1 2 3 4 5 6 7 10 11 CHRISTOPHER ELLIOTT, No. 2:22-cv-1496 CSK P 12 Plaintiff, 13 v. ORDER AND 14 R. HART, et al., FINDINGS & RECOMMENDATIONS 15 Defendants. 16 18 Plaintiff is a state prisoner proceeding pro se. Defendants’ fully briefed motion for 19 summary judgment is before the Court. Defendants move for summary judgment on the grounds 20 that plaintiff failed to exhaust administrative remedies as to his claims against defendant R. Hart; 21 defendants R. Hart and E. Ramirez did not retaliate against plaintiff by issuing rules violation 22 reports against him; and defendants are entitled to qualified immunity. As discussed below, the 23 Court recommends that the motion be denied in part and granted in part. 25 In his verified complaint, plaintiff alleges that on July 7 and 18, 2022, respectively, 26 defendants E. Ramirez and R. Hart, correctional officers with the Investigative Services Unit at 27 California State Prison, Sacramento, retaliated against plaintiff by bringing false rules violation 28 reports against plaintiff because he filed grievances against correctional officers Ehlers and 1 Herrera for sexual harassment.1 Pl.’s Compl. at 3-4 (ECF No. 1). Plaintiff alleges that 2 defendants R. Hart and E. Ramirez lied by accusing him of filing false accusations against 3 officers Ehlers and Herrera and that defendants attempted to “cover up” the officers’ 4 “wrongdoings.” Id. In his grievance against officer Ehlers, plaintiff alleged officer Ehlers 5 inappropriately grabbed himself on July 6, 2022, at 6:30 a.m. and 8:30 a.m., and again on July 13, 6 2022, at 8:00 a.m. See id. at 9-10. In his grievance against officer Herrera, plaintiff claimed that 7 officer Herrera inappropriately grabbed himself in front of plaintiff’s cell on July 13, 2022, at 8 4:00 p.m. See id. at 10. Plaintiff did not name either officer Ehlers or officer Herrera as 9 defendants herein. 11 Summary judgment is appropriate when it is demonstrated that the standard set forth in 12 Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the 13 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 14 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 15 Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis 16 for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, 17 together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 18 19 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 20 56(c).) “Where the nonmoving party bears the burden of proof at trial, the moving party need 21 only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing 22 Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 23 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory 24 committee notes to 2010 amendments (recognizing that “a party who does not have the trial 25 burden of production may rely on a showing that a party who does have the trial burden cannot 26
27 1 Pursuant to plaintiff’s notice of election (ECF No. 10), plaintiff’s Eighth Amendment claims against defendants R. Hart and E. Ramirez were dismissed without prejudice on December 22, 28 2022. (ECF No. 11 at 4.) 1 produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment 2 should be entered, after adequate time for discovery and upon motion, against a party who fails to 3 make a showing sufficient to establish the existence of an element essential to that party’s case, 4 and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. 5 “[A] complete failure of proof concerning an essential element of the nonmoving party’s case 6 necessarily renders all other facts immaterial.” Id. at 323. 7 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 8 the opposing party to establish that a genuine issue as to any material fact actually exists. See 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 10 establish the existence of such a factual dispute, the opposing party may not rely upon the 11 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 12 form of affidavits, and/or admissible discovery material in support of its contention that such a 13 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 14 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 15 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 16 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 17 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 18 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 19 (9th Cir. 1987), overruled on other grounds as stated in Flood v. Miller, 35 F. App’x 701, 703 n.3 20 (9th Cir. 2002). 21 In the endeavor to establish the existence of a factual dispute, the opposing party need not 22 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 23 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 24 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 25 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 26 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s notes to 1963 27 amendments). 28 In resolving a summary judgment motion, the court examines the pleadings, depositions, 1 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 2 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 3 255. All reasonable inferences that may be drawn from the facts placed before the court must be 4 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences 5 are not drawn out of the air, and it is the opposing party’s obligation to produce a factual 6 predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. 7 Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 8 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 9 some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could 10 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for 11 trial.’” Matsushita, 475 U.S. at 586 (citation omitted). 12 By notice filed on April 22, 2024, plaintiff was advised of the requirements for opposing a 13 motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defs.’ Rand Notice 14 to Pl. (ECF No. 34-5) (citing Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 15 154 F.3d 952, 957 (9th Cir. 1998) (en banc)). 16 IV. UNDISPUTED FACTS (“UDF”) 17 For purposes of summary judgment, the undersigned finds these facts are undisputed. 18 Where plaintiff failed to properly address defendant’s assertion of fact as required, this Court 19 considers the fact undisputed. See Fed. R. Civ. P. 56(e)(2). 20 1. In his verified complaint, plaintiff alleges that defendants R. Hart and E. Ramirez, 21 correctional officers with the Investigative Services Unit (“I.S.U.”) at California State 22 Prison, Sacramento (“CSP-SAC”), retaliated against him by issuing him false Rules 23 Violation Reports (“RVRs”) for filing grievances against correctional officers Ehlers and 24 Herrera alleging sexual harassment. Pl.’s Compl. at 3-4. 25 2. In the underlying grievances, plaintiff alleged that officer Ehlers inappropriately grabbed 26 himself on July 6, 2022 at 6:30 a.m. and 8:30 a.m., and again on July 13, 2022 at 8:00 27 28 1 a.m. See id. at 9-10.2 Plaintiff also alleged that officer Herrera inappropriately grabbed 2 himself in front of plaintiff’s cell on July 13, 2022 at 4:00 p.m. See id. at 10. 3 3. Plaintiff claims that defendants lied when they accused him of filing false accusations 4 against officers Ehlers and Herrera and that defendants R. Hart and E. Ramirez attempted 5 to “cover up” the officers’ “wrongdoings.” Id. at 3-4. 6 4. Defendants R. Hart and E. Ramirez were directed to investigate plaintiff’s allegations 7 against officers Herrera and Ehlers. Declaration of R. Hart (“Hart Decl.) ¶¶ 2-3 (ECF No. 8 34-2); Declaration of E. Ramirez (“Ramirez Decl.”) ¶¶ 2-3 (ECF No. 34-1). As part of 9 their investigation, defendants reviewed the video footage for the specified times. Id. 10 5. On July 18, 2022, defendant R. Hart reviewed the Audio Video Surveillance System 11 footage pertaining to three CDCR-602 grievance forms, Log No. 280474, Log No. 12 280481, and Log No. 280483. Hart Decl. ¶ 3. 13 6. In each grievance, plaintiff alleged that CSP-SAC correctional officer Ehlers 14 inappropriately grabbed himself at 8:00 a.m. on July 13, 2022 in front of plaintiff’s cell. 15 Hart Decl. ¶ 4. Defendant R. Hart reviewed the video footage for that time and date and 16 2 No party submitted copies of plaintiff’s initial grievances submitted against officers Herrera 17 and Ehlers; rather, the parties refer to how the grievances were characterized in the subsequent rules violation reports filed by defendants R. Hart and E. Ramirez and appended to plaintiff’s 18 complaint. Id. at 9-10. 19 Plaintiff provided copies of two subsequent grievances. In the first grievance Log No. 280481, dated July 14, 2022, plaintiff (a) objected that officer Herrera was not allowed to be 20 around plaintiff while plaintiff’s PREA complaint against Herrera was pending; claimed it was plaintiff’s right to file as many emergency 602s as he wants, noting there is no limit on filing 21 emergency 602s; and (c) alleged that defendant E. Ramirez wrote plaintiff up for filing a PREA complaint on officer Herrera, “that is staff retaliation,” and claimed it was officer Herrera who 22 told defendant E. Ramirez to write plaintiff up. Id. at 11-12. 23 In the second grievance Log No. 285788, dated July 27, 2022, plaintiff wrote that he was just informed he was written up by ISU investigation unit for causing unnecessary work and objected 24 that “this is I.S.U.[’s] ‘job’ as [an] investigation team,” and “has to do their ‘job’ no matter what.” Id. at 24. Plaintiff reiterated there is no limit on emergency 602s. Plaintiff also alleged that 25 defendant R. Hart “works for” officers Herrera and Campose, who harass plaintiff every time they come to plaintiff’s door, and claimed the ISU investigations unit is part of the “foul play” 26 because they “control the cameras.” Id. Plaintiff repeated: “That is [their] ‘job’ to do the 27 investigation and if nothing looks wrong in [their] eyes, they are suppose[d] to dismiss what [plaintiff] wrote up. They are not allowed to write [plaintiff] up for being harassed. C/O Hart did 28 foul play and violated [plaintiff’s] rights.” Id. at 23. 1 confirmed officer Ehlers did not inappropriately grab himself in front of plaintiff. Id. 2 7. In each grievance, plaintiff also alleged that CSP-SAC correctional officer Herrera 3 inappropriately grabbed himself in front of plaintiff’s cell at 4:00 p.m. on July 13, 2022. 4 Hart Decl. ¶ 5. Defendant R. Hart reviewed the video footage for that time and date and 5 confirmed that officer Herrera did not inappropriately grab himself in front of plaintiff. 6 Id. 7 8. Further, defendant R. Hart determined that neither officer Herrera nor officer Ehlers were 8 working in plaintiff’s housing unit, CSP-SAC’s B Facility, Building 7 at 8:00 a.m. or 4:00 9 p.m. on July 13, 2022. Id. 10 9. Plaintiff’s allegations caused undue work and interfered with defendant R. Hart’s ability 11 to perform his duties by approximately two hours. Id. ¶ 6. 12 10. On July 7, 2022, defendant E. Ramirez reviewed the Audio Video Surveillance System 13 footage pertaining to CDCR-602 grievance form, Log No. 276816, filed by plaintiff. 14 Ramirez Decl. ¶ 3. 15 11. In grievance Log No. 276816, plaintiff alleged that CSP-SAC correctional officer Ehlers 16 inappropriately grabbed himself in front of plaintiff at 6:30 a.m. and 8:30 a.m. on July 6, 17 2022. Ramirez Decl. ¶ 4. Defendant E. Ramirez reviewed the video footage for the 18 specified times and confirmed officer Ehlers did not inappropriately grab himself in front 19 of plaintiff. Id. 20 12. Plaintiff’s allegations caused defendant E. Ramirez undue work and interfered with his 21 ability to perform his duties by approximately two hours. Id. ¶ 5. 22 13. Plaintiff’s false accusations constitute an abuse of the grievance process as defined by the 23 California Code of Regulations, which states “[w]hen completing a CDCR Form 602-1, a 24 claimant shall not: include information or accusations known to the claimant to be false.” 25 Cal. Code Regs. tit. 15, § 3482(d)(2) (2022). Accordingly, each defendant issued plaintiff 26 a RVR for delaying a peace officer in the performance of duties. Ramirez Decl. ¶ 6; Hart 27 Decl. ¶ 7; see also Pl.’s Compl. at 9-10 (ECF No. 1 at 9 (RVR No. 7201145), 10 (RVR 28 No. 7204014).) 1 14. The California Department of Corrections and Rehabilitation (“CDCR”) offers an 2 administrative grievance process which consists of two levels of review—a review at the 3 institutional level through the Office of Grievances (“OOG”) and a review at the agency 4 level through the Office of Appeals (“OOA”). Declaration of Howard E. Moseley, 5 Associate Director of the OOA (“Moseley Decl.”) ¶ 6 (ECF No. 34-3). If an inmate 6 wishes to appeal the institutional decision he or she may do so in writing to the OOA 7 within sixty calendar days. Id. Completion of the review process by the OOG resulting in 8 a decision “identified as staff misconduct” constitutes exhaustion of all administrative 9 remedies available to a claimant within the department. Id. 10 15. A search was conducted of the OOA computer system for all appeals received by the 11 OOA from plaintiff between July 6, 2022 (the date of plaintiff’s first allegation of sexual 12 harassment in his complaint) and August 24, 2022 (the date plaintiff filed the operative 13 complaint commencing this lawsuit), in which plaintiff alleged that: (a) defendant E. 14 Ramirez issued plaintiff a RVR in retaliation for filing grievances; or (b) defendant R. 15 Hart issued plaintiff a RVR in retaliation for filing grievances. Moseley Decl. ¶ 8. H. 16 Moseley declares that no relevant appeals were found. Id. 17 16. A further review of the OOA computer showed that one appeal, Appeal Log No. 280481, 18 was received by the OOA from plaintiff during the time period described above but it did 19 not contain any allegations against defendants R. Hart or E. Ramirez.3 Specifically, 20 Appeal Log No. 280481 was received by the OOA from plaintiff on August 16, 2022, and 21 was granted on October 16, 2022. Moseley Decl. ¶ 9. 23 A. Standards Governing Exhaustion of Administrative Remedies 24 The Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action shall be
25 3 Plaintiff’s grievance Log No. 280481 also alleged that defendant E. Ramirez wrote plaintiff up for filing a PREA complaint on officer Herrera, “that is staff retaliation,” and claimed it was 26 officer Herrera who told defendant E. Ramirez to write plaintiff up. Pl.’s Compl. at 11-12. 27 However, when plaintiff appealed the denial of this grievance, he did not include this specific allegation against defendant E. Ramirez in his appeal to the OOA. Moseley Decl. at 32. In his 28 appeal, plaintiff did state that the I.S.U. was working with officer Herrera. Id. 1 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 2 prisoner confined in any jail, prison, or other correctional facility until such administrative 3 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). There is no “special 4 circumstances” exception to the PLRA’s rule of exhaustion prior to filing “any action.” Ross v. 5 Blake, 578 U.S. 632, 638-39 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006); Jones v. 6 Bock, 549 U.S. 199, 211 (2007)). 7 However, the PLRA provides one textual exception by using the term “available,” 8 meaning “‘capable of use for the accomplishment of a purpose,’ and that which ‘is accessible or 9 may be obtained.’” Ross, 578 U.S. at 642 (quoting Booth v. Churner, 532 U.S. 731, 737-38 10 (2001)). The Supreme Court found “three kinds of circumstances in which an administrative 11 remedy, although officially on the books, is not capable of use to obtain relief.” Ross, 578 U.S. at 12 643-44. Such circumstances are: 13 (1) when the administrative procedure “operates as a simple dead end” because officers are “unable or consistently unwilling to 14 provide any relief to aggrieved inmates”; (2) when the administrative scheme is “so opaque that it becomes, practically speaking, incapable 15 of use” because “no ordinary prisoner can discern or navigate it”; and (3) when prison administrators “thwart inmates from taking 16 advantage of a grievance process through machination, misrepresentation, or intimidation.” 17 18 Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) (quoting Ross, 578 U.S. at 643-44). The 19 Ninth Circuit characterized the list in Ross as “non-exhaustive,” stating that “the PLRA does not 20 require exhaustion when circumstances render administrative remedies effectively unavailable.” 21 Andres, 867 F.3d at 1078 (internal quotations and citation omitted). “When prison officials 22 improperly fail to process a prisoner’s grievance, the prisoner is deemed to have exhausted 23 available administrative remedies.” Id. 24 In addition, for exhaustion to be “proper,” a prisoner must comply with the prison’s 25 procedural rules, including deadlines, as a precondition to bringing suit in federal court. 26 Woodford, 548 U.S. at 90 (“Proper exhaustion demands compliance with an agency’s deadlines 27 and other critical procedural rules.”). “[I]t is the prison’s requirements, and not the PLRA, that 28 define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. 1 “Nonexhaustion” is an affirmative defense and defendants have the burden of “prov[ing] 2 that there was an available administrative remedy, and that the prisoner did not exhaust that 3 available remedy.” Albino v. Baca, 747 F.3d 1162, 1171-72 (9th Cir. 2014). A remedy is 4 “available” where it is “capable of use; at hand.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th 5 Cir. 2015) (quoting Albino, 747 F.3d at 1171). Grievance procedures that do not allow for all 6 types of relief sought are still “available” as long as the procedures may afford “some relief.” 7 Booth, 532 U.S. at 738. If a defendant meets the initial burden, a plaintiff then must “come 8 forward with evidence showing that there is something in his particular case that made the 9 existing and generally available administrative remedies effectively unavailable to him.” Albino, 10 747 F.3d at 1172. Remedies are “effectively unavailable” where they are “ineffective, 11 unobtainable, unduly prolonged, inadequate, or obviously futile.” Id. (quoting Hilao v. Estate of 12 Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). “[T]he ultimate burden of proof” remains with 13 the defendants. Albino, 747 F.3d at 1172-73. Only “[i]f the undisputed evidence viewed in the 14 light most favorable to the prisoner shows a failure to exhaust, [is] a defendant is entitled to 15 summary judgment under Rule 56.” Id. at 1166. 16 B. California’s Inmate Appeal Process 17 Effective January 5, 2022, the grievance process consisted of two levels of review: (1) the 18 institutional-level review (OOG), and (2) the agency review conducted by the OOA. Cal. Code 19 Regs. tit. 15, §§ 3481(a)-(b). California’s regulations require the inmate to file the grievance on 20 the CDCR Form 602-1, “describe all information known and available to the claimant regarding 21 the claim, including key dates and times, names and titles of all involved staff members (or a 22 description of those staff members), and names and titles of all witnesses, to the best of the 23 [inmate’s] knowledge,” and include any supporting documents. Id. § 3482(c)(1), (3), (4). If an 24 inmate wishes to appeal the institutional decision they may do so in writing to the OOA within 25 sixty calendar days. Id. § 3484(b). A substantive decision by the OOA exhausts administrative 26 remedies. Id. § 3485(l). Completion of the review process by the OOG resulting in a decision 27 “identified as staff misconduct” also constitutes exhaustion of all administrative remedies 28 available to an inmate. Id. § 3485(g)(8). 1 C. The Parties’ Arguments 2 In their motion, defendants argue that plaintiff failed to exhaust his administrative 3 remedies as to his retaliation claim against defendant R. Hart. Defs.’ Mot. at 10 (ECF No. 34). 4 Defendants claim plaintiff filed grievances alleging that defendants R. Hart and E. Ramirez 5 retaliated against plaintiff, but CDCR records show plaintiff did not appeal the OOG decision as 6 to defendant R. Hart before plaintiff filed this action. Id. at 11. Thus, defendants contend 7 plaintiff’s claim against defendant R. Hart should be dismissed for failure to properly exhaust 8 administrative remedies. 9 In his opposition, plaintiff claims that a prisoner has a right to file a grievance if he feels 10 “his life is not safe,” but plaintiff did not contend that he appealed the grievance against R. Hart 11 to the OOA or argue that administrative remedies were rendered unavailable in some way. Pl.’s 12 Opp’n at 2 (ECF No. 40). 13 In reply, defendants reiterate that the undisputed evidence they submitted, including a 14 declaration, and supporting documents from H. Moseley, demonstrate that plaintiff failed to 15 pursue a grievance as to defendant R. Hart through the final level of review before filing this 16 action. Defs.’ Reply at 6 (ECF No. 41). Defendants also noted that in plaintiff’s first opposition, 17 plaintiff stated he filed a grievance against officer Herrera for sexual harassment in July 2022, 18 and argued that such motion was proof plaintiff had exhausted this claim. Id. Defendants counter 19 that plaintiff’s argument fails to address or refute defendants’ undisputed evidence that plaintiff 20 failed to fully exhaust his claims against defendant R. Hart. Id. 21 D. Discussion 22 1. Plaintiff Filed Multiple Oppositions 23 Plaintiff’s first and second oppositions filed on May 20, 2024 and June 4, 2024, were not 24 signed by plaintiff. (ECF Nos. 35, 38.) Plaintiff was provided opportunities to submit an 25 opposition bearing his signature, which he did on July 1, 2024. (ECF No. 40.) Plaintiff’s third 26 opposition, which he signed, is essentially the same as his second unsigned opposition. (Compare 27 ECF No. 38 to ECF No. 40.) Rule 11(a) of the Federal Rules of Civil Procedure requires the 28 Court to strike an unsigned paper unless the omission is promptly corrected. Id. Plaintiff 1 corrected the omission as to his second opposition by filing a third opposition bearing his 2 signature, so no order to strike is required as to the second and third oppositions. (ECF Nos. 38, 3 40.) 4 However, plaintiff did not incorporate the arguments contained in his first opposition into 5 his third opposition bearing his signature. (Compare ECF No. 35 to ECF No. 40.) Therefore, the 6 Court strikes plaintiff’s first opposition as required under Rule 11(a).4 (ECF No. 35.) All 7 subsequent references to plaintiff’s opposition are to plaintiff’s signed opposition. (ECF No. 40.) 8 2. Administrative Remedies Were Available 9 The Court reviewed the record, including plaintiff’s complaint and attachments, 10 defendants’ motion and the supporting declarations and exhibits, and finds that it is undisputed 11 that the administrative remedies set forth in the California Code of Regulations, Title 15, sections 12 3480 - 3487, were available to plaintiff in 2022 when defendants issued RVRs against plaintiff. 13 3. Defendants Failed to Provide Relevant Grievance Number 14 The records provided by H. Moseley do not show a specific appeal with the OOA as to 15 defendant R. Hart. However, the chart provided by H. Moseley does not set forth the names of 16 the officers listed in the grievance or appeal, and many of the entries were identified as staff 17 misconduct, which exhausts the inmate’s grievance without having to file an appeal because the 18 grievance must be investigated. Cal. Code Regs. tit. 15, § 3485(g)(8). While H. Moseley 19 declared no relevant appeal was located, Moseley’s declaration did not address the myriad 20 grievances that were identified as staff complaints and therefore would not require an appeal. H. 21 Moseley did not declare that plaintiff’s grievance against defendant R. Hart was categorized in 22 such a way that it required that plaintiff file an appeal with the OOA. 23
24 4 Even if the Court considered plaintiff’s argument in his first opposition that his grievance concerning officer Herrera demonstrated plaintiff exhausted his claim as to defendant R. Hart 25 (ECF No. 35), such argument fails. Plaintiff was required to file a grievance raising his retaliation claim against defendant R. Hart. Whether or not plaintiff filed a grievance as to officer 26 Herrera’s actions is not relevant to whether or not plaintiff filed a grievance against defendant R. 27 Hart alleging that defendant R. Hart retaliated against plaintiff by filing a purportedly false RVR. In addition, the grievance plaintiff appended to his first opposition, Log No. 280481, was also 28 provided by defendants. Moseley Decl., Ex. 2 (ECF No. 34-3 at 29-35). 1 Defendants’ motion and reply failed to identify the specific grievance number they claim 2 plaintiff failed to pursue against defendant R. Hart through the OOA. 3 H. Moseley reviewed records from July 6, 2022 through August 24, 2022; such review 4 encompassed plaintiff’s grievances with Log Numbers 276816 through 296842. Moseley Decl. at 5 13-18. Obviously, the eleven grievances categorized as PREA complaints were not the 6 grievances plaintiff filed against defendant R. Hart. However, there were many other grievances 7 with various categories and subcategories, such as “general employee performance,” and “other 8 staff misconduct: NOS,” that were also identified as staff misconduct.5 See, e.g., Log Nos. 9 277227, 278644, 278651, 278655, 280474, 280483, 281782, 281785, etc. Because defendants 10 did not identify the grievance number, the Court is unable to confirm that plaintiff’s grievance 11 was not identified as staff misconduct such that he was required to pursue the grievance through 12 the OOA yet failed to do so. Thus, the Court finds that defendants failed to meet their burden in 13 demonstrating plaintiff failed to exhaust his administrative remedies as to defendant R. Hart, and 14 their motion on exhaustion grounds should be denied. 16 A. Standards Governing Retaliation Claims 17 “Prisoners have a First Amendment right to file grievances against prison officials and to 18 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 19 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 20 prison context has five elements: “(1) An assertion that a state actor took some adverse action 21 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 22 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 23 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 24 (9th Cir. 2005). Although “a corrections officer may not retaliate against a prisoner for exercising
25 5 The Court acknowledges that in grievance Log No. 285788, plaintiff complained he had just been written up, and that defendant R. Hart “works” for officer Herrera who harassed plaintiff. 26 Pl.’s Compl. at 23-24; n.2 above. This grievance was rejected by the OOG. Moseley Decl. at 15. 27 While rejections do not exhaust administrative remedies, California Code of Regulations, Title 15, § 3483(l)(1), defendants do not argue that plaintiff’s grievance against defendant R. Hart was 28 rejected. 1 his First Amendment right to report staff misconduct,” courts must nonetheless “defer to 2 reasonable decisions of prison officials.” Shepard v. Quillen, 840 F.3d 686, 688 (9th Cir. 2016). 3 B. The Parties’ Arguments 4 Defendants do not dispute that they each issued an RVR against plaintiff but argue that the 5 evidence shows the RVRs were issued because plaintiff abused the grievance process by filing 6 false allegations in violation of CDCR regulations, not simply because plaintiff used the 7 grievance process. Defs.’ Mot. at 12 (citing Cal. Code Regs. tit. 15 § 3482(d)(2)). In addition, 8 defendants contend that the RVRs served a legitimate penological purpose—to discourage abuse 9 of the grievance process. Id. Defendants argue that plaintiff’s false allegations against officers 10 Ehlers and Herrera delayed defendants in the performance of their duties, and “squandered 11 limited institutional resources and distracted defendants from legitimate work important to serve 12 the inmate population and meet CSP-SAC’s operational and management needs.” Id. at 13. 13 Further, defendants contend that plaintiff cannot demonstrate causation; that is, that the RVRs 14 were issued to plaintiff as a result of retaliation because the RVRs were issued due to plaintiff’s 15 abuse of the grievance process by filing allegations he knew were false. Id. Defendants argue 16 that plaintiff “does not have a right protected under the First Amendment to file frivolous inmate 17 grievances.” Id. Defendants contend that plaintiff admitted he knew the video footage would 18 prove he was lying, based on plaintiff’s statement concerning defendants’ investigation: 19 That is [defendants] ‘job’ to do the investigation and if nothing looks wrong in there [sic] eyes. They [defendants] are suppose[d] to 20 dismiss what I wrote up.” 21 Id. at 13-14 (citing Pl.’s Compl. at 23). Thus, defendants contend they are entitled to summary 22 judgment on plaintiff’s retaliation claims. 23 Plaintiff’s two-page opposition is signed, but not verified. Pl.’s Opp’n at 2 (ECF No. 40). 24 Plaintiff states that it is well established that a prisoner has a First Amendment right to file prison 25 grievances if he feels his life is not safe, and that retaliation against a prisoner for exercising such 26 right is a constitutional violation. Id. Plaintiff also states the following incomplete sentence: “in 27 an assertion that a state actor took some adverse action to chill the inmates exercise of plaintiff’s 28 First Amendment right.” Id. But this incomplete sentence simply repeats some elements of a 1 retaliation claim.6 Id. 2 In reply, defendants contend that plaintiff’s oppositions fail to address defendants’ 3 arguments or present facts to establish a genuine dispute of material fact as to the merits of 4 plaintiff’s retaliation claim. Defs.’ Reply at 5 (citing ECF Nos. 35, 38, 40). Rather, defendants 5 contend that plaintiff’s second and third oppositions merely recite First Amendment retaliation 6 case law. Id. (citing ECF Nos. 38, 40). Defendants argue that plaintiff’s generalized statement 7 that defendant R. Hart violated plaintiff’s First Amendment rights is insufficient. Id. (citing 8 Anderson, 477 U.S. at 247-48 (nonmovant’s bare assertions, standing alone, are insufficient to 9 create a material issue of fact and defeat a motion for summary judgment)). Further, defendants 10 argue that although plaintiff listed a few elements of a First Amendment retaliation claim, 11 plaintiff failed to provide any facts or evidence in support of each required element. (Id.) 12 C. Discussion 13 1. No Evidence of Retaliatory Motive 14 The Court finds there is insufficient evidence to raise a triable issue of fact concerning the 15 existence of a retaliatory motive on the part of either defendant R. Hart or defendant E. Ramirez. 16 To establish a retaliatory motive, plaintiff is required to “show that his protected conduct 17 was the substantial or motivating factor behind the defendant’s conduct.” Brodheim, 584 F.3d at 18 1271 (internal quotation marks and citation omitted); see Hartman v. Moore, 547 U.S. 250, 259 19 (2006) (explaining that a section 1983 plaintiff “must show a causal connection between a 20 defendant’s retaliatory animus and subsequent injury in any sort of retaliation action”). In other 21 words, plaintiff must “put forth evidence of retaliatory motive, that, taken in the light most 22 favorable to him, presents a genuine issue of material fact as to [the defendants’] intent” in 23 issuing the RVRs against plaintiff. Brodheim, 584 F.3d at 1271 (quoting Bruce v. Ylst, 351 F.3d 24 1283, 1289 (9th Cir. 2003)). 25 Here, it is undisputed that defendants R. Hart and E. Ramirez issued RVRs charging 26
27 6 The Court notes that even if plaintiff’s first opposition had not been stricken as unsigned, plaintiff merely repeated the elements of a retaliation claim, without adding any specific facts or 28 evidence in support. (ECF No. 35.) 1 plaintiff with making false claims of sexual harassment against officers Ehlers and Herrera in 2 plaintiff’s grievances. Plaintiff contends he was issued such RVRs for using the grievance 3 process, a right that is protected under the First Amendment. However, defendants adduced 4 evidence that the RVRs were issued because plaintiff’s false allegations against officers Ehlers 5 and Herrera resulted in undue work and interfered with their abilities to perform their duties and 6 constituted an abuse of the grievance process. Both defendant R. Hart and E. Ramirez reviewed 7 the relevant footage and determined that plaintiff’s accusations were not true. Ramirez Decl, ¶3- 8 4; ¶ Hart Decl, ¶¶ 3-5. In addition, defendant R. Hart determined that neither officer Ehlers nor 9 officer Herrera were working in plaintiff’s housing unit on July 13, 2022. Hart Decl. ¶¶ 4, 5. 10 Plaintiff adduced no competent evidence to the contrary. 11 Aside from plaintiff’s conclusory statements in his complaint, plaintiff adduced no 12 circumstantial or other evidence to suggest either defendant R. Hart or defendant E. Ramirez 13 issued the RVRs in retaliation for plaintiff’s grievances alleging sexual harassment by officers 14 Ehlers and Herrera rather than for the legitimate penological purpose of dissuading inmates from 15 filing false accusations. Plaintiff points to no comments either defendant made that would 16 evidence retaliatory intent. “Mere speculation that defendants acted out of retaliation is not 17 sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). The fact that defendants issued 18 RVRs based on plaintiff’s false accusations of sexual harassment contained in plaintiff’s 19 grievances, standing alone, is insufficient to demonstrate that either defendant issued the RVRs 20 with a retaliatory motive. 21 2. No Absence of Legitimate Correctional Purpose 22 The Court finds that plaintiff failed to demonstrate there remains a triable dispute of 23 material fact as to whether defendants acted without a legitimate correctional purpose. 24 Plaintiff bears the burden to prove the absence of a “legitimate correctional purpose 25 motivating” the adverse actions. See Pratt, 65 F.3d at 808. In addition, this Court must “afford 26 appropriate deference and flexibility to prison officials in the evaluation of proffered legitimate 27 penological reasons for conduct alleged to be retaliatory.” Id. at 807 (internal quotation marks 28 and citation omitted). An action does not reasonably advance a legitimate correctional goal when 1 it is arbitrary and capricious or “unnecessary to the maintenance and order in the institution.” 2 Watison, 668 F.3d at 1115 (internal quotation marks omitted). 3 Here, defendants adduced evidence that plaintiff’s filing of false accusations against 4 officers Ehlers and Herrera constituted an abuse of the grievance process in violation of 5 California Code of Regulations, Title 15, § 3482(d)(2), which delayed defendants in the 6 performance of their duties, and they filed the RVRs to dissuade inmates from filing such false 7 accusations. Plaintiff’s allegations in his complaint and opposition do not challenge the 8 correctional purpose cited by defendants. Rather, he simply contends he was written up for 9 exercising his constitutional right to file a grievance. Absent retaliatory motive, as discussed 10 above, this Court cannot find that there was an absence of legitimate correctional purpose in 11 charging plaintiff with the RVRs at issue here. Dissuading inmates from filing false accusations 12 against correctional officers is a legitimate penological goal. The record reflects that I.S.U. 13 investigators are charged with investigating allegations of sexual harassment, which takes time, 14 and if the investigation determines the allegations were false, the time spent in such investigation 15 deprived such officers of time they could have spent on legitimate claims. Thus, charging 16 inmates for abusing the grievance process and delaying peace officers in their duties helps 17 maintain order in the prison by dissuading inmates from filing false accusations that usurp 18 valuable correctional officer time. The Court finds that defendants had a legitimate penological 19 purpose for issuing the RVRs, and plaintiff failed to rebut such evidence. 20 3. Conclusion 21 For all of the above reasons, the Court recommends that defendants’ motion for summary 22 judgment on plaintiff’s retaliation claims be granted, and judgment be entered. 24 A. Legal Standards 25 “The doctrine of qualified immunity protects government officials ‘from liability for civil 26 damages insofar as their conduct does not violate clearly established statutory or constitutional 27 rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 28 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity 1 shields an officer from liability even if his or her action resulted from “a mistake of law, a 2 mistake of fact, or a mistake based on mixed questions of law and fact.” Id. (internal quotation 3 marks and citation omitted). 4 “Determining whether officials are owed qualified immunity involves two inquiries: 5 (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged 6 show the official's conduct violated a constitutional right; and (2) if so, whether the right was 7 clearly established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 8 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). A right is “clearly 9 established” when, “at the time of the challenged conduct, ‘[t]he contours of [a] right [are] 10 sufficiently clear’ that ‘every reasonable official would [have understood] that what he is doing 11 violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. 12 Creighton, 483 U.S. 635, 640 (1987)). 13 B. Discussion 14 Defendants also move for qualified immunity on the grounds that the undisputed facts 15 demonstrate they did not violate plaintiff’s First Amendment right against retaliation, and because 16 it would not have been clear to a reasonable official in defendants’ positions that issuing plaintiff 17 RVRs for filing false allegations in violation of California Code of Regulations, Title 15, 18 § 3482(d)(2) was unlawful. Defs.’ Mot. at 15. “Because the Court has found that there is no 19 genuine issue of material fact to support plaintiff’s claims, ‘there is no necessity for further 20 inquiries concerning qualified immunity.’” Los Angeles Cnty. v. Rettele, 550 U.S. 609, 616 21 (2007) (quoting Saucier, 533 U.S. at 201). Thus, the Court declines to address the issue of 22 qualified immunity. 24 In accordance with the above, IT IS HEREBY ORDERED that: 25 1. The Clerk of the Court is directed to assign a district judge to this case; and 26 2. The Clerk of the Court is directed to strike plaintiff’s unsigned opposition (ECF No. 27 35). 28 Further, IT IS RECOMMENDED that: ] 1. Defendants’ motion for summary judgment based on plaintiff's alleged failure to 2 exhaust administrative remedies as to defendant R. Hart (ECF No. 34) be denied. 3 2. Defendants’ motion for summary judgment on plaintiff's retaliation claims (ECF 4 No. 34) be granted. 5 3. Judgment be granted as to defendants R. Hart and E. Ramirez, and this action be 6 terminated. 7 These findings and recommendations are submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 9 || after being served with these findings and recommendations, any party may file written 10 || objections with the court and serve a copy on all parties. Such a document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 || objections shall be filed and served within fourteen days after service of the objections. The 13 || parties are advised that failure to file objections within the specified time may waive the right to 14 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 15 16 || Dated: November 19, 2024 A aA Aan Spe | CHI SOO KIM 18 UNITED STATES MAGISTRATE JUDGE 19 |) //elli1496.msj.csk 20 21 22 23 24 25 26 27 28 18