(PC) Olic v. Beard

• Court: District Court, E.D. California
• Decided: March 31, 2022
• Docket: 2:16-cv-00720
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MILORAD OLIC, No. 2:16-cv-0720 JAM AC P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 JEFFREY BEARD et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court are defendants’ motions for summary judgment.1 ECF 19 Nos. 55, 58. Plaintiff has opposed both motions. ECF Nos. 57, 60. 20 I. Plaintiff’s Allegations 21 After screening, the complaint proceeded on plaintiff’s retaliatory transfer claim against 22 defendant Lizarraga and excessive force claim against defendant Payne. ECF No. 18. Relevant 23 to those claims, plaintiff alleges that on March 26, 2015, Lizarraga told plaintiff he was going to 24 be transferred. ECF No. 1 at 5-6. About a month and a half later, plaintiff was forcibly removed 25 from his cell at Mule Creek State Prison (“MCSP”) and transferred to High Desert State Prison 26 (“HDSP”). Id. at 6. The transfer was allegedly in retaliation for a habeas petition that plaintiff 27 1 Defendants Payne and Lizarraga are represented by separate counsel and therefore filed 28 separate motions. 1 was pursuing at the time and other lawsuits that he had filed. Id. at 5-6. Upon arrival at HDSP, 2 plaintiff spent about fifteen minutes in a holding cell before defendant Payne unlocked his cell 3 and told him to face the wall. Id. at 3, 6, 11-12, 23. Payne proceeded to hit plaintiff’s head 4 against the wall until he lost consciousness, and when he regained consciousness, he was in a 5 pool of blood. Id. 6 I. Defendants’ Motions for Summary Judgment 7 A. Defendants’ Arguments 8 Defendants Payne and Lizarraga both move for summary judgment on the ground that 9 plaintiff did not exhaust his administrative remedies before filing suit. ECF Nos. 55, 58. Payne 10 argues that plaintiff’s third level appeal of the grievance relevant to his excessive force claim was 11 cancelled as untimely and therefore did not exhaust his administrative remedies. ECF No. 55-3 at 12 4-6. He further argues that even if plaintiff’s grievance was incorrectly cancelled, plaintiff failed 13 to exhaust his administrative remedies because he could have challenged the cancellation of his 14 grievance. Id.; ECF No. 59. Lizarraga argues that plaintiff’s third level appeal of the grievance 15 relevant to his transfer was rejected and that plaintiff did not take the corrective action necessary 16 and resubmit his grievance. ECF No. 58-1 at 17-18. In addition to his exhaustion argument, 17 Lizarraga argues that plaintiff cannot establish any of the elements required for his retaliation 18 claim.2 Id. at 19-20. 19 B. Plaintiff’s Responses 20 At the outset, the court notes that plaintiff’s responses fail to comply with Federal Rule of 21 Civil Procedure 56(c)(1)(A), which requires that “[a] party asserting that a fact . . . is genuinely 22 disputed must support the assertion by . . . citing to particular parts of materials in the record.” 23 Plaintiff has also failed to file separate documents in response to defendants’ statements of 24 undisputed facts that identify which facts are admitted and which are disputed, as required by 25 //// 26

27 2 Lizarraga also argues that any claims against him in his official capacity are barred by the Eleventh Amendment. ECF No. 58-1 at 20-21. However, in his response, plaintiff states that his 28 claims are against Lizarraga in his individual capacity only. ECF No. 60 at 5. 1 Local Rule 260(b), though his response to defendant Lizarraga’s motion has partially complied 2 with this requirement. 3 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 4 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted), overruled on other grounds, 5 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). However, it is well- 6 established that district courts are to “construe liberally motion papers and pleadings filed by pro 7 se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 8 F.3d 1144, 1150 (9th Cir. 2010). The unrepresented prisoner’s choice to proceed without counsel 9 “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily imposes 10 upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 11 Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (alteration in original) (citations and 12 internal quotation marks omitted). Inmate litigants, therefore, should not be held to a standard of 13 “strict literalness” with respect to the requirements of the summary judgment rule. Id. (citation 14 omitted). 15 Accordingly, the court considers the record before it in its entirety despite plaintiff’s 16 failure to be in strict compliance with the applicable rules. However, only those assertions which 17 have evidentiary support in the record will be considered. 18 In response to defendant Payne’s motion, plaintiff argues that administrative remedies at 19 the third level of review were unavailable to him because prison administrators thwarted his 20 efforts by refusing to mail his grievance for more than thirty days after he submitted it and 21 improperly cancelling his grievance as untimely. ECF No. 57 at 1-4. In response to defendant 22 Lizarraga’s motion, he argues that administrative remedies were unavailable to him because 23 prison administrators thwarted him through machination and that there is a genuine issue of 24 material fact as to his retaliation claim. ECF No. 60 at 1-5. 25 II. Legal Standards for Summary Judgment 26 Summary judgment is appropriate when the moving party “shows that there is no genuine 27 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 28 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 1 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 2 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 3 moving party may accomplish this by “citing to particular parts of materials in the record, 4 including depositions, documents, electronically stored information, affidavits or declarations, 5 stipulations (including those made for purposes of the motion only), admissions, interrogatory 6 answers, or other materials” or by showing that such materials “do not establish the absence or 7 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 8 support the fact.” Fed. R. Civ. P. 56(c)(1). 9 “Where the non-moving party bears the burden of proof at trial, the moving party need 10 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 11 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 12 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 13 motion, against a party who fails to make a showing sufficient to establish the existence of an 14 element essential to that party’s case, and on which that party will bear the burden of proof at 15 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 16 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 17 a circumstance, summary judgment should “be granted so long as whatever is before the district 18 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 19 56(c), is satisfied.” Id. 20 If the moving party meets its initial responsibility, the burden then shifts to the opposing 21 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 22 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 23 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 24 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 25 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 26 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 27 fact “that might affect the outcome of the suit under the governing law,” and that the dispute is 28 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving 1 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 2 In the endeavor to establish the existence of a factual dispute, the opposing party need not 3 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 4 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 5 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 6 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the 7 “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see 8 whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal 9 quotation marks omitted). 10 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 11 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 12 v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the 13 opposing party’s obligation to produce a factual predicate from which the inference may be 14 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 15 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 16 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 17 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 18 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 19 U.S. at 289). 20 Defendants’ motions for summary judgment were accompanied by notices of the 21 requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. 22 ECF No. 55-1; ECF No. 58-14; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988) 23 (pro se prisoners must be provided with notice of the requirements for summary judgment); Rand 24 v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide notice). 25 III. Legal Standards for Exhaustion 26 Because plaintiff is a prisoner suing over the conditions of his confinement, his claims are 27 subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA, 28 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or 1 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 2 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v. 3 Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners 4 seeking redress for prison circumstances or occurrences”). “[T]hat language is ‘mandatory’: An 5 inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent 6 exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) 7 (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). 8 Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones 9 v. Bock, 549 U.S. 199, 204, 216 (2007). “[T]he defendant’s burden is to prove that there was an 10 available administrative remedy, and that the prisoner did not exhaust that available remedy.” 11 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (citing Hilao v. Estate of Marcos, 12 103 F.3d 767, 778 n.5 (9th Cir. 1996)). “[T]here can be no ‘absence of exhaustion’ unless some 13 relief remains ‘available.’” Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005) (emphasis in 14 original). Therefore, the defendant must produce evidence showing that a remedy is available “as 15 a practical matter,” that is, “it must be capable of use; at hand.” Albino, 747 F.3d at 1171 16 (citations and internal quotations marks omitted). “[A]side from [the unavailability] exception, 17 the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective of any 18 ‘special circumstances.’” Ross, 578 U.S. at 639. “[M]andatory exhaustion statutes like the 19 PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.” Id. (citation 20 omitted). 21 For exhaustion to be “proper,” a prisoner must comply with the prison’s procedural rules, 22 including deadlines, as a precondition to bringing suit in federal court. Woodford, 548 U.S. at 90 23 (“Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural 24 rules.”). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of 25 proper exhaustion.” Jones, 549 U.S. at 218; see also Marella v. Terhune, 568 F.3d 1024, 1027 26 (9th Cir. 2009) (“The California prison system’s requirements ‘define the boundaries of proper 27 exhaustion’” (quoting Jones, 549 U.S. at 218)). 28 As long as some potential remedy remained available through the administrative appeals 1 process, even if it was not the remedy he sought, plaintiff was required to exhaust his remedies. 2 Booth v. Churner, 532 U.S. 731, 741 & n.6 (2001) (“Congress has provided in § 1997e(a) that an 3 inmate must exhaust irrespective of the forms of relief sought and offered through administrative 4 avenues.”). The Supreme Court has identified “three kinds of circumstances in which an 5 administrative remedy, although officially on the books, is not capable of use to obtain relief.” 6 Ross, 578 U.S. at 643. “First, . . . an administrative procedure is unavailable when (despite what 7 regulations or guidance materials may promise) it operates as a simple dead end—with officers 8 unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. (citing Booth, 9 532 U.S. at 736). “Next, an administrative scheme might be so opaque that it becomes, 10 practically speaking, incapable of use.” Id. Finally, administrative remedies are unavailable 11 “when prison administrators thwart inmates from taking advantage of a grievance process through 12 machination, misrepresentation, or intimidation.” Id. at 644. 13 When the district court concludes that the prisoner has not exhausted administrative 14 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 15 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 16 Albino, 747 F.3d at 1168. 17 IV. California Regulations Governing Exhaustion of Administrative Remedies 18 Exhaustion requires that the prisoner complete the administrative review process in 19 accordance with all applicable procedural rules. Woodford, 548 U.S. at 90. This review process 20 is set forth in the California Code of Regulations. In 2015, those regulations allowed prisoners to 21 “appeal any policy, decision, action, condition, or omission by the department or its staff that the 22 inmate or parolee can demonstrate as having a material adverse effect upon his or her health, 23 safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a) (2015). 24 At the time plaintiff was proceeding through the appeals process, it was comprised of 25 three levels of review for most types of appeals. Id. § 3084.7. “The second level [was] for 26 review of appeals denied or not otherwise resolved to the appellant’s satisfaction at the first level, 27 or for which the first level [was] otherwise waived by [the] regulations.” Id. § 3084.7(b). 28 Relevant to the issues here, the third level was “for review of appeals not resolved at second 1 level,” “appeals [that] alleged third level staff misconduct,” and “appeals [of] a third level 2 cancellation decision or action.” Id. § 3084.7(c). An inmate was required to “submit the appeal 3 within 30 calendar days of: (1) The occurrence of the event or decision being appealed, or; (2) 4 Upon first having knowledge of the action or decision being appealed, or; (3) Upon receiving an 5 unsatisfactory departmental response to an appeal filed.” Id. § 3084.8(b). 6 Each prison was required to have an “appeals coordinator” whose job was to “screen all 7 appeals prior to acceptance and assignment for review.” Id. § 3084.5(a), (b). If an appeal 8 described staff misconduct, a determination would be made whether it should be processed as a 9 routine appeal, processed as a staff complaint appeal inquiry, or referred to Internal Affairs for 10 investigation or inquiry. Id. § 3084.5(b)(4). The appeals coordinator could also refuse to accept 11 an appeal, whereupon “the inmate or parolee [would] be notified of the specific reason(s) for the 12 rejection or cancellation of the appeal and of the correction(s) needed for the rejected appeal to be 13 accepted.” Id. § 3084.5(b)(3). An appeal could be rejected if it was “missing necessary 14 supporting documents as established in section 3084.3” or cancelled if “[t]ime limits for 15 submitting the appeal [were] exceeded even though the inmate or parolee had the opportunity to 16 submit within the prescribed time constraints.” Id. § 3084.6(b)(7), (c)(4). A rejected appeal 17 could “later be accepted if the reason noted for the rejection [was] corrected and the appeal [was] 18 returned by the inmate or parolee to the appeals coordinator within 30 calendar days of rejection.” 19 Id. § 3084.6(a)(2). A cancelled appeal could not be accepted unless it was determined that the 20 cancellation was in error or new information made the appeal eligible for further review. Id. 21 § 3084.6(a)(3), (e). However, the cancellation of the appeal could be separately appealed. Id. 22 § 3084.6(e). “[A] cancellation or rejection decision [did] not exhaust administrative remedies.” 23 Id. § 3084.1(b). 24 V. Undisputed Material Facts 25 A. The Parties 26 At all times relevant to the complaint, plaintiff was a prisoner in the custody of the 27 California Department of Corrections and Rehabilitation (“CDCR”). ECF No. 1; DF Payne’s 28 Statement of Undisputed Facts (“Payne SUF”) (ECF No. 55-2) ¶ 1; DF Lizarraga’s Statement of 1 Undisputed Facts (“Lizarraga SUF”) (ECF No. 58-2) ¶ 1. At all times relevant to the complaint, 2 defendant Payne was employed as a correctional officer at HDSP and defendant Lizarraga was 3 the warden at MCSP. Payne SUF ¶ 2; Lizarraga SUF ¶ 4. 4 B. Transfer from MCSP to HDSP 5 On March 26, 2015, Lizarraga was the chairperson of plaintiff’s Institution Classification 6 Committee (ICC) hearing. Lizarraga SUF ¶ 6. The ICC reviewed custody status and made 7 housing and placement recommendations consistent with the criteria in Title 15 of the California 8 Code of Regulations and the CDCR Department Operations Manual. Id., ¶ 7. Prior to the 9 hearing, plaintiff was issued a notice of hearing for review and consideration of his “Subsequent 10 ASU; ASU Extension, Transfer; and Determinate SHU Term” and notified that transfer was one 11 of the options under review and consideration. Id., ¶ 8.3 The ICC hearing was part of the regular 12 procedure to meet with an inmate following the imposition of a Secure Housing Unit (SHU) term 13 to review the inmate’s placement and housing. Id., ¶¶ 8, 13. 14 Plaintiff was identified as a program failure because he had a history of serious rules 15 violation reports (RVRs). Id., ¶ 14.4 He had previously appeared before the ICC to address three 16 RVRs—one for refusing a cellmate and two for refusing to move to Facility A—and during the 17 March 26, 2015 ICC hearing, the committee documented that plaintiff had another incident of 18 refusing to move to Facility A and had recently been disciplined for refusing a drug test. Id., ¶¶ 19 10, 14. The day before the ICC hearing, plaintiff’s counselor asked if he wanted to be moved to 20 the general population in Facility A and he refused. Id., ¶ 15. At the hearing, plaintiff reiterated 21 that he did not want to return to the general population in Facility A. Id., ¶ 18. 22 When the ICC asked about his refusal to house on Facility A, plaintiff stated that “he did 23 not want to be housed in the general population because he feared for his safety” because of the 24 warden, associate warden, and captain. Id., ¶ 14. He also stated that he was unwilling to go back 25 to the general population because correctional officers “tried to put an assassin in [his] cell.” Id., 26 3 Plaintiff disputes Lizarraga SUF ¶ 8 only to the extent he disagrees as to the date the notice was 27 issued. ECF No. 60 at 7. Lizarraga SUF ¶ 8 is otherwise undisputed. 4 Plaintiff disputes Lizarraga SUF ¶ 14 only to the extent he disagrees as to why he was 28 transferred out of MCSP. ECF No. 60 at 7. Lizarraga SUF ¶ 14 is otherwise undisputed. 1 ¶ 19. Lizarraga asserts that plaintiff’s expressed fear of the warden, associate warden, and captain 2 was a factor in the ICC’s recommendation that plaintiff be transferred out of MCSP because 3 transfer out of MCSP would potentially make him feel safer. Id., ¶ 14. Plaintiff disputes this 4 claim and asserts that he was transferred because of his lawsuits. ECF No. 60 at 7. 5 In attempting to find appropriate housing for plaintiff, the ICC reviewed various portions 6 of his prison record, including plaintiff’s most recent mental health assessment, the abstract of 7 judgment for his committing offense, and documentation related to his enemies, prior disciplinary 8 and violent incidents, gang affiliations, and whether he was a designated sex offender. Lizarraga 9 SUF ¶¶ 21-23. Plaintiff’s records indicated that he had been in the mental health population since 10 his incarceration began in 2012, and the ICC determined that his classification score placed him 11 at Level IV—the highest security and most restrictive custody level—and that his classification 12 score was substantially above the criteria for Level IV placement. Id., ¶¶ 22, 24-25. Prior to the 13 March 26, 2015 ICC hearing, plaintiff was told and understood that he could not be housed in B 14 yard unless he submitted to drug tests, which he refused to take, resulting in disciplinary action. 15 Id., ¶ 16. During his entire period of incarceration prior to the hearing, plaintiff had only had a 16 cellmate for about a month in 2011-2012 and had had altercations each time he was assigned a 17 cellmate. Id., ¶ 17. 18 At the time of plaintiff’s ICC hearing, the ICC was following directives and policy goals 19 attempting to limit administrative segregation time for inmates in the mental health care delivery 20 system. Id., ¶ 26. The ICC recommended plaintiff be transferred to Salinas Valley State Prison 21 (SVSP) Level IV Sensitive Needs Yard (SNY) with an alternative transfer to HDSP Level IV 22 SNY and that the remainder of plaintiff’s three separate SHU terms be suspended. Id., ¶ 28. 23 Lizarraga asserts that, in light of plaintiff’s repeated refusal to return to the general population 24 facility at MCSP, the ICC attempted to find a facility where plaintiff would feel safe and that 25 would also meet safety and security needs for his custody level, meet his mental health treatment 26 needs, and comply with the goal of reducing prolonged housing in administrative segregation for 27 inmates receiving mental health care. Id., ¶ 27. Plaintiff disputes that he was sent to a facility 28 where he would feel safe and asserts that he was moved because he had an enemy on Facility A. 1 ECF No. 60 at 7. Plaintiff was advised of the recommendation that he be referred for transfer to 2 another institution. Lizarraga SUF ¶ 30.5 The final decision for plaintiff’s placement was 3 referred to the classification staff representative, who independently reviewed the 4 recommendation and approved plaintiff for transfer to HDSP-IV (270/SNY). Id., ¶¶ 28, 31, 33, 5 35-38, 40. Lizarraga had no communication with the classification staff representative other than 6 forwarding the March 26, 2015 Classification Committee Chrono. Id., ¶¶ 39-40. 7 C. Inmate Appeals 8 On May 24, 2015, plaintiff submitted a first level appeal addressing the alleged retaliatory 9 transfer by Lizarraga and assault by Payne. ECF No. 1 at 7. At some point after it was 10 submitted, the appeal was split into two appeals: (1) Appeal No. HDSP-15-01478, which was sent 11 to HDSP to address the alleged assault, and (2) Appeal No. MCSP-15-01554, which was sent to 12 MCSP to address the cell extraction and transfer. Id.; ECF No. 55-5 at 106.6 The appeal 13 requested “full investigation into this incident and [plaintiff’s] return to Mule Creek Prison.” 14 ECF No. 55-5 at 106. 15 1. HDSP-15-01478 16 HDSP categorized plaintiff’s grievance against defendant Payne as a staff complaint and 17 partially granted the grievance at the first level of review. ECF No. 55-4 at 16-17. The first level 18 response stated that an appeal inquiry was completed and found no violation of CDCR policy. Id. 19 at 16. The response also stated that 20 [i]f you wish to appeal the decision and/or exhaust administrative remedies, you must submit your staff complaint appeal through all 21 levels of appeal review up to, and including, the Secretary’s/Third Level of Review. Once a decision has been rendered at the Third 22 Level, your administrative remedies will be considered exhausted. 23 Id. at 17. 24 5 In response to Lizarraga SUF ¶ 30, plaintiff states that “Lizarraga told me that he will put me 25 on a bus” and that plaintiff replied that would be retaliation for his lawsuits, at which point he was 26 dismissed. ECF No. 60 at 7. These statements do not actually dispute the contents of Lizarraga SUF ¶ 30, which is therefore deemed undisputed. 27 6 Comparison of the first level appeals shows that they are identical, compare ECF No. 55-4 at 10, 14 with ECF No. 55-5 at 106, 108, and Appeal No. MCSP-15-01554 includes a notation 28 regarding the division of the appeal, ECF No. 55-5 at 106. 1 Plaintiff submitted his appeal for second level review on July 23, 2015, arguing that the 2 evidence clearly showed that Payne had assaulted him and that policy had been violated, id. at 11- 3 12, and the appeal was partially granted, id. at 18-19. The response stated that the appeal inquiry 4 decision made at the first level had been reviewed and that “[n]o interviews were conducted at the 5 Second Level of Review as no new pertinent information was received.” Id. at 18. The response 6 further stated that plaintiff “failed to provide any documentation, evidence, or witnesses that 7 could corroborate [his] allegations. Therefore, this reviewer agrees with the First Level of 8 Review.” Id. at 19. The response also included the same notice regarding exhaustion as the first 9 level response. Id. 10 The second level response was dated August 11, 2015, and the paperwork indicates that it 11 was mailed or delivered to plaintiff on August 31, 2015. Id. at 11, 18-19. Plaintiff states that at 12 the time the response was issued he was housed at California State Prison (“CSP”)-Sacramento, 13 and the response was not received at CSP-Sacramento until September 4, 2015, the same day he 14 was transferred back to HDSP.7 ECF No. 57 at 3-4. Upon his return to HDSP, plaintiff was 15 initially held in administrative segregation and then placed in a mental health crisis bed. Id. at 4. 16 As a result, he did not receive the second level response until September 25, 2015. Id. On 17 October 21, 2015, plaintiff submitted his appeal to be mailed for third level review, and was 18 subsequently transferred to CSP-Corcoran on October 29, 2015. Id. The HDSP mail room 19 processed and mailed plaintiff’s appeal on November 23, 2015. Id. 20 On February 10, 2016, plaintiff’s third level appeal was cancelled as untimely. ECF No. 21 55-4 at 9; Payne SUF ¶ 6. The response stated that the appeal was untimely because the response 22 was returned to plaintiff on August 31, 2015, but the appeal package was not submitted to the 23 appeals office until November 30, 2015. ECF No. 55-4 at 9. It further informed plaintiff that he 24 could appeal the cancellation of his grievance by submitting a separate appeal within thirty 25 calendar days from the date of the cancellation. Id. The cancellation also included an advisement 26 7 Plaintiff has provided documentary evidence in support of his claims regarding the timing of 27 his receipt of the second level response and his submission of a third level response, ECF No. 57 at 5-9, and defendant Payne did not dispute these facts in his reply, ECF No. 59. As such, these 28 facts are deemed undisputed for the purpose of deciding the motion for summary judgment. 1 that “once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate 2 appeal can be filed on the cancellation decision. . . . The original appeal may only be resubmitted 3 if the appeal on the cancellation is granted.” Id. Plaintiff did not appeal the cancellation. Payne 4 SUF ¶ 8; ECF No. 57 at 3. 5 2. MCSP-15-01554 6 In addressing the cell extraction and transfer, MCSP processed plaintiff’s grievance 7 against defendant Lizarraga as a routine appeal and it was partially granted at the first level of 8 review. ECF No. 58-10. The response indicated that the transfer had been reviewed, plaintiff had 9 “made no allegations of unnecessary, inappropriate, or excessive force,” and “there [was] not 10 enough information to meet the threshold for an investigation.” Id. at 3. It further notified 11 plaintiff that he could contact his assigned correctional counselor about his eligibility for transfer 12 back to MCSP. Id.; Lizarraga SUF ¶ 50. 13 Plaintiff appealed the first level response on the ground that it failed to investigate 14 whether the transfer was authorized and that the claim that he had not alleged excessive force was 15 a lie. ECF No. 55-5 at 107, 109. The second level response found that plaintiff had “provided no 16 evidence to support his claims that the cell extraction was unauthorized . . . or that he was 17 transferred in retaliation for filing lawsuits” and was “partially granted in that an appeal inquiry 18 has been conducted into the appellant’s allegations and the IERC reviewed the cell extraction that 19 occurred on 05/05/15.” Lizarraga SUF ¶ 51; ECF No. 58-11 at 3. The response further advised 20 that the “issue may be submitted to the Third Level of Review if desired.” ECF No. 58-11 at 4. 21 Plaintiff submitted an appeal for third level review on October 9, 2015. ECF No. 1 at 33. 22 The appeal was mailed in four envelopes, clearly indicated that it was in four parts, and included 23 copies of the first and second administrative reviews and the incident report.8 Id. at 7; ECF No. 24 60 at 2. A response dated February 2, 2016, was mailed to plaintiff and stated that the appeal was 25 26 8 Although the parties appear to dispute whether the appeals office received documentation from 27 plaintiff and what documentation was necessary for the appeal, they do not appear to dispute plaintiff’s claims regarding the mailing of the four envelopes or their contents, and these facts are 28 therefore deemed undisputed. See Lizarraga SUF ¶¶ 53-54; ECF No. 60 at 8. 1 rejected because he had failed to include necessary supporting documents. Lizarraga SUF ¶ 52.9 2 The notice identified the four documents plaintiff’s appeal was missing and stated that he could 3 request copies from his counselor if necessary. ECF No. 58-12. It also included the following 4 advisement: “Be advised that you cannot appeal a rejected appeal, but should take the corrective 5 action necessary and resubmit the appeal within the timeframes specified in CCR 3084.6(a) and 6 CCR 3084.8(b).” Id. At the time the rejection notice was sent, the appeals office returned only 7 three of the four envelopes that plaintiff had submitted, and the fourth envelope was not returned 8 until almost one year later. ECF No. 60 at 2. Plaintiff did not resubmit his third level appeal. 9 Lizarraga SUF ¶ 52. 10 VI. Discussion 11 A. Exhaustion 12 It is undisputed that the CDCR’s administrative remedy process generally requires 13 inmates to proceed through three levels of review to exhaust an inmate appeal and that plaintiff 14 failed to submit an inmate appeal that was accepted at the third level. Defendants have thus 15 satisfied their initial burden under Albino, supra, of demonstrating a failure to complete the 16 state’s exhaustion process. See Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (a California 17 inmate exhausts administrative remedies by obtaining a decision at each of the three available 18 levels of review). Accordingly, the burden shifts to plaintiff to “come forward with evidence 19 showing that there is something in his particular case that made the existing and generally 20 available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. 21 In opposition to both motions for summary judgment, plaintiff argues that he was excused 22 from exhaustion by the exceptions outlined in Ross v. Blake, supra. ECF Nos. 57, 60. 23 Specifically, he argues that prison administrators thwarted him from taking advantage of the 24 9 The notice also advised that a cancellation decision could be separately appealed, ECF No. 58- 25 12, and defendant Lizarraga states that plaintiff failed to separately appeal the cancellation of his 26 appeal, Lizarraga SUF ¶ 52. Plaintiff disputes Lizarraga SUF ¶ 52 to the extent it claims that the appeal was cancelled. ECF No. 60 at 8. Since it is clear from the evidence presented that 27 plaintiff’s appeal was rejected, not cancelled, any arguments related to plaintiff’s obligation to separately appeal the cancellation of Appeal No. MCSP-15-01554 will be disregarded and 28 Lizarraga SUF ¶ 52 is deemed otherwise undisputed. 1 grievance process for both inmate appeals. ECF No. 57 at 2-3; ECF No. 60 at 2. 2 With respect to the appeal against Payne, plaintiff argues he was thwarted from taking 3 advantage of the administrative appeals process because prison officials refused to process and 4 mail his appeal until after the deadline to respond had passed and improperly denied it as 5 untimely. ECF No. 57 at 3-4. Plaintiff’s allegations regarding the timeliness of his third level 6 appeal, which Payne does not challenge, demonstrate that his appeal was timely because it was 7 submitted within thirty days of receiving notice of the second level response. Thus, the 8 cancellation for untimeliness was improper, giving plaintiff grounds to appeal the cancellation on 9 the basis that it was in error. Because plaintiff had the ability to appeal the cancellation of his 10 third level appeal, his admitted failure to do so renders his appeal against Payne unexhausted. 11 See Wilson v. Zubiate, 718 F. App’x 479, 481-82 (9th Cir. 2017) (even assuming cancellation of 12 grievance was improper, prisoner failed to exhaust his administrative remedies when he did not 13 appeal cancellation); Cortinas v. Portillo, 754 F. App’x 525, 527 (9th Cir. 2018) (some remedy 14 remained available because prisoner could have appealed cancellation decision); Hunter v. 15 Sorheim, No. 2:15-cv-9253 DMG SK, 2018 WL 1475034, at *2-3, 2018 U.S. Dist. LEXIS 49714, 16 at *6-10 (C.D. Cal. Feb. 27, 2018) (where grievance was cancelled as untimely, plaintiff failed to 17 exhaust administrative remedies because he could have appealed the cancellation), aff’d, 782 F. 18 App’x 661 (9th Cir. 2019). 19 In regard to the appeal against Lizarraga, plaintiff argues his grievance was thwarted by 20 machination when it was improperly rejected for failing to provide the necessary paperwork. 21 ECF No. 60 at 2-3. He argues that since he had already submitted everything necessary to decide 22 the appeal, it was pointless to resubmit the documents. Id. at 2. However, plaintiff alleges only 23 that he submitted the “full second and first administrative reviews with entire incident report.” 24 ECF No. 60 at 2. While the incident report was one of the documents requested, the rejection 25 notice also requested an RVR and two ICC classification chronos, ECF No. 58-12, which plaintiff 26 admits he did not send because he felt they were irrelevant, ECF No. 58-9 at 24-25 (“Plus they 27 requested some additional documents that—I don’t know—why should I even provide those 28 documents, you know?”); ECF No. 1 at 7 (rejection notice “requested documentation that has 1 nothing to do with an incident, occur[r]ed after incident and not related and I never referenced 2 those events in my appeal”). 3 Though plaintiff did not feel that the additional documents requested were relevant, the 4 RVR and ICC meetings were referenced in the first level response, ECF No. 58-10, making the 5 request for related documentation reasonable. Plaintiff’s belief that the requested documentation 6 was irrelevant does not make the rejection of his appeal unreasonable, and he could have 7 resubmitted the rejected appeal with the requested documentation, which he was advised he could 8 obtain copies of from his assigned counselor. See ECF No. 58-12. His failure to do so renders 9 the appeal unexhausted. See Sapp v. Kimbrell, 623 F.3d 813, 826 (9th Cir. 2010) (administrative 10 remedies were available and unexhausted where appeals were rejected for proper reasons, 11 including failure to attach necessary supporting documents). 12 B. Retaliation 13 Even assuming that plaintiff was excused from exhausting the administrative remedies 14 process with respect to his appeal against Lizarraga, he has not shown that a genuine dispute of 15 fact exists as to his retaliation claim. 16 Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state 17 actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 18 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. 19 20 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted) (citing Resnick v. 21 Hayes, 213 F.3d 443, 449 (9th Cir. 2000); Barnett; 31 F.3d at 815-16). To prove retaliatory 22 motive, plaintiff must show that his protected activities were a “substantial” or “motivating” 23 factor behind the defendant’s challenged conduct. Brodheim v. Cry, 584 F.3d 1262, 1271 (9th 24 Cir. 2009) (quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). 25 Plaintiff must provide direct or circumstantial evidence of defendant’s alleged retaliatory motive; 26 mere speculation is not sufficient. See McCollum v. Cal. Dep’t Corr. Rehab., 647 F.3d 870, 882- 27 83 (9th Cir. 2011); accord, Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In addition to 28 demonstrating defendant’s knowledge of plaintiff’s protected conduct, circumstantial evidence of 1 motive may include: (1) proximity in time between the protected conduct and the alleged 2 retaliation; (2) defendant’s expressed opposition to the protected conduct; and (3) other evidence 3 showing that defendant’s reasons for the challenged action were false or pretextual. McCollum, 4 647 F.3d at 882 (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002)). 5 Defendant Lizarraga has submitted largely undisputed evidence demonstrating that 6 plaintiff’s transfer was motivated by a valid penological reason. Furthermore, he has averred that 7 at the time of the hearing he had no present awareness or knowledge that plaintiff had filed any 8 lawsuits against him, the CDCR, or CDCR employees, and that the recommendation for transfer 9 was made solely to advance legitimate correctional goals. Lizarraga SUF ¶¶ 44, 46-47; Lizarraga 10 Decl. (ECF No. 58-4) ¶ 30. He also explains that, due to the large number of lawsuits in which he 11 was named as a defendant because of his position as warden, such matters “were typically 12 handled through CDCR counsel, the institution’s Litigation Coordinator or the Warden’s 13 designated staff;” he was not personally involved in routine case handling matters or routine court 14 orders that could be complied with by MCSP or CDCR staff; and he was only contacted if a 15 matter required his personal involvement. See Lizarraga SUF ¶ 42; Lizarraga Decl. ¶ 28. 16 Although plaintiff disputes Lizarraga’s knowledge and motivation, he fails to provide any 17 evidence that would create a triable issue of fact. ECF No. 60 at 7. His assertion that Lizarraga 18 stated he would put plaintiff “on a bus” and that plaintiff responded that such action would be 19 retaliatory, ECF No. 60 at 7, even if true, does not demonstrate retaliatory motive on Lizarraga’s 20 part. Furthermore, plaintiff’s claims that Lizarraga must have known about his lawsuits because 21 the Attorney General’s Office informs him of pending lawsuits and that counsel notified him of 22 his lawsuit in Olic v. Lizarraga (Olic I), No. 2:14-cv-2120 KJM GGH (E.D. Cal.), are wholly 23 speculative and unsupported by any evidence. ECF No. 60 at 7. Although the record in Olic I 24 reflects that a few weeks prior to the ICC meeting an order was served on Lizarraga by mail and 25 required Lizarraga or his designee to respond to claims that plaintiff was being denied access to 26 his legal property (Olic I, ECF No. 14), there is no evidence that Lizarraga actually saw or was 27 aware of the order or that he personally handled the response. Plaintiff’s conclusory assertions 28 that Lizarraga must have known do not create a jury question regarding the credibility of 1 Lizarraga’s sworn statements about his knowledge and involvement in prisoner lawsuits. 2 VII. Conclusion 3 For all these reasons, the court finds that (1) plaintiff has not exhausted his administrative 4 remedies on his retaliation claim against either defendant and (2) the undisputed evidence shows 5 that Lizarraga did not transfer plaintiff in retaliation for his filing of lawsuits. 6 VIII. Plain Language Summary of this Order for a Pro Se Litigant 7 It is being recommended that defendants’ motions for summary judgment be granted and 8 this case be dismissed because you did not exhaust your grievance at the third level before 9 starting this case and you have not shown that you were prevented from exhausting. With respect 10 to defendant Lizarraga it is also being recommended that the motion for summary judgment be 11 granted on the merits because you have not provided any evidence that Lizarraga has a retaliatory 12 motive for transferring you out of MCSP. 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. Defendants’ motions for summary judgment (ECF Nos. 55, 58) be GRANTED. 15 2. The complaint be DISMISSED for failure to exhaust administrative remedies as to the 16 claims against both defendants and alternatively on the merits as to the retaliation claim against 17 defendant Lizarraga. 18 3. Judgment be entered for defendants. 19 4. The Clerk of the Court be directed to close this case. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 25 objections shall be served and filed within fourteen days after service of the objections. The 26 //// 27 //// 28 //// 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 || DATED: March 31, 2022 ~ 4 ttt0n— ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19