Schriro, 137 F.3d 21 1073, 1076 (8th Cir. 1998) (no 8th Amendment violation where employees briefly touched 22 inmate’s buttocks with apparent intent to embarrass him, and touching was unaccompanied 23 by any sexual comments or banter); Green v. Thompson, No. C 10-5721 WHA (PR), 2013 24 WL 550621, *2 (N.D. Cal. Feb. 12, 2013) (granting defendants’ motion for summary 25 judgment on prisoner’s Eighth Amendment claim that over the course of three weeks and 26 between one and three times, prison guard grabbed prisoner’s buttocks and testicles, and 27 made sexual comments to prisoner because it did not rise to the level of constitutional 1 violation). 2 Here, there is an absence of evidence that the clothed body search on May 12, 2021, 3 was performed without legitimate penological justification and in a sexual manner for 4 Defendant’s own sexual gratification or other reason under Bearchild, 947 F.3d at 1144. 5 In is undisputed that random clothed body searches during yard release were necessary 6 based on legitimate penological concerns over inmates’ possession of contraband and 7 weapons. The only dispute is over the characterization of the search: Plaintiff claims 8 Defendant grabbed and squeezed his penis to constitute sexual assault while Defendant 9 denies that the search involved such an act. But even if we assume Plaintiff’s version of 10 events is true, i.e., that Defendant did grab and squeeze his penis, there is no evidence to 11 support Plaintiff’s characterization of the touch as sexual. Plaintiff admits that the search 12 was entirely over his clothing, lasted no more than a few minutes, and that Defendant 13 made no comments of a sexual nature or otherwise speak to Plaintiff during the search. 14 Supra at 4. Furthermore, Defendant states that he did not conduct the search in a sexual 15 manner or with sexual intent or have any sexual purpose. Id. Plaintiff points to no 16 evidence other than the fact that he was briefly touched to support his claim that this was 17 some sort of sexual assault. See Berryhill, 137 F.3d at 1076. Rather, the evidence 18 indicates that Defendant’s conduct did not exceed the scope of what was required to 19 conduct the clothed body search: it was entirely over his clothing and lasted no more than a 20 few minutes. Bearchild, 947 F.3d at 1145. Lastly, Plaintiff has failed to show objectively 21 serious injury (either physical or psychological) to have arisen from the incident. In his 22 complaint, Plaintiff alleged that he suffered “excruciating pain, suffering, permanent 23 emotional and psychological injuries.” Dkt. No. 1 at 9. However, he admitted in 24 deposition that the “sharp pain” he experienced subsided after a couple of minutes. See 25 supra at 4. He also did not seek or receive any medical treatment because of this incident. 26 Id. Nor has he come forward with evidence in response to Defendant’s summary judgment 27 motion, indicating that he received treatment for any psychological harm from the incident. 1 “Demonstrating a serious or permanent injury is not required to make out an Eighth 2 Amendment claim, but some actual injury must be shown and the extent of the injury and 3 pain suffered are relevant concerns in determining whether the conduct amounts to cruel 4 and unusual punishment.” Berryill, 137 F.3d at 1076-77 (internal citation omitted). 5 Plaintiff has shown no injury. What remains is a single incident involving de minimis 6 force which does not give rise to an Eighth Amendment violation. 7 For these reasons, there is an absence of evidence that Plaintiff suffered an 8 objectively, sufficiently serious harm as a result of the May 12, 2021 clothed body search 9 to violate the Eighth Amendment. Defendant has shown that there is no genuine issue of 10 material fact as to whether Defendant violated Plaintiff’s Eighth Amendment rights. See 11 Celotex Corp., 477 U.S. at 323. The burden then shifts to Plaintiff to designate specific 12 facts showing that there is a genuine issue for trial. Having filed no opposition, Plaintiff 13 has failed to point to specific facts showing that there is a genuine issue for trial, Celotex 14 Corp., 477 U.S. at 324, or identify with reasonable particularity the evidence that precludes 15 summary judgment, Keenan, 91 F.3d at 1279. Accordingly, Defendant is entitled to 16 judgment as a matter of law on the Eighth Amendment claim against him. Id.; Celotex 17 Corp., 477 U.S. at 323. 18 B. First Amendment - Retaliation 19 Plaintiff claims that Defendant acted in retaliation when: 1) he searched Plaintiff’s 20 cell on May 22, 2021, and 2) he attempted another clothed body search on August 27, 21 2021, and when Plaintiff requested another officer, Defendant fabricated an RVR based on 22 the incident. 23 Within the prison context, a viable claim of First Amendment retaliation entails five 24 basic elements: (1) an assertion that a state actor took some adverse action against an 25 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 26 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 27 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 1 Cir. 2005) (footnote omitted). 2 The second element, causation, requires showing that the prison official intended to 3 take the adverse action out of “retaliatory animus” to “silence and to punish” the inmate, as 4 opposed to for some other reason. Shepard v. Quillen, 840 F.3d 686, 689-91 (9th Cir. 5 2016) (finding genuine issue of material fact as to whether defendant sent inmate to ad seg 6 with intent to (1) follow 15 Cal. Code Regs. § 3335(a) or (2) retaliate for inmate’s 7 complaint about staff misconduct). Evidence probative of retaliatory animus includes 8 proximity in time between the protected speech and the alleged adverse action, prison 9 official’s expressed opposition to the speech, and prison official’s proffered reason for the 10 adverse action was false or pretextual. See id. at 690; see also Corales v. Bennett, 567 11 F.3d 554, 568 (9th Cir. 2009) (non-prisoner case). Retaliatory motive may also be shown 12 by inconsistency with previous actions, as well as direct evidence. Bruce v. Ylst, 351 F.3d 13 1283, 1288-89 (9th Cir. 2003). Mere speculation that defendants acted out of retaliation is 14 not sufficient. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014) (citing cases) (affirming 15 grant of summary judgment where no evidence that defendants knew about plaintiff’s prior 16 lawsuit, or that defendants’ disparaging remarks were made in reference to prior lawsuit). 17 1. May 22, 2021 Cell Search 18 Defendant asserts that he is entitled to summary judgment on this first retaliation 19 claim because: 1) there is no admissible evidence that the alleged “trashing” of Plaintiff’s 20 cell was because of any protected conduct of Plaintiff; 2) there is no admissible evidence 21 that Defendant actually “trashed” the cell; and 3) Plaintiff did not exhaust his 22 administrative remedies related to this claim. Dkt. No. 16 at 19. 23 Defendant contends that the undisputed evidence shows that the Grievance Office 24 did not receive Plaintiff’s grievance until May 24, 2021, which was two days after the May 25 22, 2021 cell search. Id. at 20. Furthermore, Defendant asserts that he was not aware that 26 Plaintiff filed a grievance against him when he searched Plaintiff’s cell, and there is no 27 evidence to show otherwise. Id. Defendant also points to Plaintiff’s deposition, wherein 1 Plaintiff admitted that he is not aware what happened to the grievance after he placed it in 2 the locked mailbox and that to his knowledge, no one saw him do so. Id., citing Pl. Dep. 3 70:16-71:15, 72:25-73:3. Moreover, there is no evidence that Defendant ever referenced 4 Plaintiff’s grievance on the day of the challenged cell search. Id. Plaintiff asserted in 5 deposition that he believed Defendant trashed his cell in retaliation for the grievance which 6 he filed two days prior because Defendant was “agitated” and “mad” that day and that he 7 could “see it on [Defendant’s] face.” Pl. Dep. at 92:4-14. Defendant asserts that this 8 assertion is nothing more than speculation which is insufficient to support a retaliation 9 claim. Dkt. No. 16 at 20. Lastly, Defendant asserts that the only evidence Plaintiff alludes 10 to which would even suggest a possible motive for Defendant to allegedly trash his cell is 11 Plaintiff’s claim that Defendant asked him, “do you still think I’m a homosexual?” that day 12 as Plaintiff was leaving for the yard. Id. at 21, citing Pl. Dep. at 82:11-14. Plaintiff 13 essentially accused Defendant of being a “homosexual” on at least two occasions before 14 the May 22, 2021 cell search. Id., citing Pl. Dep. at 42:15-43:11, 56:18-22; Dkt. No. 1 at 15 6. Defendant asserts that this evidence only suggests that the only motivation Defendant 16 had for allegedly “trashing” Plaintiff’s cell was because he was upset that Plaintiff 17 repeatedly accused him of being homosexual in an insulting manner. Id. Defendant 18 asserts that Plaintiff’s behavior in this regard is not protected conduct under the First 19 Amendment, and Plaintiff cannot point to any case establishing otherwise. Id.; id., fn. 3. 20 Secondly, Defendant asserts that Plaintiff has no admissible evidence that 21 Defendant was the one who trashed Plaintiff’s cell. Dkt. No. 16 at 22. Plaintiff did not 22 witness the search, and that countless number of people, including inmates, could have had 23 access to his cell throughout the day. Id. The only evidence Plaintiff points to is the cell 24 search receipt left by Defendant and alleged statements by unidentified inmates who told 25 Plaintiff that Defendant trashed his cell without actually having witnessed Defendant (or 26 anyone) in the act. Id. Plaintiff admitted during deposition that he had assumed that what 27 had happened was that other inmates went into his cell after Defendant had left and saw it 1 “trashed”; no one had actually told him that this was the case. Id., citing Pl. Dep. at 88:1- 2 11. Accordingly, Defendant asserts that Plaintiff cannot establish that Defendant took any 3 adverse against him on May 22, 2021, and therefore cannot establish a retaliation claim. 4 Id. 5 After a careful review of the evidence and construing it in the light most favorable 6 to Plaintiff, the Court finds there exists no genuine dispute as to any material fact relating 7 to Plaintiff’s retaliation claim against Defendant based on the May 22, 2021 cell search. It 8 is undisputed that Defendant conducted the search. The existing disputes are over why 9 Defendant conducted the search, i.e., whether it was random or because of Plaintiff’s 10 grievance against him, and whether Defendant was the one who actually “trashed” 11 Plaintiff’s cell. With regard to the second dispute, it is immaterial whether Defendant 12 “trashed” the cell during his search because the fact that the cell search was conducted at 13 all because of retaliatory motives is sufficient to satisfy the first Rhodes element. With 14 regard to the first dispute, there is no evidence that the cell search was conducted because 15 of Plaintiff’s grievance. See supra at 6. Defendant attests that he was unaware that a 16 grievance was filed against him at the time, and Plaintiff offers no evidence in opposition 17 to show otherwise. Id. Without evidence of retaliatory motive based on the grievance, 18 Plaintiff’s claim in this regard is conclusory. Furthermore, although immaterial, there is no 19 evidence to support the claim that Defendant was the one who “trashed” the cell in 20 retaliation during an otherwise random search. By Plaintiff’s own admission, his belief 21 that Defendant was responsible for the condition of his cell when he returned from the yard 22 is based on speculation and assumptions and not supported by personal knowledge or other 23 eyewitness testimony. Id. On the other hand, Defendant attests that he did not “trash” 24 Plaintiff’s cell during the search. Dkt. No. 16-2 at 4. In response to Defendant’s motion 25 and supporting papers, Plaintiff has filed no opposition demonstrating the existence of 26 specific facts indicating that Defendant did have knowledge of Plaintiff’s grievance at the 27 time he searched Plaintiff’s cell and that he also “trashed” it in retaliation to create a 1 genuine dispute over this material fact. 2 With regard to Defendant’s argument that Plaintiff’s insulting5 comments are not 3 protected conduct, Defendant has failed to support this assertion with any caselaw and 4 improperly puts the onus on Plaintiff. A prisoner retains those First Amendment rights 5 that are “not inconsistent with his status as a prisoner or with the legitimate penological 6 objectives of the corrections system.” Prison Legal News v. Cook, 238 F.3d 1145, 1149 7 (9th Cir. 2001) (quoting Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 8 119, 129 (1977)) (internal quotation marks omitted). The Supreme Court has made clear 9 that offensive speech is protected by the First Amendment. See Texas v. Johnson, 491 10 U.S. 397, 414 (1989); see also Snyder v. Phelps, 562 U.S. 443, 454-55 (2011) (finding 11 First Amendment protected “hate” speech and shielded defendants from tort liability). 12 Accordingly, the Court is not persuaded that Plaintiff’s speech is not protected under the 13 First Amendment. 14 Even if it could be said that Defendant retaliated against Plaintiff because of his 15 insulting speech, Plaintiff cannot proceed on such a claim because he did not exhaust 16 administrative remedies for this claim or for any claim based on the cell search. The 17 Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) 18 (“PLRA”), amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with 19 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 20 prisoner confined in any jail, prison, or other correctional facility until such administrative 21 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). An action must be 22 dismissed unless the prisoner exhausted available administrative remedies before he filed 23 suit. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The PLRA’s 24 exhaustion requirement cannot be satisfied “by filing an untimely or otherwise 25

26 5 The Court uses the term “insulting” in the same way Defendant describes it in his motion: “it is not the identification as homosexual that is an insult, it is the tone and tenor in which 27 Plaintiff admits he relayed the comments to Defendant which would classify it as insulting.” Dkt. No. 16 at 15, fn. 3. 1 procedurally defective administrative grievance or appeal.” Woodford v. Ngo, 548 U.S. 2 81, 84 (2006). “The text of 42 U.S.C. § 1997e(a) strongly suggests that the PLRA uses the 3 term ‘exhausted’ to mean what the term means in administrative law, where exhaustion 4 means proper exhaustion.” Id. at 92. Therefore, the PLRA exhaustion requirement 5 requires proper exhaustion. Id. “Proper exhaustion demands compliance with an agency's 6 deadlines and other critical procedural rules because no adjudicative system can function 7 effectively without imposing some orderly structure on the course of its proceedings.” Id. 8 at 90-91 (footnote omitted). A prisoner must complete the administrative review process 9 in accordance with the applicable procedural rules, including deadlines, as a precondition 10 to bringing suit in federal court. Id. at 83-84. 11 It is undisputed that Plaintiff filed a grievance regarding the unlawful cell search, 12 Log No. 141446, which was received by the Grievance Office on July 2, 2021. See supra 13 at 6. After the Grievance Office issued their response on August 17, 2021, Plaintiff did not 14 appeal the matter until October 20, 2021. Id. The appeal was therefore rejected by the 15 Office of Appeal as untimely. Id. Plaintiff did not appeal the rejection of that grievance. 16 Id. Defendant argues that a claim that is rejected at any level of the appeal is not 17 considered exhausted. Dkt. No. 16 at 24, citing Cal. Code Regs., tit. 15, § 3486(m). Here, 18 the filing of an untimely grievance or appeal is not proper exhaustion. See Woodford, 548 19 U.S. at 83-84. In response, Plaintiff has filed no opposition asserting that he did properly 20 exhaust this claim, or that exhaustion was futile or otherwise unavailable to him. 21 Based on the undisputed facts, Defendant has shown there is an absence of a 22 genuine dispute of material fact with respect to the retaliation claim against him based on 23 the May 22, 2021 cell search. See Celotex Corp., 477 U.S. at 323. Having filed no 24 opposition, Plaintiff has failed to meet his burden of identifying with reasonable 25 particularity the evidence that precludes summary judgment, see Keenan, 91 F.3d at 1279. 26 Accordingly, Defendant is entitled to summary judgment on this claim. See Celotex Corp., 27 477 U.S. at 323. 1 2. August 27, 2021 –Clothed Body Search Incident 2 Defendant asserts that to the extent that Plaintiff identifies Defendant’s order to 3 submit to a clothed body search on August 27, 2021, as an “adverse action,” a retaliation 4 claim based thereon must fail. Dkt. No. 16 at 26. Defendant also contends that the 5 placement of Plaintiff in a holding cell and preventing him from attending yard do not 6 constitute retaliation. Id. at 27. Defendant first asserts that the Court did not identify these 7 acts as separate retaliation claims. Id. at 26, 27. Defendant further contends that even if 8 these claims were to proceed, the undisputed evidence does not support these actions as 9 being retaliatory. Id. First, Defendant asserts that a mere order to search Plaintiff cannot 10 be construed as retaliatory, especially since Defendant did not actually search Plaintiff nor 11 did he force Plaintiff to undergo a search after he refused the direct order. Id. at 27. 12 Furthermore, Defendant asserts that Plaintiff cannot support a claim that Defendant’s order 13 was based upon Plaintiff’s filing of a complaint against him. Id. Lastly, Defendant asserts 14 that the undisputed evidence establishes that the PREA investigation into Plaintiff’s 15 allegations against Defendant had concluded and were unsubstantiated. Id. With regard to 16 the placement in the holding cell, Defendant asserts that the undisputed evidence shows 17 that Plaintiff violated a direct order and Defendant was following policy in dealing with 18 that situation and not acting retaliation. Id. at 27-28. 19 As to whether Plaintiff states a claim based on an order to submit to a clothed 20 search and subsequent holding cell placement, federal courts must construe pro se 21 complaints liberally. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). A pro se plaintiff need 22 only provide defendants with fair notice of his claims and the grounds upon which they 23 rest. See Hearns v. Terhune, 413 F.3d 1036, 1043 (9th Cir. 2005). The fact that Defendant 24 answered on these “claims” indicates that the allegations were sufficient to give Defendant 25 fair notice of them and the grounds upon which they rest. 26 After a careful review of the evidence and construing it in the light most favorable 27 to Plaintiff, the Court finds there exists no genuine dispute as to material facts relating to 1 Plaintiff’s retaliation claim against Defendant based on the August 27, 2021 attempted 2 clothed body search. Plaintiff claims that Defendant stated the following when he stopped 3 Plaintiff that day: “You know I need to search you when I see you[,] Clark, you wrote me 4 up!” Dkt. No. 1 at 7; Pl. Dep. at 104:9-11. Defendant attests that at the time of this search, 5 he was not aware of Plaintiff’s identity and that he randomly pulled Plaintiff from the line 6 for the clothed search. See supra at 7. Viewing the facts in the light most favorable to 7 Plaintiff and assuming Defendant did make the alleged statement, it is evidence that 8 Defendant intended to search Plaintiff because of a grievance he filed, which satisfies the 9 second and third Rhodes elements. 10 Defendant contends that Plaintiff cannot satisfy the first Rhodes element because 11 the mere order to submit to a clothed body search does not amount to an adverse act. The 12 Court agrees. The mere threat of harm can be a sufficiently adverse action to support a 13 retaliation claim. Shepard v. Quillen, 840 F.3d 686, 688-89 (9th Cir. 2016). Harm that 14 “would chill a ‘person of ordinary firmness’ from complaining” is sufficient. Id. at 691 15 (quoting Rhodes, 408 F.3d at 569) (placement in administrative segregation or even threat 16 do so on its own amounts to adverse action satisfying the first element). However, in this 17 case it cannot be said that the mere threat of a clothed body search was sufficient to chill a 18 “person of ordinary firmness” from complaining, especially when such searches were 19 regularly and randomly conducted every time inmates went to the yard, which was on a 20 daily basis. In response, Plaintiff has filed no opposition pointing to facts showing 21 otherwise. 22 Furthermore, even if the mere threat of a clothed body search constituted an adverse 23 act, there is no indication that this particular act “chilled” the exercise of Plaintiff’s First 24 Amendment rights to satisfy the fourth Rhodes element. According to Defendant, Plaintiff 25 refused in no uncertain terms to allow Defendant to “pat” him down. See supra at 7. 26 Plaintiff subsequently filed a grievance, complaining of Defendant’s actions from that day. 27 Id. at 9. Then Plaintiff filed another grievance complaining about the RVR. Id. 1 The undisputed facts, construed in the light most favorable to Plaintiff, also show 2 that there is no genuine dispute of material fact with respect to the retaliation claim based 3 on Plaintiff’s placement in the holding cell which precluded him from accessing the yard. 4 It is undisputed that Plaintiff refused Defendant’s direct order to submit to a clothed body 5 search. See supra at 7. It is also undisputed that Defendant followed policy in dealing 6 with this situation, i.e., to handcuff Plaintiff and escort him to a holding cell. Id. at 7-8. 7 Lastly, the evidence submitted by Defendant shows that he had no authority thereafter to 8 determine what occurred with Plaintiff. Id. at 8. It was up to the supervisor whether 9 Plaintiff would be released for yard, and the undisputed facts show that Sgt. Abanico was 10 the one who eventually released Plaintiff back to his housing. Id. Plaintiff has filed no 11 opposition pointing to facts or evidence showing otherwise. 12 Based on the undisputed facts, Defendant has shown there is an absence of a 13 genuine dispute of material fact with respect to the retaliation claims against him based on 14 the August 27, 2021 incident. See Celotex Corp., 477 U.S. at 323. Having filed no 15 opposition, Plaintiff has failed to meet his burden of identifying with reasonable 16 particularity the evidence that precludes summary judgment, see Keenan, 91 F.3d at 1279, 17 or submit evidence from which a jury could reasonably render a verdict in his favor, In re 18 Oracle Corporation Securities Litigation, 627 F.3d at 387. Accordingly, Defendant is 19 entitled to summary judgment on these claims. See Celotex Corp., 477 U.S. at 323. 20 3. August 27, 2021 - RVR 21 Defendant asserts that he is entitled to summary judgment on the second retaliation 22 claim because: 1) the evidence establishes that the RVR was not “fabricated,” 2) the 23 evidence does not support Plaintiff’s claim that the RVR was issued in retaliation for any 24 protected activity; and 3) Plaintiff did not exhaust his administrative remedies related to 25 any allegations that the RVR was false or that it was issued as retaliation. Dkt. No. 16 at 26 24. With regard to the first argument, Defendant asserts that Plaintiff admitted that he, in 27 fact, did refuse to allow Defendant to search him when Defendant gave Plaintiff a direct 1 order to submit to a search. Id. Plaintiff asserts that he did not “refuse” to be searched, but 2 rather that he “requested” that another officer search him because he had previously filed a 3 PREA allegation against Defendant. Dkt. No. 1 at 7. Defendant asserts that it matters not 4 how Plaintiff characterizes the incident because Plaintiff ultimately did refuse a direct 5 order from Defendant to submit to a search, which is not permitted conduct. Dkt. No. 16 6 at 25. Defendant also asserts that the PREA investigation against him was closed more 7 than a month before this August 27, 2021 incident, and the allegations were found to be 8 unsubstantiated. Id., citing Galvan Decl. ¶ 8. As such, there was no policy prohibiting 9 Defendant from searching Plaintiff at that time. Id. 10 First, the Court notes that because the RVR involved the loss of 61 days of credit, 11 the claim for damages appears to be barred by Heck v. Humphrey, 512 U.S. 477, 486-487 12 (1994). The rule set forth in Heck requires that before a 42 U.S.C. § 1983 plaintiff may 13 recover damages for an allegedly unconstitutional conviction or imprisonment, or for other 14 harm caused by actions whose unlawfulness would render a conviction or sentence invalid, 15 he must first prove that the conviction or sentence has been reversed on direct appeal, 16 expunged by executive order, declared invalid by a state tribunal authorized to make such 17 determination, or called into question by a federal court’s issuance of a writ of habeas 18 corpus. 512 U.S. at 486-487. A claim for damages regarding a conviction or sentence that 19 has not been so invalidated is not cognizable under § 1983. Id. at 486–87. Heck also bars 20 a claim of unconstitutional deprivation of time credits because such a claim necessarily 21 calls into question the lawfulness of the plaintiff’s continuing confinement, i.e., it 22 implicates the duration of the plaintiff’s sentence. See Sheldon v. Hundley, 83 F.3d 231, 23 233 (8th Cir. 1996). Sheldon has been followed by district courts within the Ninth Circuit. 24 See Marquez v. CDCR, 2020 WL 3574644 *2 (N.D. Cal); Bullock v. Chenowith, 2015 WL 25 7758476 *2 (C.D. Cal); Jenkins v. Bartley, 2008 WL 4058088 *5 (E.D. Cal). Success on 26 Plaintiff’s challenge to the RVR would necessarily imply that Plaintiff had been 27 unconstitutionally deprived of the 61 days of credits. Accordingly, Plaintiff’s claim for 1 damages is barred by Heck such that he cannot bring an action for damages against 2 Defendant without first showing that the RVR has been invalidated. See Sheldon, 83 F.3d 3 at 233. He has not. A claim barred by Heck is not cognizable and therefore should be 4 dismissed. See Edwards v. Balisok, 520 U.S. 641, 649 (1997); Trimble v. City of Santa 5 Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claim barred by Heck may be dismissed sua sponte 6 without prejudice under 28 U.S.C. §1915). But even if the claim was not Heck-barred, 7 Defendant is entitled to summary judgment on this claim. 8 After a careful review of the evidence and construing it in the light most favorable 9 to Plaintiff, the Court finds there exists no genuine dispute as to any material fact relating 10 to Plaintiff’s retaliation claim against Defendant based on the RVR. It is undisputed that 11 Plaintiff refused to allow Defendant to search him. See supra at 7. It is also undisputed 12 that because of Plaintiff’s actions, Defendant was delayed in performing his duties, i.e., 13 searching Plaintiff and causing inmate movement in the hallway to be halted. Id. 14 Accordingly, the undisputed facts show that Plaintiff’s actions caused a delay in the 15 performance of Defendant’s duties. It matters not that Plaintiff was willing to submit to a 16 search by another officer because it is undisputed that he delayed Defendant from 17 performing his duties. Accordingly, Plaintiff’s claim that the RVR was “fabricated” is 18 factually without merit. 19 Furthermore, the undisputed evidence shows that Plaintiff did not exhaust 20 administrative remedies regarding this claim. Plaintiff did not file a grievance challenging 21 the RVR until October 2021, approximately two months after the incident. See supra at 9. 22 The Grievance Office rejected the claim as untimely. Id. Plaintiff did not appeal the 23 rejection of this claim. Id. The filing of an untimely grievance or appeal is not proper 24 exhaustion. See Woodford, 548 U.S. at 83-84. In response, Plaintiff has filed no 25 opposition asserting that he did properly exhaust this claim, or that exhaustion was futile or 26 otherwise unavailable to him. 27 Based on the undisputed facts, Defendant has shown there is an absence of a 1 || genuine dispute of material fact with respect to the retaliation claim based on the RVR. 2 || See Celotex Corp., 477 U.S. at 323. Having filed no opposition, Plaintiff has failed to 3 || meet his burden of identifying with reasonable particularity the evidence that precludes 4 || summary judgment, see Keenan, 91 F.3d at 1279, or submit evidence from which a jury 5 || could reasonably render a verdict in his favor, Jn re Oracle Corporation Securities 6 || Litigation, 627 F.3d at 387. Accordingly, Defendant is entitled to summary judgment on 7 || this claim. See Celotex Corp., 477 U.S. at 323. 8 C. Conclusion 9 Based on the foregoing, Defendant has established the absence of a genuine issue of 10 || material fact with respect to the claims against him. See Celotex Corp., 477 U.S. at 323. 11 || Having filed no opposition, Plaintiff has failed to identify with reasonable particularity any evidence that precludes summary judgment. See Keenan, 91 F.3d at 1279. Accordingly, 13 || Defendant is entitled to summary judgment. J/d.; see Celotex Corp., 477 U.S. at 323. 14 CONCLUSION 16 For the reasons stated above, Defendant I. Perez-Pantoja’s motion for summary i 17 || judgment is GRANTED.° Dkt. No. 16. The First and Eighth Amendment claims against 18 || him are DISMISSED with prejudice. 19 This order terminates Docket No. 16. 20 IT IS SO ORDERED. 21 || Dated: _December 22, 2023 __ foun BETH LAB SON FREEMAN United States District Judge 23 24 25 PRO-SE'BLE-CR.22004460Chester_ grants 26 27 || © Because the Court finds no constitutional violation occurred, it is not necessary to reach 08 Defendants’ qualified immunity argument. 05

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