1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAMEN D. RABB, No. 1:23-cv-00843-JLT-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ 13 v. EXHAUSTION MOTION FOR SUMMARY JUDGMENT 14 ESTEVEN FIGUEROA, et al., (ECF No. 32) 15 Defendants. 16 17 Plaintiff Isaiah J. Petillo is appearing pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Defendants’ motion for summary judgment for failure to 20 exhaust the administrative remedies, filed February 20, 2024. 21 I. 22 RELEVANT BACKGROUND 23 This action is proceeding against Defendants Figueroa and Chavez for failure to protect 24 under the Eighth Amendment and retaliation under the First Amendment. 25 Plaintiff was represented by counsel at the time he filed the instant complaint. (ECF No. 26 1.) 27 Defendants filed an answer to the complaint on August 28, 2023. (ECF No. 16.) 28 On October 16, 2023, Plaintiff’s attorney moved to withdraw as counsel. (ECF No. 22.) 1 Defendants did not oppose the motion. (ECF No. 25.) On October 20, 2023, the Court granted 2 Plaintiff’s attorney’s motion for leave to withdraw as counsel. (ECF No. 26.) 3 On October 30, 2023, the Court issued the operative Amended Scheduling Order. (ECF 4 No. 27.) The Court set the deadline for amending the pleadings as January 30, 2024, and the 5 deadline for filing motions for summary judgment for failure to exhaust administrative remedies 6 as February 29, 2024. (Id. at 3.) 7 On February 5, 2024, Plaintiff lodged a first amended complaint (FAC) with the Court. 8 (ECF No. 28.) On February 8, 2024, the Court returned the proposed FAC to Plaintiff and 9 instructed him that he needed to file a motion for leave to amend the complaint or obtain 10 Defendants’ consent to file an amended complaint. (ECF No. 29.) 11 On February 16, 2024, Plaintiff moved for summary judgment on the grounds that he 12 exhausted available administrative remedies. (ECF No. 30.) On February 20, 2024, the Court 13 issued findings and recommendations recommending that Plaintiff’s motion for summary 14 judgment be denied. (ECF No. 31.) 15 Later that day, Defendants filed a motion for summary judgment on the grounds that 16 Plaintiff failed to exhaust available administrative remedies.1 (ECF No. 32.) 17 On February 23, 2024, Plaintiff filed the instant motion for leave to amend the complaint. 18 (ECF No. 33.) Plaintiff’s motion was not accompanied by a proposed amended complaint, but on 19 March 14, 2024, Plaintiff submitted a proposed amended complaint which is the same proposed 20 complaint constructively filed on January 30, 2024.2 (ECF No. 36.) Defendants filed an 21 opposition on March 4, 2024. (ECF No. 35.) On March 25, 2024, Findings and 22 Recommendations were issued to deny Plaintiff’s motion for leave to amend the complaint. (ECF 23 No. 39.)
24 1 The motion was accompanied by a Rand warning, pursuant to Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), as well as the 25 requirements for filing an opposition pursuant to Local Rule 260. (ECF No. 32-2.)
26 2 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the Court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th 27 Cir. 2010); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). 28 1 Plaintiff did not file an opposition and the time to do so has passed. Local Rule 230(l). 2 Accordingly, Defendants’ motion for summary judgment is deemed submitted for review. (Id.) 3 II. 4 LEGAL STANDARD 5 A. Statutory Exhaustion Requirement 6 The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such 7 administrative remedies as are available” before commencing a suit challenging prison 8 conditions.” 42 U.S.C. § 1997e(a); see also Ross v. Blake, 578 U.S. 632, 638 (2016) (“An 9 inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”). 10 Exhaustion is mandatory unless unavailable. “The obligation to exhaust ‘available’ remedies 11 persists as long as some remedy remains ‘available.’ Once that is no longer the case, then there 12 are no ‘remedies … available,’ and the prisoner need not further pursue the grievance.” Brown v. 13 Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532 14 U.S. 731, 739 (2001)). 15 This statutory exhaustion requirement applies to all inmate suits about prison life, Porter 16 v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by 17 the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. at 741, and 18 unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing 19 Porter, 534 U.S. at 524). 20 The failure to exhaust is an affirmative defense, and the defendants bear the burden of 21 raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino v. Baca, 747 F.3d 22 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the face of 23 the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 24 1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they 25 are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the 26 light most favorable to the plaintiff, shows he failed to exhaust. Id. 27 /// 28 /// 1 B. Summary Judgment Standard 2 Any party may move for summary judgment, and the Court shall grant summary judgment 3 if the movant shows that there is no genuine dispute as to any material fact and the movant is 4 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 5 747 F.3d at 1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each 6 party’s position, whether it be that a fact is disputed or undisputed, must be supported by (1) 7 citing to particular parts of materials in the record, including but not limited to depositions, 8 documents, declarations, or discovery; or (2) showing that the materials cited do not establish the 9 presence or absence of a genuine dispute or that the opposing party cannot produce admissible 10 evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may 11 consider other materials in the record not cited to by the parties, although it is not required to do 12 so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 13 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 14 The defendants bear the burden of proof in moving for summary judgment for failure to 15 exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available 16 administrative remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172. 17 If the defendants carry their burden, the burden of production shifts to the plaintiff “to come 18 forward with evidence showing that there is something in his particular case that made the 19 existing and generally available administrative remedies effectively unavailable to him.” Id. “If 20 the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to 21 exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, 22 “[i]f material facts are disputed, summary judgment should be denied, and the district judge rather 23 than a jury should determine the facts.” Id. 24 In arriving at this Findings and Recommendation, the Court carefully reviewed and 25 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 26 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 27 reference to an argument, document, paper, or objection is not to be construed to the effect that 28 this court did not consider the argument, document, paper, or objection. This Court thoroughly 1 reviewed and considered the evidence it deemed admissible, material, and appropriate. 2 III. 3 DISCUSSION 4 A. Allegations of Operative Complaint 5 On June 3, 2022, at approximately 1600 hours at Kern Valley State Prison (KVSP), 6 Defendants told other inmates that Plaintiff is a violent sexual predator and was convicted of a 7 sex offense. Plaintiff contends that he filed a grievance against Defendants for disclosing his sex 8 offense and was subsequently attacked by inmates “at the direction of CDCR officers.” 9 B. Statement of Undisputed Facts3,4 10 1. Plaintiff is a California inmate who was incarcerated at KVSP in Delano, 11 California, from June 3, 2022, to June 7, 2022, when he transferred to WSP, where he remained 12 until August 29, 2022. (Declaration of Jennifer Burns (Burns Decl.), Ex. B at 1.) 13 2. An administrative grievance process was available to Plaintiff while he was 14 housed at KVSP and WSP. (Declaration of F. Marquez (Marquez Decl.) ¶ 2; Declaration of A. 15 Leyva (Leyva Decl.) ¶ 2.) 16 3. CDCR provides an administrative grievance process for inmate complaints in 17 accordance with Title 15 of the California Code of Regulations (CCR). (Declaration of Howard 18 E. Moseley (Moseley Decl.) ¶ 6; Declaration of C. Bonfill (Bonffil Decl.) ¶ 2; Marquez Decl. ¶ 2; 19 Leyva Decl. ¶ 2; Declaration G. Lujan (Lujan Decl.) ¶ 2.) 20 4. If filing a grievance on or after June 1, 2020, an offender is required to follow the 21 procedures set forth in CCR, Title 15, sections 3480-3487 (effective June 1, 2020). (Moseley 22 Decl. ¶ 6; Marquez Decl. ¶ 2; Leyva Decl. ¶ 2; Bonfill Decl. ¶ 2; Lujan Decl. ¶ 2.) 23 3 Hereinafter referred to as “UF.” 24 4 Plaintiff neither admitted or denied the facts set forth by defendant as undisputed nor filed a separate statement of 25 disputed facts. Local Rule 56-260(b). Therefore, the Court was left to compile the summary of undisputed facts from defendants’ statement of undisputed facts and Plaintiff’s verified complaint. A verified complaint in a pro se civil rights action may constitute an opposing affidavit for purposes of the summary judgment rule, where the 26 complaint is based on an inmate’s personal knowledge of admissible evidence, and not merely on the inmate’s belief. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curium); Lew v. Kona Hospital, 754 F.2d 1420, 1423 27 (9th Cir. 1985); F.R.C.P. 56(e). Because Plaintiff neither submitted his own statement of disputed facts nor addressed Defendants’ statement of undisputed facts, the court accepts Defendants’ version of the undisputed facts 28 where Plaintiff’s verified complaint is not contradictory. 1 5. The grievance process has two levels of review. (Marquez Decl. ¶ 2; Leyva Decl. 2 ¶ 2; Bonfill Decl. ¶ 2; Lujan Decl. ¶ 2.) 3 6. This process requires the inmate to submit an official CDCR Form 602-1 to the 4 Institutional Office of Grievances (OOG) at the prison where the inmate is housed. (Marquez 5 Decl. ¶ 2; Leyva Decl. ¶ 2; Bonfill Decl. ¶ 2; Lujan Decl. ¶ 2.) 6 7. If the inmate wishes to appeal the Institutional OOG decision, they may do so in 7 writing to the Office of Appeals (OOA). (Marquez Decl. ¶ 2; Leyva Decl. ¶ 2; Bonfill Decl. ¶ 2; 8 Lujan Decl. ¶ 2.) 9 8. A final decision by the OOA is required to exhaust an inmate grievance. (Marquez 10 Decl. ¶ 2; Leyva Decl. ¶ 2; Bonfill Decl. ¶ 2; Lujan Decl. ¶ 2.) 11 9. This process was available to all inmates at KVSP and WSP after June 1, 2020. 12 (Marquez Decl. ¶ 2; Leyva Decl. ¶ 2.) 13 10. In grievance log no. 265387, Plaintiff complained that on June 3, 2022, 14 Defendants disclosed to other inmates that Plaintiff had a sex offense. (Leyva Decl., Ex. 1 at 1.) 15 11. On June 15, 2022, the OOG categorized the grievance as an allegation of staff 16 misconduct and referred it to an appropriate authority within the California Department of 17 Corrections and Rehabilitation (CDCR) for review, which exhausted all available administrative 18 remedies for allegations in this grievance. (Leyva Decl., Ex. 1 at 2.) 19 12. Plaintiff submitted a grievance that contain allegations that he was attacked by 20 other inmates at WSP. In grievance log no. 280132, Plaintiff alleged that on July 7, 2022 at WSP, 21 inmates attacked him when a control booth officer opened his cell door. Plaintiff alleged that 22 WSP “shared in a partnership with [KVSP] personnel” who “employed efforts to have [him] 23 harmed by the inmate-class.” (Marquez Decl., Ex. 4 at 1-2.) 24 13. On July 27, 2022, the OOG categorized the grievance as an allegation of staff 25 misconduct and referred it to an appropriate authority within the CDCR for review, which 26 exhausted all available administrative remedies for allegations in this grievance. (Marquez Decl., 27 Ex. 4 at 7.) 28 /// 1 14. Between June 3, 2022 (the date the incidents in the complaint allegedly occurred) 2 and June 1, 2023 (the date Plaintiff filed the complaint), Plaintiff filed ten other inmate 3 grievances, three of which were reassigned new log numbers: (1) log no. 405102; (2) log no. 4 405392; (3) log no. 404214; (4) log no. 396848; (5) log no. 392413; (6) log no. 389269; (7) log 5 no. 383440; (8) log no. 376838; (9) log no. 369118; (10) log no. 357680; (11) log no. 351998; 6 (12) log no. 304930; and (13) log no. 284686. (Moseley Decl., Ex. 1, 2.) 7 15. In grievance log no. 405102 submitted on May 30, 2023, Plaintiff alleged he was 8 wrongfully found guilty of disobeying a direct order during an unrelated disciplinary hearing. 9 (Bonffil Decl., Ex. 1; Moseley Decl., Ex. 3.) 10 16. In grievance log no. 404214, submitted on May 26, 2023, Plaintiff alleged WSP 11 officials failed to re-issue an inmate grievance regarding his personal property. The grievance was 12 re-directed to WSP and assigned grievance log no. 405392. (Bonffil Decl., Ex. 2; Marquez Decl., 13 Ex. 1; Moseley Decl., Exs. 4, 5.) 14 17. In grievance log no. 396848, submitted on May 8, 2023, alleges the investigation 15 and decision from grievance log no. 357680 was insufficient and incorrect. (Bonffil Decl., Ex. 3; 16 Moseley Decl., Ex. 6.) 17 18. In grievance log no. 392413, submitted on April 26, 2023, Plaintiff alleged he was 18 wrongfully found guilty of an unrelated rules violation report (log no. 7249511). (Bonffil Decl., 19 Ex. 4; Moseley Decl., Ex. 7.) 20 19. In grievance log no. 304930, submitted on September 14, 2022, Plaintiff alleged 21 that on August 29, 2022, his personal property was destroyed. The grievance was re-directed to 22 WSP and assigned grievance log no. 389269. (Bonffil Decl., Ex. 9; Marquez Decl., Ex. 2; 23 Moseley Decl., Exs. 8, 12.) 24 20. In grievance log no. 383440, submitted on April 4, 2023, Plaintiff alleged a 25 correctional counselor retaliated against him by falsifying a rules violation report. (Bonffil Decl., 26 Ex. 5; Moseley Decl., Ex. 9.) 27 21. In grievance log no. 376838, submitted on March 17, 2023, Plaintiff alleged that 28 on March 16, 2023, a correctional officer threatened to issue Plaintiff with a rules violation if he 1 did not meet with his correctional counselor. (Bonffil Decl., Ex. 6.) 2 22. In grievance log no. 369118, submitted on February 27, 2023, Plaintiff alleged that 3 since his initial incarceration with CDCR, he has filed numerous inmate grievances alleging 4 various and unspecified incidents of staff misconduct. (Bonffil Decl., Ex. 7; Moseley Decl., Ex. 5 10.) 6 23. In grievance log no. 351998, submitted on January 12, 2023, Plaintiff alleged that 7 while at the California Correctional Institution (CCI) on December 16, 2022, correctional officers 8 used unnecessary force on him, placed him in a flooded cell, and mishandled his property. He 9 also alleged officers used unnecessary force on him in 2013, when he was housed at the 10 California Substance Abuse Treatment Facility (SATF). (Bonffil Decl., Ex. 8; Lujan Decl., Ex. 1; 11 Moseley Decl., Ex. 11; Burns Decl., Ex. B at 2.) 12 24. Accordingly, grievance log no. 351998 was re-directed in part to SATF and 13 assigned grievance log no. 357680. (Lujan Decl., Ex. 1.) 14 25. In grievance log no. 284686 submitted on July 26, 2022, Plaintiff alleged that his 15 property was mishandled on July 7, 2022, when he was moved into the Administrative 16 Segregation Unit. (Marquez Decl., Ex. 3.) 17 C. Description of CDCR’s Administrative Remedy Process 18 CDCR provides an administrative grievance process for inmate complaints in accordance 19 with Title 15 of the California Code of Regulations (CCR). (UF 3.) If filing a grievance on or 20 after June 1, 2020, an offender is required to follow the procedures set forth in CCR, title 15, 21 sections 3480-3487 (effective June 1, 2020). (UF 4.) The grievance process has two levels of 22 review. (UF 5.) This process requires the inmate to submit an official CDCR Form 602-1 to the 23 Institutional Office of Grievances (OOG) at the prison where the inmate is housed. (UF 6.) If the 24 inmate wishes to appeal the Institutional OOG decision, they may do so in writing to the Office of 25 Appeals (OOA). (UF 7.) A final decision by the OOA is required to exhaust an inmate grievance. 26 (UF 8.) This process was available to all inmates at KVSP and WSP after June 1, 2020. (UF 9.) 27 /// 28 /// 1 D. Analysis of Defendants’ Motion 2 Defendants argue Plaintiff never filed a grievance alleging that Defendants’ alleged 3 disclosure of his sex conviction caused Plaintiff to be attacked by other inmates or that 4 Defendants retaliated against Plaintiff. 5 In the operative complaint, Plaintiff indicates that he exhausted the administrative 6 remedies with respect to his claims. (ECF No. 1 at 6-7.) Plaintiff specifically states he filed log 7 no. 265387 and “detailed his experience by disclosing the names of both defendants and 8 described the events.” (Id. at 7.) 9 The Eighth Amendment requires that prison officials take reasonable measures to 10 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, 11 prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Id. 12 at 833; Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413 F.3d 1036, 13 1040 (9th Cir. 2005); Gillespie v. Civiletti, 629 F.2d 637, 642 & n.3 (9th Cir. 1980). The failure 14 of prison officials to protect inmates from attacks by other inmates or from dangerous conditions 15 at the prison violates the Eighth Amendment when two requirements are met: (1) the deprivation 16 alleged is, objectively, sufficiently serious; and (2) the prison official is, subjectively, deliberately 17 indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A prison official is deliberately 18 indifferent if he knows of and disregards an excessive risk to inmate health or safety by failing to 19 take reasonable steps to abate it. Id. at 837. 20 A prisoner may state a section 1983 claim under the Eighth Amendment against prison 21 officials only where the officials acted with “deliberate indifference” to the threat of serious harm 22 or injury to an inmate by another prisoner, Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986); 23 see also Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (deliberately spreading 24 rumor that prisoner is snitch may state claim for violation of right to be protected from violence 25 while in state custody), or by physical conditions at the prison. The official must both be aware of 26 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 27 he must also draw the inference. See Farmer, 511 U.S. at 837. However, an Eighth Amendment 28 claimant need not show that a prison official acted or failed to act believing that harm actually 1 would befall an inmate; it is enough that the official acted or failed to act despite his knowledge 2 of a substantial risk of serious harm. Id. at 842; see also Lemire v. Cal. Dept. Corrections & 3 Rehabilitation, 726 F.3d 1062, 1078 (9th Cir. 2013) (articulating two-part test for deliberate 4 indifference: plaintiff must show, first, that risk was obvious or provide other evidence that prison 5 officials were aware of the substantial risk to the inmates’ safety, and second, no reasonable 6 justification for exposing inmates to risk). 7 “It is well-established that, among the rights they retain, prisoners have a First 8 Amendment right to file prison grievances ... [, and r]etaliation against prisoners for their exercise 9 of this right is itself a constitutional violation.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 10 2009) (citations omitted). A claim of retaliation under the First Amendment has five elements: 11 “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) 12 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 13 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 14 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 15 1. Grievance Log No. 265387 16 In grievance log no. 265387, Plaintiff alleged as follows:
17 On the date of 6-30-2022, at approximately 1500 hours, on Facility (A), Building 2, Kern 18 Valley State Prison, I observed (heard) custody officer Figuoroa [sic] disclose my (claimant) iden[t]ity by reference to events that occur[r]ed on the housing unit earlier that 19 day. Two sets of sergeants contacted me. One for a letter I had written to the Office of Internal Affairs asking that no reprisal be imposed by Facility (A) for having wrote a 602 20 complaint reg[a]rding my legal mail. And the second, sgt. came asking if I can walk I cannot! 21
22 The sergeants presence on the unit seemingly caused a disturbance. see:AVSS Footage 9 am-11 am. Claimant did in fact hear said officer detail that I was age twenty upon 290 23 registry, and classified a VSP (Violent Sexual Predator). On the same evening (6-3- 2022), correctional officer Chavez, and partner to correctional officer Figuoroa [sic]; 24 while conducting nine o’clock institutional county, was asked by an inmate in ajoining [sic] cell if what c/o Figuoroa [sic] told other inmates about “Rabb” true. C/o Chavez 25 satisfied said question with a affirming head nod, and what sound to be praises to god 26 (literally). The time was approximately 9:10 p.m. see:AVSS Footage 9 pm-9:30 pm/6-3- 2022. Further, custody officer(s) are equipped with bodycameras at KVSP. 27 (Leyva Decl. Ex. 1.) (submitted 28 1 This appeal specifically named both Defendants Chavez and Figueroa and provided 2 adequate notice of the alleged Eighth Amendment deprivation-disclosure of Plaintiff’s sex 3 offense in deliberate indifference to a substantial risk of serious harm to Plaintiff.5 Defendants’ 4 argue this grievance did not mention any attack. However, Plaintiff need not await actual harm to 5 state a cognizable deliberate indifference claim based on disclosure of Plaintiff’s sex offense to 6 other inmates. See Farmer v. Brennan, 511 U.S. at 842 (an Eighth Amendment claimant need not 7 show, however, that a prison official acted or failed to act believing that harm actually would 8 befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a 9 substantial risk of serious harm). Thus, Plaintiff’s appeal did not need to allege that he was 10 actually, in fact, assaulted as a result of Defendants’ statements. Therefore, Plaintiff’s appeal 11 adequately placed the prison on notice of nature of the wrong alleged in the present Eighth 12 Amendment claim. Prison officials rendered a decision on the merits of the grievance at each 13 available step of the administrative process. Accordingly, Plaintiff exhausted available 14 administrative remedies. 15 Conversely, this grievance does exhaust Plaintiff’s separate and independent retaliation 16 claims against Defendants Chavez and Figueroa. This grievance concerns Defendants’ action in 17 disclosing to other inmates that Plaintiff is a sex offender. There are no factual statements which 18 would have put prison officials on notice that Plaintiff contended Defendants were retaliating 19 against him for any First Amendment activity. See Walton v. Hixson, No. CIV S-09-1246 GEB 20
21 5 Courts have routinely found that labeling of inmate as sex offender implicates safety concerns. See Johnson v. Robinson, No. 2:12-CV-2400-WBS (DAD), 2015 WL 882021, at *14 (E.D. Cal. Mar. 2, 2015) (finding defendant’s 22 intentional, retaliatory misclassification of plaintiff as a sex offender sufficiently stated a claim for deliberate indifference, noting “the seriousness of the ‘sex offender’ label in prison is tangible enough to support, in certain 23 circumstances, a claim that a defendant used the dangerous implications of that label or ignored them in deliberate indifference to an inmate’s safety”); Knight v. Runnels, No. CIV S-07-0751-FCD-CMK, 2007 WL 2390139 at *2 24 (E.D. Cal. Aug. 20, 2007) (finding both prongs of a deliberate indifference claim sufficiently pled where plaintiff “allege[d] that this defendant put a ‘R-suffix’ in his file knowing that, if plaintiff was put in the general population, 25 he would be stabbed”); Sims v. Woodford, No. 1:05-cv-1523-LJO-DLB (PC), 2008 WL 669943 at *5 (E.D. Cal. Mar. 7, 2008) (denying a motion to dismiss under Rule 12(b)(6) where the plaintiff had pled that “defendants errantly classified him as a convicted sex offender, and failed to remove that classification subsequent to correspondence 26 from the court to the contrary”); Nailing v. Fosterer, No. CIV S-09-2475-MCE-CMK, 2012 WL 1130655 at *8 (E.D. Cal. Mar. 2, 2012) (finding a cause of action sufficiently pled because “a reasonable jury could conclude that 27 defendants were deliberately indifferent to the generally known risk sex offenders face in the prison general population”). 28 1 CKD P, 2011 WL 6002919, at *2 (E.D. Cal. Nov. 30, 2011) (inmate’s grievance complaining 2 about prison official's interference with his praying did not alert prison to his claim that 3 interference was in retaliation for submitting a grievance against the official); Martinez v. Adams, 4 No. 1:09cv00899LJODLB, 2010 WL 3912359, at *5 (E.D. Cal. Oct. 5, 2010) (inmate’s 5 grievances did not exhaust his retaliation claim when they did not “mention retaliation or set forth 6 facts that would alert a prison official to retaliatory conduct for protected activity”); Gilbert v. 7 Fernald, No. CV 20-1269-SVW (KS), 2022 WL 18776165, at *8 (C.D. Cal. Dec. 29, 2022) 8 (holding that the plaintiff’s grievance did not exhaust his retaliation claim because the grievance 9 only notified the prison that the defendant engaged in sexual misconduct, not that the defendant 10 engaged in such conduct in retaliation for the plaintiff asserting his First Amendment right). 11 Accordingly, this grievance did not serve to exhaust Plaintiff’s retaliation claim against 12 Defendants Chavez and Figueroa. 13 2. Grievance Log No. 280132 14 In grievance log no. 280132, Plaintiff alleged as follows:
15 This grievance should act as a official staff complaint against parties directly involved in 16 the matter described herein, and the custodial supervisor(s) on Facility (B) on the date of 7-7-2022; and should be regarded as a prerequisite to civil proceedings under U.S.C. 17 1983.
18 On the morning of 7-7-2022, while an inmate under the charge of Wasco State Prison Facility (B), unit three; tower control officer(s) on said unit, maliciously/negligently open 19 my then assign cell (#138) for inmates, whom than [sic] entered said cell and began 20 brutally stabbing and beating me, and my then cell-mate (I/M Agular #BS0612). Note: I sustain a stab wound in this incident; and my knee injury was worsten [sic] by the attack 21 and attempt to cause harm by the two attacking inmates.
22 Despite my pleas for help (my knee had totally given out, leaving me vulnerable to further injury; I was sprayed with a chemical agent, and antagonized by responding custodial 23 staffer(s), as I was trampled while on the dayroom floor in a prone position.) I was treated 24 with an over zealous show of force. Following my medical evaluation and x-rays, I was ushers [sic] back to Facility (B) patio, where I was contacted by one: S. Sanchez, Lt. 25 whom provided that a weapon was found in cell #138. More specifically, he stated that following said incident; that of which occur[r]ed within my assign cell (138), and the 26 reason why custody officers did not anesially [sic] identify my cell-mate (Mr. Aguilar) as having been victimized; a weapon was discover by staff, and because of said weapon 27 being found within my living quarters; despite my injury, that I’d be retain to ASU 28 (Administrative Segregation Unit). 1 Note: Part (B) of the administrative review packed provides a option to be appointed a 2 investigative employee. The “lock-up” order provided to me by one: J Guerra, captain was prepared prior to him coming to serve me. The document states that I decline such 3 assistance. I would never do such a thing! (emphasis added.) I was not given this option, 4 if I had been I’d excepted [sic], and signed my acknowledgement./Documents attached 2 pages/The appointment of a staff assistance/investitive employee or internal affairs fact- 5 finder is in fact relevant in this matter in order to establish the record. To date, Wasco State Prison officials have leisurely imposed deliberate indifference towards myself, and 6 the obvious (The Facts!) such indifferent clearly supports the narrative perpetuated by a 7 current staffer amongst the custody-class, that threaten harm upon me on 7-1-2022, at (WSP), and shared in a partnership with (KVSP) personnel whom there employed efforts 8 to have me harmed by the inmate-class, and is currently under investigation. Note: I have recorded all essential information to support my claim(s), and have secured witness(s). A 9 investigative employee would have been assign the task to up-root the blatant demonstration of systematic reprisal detailed above. 10
11 In conclusion: I’m unlawfully and maliciously being retain to (ASU) by (WSP) in a attempt to prohibit a showing of malicious mistreatment and negligence by Facility (B), 12 unit 3, staff, on the above date, and the misapplied charge of weapon possession is in fact an insult, considering staff participated in trying to have me killed. (You open my cell 13 and let inmates in to stab[ ] me!) 14 (Marquez Decl., Ex. 4.) 15 This grievance does not exhaust either of Plaintiff’s claims against Defendants Chavez 16 and Figueroa. The grievance does not mention Defendants, retaliation, or retaliatory intent or 17 motive, or disclosure to other inmates that Plaintiff has a sex offense. (Marquez Decl., Ex. 4.) 18 Although this grievance alleged that on July 7, 2022 at WSP, inmates attacked him when a 19 control booth officer opened his cell door. Plaintiff alleged that WSP “shared in a partnership 20 with [KVSP] personnel” who “employed efforts to have [him] harmed by the inmate-class[,]” 21 such allegation is too vague to place the prison on notice of Plaintiff’s deliberate indifference and 22 retaliation claims in this case. Indeed, the allegations in grievance log no. 280132 takes place at 23 an entirely different institution and only vaguely claims that officers at KVSP have also tried to 24 have Plaintiff harmed by other inmates. (UF 13.) In addition, this grievance specifically 25 acknowledges that the allegations against KVSP officers is “currently under investigation” which 26 lends support to the finding that Plaintiff exhausted his deliberate indifference claim against 27 Defendants in grievance log no. 265387. 28 1 3. Other Grievances Filed Between June 3, 2022 and June 1, 2023 2 It is undisputed that between June 3, 2022 (the date the incidents in the complaint alleged 3 took place) and June 1, 2023 (the date Plaintiff filed the instant complaint), Plaintiff filed ten 4 other inmate grievances, three of which were reassigned new log numbers: (1) log no. 405102; (2) 5 log no. 405392; (3) log no. 404214; (4) log no. 396848; (5) log no. 392413; (6) log no. 389269; 6 (7) log no. 383440; (8) log no. 376838; (9) log no. 369118; (10) log no. 357680; (11) log no. 7 351998; (12) log no. 304930; and (13) log no. 284686. (UF 14.) None of these grievances 8 include allegations that Defendants failed to protect Plaintiff or retaliated against him. (UF 15- 9 25.) 10 In grievance log no. 405102, submitted on May 30, 2023, Plaintiff alleged he was 11 wrongfully found guilty of disobeying a direct order during an unrelated disciplinary hearing. (UF 12 15.) 13 In grievance log no. 404214, submitted on May 26, 2023, Plaintiff alleged WSP officials 14 failed to re-issue an inmate grievance regarding his personal property. (UF 16.) The grievance 15 was re-directed to WSP and assigned grievance log no. 405392. (Id.) 16 In grievance log no. 396848, submitted on May 8, 2023, alleges the investigation and 17 decision from grievance log no. 357680 was insufficient and incorrect. (UF 17.) 18 In grievance log no. 392413, submitted on April 26, 2023, Plaintiff alleged he was 19 wrongfully found guilty of an unrelated rules violation report (log no. 7249511). (UF 18.) 20 In grievance log no. 304930, submitted on September 14, 2022, Plaintiff alleged that on 21 August 29, 2022, his personal property was destroyed. (UF 19.) The grievance was re-directed to 22 WSP and assigned grievance log no. 389269. (Id.) 23 In grievance log no. 383440, submitted on April 4, 2023, Plaintiff alleged a correctional 24 counselor retaliated against him by falsifying a rules violation report. (UF 20.) 25 In grievance log no. 376838, submitted on March 17, 2023, Plaintiff alleged that on 26 March 16, 2023, a correctional officer threatened to issue Plaintiff with a rules violation if he did 27 not meet with his correctional counselor. (UF 21.) 28 /// 1 In grievance log no. 369118, submitted on February 27, 2023, Plaintiff alleged that since 2 his initial incarceration with CDCR, he has filed numerous inmate grievances alleging various 3 and unspecified incidents of staff misconduct. (UF 22.) 4 In grievance log no. 351998, submitted on January 12, 2023, Plaintiff alleged that while at 5 the California Correctional Institution (CCI) on December 16, 2022, correctional officers used 6 unnecessary force on him, placed him in a flooded cell, and mishandled his property. (UF 23.) He 7 also alleged officers used unnecessary force on him in 2013, when he was housed at the 8 California Substance Abuse Treatment Facility (SATF). (Id.) Accordingly, the grievance was re- 9 directed in part to SATF and assigned grievance log no. 357680. (UF 24.) 10 In grievance log no. 284686, submitted on July 26, 2022, Plaintiff alleged that his 11 property was mishandled on July 7, 2022, when he was moved into the Administrative 12 Segregation Unit. (UF 25.) 13 In sum, the above ten grievances did not serve to exhaust Plaintiff’s deliberate 14 indifference and retaliation claims against Defendants Chavez and Figueroa, but grievance log no. 15 265387 exhausted Plaintiff’s deliberate indifference claim against both Defendants. 16 IV. 17 RECOMMENDATIONS 18 Based on the foregoing, it is HEREBY RECOMMENDED that: 19 1. Defendants’ motion for summary judgment for failure to exhaust the 20 administrative remedies be denied as to Plaintiff’s deliberate indifference claim; 21 2. Defendants’ motion for summary judgment for failure to exhaust the 22 administrative remedies be granted as to Plaintiff’s retaliation claim and this claim 23 be dismissed from the action, without prejudice. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 26 one (21) days after being served with these Findings and Recommendations, the parties may file 27 written objections with the Court. The document should be captioned “Objections to Magistrate 28 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 1 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 2 | F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. □□ (Se 5 | Dated: _ April 4, 2024 OF ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16