5 UNITED STATES DISTRICT COURT 6
7 EASTERN DISTRICT OF CALIFORNIA
8 L.C. CUNNINGHAM, Case No. 1:19-cv-01508-AWI-EPG (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATIONS, 10 RECOMMENDING THAT DEFENDANTS’ 11 v. MOTION FOR SUMMARY JUDGMENT BE GRANTED AND THAT DEFENDANTS’ 12 M. MARTINEZ, et al., MOTION TO STRIKE BE DENIED
13 Defendants. (ECF No. 86 & 96) 14 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 15
16 17 I. INTRODUCTION 18 L.C. Cunningham (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds “on 20 Plaintiff’s claim against Defendant Harm[o]n1 for failure to protect in violation of the Eighth 21 Amendment and on Plaintiff’s claim against Defendant Martinez for violation of the Free 22 Exercise Clause of the First Amendment.” (ECF No. 25, p. 2).2 23 On July 26, 2021, Defendants filed a motion for summary judgment on the ground that 24 Plaintiff failed to properly exhaust his available administrative remedies as to both claims. 25 (ECF No. 86). On September 27, 2021, Plaintiff filed his opposition. (ECF No. 92). On 26 October 4, 2021, Defendants filed their reply. (ECF No. 93). On October 25, 2021, Plaintiff 27 28 1 It appears that the proper spelling of this name is “Harmon.” (See, e.g., ECF No. 41). 1 filed an unauthorized surreply. (ECF No. 95). On October 28, 2021, Defendants filed a motion 2 to strike Plaintiff’s unauthorized surreply.3 (ECF No. 96). 3 As to Plaintiff’s failure to protect claim against defendant Harmon, the Court finds that 4 it is undisputed that Plaintiff received a decision from the final level of review on his 5 grievance4 related to this claim, but he did not receive that decision until after filing his First 6 Amended Complaint. Accordingly, the Court will recommend that summary judgment be 7 granted to defendant Harmon on his exhaustion defense, and that the claim be dismissed 8 without prejudice. 9 As to Plaintiff’s Free Exercise Clause claim against defendant Martinez, the Court finds 10 that it is undisputed that Plaintiff did not receive a third level response to any grievance he filed 11 regarding this claim, and there is no evidence suggesting that the generally available 12 administrative remedies were unavailable to Plaintiff. Moreover, the Court finds that Plaintiff’s 13 voluntary withdrawal of his grievance at the first level of review did not exhaust available 14 administrative remedies. Accordingly, the Court will recommend that summary judgment be 15 granted to defendant Martinez on his exhaustion defense. 16 II. SUMMARY OF CLAIMS 17 As described above, this case is proceeding on Plaintiff’s claim against defendant 18 Harmon for failure to protect in violation of the Eighth Amendment and on Plaintiff’s claim 19 against defendant Martinez for violation of the Free Exercise Clause of the First Amendment. 20 Plaintiff’s failure to protect claim is proceeding based on allegations that “Defendant 21 Harm[o]n called him a snitch and that other inmates issued death threats against him after this 22 time.” (ECF No. 18, p. 8; ECF No. 25, p. 2). This occurred on or around November 11, 2019. 23 (ECF No. 12, pgs. 12 & 37). 24 Plaintiff’s Free Exercise Clause claim is proceeding based on allegations “that from 25 June 16, 2019, until September 23, 2019, Defendant Martinez regularly deprived him of his 26 27 3 As consideration of Plaintiff’s unauthorized surreply does not change the result, the Court will recommend that Defendants’ motion to strike Plaintiff’s unauthorized surreply, which includes a request to 28 substantively respond to the surreply, be denied as moot. 1 religious meals.” (ECF No. 18, p. 9; ECF No. 25, p. 2). 2 III. THE PARTIES’ POSITIONS 3 a. Defendants’ Motion (ECF No. 86) 4 Defendants filed a motion for summary judgment on July 26, 2021. (ECF No. 86). 5 Defendants argue that “[t]he Court should dismiss both claims because Cunningham did 6 not exhaust available administrative remedies for any of them.” (Id. at 5). “Cunningham 7 submitted inmate grievances regarding some of the claims alleged in this action. However, 8 Cunningham did not exhaust administrative remedies as to any of his claims before initiating 9 this action or filing the first amended complaint.” (Id. at 5-6). 10 “Cunningham initiated 25 grievances concerning various issues at KVSP between 11 March 23, 2019 and March 10, 2020, which is the period from the first alleged civil rights 12 violation in this case to the date Cunningham filed his First Amended Complaint. Out of these 13 25 grievances, only grievance numbers KVSP-19-02458, KVSP-19-04492, and KVSP-19- 14 04493 are related to Cunningham’s failure-to-protect and withholding-of-religious-meal claims 15 in this lawsuit.” (Id. at 9) (citations omitted). 16 i. Grievance Number KVSP-19-02458 17 “Cunningham submitted grievance number KVSP-19-02458 for first-level review on 18 June 16, 2019. In it, Cunningham complained that he was not getting his full issue of food in 19 his lunches. He also complained that ‘a lot of the time [his] (RMA) meals [were] being 20 withheld.’ For relief, Cunningham requested to receive his full lunch and ‘RMA meals.’ There 21 is no reference in this grievance to Defendant Martinez withholding Cunningham’s religious 22 meals.” (Id.) (alterations in original) (citations omitted). 23 “On June 20, 2019, the grievance was rejected at the first level of review under 24 California Code of Regulations, section 3084.6(b)(3) and 3084.1(f), and returned to 25 Cunningham, because he exceeded the allowable number of grievances in a 14 calendar-day 26 period. Cunningham was advised in the rejection letter that he should take a corrective action 27 and resubmit the appeal to the first-level review within 30 calendar days of the rejection. On 28 July 1, 2019, Cunningham resubmitted the grievance to the first-level review. On July 9, 2019, 1 Cunningham withdrew the grievance. Then, about seven months later, on February 24, 2020, 2 Cunningham resubmitted the grievance to the third-level reviewer in Sacramento. On March 3 23, 2020, the third-level reviewer sent the grievance back to Cunningham, and to the first-level 4 reviewer, because Cunningham impermissibly bypassed the required lower level of review. On 5 April 6, 2020—over five months after he filed this lawsuit and over a month after he filed his 6 First Amended Complaint—the first-level reviewer cancelled the grievance, under section 7 3084.6(c)(10), because it was resubmitted more than 30 calendar days after the original 8 rejection. Cunningham did not appeal the cancellation decision.” (ECF No. 86, pgs. 9-10) 9 (citations omitted). 10 ii. Grievance Numbers KVSP-19-04492 and KVSP-19-04493 11 “Cunningham submitted grievance number KVSP-19-04492 for first-level review on 12 November 18, 2019. In this grievance, Cunningham complained, among other things, that 13 Defendant Harm[o]n called him a snitch in a loud voice. For relief, Cunningham requested to 14 ‘be treated respectfully, impartially, and fairly.” First-level review was bypassed and the 15 appeal was reviewed, and partially granted, at the second level of review, in that an 16 investigation was conducted. On January 13, 2020, the second-level reviewer determined that 17 staff did not violate CDCR policy. In the second-level decision, Cunningham was advised that, 18 if he wished to exhaust administrative remedies, he must submit the grievance for third-level 19 review.” (Id. at p. 10) (citations omitted). 20 “Dissatisfied with the second-level review response, Cunningham submitted the 21 grievance to third-level review on January 28, 2020. On April 21, 2020—approximately five 22 months after Cunningham filed this lawsuit, and over a month after he filed his First Amended 23 Complaint—the third-level reviewer denied the grievance.” (Id. at 10-11) (citations omitted). 24 “Cunningham submitted grievance number KVSP-19-04493 for first-level review on 25 November 19, 2019 (one day after he submitted grievance number KVSP-19-04492). In this 26 grievance, Cunningham complained, among other things, that Defendant Harm[o]n called him 27 a ‘snitch on the tier for everyone to hear.’ On December 2, 2019—over a month after 28 Cunningham initiated this lawsuit—the grievance was rejected at the first level of review under 1 California Code of Regulations, section 3084.6(b)(3) and 3084.1(f), and returned to 2 Cunningham because he exceeded the allowable number of grievances filed in a 14 calendar- 3 day period. Cunningham was advised in the rejection letter that he should take the corrective 4 action and resubmit the appeal to the first-level reviewer within 30 calendar days of the 5 rejection. Cunningham did not resubmit grievance number KVSP-19-04493.” (ECF No. 86, p. 6 11) (footnote and citations omitted). 7 iii. Plaintiff’s Claim Against Defendant Harmon 8 “Cunningham initiated this lawsuit on October 23, 2019, alleging, among other claims, 9 that Defendants Martinez, Yerry, and other correctional staff called him a ‘snitch’ to turn other 10 inmates against him. Cunningham filed two grievances that mentioned or complained of being 11 called a snitch, grievance numbers KVSP-19-04492 and KVSP-19-04493. But both grievances 12 were submitted several weeks after Cunningham initiated this lawsuit (KVSP-19-04492 on 13 November 18, 2019 and KVSP-19-04493 on November 19, 2019), and they cannot satisfy the 14 exhaustion requirement.” (Id. at 13) (citations omitted). 15 “In his operative First Amended Complaint, which was filed on March 10, 2020, 16 Cunningham repeated his allegations against Martinez and Yerry, and added that Defendant 17 Harm[o]n called him a snitch on November 11, 2019, in front of other inmates. But, because 18 they were not fully resolved until after March 20, 2020, Cunningham’s grievances do not 19 properly exhaust the claims in the operative complaint, either. Grievance number KVSP-19- 20 04492 was not fully exhausted by an Office of Appeals decision until April 21, 2020. And 21 grievance number KVSP-19-04493 was never fully exhausted because it was rejected at the 22 first level of review.” (Id.) (citations omitted). 23 iv. Plaintiff’s Claim Against Defendant Martinez 24 “In his original complaint, Cunningham alleged that Defendant Martinez withheld his 25 special diet meals on September 23, 2019. In his First Amended Complaint, Cunningham 26 revised his claim to state that Martinez regularly deprived him of his religious diet meals from 27 June 16, 2019 through September 23, 2019. Cunningham filed one grievance that mentioned or 28 complained about deprivation of religious meals, grievance number KVSP-19-02458. But 1 grievance number KVSP-19-02458 does not exhaust Cunningham’s administrative remedies 2 with respect to his religious-meals claim for four reasons.” (Id. at 14). 3 “First, grievance number KVSP-19-02458 was cancelled as untimely on April 6, 2020, 4 and therefore it was not exhausted through the final level of review.” (Id.) (citations omitted). 5 “Second, even if grievance number KVSP-19-02458 was not cancelled, and was instead 6 substantively decided, it would not have exhausted administrative remedies because 7 Cunningham had already filed this lawsuit when the grievance was cancelled on April 6, 2020. 8 The grievance was initially rejected on June 20, 2019, because Cunningham had exceeded the 9 allowable number of grievances filed in a 14 calendar-day period. But Cunningham was 10 advised that he could resubmit the grievance to the first-level reviewer within 30 calendar days 11 of the rejection. On July 1, 2019, Cunningham resubmitted the grievance to the first-level 12 review, as instructed, but then withdrew the grievance on July 9, 2019. More than seven 13 months after he withdrew the grievance, Cunningham resubmitted the withdrawn grievance to 14 the third-level reviewer in Sacramento on February 24, 2020. And, once the third-level 15 reviewer sent the grievance to the first-level reviewer, the first-level review cancelled it as 16 untimely. The cancellation decision was on April 6, 2020. Thus, even if the grievance was not 17 cancelled, it would not have exhausted Cunningham’s claims in his original complaint, which 18 was filed on October 23, 2019, or the operative First Amended Complaint, which was filed on 19 March 10, 2020.” (Id. at 14-15) (citations omitted). 20 “Third, in grievance number KVSP-19-02458, although Cunningham stated that ‘a lot 21 of the time my (RMA) meals are being withheld,’ Cunningham did not allege that he was 22 deprived of religious diet meals from June 16, 2019, through September 23, 2019. 23 Cunningham could not have complained that he was deprived of religious diet meals from June 24 17, 2019, through September 23, 2019, in a grievance that he submitted on June 16, 2019, 25 because those alleged deprivations would not yet have occurred. His grievance therefore 26 neither raised nor exhausted a claim against any Defendant for deprivation of religious diet 27 meals from June 17, 2019, through September 23, 2019.” (Id. at 15) (citations omitted). 28 “Fourth, grievance number KVSP-19-02458 does not allege any wrongdoing by 1 Defendant Martinez. It does not identify Martinez by name or position, or give any other 2 description with which to identify him, as the exhaustion regulations require. Nor does the 3 grievance describe Martinez’s involvement in the alleged violation of his rights, as § 4 3084.2(a)(3)-(4) requires.” (ECF No. 86, p. 15) (citations omitted). 5 v. Evidence 6 In support of their motion, Defendants submit among other things: the declaration of A 7 Leyva, the Inmate Appeals Coordinator at KVSP; the declaration of Howard E. Moseley, the 8 Associate Director of the Office of the Appeals; a log of grievances filed by Plaintiff; 9 grievances filed by Plaintiff; and responses to grievances filed by Plaintiff. 10 b. Plaintiff’s Opposition (ECF No. 92) 11 Plaintiff argues that he exhausted his available administrative remedies; that 12 Defendants’ declarations used to support their motion are not made on personal knowledge and 13 do not show that A. Leyva is competent to testify on the matters stated; and that defense 14 counsel is misleading the Court by not informing the Court of Plaintiff’s full and complete 15 exhaustion. (ECF No. 92, p. 2). 16 i. Plaintiff’s Claim Against Defendant Martinez 17 On page five of his declaration, A. Leyva failed to give full and complete details 18 regarding grievance number KVSP-19-02458. (Id.). A. Leyva failed to inform the Court that 19 on July 9, 2019, Plaintiff’s grievance was accepted at the first level of review, and during this 20 time Plaintiff and the reviewer came to an agreement which resolved his appeal. (Id. at 3). 21 Only after coming to an agreement did Plaintiff withdraw his grievance. (Id.). The reviewer 22 informed Plaintiff during the appeal interview that “at no time will a general population regular 23 meal food tray be submitted in place of an RMA Special Religious Diet Tray.” (Id. at 4). 24 Defense counsel also failed to bring this to the Court’s attention. (Id.). 25 As the appeal was resolved at the lower level, under California Code of Regulations, 26 title 15, § 3084.7(d)(3), Plaintiff was not required to submit his appeal for third level review. 27 \\\ 28 \\\ 1 (ECF No. 92, p. 3). Pursuant to § 3084.6(c)(11),5 the issue was resolved at the lower level of 2 review. (ECF No. 92, p. 4). Additionally, Plaintiff had a right and an obligation to withdraw 3 his appeal pursuant to this section. (Id. at 6). Moreover, § 3084.7(b) states that “[t]he second 4 level is for review of appeals denied or not otherwise resolved to the appellant’s satisfaction at 5 the first level….” (ECF No. 92, p. 5). 6 Therefore, Plaintiff exhausted his available administrative remedies with regard to 7 defendant Martinez. (Id.). 8 “In addition, defense counsel used declarations to support their motion which were not 9 made entirely on personal knowledge, and to show that the declarants (A. Leyva, and Moseley) 10 is competent to testify on the matters stated.” (Id. at 7) (errors in original). Leyva and Moseley 11 failed to provide the Court with complete and full explanations for the withdrawal of his 12 grievance. (Id.). Defendants’ declarations failed to inform the Court that Plaintiff came to an 13 agreement with the first level reviewer, and in so doing exhausted his available administrative 14 remedies. (Id.). 15 Plaintiff also argues that he did describe the specific issues under appeal regarding 16 defendant Martinez’s involvement. (Id. 8). Pursuant to regulations, Plaintiff was only required 17 to provide the information regarding defendant Martinez and his involvement if he knew it at 18 the time, and he did not know it. (Id.). 19 ii. Plaintiff’s Claim Against Defendant Harmon 20 As to his claim against defendant Harmon, Plaintiff agrees that he initially failed to 21 fully exhaust his available administrative remedies. (Id. at 12). However, Plaintiff fully 22 exhausted his administrative remedies via grievance number KVSP-19-04492 on April 21, 23 2020. (Id. at 12-13). 24 Accordingly, Defendants’ motion should be denied. (Id. at 13). 25 \\\ 26 \\\ 27 28 5 At the relevant time, § 3084.6(c)(11) stated: “An appeal may be cancelled [if] … [t]he issue under 1 iii. Evidence 2 In support of his opposition, Plaintiff submits, among other things, a copy of grievance 3 number KVSP-19-02458 and a copy of the third level decision for grievance number KVSP- 4 19-04492. 5 c. Defendant’s Reply (ECF No. 93) 6 Defendants reiterate arguments that they made in their motion for summary judgment. 7 Defendants also argue that Cunningham’s argument that he exhausted his claim against 8 defendant Martinez fails. “First, Cunningham did not provide any evidence (documentary or 9 testimonial) showing that there was an agreement between himself and the first-level reviewer 10 to resolve grievance number KVSP-19-02458. Nor did Cunningham provide any first-level 11 review decision granting his grievance. The complete grievance records submitted to the Court 12 as exhibits to Leyva’s and Moseley’s declarations show that there was no such agreement 13 between Cunningham and the first-level reviewer, nor was there a first-level-review decision 14 granting the grievance. Besides, Cunningham’s current claim that he ‘came to an agreement 15 with the reviewer at the First level review’ seems to contradict his own statement in the 16 grievance, that Cunningham requested that the first-level reviewer withdraw the grievance 17 because he ‘worked it out with the kitchen.’” (ECF No. 93, p. 3) (citations omitted). 18 “Second, even if Cunningham resolved his grievance with the kitchen, it does not mean 19 that he exhausted any claim against Martinez, who was not a member of the prison kitchen 20 staff. Nor does Cunningham’s voluntary withdrawal of grievance number KVSP-19-02458 21 satisfy the exhaustion requirement under Cal. Code Regs. tit. 15, §§ 3084.1(a)–3084.7. Courts 22 in this and other districts of California have held that voluntary withdrawals of inmate 23 grievances, without receiving a formal review at any level, do not exhaust administrative 24 remedies.” (ECF No. 93, p. 3) (citations omitted). 25 “Third, the Harvey case on which Cunningham relies is distinguishable from this case.” 26 (Id. at 4). In Harvey, “[t]he Ninth Circuit held that Harvey exhausted the administrative 27 process when the prison officials purported to grant relief that resolved his due process 28 grievance to his satisfaction. Unlike in Harvey, here there is no decision by prison officials at 1 the first, second, or third level of review granting Cunningham’s grievance. Rather, it is 2 undisputed that Cunningham withdrew the grievance prior to any decision by the first-level 3 reviewer. Therefore, Harvey is distinguishable.” (ECF No. 93, p. 4) (citations omitted). 4 “Fourth, even if the Court were to hold that Cunningham’s withdrawal of grievance 5 number KVSP-19-02458, based on an alleged July 9, 2019 agreement with the kitchen staff, 6 exhausted administrative remedies as to Cunningham’s claims against Martinez (who was not a 7 member of the kitchen staff), Cunningham was still required to file a grievance for any alleged 8 violation of that agreement after July 9, 2019. Cunningham did not file any such grievance. 9 Thus, any alleged violation after the purported July 9, 2019, agreement with the kitchen is 10 unexhausted.” (Id.) (citations omitted). 11 “Moreover, Cunningham’s argument that Defendants’ motion should be denied because 12 the declarations supporting the motion were not made on personal knowledge is frivolous. As 13 clearly stated in the declarations, both Leyva and Moseley have personal knowledge of, and are 14 familiar with, CDCR’s policies and procedures concerning the processing of inmate 15 grievances.” (Id. at 5). 16 “Similarly, Cunningham’s argument that Defendants’ motion should be denied because 17 defense counsel mislead the Court by not informing it of the reason for Cunningham’s 18 withdrawal of grievance number KVSP-19-02458 is frivolous. Defendants’ motion for 19 summary judgment contains all records of grievance number KVSP-19-02458 maintained by 20 CDCR, including the page that contains Cunningham’s request to the first-level reviewer to 21 withdraw the grievance, stating that he ‘worked it out with the kitchen.’ Defendants also stated 22 in their moving papers, at least three times, that Cunningham withdrew grievance number 23 KVSP-19-02458.” (Id.). 24 d. Plaintiff’s Unauthorized Surreply (ECF No. 95) 25 As to Defendants’ argument that he was required to file a grievance for actions that 26 occurred after July 9, 2019, Plaintiff argues that he did so. (ECF No. 95, pgs. 4-5). On section 27 F of grievance number KVSP-19-02458, he complained about defendant Martinez’s 28 wrongdoing. (Id.). This was dated July 29, 2019. (Id. at 4). 1 Plaintiff also argues that both he and the reviewer signed the relevant section of 2 grievance number KVSP-19-02458 when it was withdrawn, and that this counts as a signed 3 response from the reviewer. (Id. at 6-7). 4 Plaintiff also reiterates arguments he made in his opposition. 5 IV. DISCUSSION 6 a. Legal Standards for Summary Judgment 7 Summary judgment in favor of a party is appropriate when there “is no genuine dispute 8 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 9 P. 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there 10 is a genuine dispute about material facts, summary judgment will not be granted.”). A party 11 asserting that a fact cannot be disputed must support the assertion by “citing to particular parts 12 of materials in the record, including depositions, documents, electronically stored information, 13 affidavits or declarations, stipulations (including those made for purposes of the motion only), 14 admissions, interrogatory answers, or other materials, or showing that the materials cited do not 15 establish the absence or presence of a genuine dispute, or that an adverse party cannot produce 16 admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 17 A party moving for summary judgment “bears the initial responsibility of informing the 18 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 19 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 20 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 21 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 22 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 23 determine whether a fair-minded jury could reasonably find for the non-moving party. 24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla 25 of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 26 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof 27 concerning an essential element of the nonmoving party’s case necessarily renders all other 28 facts immaterial.” Celotex, 477 U.S. at 322. Additionally, “[a] summary judgment motion 1 cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” 2 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 3 In reviewing the evidence at the summary judgment stage, the Court “must draw all 4 reasonable inferences in the light most favorable to the nonmoving party.” Comite de 5 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It 6 need only draw inferences, however, where there is “evidence in the record … from which a 7 reasonable inference … may be drawn…”; the court need not entertain inferences that are 8 unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he 9 evidence of the non-movant is to be believed….” Anderson, 477 U.S. at 255. 10 In a summary judgment motion for failure to exhaust, the defendants have the initial 11 burden to prove “that there was an available administrative remedy, and that the prisoner did 12 not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that 13 burden, “the burden shifts to the prisoner to come forward with evidence showing that there is 14 something in his particular case that made the existing and generally available administrative 15 remedies effectively unavailable to him.” Id. However, “the ultimate burden of proof remains 16 with the defendant.” Id. “If material facts are disputed, summary judgment should be denied, 17 and the district judge rather than a jury should determine the facts.” Id. at 1166. 18 b. Legal Standards for Exhaustion of Administrative Remedies 19 At the relevant time, “[t]he California prison grievance system ha[d] three levels of 20 review; an inmate exhausts administrative remedies by obtaining a decision at each level.” 21 Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) 22 (repealed June 1, 2020) & Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). See also Cal. 23 Code Regs. tit. 15, § 3084.7(d)(3) (“The third level review constitutes the decision of the 24 Secretary of the California Department of Corrections and Rehabilitation on an appeal, and 25 shall be conducted by a designated representative under the supervision of the third level 26 Appeals Chief or equivalent. The third level of review exhausts administrative remedies….”) 27 (repealed June 1, 2020). 28 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 1 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 2 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 3 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 4 Prisoners are required to exhaust the available administrative remedies prior to filing 5 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 6 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating 7 to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of 8 the relief sought by the prisoner and regardless of the relief offered by the process, unless “the 9 relevant administrative procedure lacks authority to provide any relief or to take any action 10 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); see 11 also Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). 12 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong 13 for which redress is sought. The grievance need not include legal terminology or legal theories, 14 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 15 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 16 prison officials to a problem, not to provide personal notice to a particular official that he may 17 be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 18 omitted). 19 As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances” 20 exceptions to the exhaustion requirement. The one significant qualifier is that “the remedies 21 must indeed be ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this 22 qualification as follows: 23 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 24 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 25 738, 121 S.Ct. 1819…. 26 Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use…. And finally, 27 the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, 28 1 mrecisorgenpirzeesedn, tsauticohn ,i notre rfinertiemncide awtioitnh… a.n Ainsm aaltle 'tsh opsuer sucoitu rotfs rhealiveef 2 renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 3 Id. at 1859-60. 4 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 5 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. 6 at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 7 c. Analysis 8 i. Plaintiff’s Objections to the Declarations of A. Leyva and Moseley 9 To begin, the Court will address Plaintiff’s challenge to the declarations of A. Leyva 10 and Moseley. Plaintiff argues that Leyva and Moseley lack personal knowledge. Leyva stated, 11 under penalty of perjury, that he is the “Inmate Appeals Coordinator at Kern Valley State 12 Prison,” and that his job includes “receiving, logging, screening, routing, and monitoring the 13 disposition of non-healthcare related inmate appeals.” (ECF No. 86-1, p. 1). Moseley stated, 14 under penalty of perjury, that he is the “Associate Director of the Office of the Appeals 15 (OOA).” (ECF No. 86-3, p. 1). “[T]he Associate Director of the OOA administers the 16 offender (inmate and parolee) grievance and appeal process for the Department. Before [his] 17 tenure as the Associate Director of the Office of Appeals, [Moseley] worked for over four years 18 as the Chief Deputy General Counsel for the Department’s Office of Legal Affairs and there 19 became familiar with the offender grievance and appeal process for the Department.” (Id. at 1- 20 2). Thus, based on the undisputed facts, both of these individuals have knowledge of CDCR’s 21 grievance system. 22 Plaintiff may be arguing that Leyva and Moseley lack personal knowledge as to why 23 Plaintiff withdrew his grievance, and this appears to be true. However, neither Leyva or 24 Moseley claimed to have personal knowledge as to why Plaintiff withdrew his grievance. 25 Instead, their declarations concern the processing of grievances and appeals in general, as well 26 as the processing of Plaintiff’s appeals. Leyva does testify that grievance number KVSP-19- 27 02458 was withdrawn, but he does not testify as to why. (ECF No. 86-1, p. 5). 28 1 Thus, Plaintiff’s objection to the declarations of Leyva and Moseley is overruled.6 2 ii. Undisputed Facts 3 The Court next turns to the undisputed facts. The relevant facts in this case are 4 undisputed:7 5 • Plaintiff received the decision from the third level of review on grievance 6 number KVSP-19-04492 on April 21, 2020. Defendants’ Separate Statement of 7 Undisputed Facts (“SSUF”) 21. 8 • Grievance number KVSP-19-02458 was submitted for first level review on June 9 16, 2019. SSUF 10. 10 • Grievance number KVSP-19-02458 was rejected on June 20, 2019. SSUF 11. 11 • Grievance number KVSP-19-02458 was resubmitted on July 1, 2019. SSUF 12. 12 • Grievance number KVSP-19-02458 was withdrawn on July 9, 2019. SSUF 12. 13 • Plaintiff filed his original complaint on October 23, 2019. (ECF No. 1). 14 • Plaintiff filed his First Amended Complaint on March 10, 2020. (ECF No. 12). 15 As Plaintiff’s objections to the declarations of Leyva and Moseley were overruled and 16 Plaintiff submitted no evidence suggesting that the grievance process was not generally 17 available, the Court also finds that it is undisputed that there was a generally available 18 grievance process. As discussed above, at the relevant time, “[t]he California prison grievance 19 system ha[d] three levels of review; an inmate exhausts administrative remedies by obtaining a 20 decision at each level.” Reyes, 810 F.3d at 657 (citing Cal. Code Regs. tit. 15, § 3084.1(b) & 21 Harvey, 605 F.3d at 683). See also Cal. Code Regs. tit. 15, § 3084.7(d)(3) (“The third level 22 review constitutes the decision of the Secretary of the California Department of Corrections 23 and Rehabilitation on an appeal, and shall be conducted by a designated representative under 24 the supervision of the third level Appeals Chief or equivalent. The third level of review 25 exhausts administrative remedies….”). 26 27 6 The Court also finds that defense counsel did not mislead the Court. Defense counsel stated that grievance number KVSP-19-02458 was withdrawn, and did not represent, or misrepresent, why it was withdrawn. 28 7 Plaintiff failed to respond to Defendants’ Separate Statement of Undisputed Facts. Moreover, Plaintiff’s 1 iii. Plaintiff’s Failure to Protect Claim Against Defendant Harmon 2 The Court next turns to whether Plaintiff exhausted each of his claims. The Court will 3 first analyze whether Plaintiff exhausted his failure to protect claim against defendant Harmon. 4 New claims in an amended complaint need to be exhausted prior to the date the 5 amended complaint is filed, not prior to the date the original complaint was filed. Rhodes v. 6 Robinson, 621 F.3d 1002, 1005-07 (9th Cir. 2010). However, even assuming that Plaintiff’s 7 claim against defendant Harmon was first included in the First Amended Complaint, Plaintiff 8 failed to exhaust this claim before filing his First Amended Complaint. It is undisputed that 9 Plaintiff filed his First Amended Complaint on March 10, 2020. It is also undisputed that 10 Plaintiff did not receive a decision from the third and final level of review on his grievance 11 related to this claim, grievance number KVSP-19-04492, until April 21, 2020, which is over a 12 month after Plaintiff filed his First Amended Complaint. 13 As Plaintiff was required to exhaust the claim before filing his First Amended 14 Complaint, Plaintiff’s claim against defendant Harmon should be dismissed for failure to 15 exhaust. 16 The Court notes that this dismissal would be without prejudice, so Plaintiff may refile 17 this claim. 18 iv. Plaintiff’s Free Exercise Clause Claim Against Defendant Martinez 19 Next, the Court will analyze whether Plaintiff exhausted his Free Exercise Clause claim 20 against defendant Martinez. 21 It is undisputed that there was a generally available administrative remedy and that 22 Plaintiff did not receive a response at the third and final level to any grievance he filed 23 regarding his claim against defendant Martinez. 24 As it is undisputed “that there was an available administrative remedy, and that the 25 prisoner did not exhaust that available remedy,” “the burden shifts to the prisoner to come 26 forward with evidence showing that there is something in his particular case that made the 27 existing and generally available administrative remedies effectively unavailable to him.” 28 Albino II, 747 F.3d at 1172. However, Plaintiff did not submit sufficient evidence, or even 1 argue, that the generally available administrative remedies were unavailable to him. 2 Plaintiff does argue that he exhausted his claim against defendant Martinez when he 3 voluntarily withdrew his grievance after resolving the issue with prison staff. According to 4 Plaintiff, the person who reviewed his grievance, who worked for kitchen staff, told him that 5 “at no time will a general population regular meal food tray be submitted in place of an RMA 6 Special Religious Diet Tray.” (ECF No. 92, p. 4). Based on this statement, Plaintiff 7 voluntarily withdrew his appeal. Plaintiff relies on California Code of Regulations, title 15, § 8 3084.7(b), California Code of Regulations, title 15, § 3084.6(c)(11), and Harvey v. Jordan, 605 9 F.3d 681. 10 As to California Code of Regulations, title 15, § 3084.7(b), at the relevant time, it 11 stated: “The second level is for review of appeals denied or not otherwise resolved to the 12 appellant’s satisfaction at the first level, or for which the first level is otherwise waived by 13 these regulations.” This section does not apply because Plaintiff never received a decision 14 from the first level of review. Instead, he voluntarily withdrew his appeal before a first level 15 decision. As to California Code of Regulations, title 15, § 3084.6(c)(11), at the relevant time, 16 this section stated: “An appeal may be cancelled [if] … [t]he issue under appeal has been 17 resolved at a previous level.” Again, the appeal was not deemed resolved—instead it was 18 voluntarily withdrawn. 19 As to Harvey v. Jordan, in Harvey, “[p]rison officials failed to hold a hearing on the 20 [disciplinary] charge within the time allotted by prison rules.” 605 F.3d at 683. Plaintiff “filed 21 a grievance complaining about the delay and requesting access to the videotape of the 22 extraction.” Id. “[P]rison officials granted the relief he requested, informing him in writing 23 that a hearing would be provided and that he would be permitted to view the tape prior to the 24 hearing. The decision was labeled a partial grant of the grievance because Harvey had stated 25 that in the alternative he requested that the charge be dismissed. Five months later, Harvey 26 complained that the hearing still had not been held and that he still had not been given the 27 opportunity to view the tape. The prison officials construed that complaint as an appeal of their 28 prior decision, and rejected it as untimely.” Id. 1 The “Defendants argue[d] that Harvey should have appealed the February 23, 2005 2 decision granting him a hearing and access to the videotape.” Id. at 685. The Ninth Circuit 3 found that this argument was without merit. Id. “An inmate has no obligation to appeal from a 4 grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative 5 remedies. Nor is it the prisoner’s responsibility to ensure that prison officials actually provide 6 the relief that they have promised.” Id. 7 However, Harvey is distinguishable from this case. In Harvey, the plaintiff received a 8 decision on his appeal, which granted the relief that he wanted. Here, Plaintiff withdrew the 9 grievance voluntarily without getting a formal resolution of his appeal. Plaintiff’s own 10 withdrawal of his appeal does not constitute exhaustion of administrative remedies. 11 In addition to the difference between a formal grant of relief in the appeals process and 12 a voluntary withdrawal of appeal based on a verbal agreement, the situation in this case is 13 distinguishable from that in Harvey because here there is no evidence that Plaintiff obtained the 14 relief he requested before he withdrew his appeal. Plaintiff states that he withdrew his appeal 15 because the reviewer told him that “at no time will a general population regular meal food tray 16 be submitted in place of an RMA Special Religious Diet Tray.” (ECF No. 92, p. 4). Even if 17 true, this does not fully satisfy Plaintiff’s complaint that defendant Martinez had been 18 interfering with his receipt of religious meals. As Defendants point out, the alleged agreement 19 was with kitchen staff. But defendant Martinez did not belong to kitchen staff, and there is no 20 indication that kitchen staff agreed to do or say anything to defendant Martinez. Additionally, 21 this supposed promise does no more than state the prison policy that general meals should not 22 be substituted for religious meals, a policy that allegedly had been violated, and continued to be 23 violated, by defendant Martinez. There is no evidence that a prison official agreed to grant 24 Plaintiff’s requested relief. The reviewer did not agree to investigate the past deprivation of 25 religious meals or promise corrective action going forward to ensure that Plaintiff received his 26 religious meals. Thus, even if someone from kitchen staff told Plaintiff that general meals 27 should not be substituted for religious meals, this would not have resolved Plaintiff’s issue 28 because he was not receiving his religious meals despite the existence of this policy. Thus, 1 unlike in Harvey, there is no evidence that a prison official purported to grant Plaintiff’s 2 requested relief in response to Plaintiff’s grievance, and Harvey is inapplicable here. See 3 Harvey, 605 F.3d at 686 (“In sum, we hold that Harvey exhausted the administrative process 4 when the prison officials purported to grant relief that resolved his due process grievance to his 5 satisfaction.”). 6 Finally, in his unauthorized surreply, Plaintiff argues that he received a signed response 7 from his reviewer. In support of this argument, Plaintiff cites to California Code of 8 Regulations, title 15, § 3084.6(f). However, this section does not support Plaintiff’s argument 9 that he received a signed response. At the relevant time, section 3084.6(f) stated: “An appeal 10 may be withdrawn by the appellant by requesting to have the processing stopped at any point 11 up to receiving a signed response. The request for the withdrawal shall identify the reason for 12 the withdrawal in section H of the CDCR Form 602, Inmate/Parolee Appeal and shall be signed 13 and dated by the appellant. If there is an agreed upon relief noted in writing at the time of a 14 withdrawal and the relief is not provided when and as promised, then the failure to provide the 15 agreed upon relief may be appealed within 30 calendar days of the failure to grant the promised 16 relief. The withdrawal of an appeal does not preclude further administrative action by the 17 department regarding the issue under appeal.” Section 3084.6(f). As stated in this section, an 18 inmate can only withdraw a grievance prior to receiving a signed response, and Plaintiff 19 withdrew his grievance. This suggests that Plaintiff did not receive a signed response. 20 Moreover, Plaintiff has not cited to any case law or regulations suggesting that a signed 21 withdrawal is the same as receiving a signed response to a grievance. 22 Finally, the Court notes that section 3084.6(f) states that if the relief is not provided as 23 promised, an inmate has thirty days to appeal the failure to provide the relief. And, Defendants 24 submitted evidence that Plaintiff did not resubmit the appeal until February 24, 2020 (more 25 than 30 days after defendant Martinez allegedly withheld Plaintiff’s religious meals), and that 26 the appeal was eventually canceled as untimely. (ECF No. 86-1, p. 5; ECF No. 86-2, pgs. 7-9). 27 Plaintiff did not challenge Defendants’ evidence or argue that he timely and properly appealed 28 1 the failure to provide the promised relief.8 Thus, section 3084.6(f) does not support Plaintiff’s 2 argument that his voluntary withdrawal of the grievance excused his exhaustion of available 3 administrative remedies. 4 Accordingly, Plaintiff’s claim against defendant Martinez should be dismissed for 5 failure to exhaust available administrative remedies. See Bontemps v. Salinas, 2013 WL 6 5773096, at *2 (E.D. Cal. Oct. 24, 2013) (holding that a plaintiff failed to exhaust where the 7 plaintiff voluntarily withdrew the inmate appeal without receiving a formal review at any 8 level); Woodford v. Ngo, 548 U.S. 81, 90, 93 (2006) (“[P]roper exhaustion of administrative 9 remedies … means using all steps that the agency holds out, and doing so properly (so that the 10 agency addresses the issues on the merits).”) (citation and internal quotation marks omitted). 11 V. CONCLUSION AND RECOMMENDATIONS 12 As to Plaintiff’s failure to protect claim against defendant Harmon, it is undisputed that 13 Plaintiff received a decision from the final level of review on his grievance related to his claim 14 against defendant Harmon, but he did not receive it until after filing his First Amended 15 Complaint. Thus, defendant Harmon is entitled to summary judgment on his exhaustion 16 defense. 17 As to Plaintiff’s Free Exercise Clause claim against defendant Martinez, the Court finds 18 that it is undisputed that Plaintiff did not receive a third level response to any grievance he filed 19 regarding this claim, and there is no evidence suggesting that the generally available 20 administrative remedies were unavailable to Plaintiff. Moreover, the Court finds that Plaintiff’s 21 voluntary withdrawal of his grievance at the first level of review did not exahust available 22 administrative remedies. Thus, defendant Martinez is entitled to summary judgment on his 23 exhaustion defense. 24 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 25 26 8 According to Plaintiff, in grievance number KVSP-19-02458, Plaintiff did fill out Section F, stating that “the agreement was not keep by by prison officials. My religious meals are still being withheld by my Floor Staff 27 M. Martinez.” (ECF No. 95, p. 12) (errors in original). While this section in the grievance provided by Plaintiff is dated July 29, 2019 (id.), Plaintiff has not argued that he properly and timely resubmitted the grievance but that it 28 was not properly processed or submitted sufficient evidence to create a genuine dispute of material fact as to this 1 1. Defendants’ motion to strike Plaintiff's unauthorized surreply be denied as 2 moot; 3 2. Defendants’ motion for summary judgment be granted; and 4 3. This action be DISMISSED without prejudice because Plaintiff failed to exhaust 5 his available administrative remedies before filing this action. 6 These findings and recommendations are submitted to the United States district judge 7 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty- 8 || one (21) days after being served with these findings and recommendations, any party may file 9 || written objections with the court. Such a document should be captioned “Objections to 10 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 11 || served and filed within fourteen (14) days after service of the objections. The parties are 12 || advised that failure to file objections within the specified time may result in the waiver of 13 || rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter 14 || v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 IT IS SO ORDERED. 17 ll Dated: _ October 29, 2021 [sJ ee heey — 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 21