(PC) Rood v. Burden

• Court: District Court, E.D. California
• Decided: March 14, 2023
• Docket: 1:20-cv-00315
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 COLTON JAMES ROOD, Case No. 1:20-cv-00315-AWI-CDB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION 13 v. FOR SUMMARY JUDGMENT FOR A FAILURE TO EXHAUST 14 BURDEN, et al., ADMINISTRATIVE REMEDIES

15 Defendants. (Doc. 49)

17 Plaintiff Colton James Rood is proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. 19 I. PROCEDURAL BACKGROUND 20 Plaintiff initiated this action on February 26, 2020. (Doc. 1.) 21 Following screening, Plaintiff filed the operative second amended complaint on March 24, 22 2021. (Doc. 20.) 23 Following service of the second amended complaint, Defendants E. Burden and R. Strebel 24 filed an answer on December 24, 2021. (Doc. 30.) 25 On February 4, 2022, the Court issued its Discovery and Scheduling Order. (Doc. 38.) 26 Following Defendants’ request to modify the Discovery and Scheduling Order, the 27 deadline for the filing of an exhaustion motion was extended from June 3, 2022 to July 18, 2022. 1 deadline (Doc. 47), his objections were overruled in an Order issued June 2, 2022. (Doc. 48.) 2 On June 23, 2022, Defendants filed their motion for summary judgment, alleging Plaintiff 3 failed to exhaust his administrative remedies prior to filing suit. (Doc. 49.) Plaintiff filed a timely 4 opposition (Doc. 53) and Defendants replied thereto (Doc. 55). Thereafter, on September 28, 5 2022, Plaintiff filed a document titled “Additional Documentation Supporting Plaintiff’s 6 Objection to Defendants’ Motion for Summary Judgement (Exhaustion).” (Doc. 57.) 7 On October 6, 2022, the Court issued its Order of Reassignment, reassigning this action to 8 the undersigned as magistrate judge. (Doc. 58.) 9 II. SUMMARY OF FACTS 10 Plaintiff’s Allegations 11 Plaintiff’s claims stem from incidents at the Substance Abuse Treatment Facility and State 12 Prison, Corcoran (“SATF”). (Doc. 20 at 4-8.) In February of 2018, “several inmates” told 13 Plaintiff that Correctional Officers Strebel and Mejia were telling inmates from “various gangs” 14 that “no heroin[] would come in until . . . Rood was ‘dealt with.’” (Id. at 4-5.) “Soon after, Mejia 15 made a statement at Rood to the effect of, ‘You’re not dead yet?’” (Id. at 5.) Because of these 16 threats, Plaintiff believed that his life was in danger and requested to be placed in administrative 17 segregation (“ad seg”). (Id.) He contends prison officials denied his request. (Id.) Therefore, 18 Plaintiff went on a hunger strike for several days. (Id.) During this time, Plaintiff asserts he was 19 “brought in front of . . . staff to address the issues which caused the hunger strike,” including 20 Correctional Lieutenant Burden, Correctional Officer Palafox, and the D Yard Captain. (Id.) The 21 captain told Plaintiff that “Palafox was present as a witness and to provide counsel.” (Id.) 22 Lieutenant Burden stated that he would not place Plaintiff in ad seg because it was “time 23 consuming,” even though he acknowledged “that [Plaintiff’s] life was under threat.” (Id.) Later, 24 the captain told Plaintiff that “all inmates are liars,” and that he would only believe Plaintiff and 25 place him in ad seg if his allegations were solely against inmates and not against staff. (Id. at 6.) 26 He also stated that, for this same reason, he would not refer Plaintiff to “mental health.” (Id.) 27 Several days later, Plaintiff contends he was on the yard when he saw Strebel make “a 1 [Plaintiff] with knives.” (Id.) Plaintiff “disabled” the inmate with the knife and the others fled. 2 (Id.) Immediately after, Burden appeared, and Plaintiff asked, “Why couldn’t you do it yourself?” 3 Plaintiff asserts Burden then “smiled and said ‘no comment’ and walked away.” (Id.) Plaintiff 4 contends he suffered “deep lacerations to his neck and a defensive laceration on his left arm” and 5 was transferred to Kaweah Delta Medical Center for surgery. (Id.) Upon his return to SATF, 6 Plaintiff was placed in ad seg, and his property was “thrown away.” (Id.) Plaintiff contends he 7 “continues to suffer pain, arthritis, and mobility issues as a result of his injuries.” (Id.) 8 A. Defendants’ Undisputed Facts 9 Defendants submitted the following Statement of Undisputed Facts: 10 1. At all times relevant to the Complaint, Plaintiff Colton Rood (AL-3577) was a 11 prisoner in the custody of the California Department of Corrections and Rehabilitation 12 (CDCR), incarcerated at the Substance Abuse Treatment Facility (SATF). 13 2. The screened operative Second Amended Complaint states an Eighth Amendment 14 failure to protect claim against Defendants Strebel and Burden. 15 3. Plaintiff initiated this action on February 26, 2020, while in the custody of Shasta 16 County Jail. 17 4. Plaintiff filed the operative Second Amended Complaint on March 24, 2021, while in 18 the custody of CDCR. 19 5. In the Second Amended Complaint, Plaintiff alleged that he did not file an appeal or 20 grievance concerning ALL the facts contained in the Second Amended Complaint. 21 6. Plaintiff alleges that near the end of February 2018, Officer Strebel and non-defendant 22 Officer Meja subjected him to reprisals and yelled at Plaintiff in front of groups of 23 inmates. 24 7. Plaintiff alleges that near the end of February 2018, Officer Strebel told several groups 25 of inmates on the yard that no heroin[] would come in until Plaintiff “was dealt with.” 26 Plaintiff further alleges that Defendant Strebel told another inmate to “get that dude” 27 while pointing at Plaintiff. 1 that Plaintiff’s life was under threat, and stated the reason he would not place Plaintiff 2 in administrative segregation was because it was “time consuming.” 3 9. Plaintiff alleges that Officer Strebel, before rushing into the program office, made a 4 hand gesture to a group of inmates located behind Plaintiff on the yard. As a result, the 5 group of inmates snuck up and attacked Plaintiff with knives. 6 10. Plaintiff’s Complaint alleges that immediately after being stabbed on the yard, 7 Defendant Burden showed up and Plaintiff asked Defendant Burden “why couldn’t 8 you do it yourself?”, and Defendant Burden smiled, said no comment and walked 9 away. 10 11. Plaintiff was housed at SATF from January 4, 2018, to March 19, 2018, and again 11 from July 30, 2018, to November 9, 2018. 12 12. Plaintiff filed the following ten appeals while housed at SATF: 13 a. SATF-D-18-00490, received January 18, 2018 (Due to this incident occurring 14 at [Pleasant Valley State Prison (PVSP)], the appeal was forwarded to PVSP; 15 b. SATF-D-18-00633, received February 8, 2018; 16 c. SATF-Z-18-01362, received March 13, 2018; 17 d. SATF-E-18-03495, received June 28, 2018; 18 e. SATF-E-18-04214, received July 30, 2018; 19 f. SATF-E-18-04309, received July 25, 2018 (Due to this incident occurring at 20 [Mule Creek State Prison (MCSP)], the appeal was forwarded to MCSP); 21 g. SATF-E-18-04317, received June 26, 2018 (Due to this incident occurring at 22 MCSP, the appeal was forwarded to MCSP); 23 h. SATF-E-18-04992, received September 19, 2018; 24 i. SATF-E-18-05667, received September 26, 2018; and 25 j. SATF-Z-18-06145, received November 14, 2018. 26 13. In appeal log no. SATF-Z-01362, submitted February 17, 2018, Plaintiff complained 27 about Officer Villela, Officer Tristian, and Defendant Strebel gassing him, placing 1 in front of female staff. The grievance alleges Defendant Strebel told him to “strip out 2 of his boxers,” but goes on to further state that Defendant Strebel did not “press him to 3 strip out of his boxers.” The appeal was partially granted at the second level of review 4 on March 27, 2018, in that an appeal inquiry was conducted. 5 14. Appeal log no. SATF-Z-01362, was not exhausted to the third level of review. 6 15. On March 19, 2018, Plaintiff was transferred from SATF to North Kern State Prison 7 (NKSP). While at NKSP, Plaintiff did not submit any appeals in which he complained 8 about Defendants Burden or Strebel, or the allegations in the operative complaint. 9 16. The next day, on March 20, 2018, Plaintiff was transferred from NKSP to High Desert 10 State Prison (HDSP). While at HDSP, Plaintiff did not submit any appeals in which he 11 complained about Defendants Burden or Strebel, or the allegations in the operative 12 complaint. 13 17. On April 5, 2018, Plaintiff was transferred from HDSP back to SATF. While Plaintiff 14 was at SATF during this second time, Plaintiff did not submit any appeals in which he 15 complained about Defendants Burden or Strebel, or the allegations in the operative 16 complaint. 17 18. On November 9, 2018, Plaintiff was transferred from SATF to Sierra Conservation 18 Center (SCC). While at SCC during this time, Plaintiff did not submit any appeals in 19 which he complained about Defendants Burden or Strebel, or the allegations in the 20 operative complaint. 21 19. On December 5, 2018, Plaintiff was transferred from SCC to [Deuel] Vocational 22 Institution (DVI). While at DVI, Plaintiff did not submit any appeals in which he 23 complained about Defendants Burden or Strebel, or the allegations in the operative 24 complaint. 25 20. On January 14, 2019, Plaintiff was paroled, and was under the supervision of the 26 Division of Adult Parole Operations (DAPO), until he was returned to CDCR custody 27 on October 15, 2020, when he was transferred to NKSP. 1 grievances. Only seven of the grievances that were filed by Plaintiff were for alleged 2 incidents that occurred at SATF. Only one of these grievances, log no. SATF-Z- 3 01362, named Defendant Strebel. The rest of the grievances do not involve the time 4 period in question, name either Defendant Burden or Defendant Strebel, or allege the 5 same allegations found in the operative complaint. 6 22. Between March 2008 and April 8, 2022 (the date the OOA pulled the grievance 7 history), Plaintiff filed eight appeals with the Office of Appeals (the final level of 8 review) that were accepted for review. None of the eight appeals filed by Plaintiff 9 concerned the time period in question or incidents that occurred at SATF. 10 23. Between March 2008 to April 8, 2022 (the date the OOA pulled the grievance 11 history), Plaintiff filed other appeals with OOA that were screened out. Of the appeals 12 that were screened out, only one concerned incidents that occurred at SATF. However, 13 this appeal did not concern Defendants Strebel or Burden or the allegations in the 14 Complaint. 15 (Doc. 49-3 at 1-5.)1 16 III. LEGAL STANDARDS 17 A. Summary Judgment 18 Summary judgment is appropriate when the moving party “shows that there is no genuine 19 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 20 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 21 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 22 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by 23 “citing to particular parts of materials in the record, including depositions, documents, 24 electronically stored information, affidavits or declarations, stipulations …, admissions, 25 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 26 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 27

1 Subsequent references to “UDF” followed by a specific number refer to Defendants’ Statement 1 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 2 the burden of proof at trial, “the moving party need only prove that there is an absence of 3 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 4 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 5 Summary judgment should be entered against a party who fails to make a showing 6 sufficient to establish the existence of an element essential to that party’s case, and on which that 7 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 8 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 9 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 10 “so long as whatever is before the district court demonstrates that the standard for the entry of 11 summary judgment … is satisfied.” Id. at 323. 12 B. Exhaustion of Administrative Remedies 13 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 14 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 15 confined in any jail, prison, or other correctional facility until such administrative remedies as are 16 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is 17 mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 18 211 (2007). Inmates are required to “complete the administrative review process in accordance 19 with the applicable procedural rules, including deadlines, as a precondition to bringing suit in 20 federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies 21 to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of 22 the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 23 U.S. 731, 741 (2001). 24 The failure to exhaust administrative remedies is an affirmative defense, which the 25 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of 26 producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if 27 the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff 1 On a motion for summary judgment, the defendant must prove (1) the existence of an 2 available administrative remedy and (2) that the plaintiff failed to exhaust that remedy. Id. at 1172 3 (citation omitted). If the defendant meets this burden, the plaintiff then “has the burden of 4 production. That is, the burden shifts to the prisoner to come forward with evidence showing that 5 there is something in his particular case that made the existing and generally available 6 administrative remedies effectively unavailable to him.” Id. (citation omitted). “However, … the 7 ultimate burden of proof remains with the defendant.” Id. 8 An inmate “need not exhaust unavailable [remedies].” Ross v. Blake, 578 U.S. 632, 642 9 (2016). An administrative remedy is unavailable “when (despite what regulations or guidance 10 materials may promise) it operates as a simple dead end with officers unable or consistently 11 unwilling to provide any relief to aggrieved inmates”; or when “an administrative scheme [is] so 12 opaque that it becomes, practically speaking, incapable of use, [i.e.,] some mechanism exists to 13 provide relief, but no ordinary prisoner can discern or navigate [the mechanism]”; or “when 14 prison administrators thwart inmates from taking advantage of a grievance process through 15 machination, misrepresentation, or intimidation.” Id. at 643-44. 16 When the district court concludes that the prisoner has not exhausted administrative 17 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 18 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 19 Albino, 747 F.3d at 1168-69. “If a motion for summary judgment is denied, disputed factual 20 questions relevant to exhaustion should be decided by the judge.” Albino, 747 F.3d at 1170. If the 21 court finds that remedies were not available, the prisoner exhausted available remedies, or the 22 failure to exhaust available remedies should be excused, the case proceeds to the merits. Id. at 23 1171. 24 C. CDCR Grievance Process 25 The California Department of Corrections and Rehabilitation (“CDCR”) has an 26 administrative grievance system for prisoners to appeal a policy, decision, action, condition, or 27 omission by the department or staff if it has an adverse effect on prisoner health, safety, or 1 1997e(a) requires California-state prisoners to utilize CDCR’s grievance process to exhaust their 2 claims prior to filing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010); see 3 also Woodford, 548 U.S. at 85-86. Administrative appeals are generally subject to two to three 4 levels of review before the remedy is deemed exhausted. Cal. Code Regs. tit. 15, §§ 3084.1(b) 5 (2018), 3084.7(d)(3) (2018), 3999.226(g), 3999.230(h); see Sapp, 623 F.3d at 818. 6 IV. EVIDENTIARY MATTERS 7 Plaintiff has failed to properly respond to Defendants’ Statement of Undisputed Facts in 8 support of the motion for summary judgment. Plaintiff was served with a Rand2 warning that 9 included the following language: 10 In accordance with Local Rule 260(a), Defendants have filed a Statement of Undisputed Facts that contains discrete, specific 11 material facts to support their entitlement to summary judgment. In response to this Statement, Local Rule 260(b) requires you to 12 “reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are 13 disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, 14 admission, or other document relied upon in support of that denial.” You may also “file a concise Statement of Disputed Facts, and the 15 source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment or 16 adjudication.” Id. You are responsible for filing all evidentiary documents cited in the opposing papers. Id. 17 18 (Doc. 49-1 at 2.) 19 Plaintiff neither reproduced Defendants’ itemized facts, nor admitted or denied those 20 facts. (See Doc. 53.) Because Plaintiff has not complied with Rule 260(b),3 the Court deems 21 Plaintiff to have admitted those facts.4 See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by 22 failing specifically to challenge the facts identified in the defendant’s statement of undisputed

23 2 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc).

24 3 The Court further observes that Plaintiff failed to reproduce Defendants’ statement of undisputed 25 facts, or to admit or deny those facts, in his sur-reply or filing dated September 28, 2022. (See Doc. 57.)

26 4 In the First Informational Order in Prisoner/Civil Detainee Civil Rights Case, issued February 27, 2020, Plaintiff was advised: “In litigating this action, the parties must comply with this Order, the Federal 27 Rules of Civil Procedure (‘Fed. R. Civ. P.’), and the Local Rules of the United States District Court, Eastern District of California (‘Local Rules’), as modified in this Order. Failure to so comply will be grounds for imposition of sanctions which may include dismissal of the case. Local Rule 110; Fed. R. Civ. 1 facts, [plaintiff] is deemed to have admitted the validity of the facts contained in the [defendant’s] 2 statement.”); Brito v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. 3 July 15, 2020) (deeming defendant’s undisputed facts as admitted after plaintiff failed to comply 4 with Local Rule 260(b)). Nevertheless, where Plaintiff’s verified complaint or evidence submitted 5 in support of his opposition to Defendants’ motion for summary judgment bring Defendants’ 6 proffered facts into dispute, the Court considered the complaint and any evidence. Jones, at 923 7 (the court considers as evidence those parts of the verified complaint based on plaintiff’s personal 8 knowledge). 9 Next, this Court’s Local Rules provide for a motion, an opposition, and a reply. See Local 10 Rule 230(l). There is nothing in the Local Rules or the Federal Rules that provides the right to file 11 a sur-reply. The court generally views motions for leave to file a sur-reply with disfavor. Hill v. 12 England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citation 13 omitted). However, district courts have the discretion to either permit or preclude a sur-reply. See 14 JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not 15 abuse discretion in denying leave to file a sur-reply where it did not consider new evidence in 16 reply). 17 Plaintiff’s September 28, 2022 filing (see Doc. 57 [“Additional Documentation 18 Supporting Plaintiff’s Objection to Defendants’ Motion for Summary Judgment (Exhaustion)”]) 19 is a sur-reply. Plaintiff does not have the right to file a sur-reply, and he did not file a motion 20 seeking leave to file a sur-reply. However, Defendants have not filed an objection to Plaintiff’s 21 filing. Hence, the Court will permit and consider Plaintiff's sur-reply. 22 V. DISCUSSION 23 The question before the Court is whether Plaintiff exhausted his administrative remedies 24 concerning his Eighth Amendment failure to protect claims against Defendants Burden and 25 Strebel. 26 The undersigned finds Defendants have met their initial burden of showing there is no 27 genuine issue of material of fact because there exists an available administrative remedy and 1 at 2, ¶¶ 2-4, 6-16 & Ex. 1; Doc. 49-5 at 2, ¶¶ 2-7; Doc. 49-6 at 2, ¶¶ 2-5; Doc. 49-7 at 2-3, ¶¶ 3-6; 2 Doc. 49-8 at 1-3, ¶¶ 1-10; Doc. 49-9 at 1-3, ¶¶ 2-11; Doc. 49-10 at 2-3, ¶¶ 6-9.) See In re Oracle 3 Corp. Sec. Litig., 627 F.3d at 387; Albino, 747 F.3d at 1172. Specifically, Defendants have shown 4 that of the seven grievances filed by Plaintiff for incidents occurring at SATF, only one of those 5 grievances named Defendant Strebel, to wit: SATF-Z-18-01362. (UDF 21.) However, SATF-Z- 6 18-01362 was not exhausted to the third level of review. (UDF 14.) Moreover, the substance of 7 that grievance suggests it is unrelated to the allegations of Plaintiff’s complaint. (UDF 13.) None 8 of the remaining relevant grievances named Defendant Burden or Strebel, nor do they involve the 9 same allegations found in Plaintiff’s operative complaint. (UDF 21.) 10 Therefore, the burden shifts to Plaintiff “to come forward with evidence showing that 11 there is something in his particular case that made the existing and generally available 12 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. 13 In his opposition, Plaintiff contends that when he returned from the hospital and was 14 housed in ad-seg, he “asked for a 602 appeal from the officers” and was “laughed at and never 15 given one.” (Doc. 53 at 1.) He states staff told him “they threw all [his] property away because 16 [he] ‘wasn’t supposed to be here’ … AKA ‘Dead’ (on 3/7/2018).” (Id.) Plaintiff further contends 17 that his attempt to contact “an outside source of protection (OIA),” advising them of “the 18 situation and seeking remedy and refusal upon receipt of this letter to the Appeals Coordinator at 19 SATF to be process as an appeal, ultimately satisfies the requirements of having to make an 20 attempt to file an appeal ….” (Id. at 1-2.) Plaintiff asserts he was in “a depreciated mental state 21 due to surgery, concussions in rapid succession, and valley fever.” (Id. at 2.) He contends he 22 “attempted to place the papers” sent to the OIA “in a successive appeal and wrote in the appeal 23 #SATF-E-18-4309-1, ‘This is to be seen as one with the letters I sent to OIA.’” (Id.) Plaintiff 24 states that in his “state of low functioning,” he was convinced those actions were “an acceptable 25 way to file an appeal and yet keep the details out of CDCR hands (appeals which they said to you 26 opened allowing the killers that were after me to read what I wrote about them).” (Id.) Plaintiff 27 alleges he was confused and his “physical and mental health played a major role.” (Id.) Plaintiff 1 that OIA would look into it and send it to the Appeals Coordinator to be process in an 2 inconspicuous way with the letter being sealed and given back … instead of it being opened for 3 staff to read.” (Id.) Plaintiff believed someone would come and speak with him first and he would 4 be able to explain that his life was in danger, and he needed to be moved. (Id. at 3.) Instead, the 5 Appeals Coordinator notified Plaintiff in an “open letter that she had received the letter form 6 OIA. The letter came back wrinkled,” and Plaintiff contends the staff person who gave it to him 7 “became offensive towards” him. (Id.) 8 Plaintiff further asserts “multiple staff” made comments “about the attempted murder that 9 had taken place at that institution and how that guy was & here for putting in their work, I knew 10 that to file a 602 claiming them as the perpetrators would end with another attempt on” his life. 11 (Id.) Plaintiff believed the OIA “would decide to take it over and come in with shields raised, but 12 they gave [his] letter of accusation to the same people who kept trying to kill” him. (Id.) Plaintiff 13 lists a series of events prior to the event giving rise to his claim (id.), then contends an event at 14 HDSP in late March or early April 2018, involving an attack by two unknown assailants, resulted 15 in Plaintiff and the assailants being brought together where Plaintiff says the assailants “asked 16 (like pleasing dogs) ‘Did we do a good job?’ The cops confirmed that they had done a good job.” 17 (Id. at 4.) 18 Plaintiff also recounts an incident in August or September 2018 at SATF involved officers 19 opening his “door unexpectedly allowing three people into” his cell to attack him” and that the 20 officers “watched and did nothing.” Plaintiff contends that when he “approached them they told 21 [him] to say [he] was suicidal so the wounds” Plaintiff had would be considered “self-inflicted 22 injuries.” (Id.) Plaintiff contends “[t]hese things and more have led me to the clear understanding 23 that when you say something too grand in a 602 appeal, not only will the officers read every 24 word, but they will try to have you killed if the accusation is too great. I was in direct fear for my 25 life for the purpose of filing an appeal directly to appeals coordinator for the expressions of the 26 extreme experiences as are given in this lawsuit.” (Id.) Plaintiff states his family was aware of 27 “the extreme threat to his safety/inability to 602 (appeal) it/depreciated mental physical capacity,” 1 “directly filing an appeal in this case is equivalent to facing off a desperate man with a gun in 2 your face and telling him, ‘If you don’t shoot me I will tell the police who you are and you will be 3 punished.” (Id. at 5.) Plaintiff argues the letter sent by his family amounts to exhaustion of his 4 administrative remedies. (Id.) 5 In Plaintiff’s sur-reply, concerning Defendants’ contention that SATF-E-18-4309 is 6 unrelated to this action and that it should not “be seen or part of the letter to Office of Internal 7 Affairs” because it “was cancelled,” Plaintiff states he was never informed it was cancelled. (Doc. 8 57 at 1.) He argues CDCR “completely failed to respond” and that the “appeals process was 9 effectively refused to [him] for this and other appeal issues after [he] left CDCR’s Jurisdiction 10 four years ago.” (Id.) Plaintiff contends that 28 U.S.C. § 2675(a) provides that if an agency does 11 not respond to a claim within six months, it is deemed denied, meaning it is exhausted. (Id.) 12 Plaintiff asserts his “verbal request of an appeal and the subsequent denial by CDCR staff” 13 amount to other attempts “to bring the issues of my claim to light within CDCR.” (Id. at 1-2.) 14 Plaintiff repeats that while he was housed in ad seg, within thirty days of the incident complained 15 of, he requested a 602 appeal form from a guard; the guard acknowledged Plaintiff’s request, 16 laughed, and walked off. (Id. at 2.) Because he was never given a 602, Plaintiff contends he was 17 “unable to file a grievance in this instance through no fault of [his] own.” (Id.) Plaintiff then 18 states, “It was denied by CDCR official(s) who had complete control over my circumstances.” 19 (Id.) Plaintiff asserts that his letter to the Office of Internal Affairs “put CDCR ‘on notice’ of the 20 issues contained within this claim.” (Id.) Plaintiff contends “Defendant had some its workers 21 recently ransack my legal material for important documents and took the letter of 22 acknowledgment from me. Fortunately, I had anticipated this and had a copy of this document at 23 home sent to me. It is listed as ‘Exhibit B.’” (Id.) He contends that in “many instances CDCR has 24 deleted damning evidence from their Strategic Offender Management System (SOMS) in order to 25 cover crimes.” (Id.) Concerning Plaintiff’s correspondence to the Office of Internal Affairs and 26 Defendants’ statement that “there were no urgent issues in the correspondence,” he asserts that “is 27 a lie, of course, as the correspondence talks about corruption leading to an ongoing institutional 1 acknowledge the issue as an appeal even though that would have been done per regulation at the 2 time.” (Id. at 3.) Plaintiff avers the correspondence put CDCR on notice “of the charges brought 3 forward in this claim.” (Id.) By receiving Plaintiff’s “correspondence in their appeals office from 4 OIA and their refusal to consider it an appeal or ‘Allegation of Staff Misconduct,’” this amounts 5 to “a denial of appeal that fulfills the exhaustion requirement.” (Id.) Plaintiff asserts “the 6 corruption of the Inmate Appeals process has been acknowledged …” (Id. at 3-4.) Because 7 Plaintiff’s correspondence described staff misconduct “specifically and generally” it would have 8 been “referred outside the grievance and appeal process to an appropriate authority within the 9 Department, but the Appeals Office refused to do their job and in doing so denied my appeal and 10 allowed my remedies to be deemed exhausted.” (Id. at 4.) Plaintiff concludes by asking the Court 11 to deny Defendants’ motion. (Id.) 12 The Court has reviewed Exhibits A and B appended to Plaintiff’s sur-reply. Exhibit A 13 concerns Log # 000000248100, submitted April 15, 2022, at HDSP. (Id. at 5.) Exhibit B is a 14 photocopy of a letter dated August 21, 2018, to Plaintiff from the Division of Adult Institutions, 15 California Substance Abuse Treatment Facility and State Prison at Corcoran. It is signed by P. 16 Brightwell, Associate Warden, Complex III, and acknowledges receipt of Plaintiff’s 17 “correspondence dated July 20, 2018, to the Office of Internal Affairs.” (Id. at 6.) It further 18 provides: “Your correspondence was forwarded to the Inmate Appeals Office for review. A 19 review of the inmate Appeals Tracking Systems (IATS) was completed. Your Appeal for Rules 20 Violation Report, log number 3405147, was given log number of SATF-E-18-4317 and 21 forwarded to Mule Creek State Prison (MCSP) where the RVR was generated. If you are 22 dissatisfied with the Second Level Response, follow instructions in Section F, on your 602, to 23 continue to the Third Level of Review.” (Id.) Next, it reads in part: “It was determined that there 24 are no emergent/urgent issues in your correspondence. Therefore you are encouraged to utilize 25 the CDCR-602 process to address your concerns and submit it to the Inmate Appeals Office, 26 within 30 days of the occurrence.” (Id.) 27 Preliminary Matters 1 review regarding the allegations in Plaintiff’s complaint. 2 At the core of Plaintiff’s opposition and sur-reply are his assertions that (1) Plaintiff asked 3 for a 602 form while housed in ad seg within 30 days of the incident giving rise to his claim, but 4 the guard or guards laughed, walked away, and never provided the form following Plaintiff’s 5 request; (2) that threats or intimidation kept Plaintiff from reporting the incident by way of a 6 grievance; (3) his correspondence to the Office of Legal Affairs served to exhaust his 7 administrative remedies; and (4) SATF-E-18-4309 exhausted his administrative remedies 8 regarding the instant claims. Setting aside what appear to be inconsistent positions—that Plaintiff 9 intended to file a grievance but was denied a form yet also believed that filing a grievance would 10 invite further assault—the Court will consider each alleged circumstance. 11 Denial of Grievance Form While Housed in Ad Seg 12 Plaintiff asks this Court to find his administrative remedy was unavailable to him because 13 a guard or guards, from whom Plaintiff asked for a grievance or 602 form while housed in ad seg, 14 acknowledged Plaintiff’s request, then laughed and walked away, never providing the requested 15 form. 16 Defendants contend Plaintiff was “clearly familiar with the grievance process and had 17 used it on numerous occasions during and after the alleged incidents.” (Doc. 55 at 4.) They 18 contend “Plaintiff did use 602 Forms for other grievances during the same period, but [Plaintiff] 19 provides only a conclusory statement that 602 Forms were unavailable as his reason for failing to 20 comply with the regulations.” (Id.) 21 Even assuming the truth of Plaintiff’s assertion, the undersigned will not find Plaintiff’s 22 unfulfilled request or requests for a grievance form amounts to unavailability, excusing Plaintiff’s 23 failure to exhaust his administrative remedies. Plaintiff’s assertion is vague and conclusory. In 24 one telling, Plaintiff alleges he asked “a guard” for a 602 form, but the guard just laughed and 25 walked away. In another telling, Plaintiff alleges “guards” did the same, inferring he asked for a 26 form on more than one occasion. In neither telling does Plaintiff identify the guard or guards, 27 either by name or by description. This type of vague allegation would turn the exhaustion 1 need do is allege he asked, on at least one occasion, for a 602 or grievance form, but instead was 2 denied the form by an unidentified correctional officer or prison official. District courts in this 3 Circuit have held that a prisoner-plaintiff’s vague and conclusory statements that he was denied 4 access to grievance forms are insufficient to defeat summary judgment on exhaustion grounds. 5 See, e.g., Caliz v. City of Los Angeles, 2021 WL 3042281, at *13 (C.D. Cal. Apr. 27, 2021) 6 (“Plaintiff’s statements are insufficiently detailed, as well as lacking in corroboration, to defeat 7 summary judgment. [¶] For example, in his Declaration he states, ‘I was denied access to 8 request/complaint forms for over 25 days,’ without identifying who denied him access to the 9 forms or explaining how he was denied access to the forms”), report and recommendation 10 adopted, 2021 WL 3037398 (C.D. Cal. Jul. 16, 2021); Johnson v. Roesserr, 2019 WL 3720096, at 11 *6 (C.D. Cal. June 28, 2019) (“Plaintiff's conclusory statements do not present ‘evidence showing 12 that there is something in his particular case that made the existing and generally available 13 administrative remedies effectively unavailable to him’), report and recommendation adopted, 14 2019 WL 3718783 (C.D. Cal. Aug. 6, 2019); Moak v. Sacramento Cty., No. 2:15-cv-0640 MCE 15 KJN P, 2017 WL 3208720, at *9 (E.D. Cal. July 28, 2017) (holding that the plaintiff's 16 “conclusory statement that he asked for a grievance and unidentified floor officers would not give 17 him one” was insufficient to defeat summary judgment because there was “no evidence ... 18 provid[ing] details concerning the alleged denials, or whether [the plaintiff] took additional steps 19 to attempt to exhaust his remedies”); Epps v. CSP Sacramento, No. 214CV1347MCEACP, 2017 20 WL 117898, at *10 (E.D. Cal. Jan. 10, 2017) (finding that the plaintiff had not carried his burden 21 of producing evidence that available administrative remedies were unavailable to him where he 22 had “only his word ... that he was ‘precluded’ from exhausting his available administrative 23 remedies”); Hall v. San Joaquin Cty. Jail, No. 2:13-cv-00324 AC P, 2015 WL 1498909 at *5 24 (E.D. Cal. Mar. 31, 2015) (observing in dicta that the plaintiff had not provided “specific facts” 25 sufficient to defeat the motion for summary judgment because he had not identified “which 26 defendants he asked for grievance forms, when he asked them, or how many times”). 27 Further, to the extent Plaintiff alleges he was in a “depreciated” mental state during this 1 administrative remedies ‘effectively unavailable.’” Millner v. Biter, No. 13-cv-02029, 2016 WL 2 888126, at *1 (E.D. Cal. Mar. 8, 2016). However, the law also states that once a physical or 3 mental limitation has lifted, the inmate is required to file a grievance and be denied before the 4 remedies will be deemed unavailable. See Baker v. Villalobos, No. 2:18-cv-02301-PA-GJS, 2021 5 WL 6804237, at *7 (C.D. Cal. Sept. 29, 2021) (“because Plaintiff never attempted to avail 6 himself of the available prison grievance procedure to exhaust his … claims after he recovered 7 from surgery and [was] able, it cannot be said that administrative remedies were unavailable to 8 him”); Skinner v. Haley, No. 3:15-cv-00340-MMD-WGC, 2019 WL 5582233, at *6 (D. Nev. 9 Sept. 26, 2019) (“because Plaintiff never attempted to avail himself of the prison grievance 10 procedure after he was recovered from surgery and able, it cannot be said that administrative 11 remedies were unavailable to him”); see also Baker v. Schriro, No. CV 07-0353-PHX-SMN 12 (JRI), 2008 WL 622020, at * 5 (D. Ariz. Mar. 4, 2008) (administrative remedies available where 13 inmate made no attempt to file a grievance when physically able); Lipscomb v. Hickey, No. 1:06- 14 0307, 2009 WL 671398 (S.D. W.Va. Mar. 10, 2009) (inmate failed to exhaust administrative 15 remedies when she did not file a grievance when she was able following surgery). Here, Plaintiff 16 did not file a grievance once his “depreciated” mental and/or physical states had lifted. Thus, any 17 mental or physical condition suffered by Plaintiff did not serve to excuse his failure to exhaust his 18 administrative remedy by rendering it unavailable to Plaintiff. 19 Threats or Intimidation Concerning Report of an Incident 20 Plaintiff alleges his administrative remedies were unavailable to him because he feared for 21 his life following threats by prison officials. (Doc. 53.) Defendants contend Plaintiff’s assertions 22 are conclusory and are not alleged in his second amended complaint. (Doc. 55.) 23 Plaintiff’s second amended complaint alleges that “slander [was] yelled at Rood while in 24 front of groups of inmates,” attributing the slander to Defendant Strebel and Officer Mejia, and 25 that Plaintiff had been advised by other inmates that they “were telling several groups of inmates 26 on the yard that no heroin[] would come in until … Rood was ‘dealt with.’” (Doc. 20 at 4-5.) 27 Plaintiff alleges Strebel told an inmate to “‘get that dude,’ pointing toward Rood as he passed by” 1 then alleges “[b]y these events Rood ascertained that his life was in immediately danger.” (Id.) In 2 his opposition to Defendants’ motion, Plaintiff cites to incidents occurring prior to February 3 2018—an attack on December 7, 2016 at MCSP, an attack on December 9, 2016 at MCSP, an 4 October 24, 2017 attack at PVSP, and a December 8, 2017 attack at PVSP—to support his 5 assertion. (Id. at 3-4.) He contends that when prison officials at SATF, on March 5, 2018, told 6 “several gangs” that no heroin would be available until Plaintiff “was gone,” it created an 7 incentive for others to attack Plaintiff. (Id. at 4.) Plaintiff also contends he “was attacked from 8 behind - at the insistence of officers - with a knife. (HDSP) Late March/early April 2018” and 9 further cites to events occurring after the events giving rise to his claims here. (Id.) Plaintiff refers 10 to these incidents as “attempted murder by the cops.” (Id.) 11 In McBride, the Ninth Circuit held that the threat of retaliation for reporting an incident 12 may excuse a prisoner’s failure to exhaust administrative remedies. McBride v. Lopez, 807 F.3d 13 982, 987 (9th Cir. 2015). In so holding, the Ninth Circuit adopted the Eleventh Circuit’s two-part 14 test set forth in Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008), for determining 15 when a threat renders the prison grievance process effectively unavailable. McBride, 807 F.3d at 16 987-88. Two conditions must be met: “‘(1) the threat [of retaliation] actually did deter the 17 plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the 18 threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging 19 a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.’” Id. at 20 987 (quoting Turner, 541 F.3d at 1085). The first prong of the test is subjective, whereas the 21 second prong of the test is objective. Id. at 988. At the objective or second prong, “there must be 22 some basis in the record for the district court to conclude that a reasonable prisoner of ordinary 23 firmness would have believed that the prison official’s action communicated a threat not to use 24 the prison’s grievance procedure and that the threatened retaliation was of sufficient severity to 25 deter a reasonable prisoner from filing a grievance.” Id. at 987. 26 Here, liberally construing Plaintiff’s pleadings, Plaintiff has met the first, subjective prong 27 of the test. Plaintiff contends he was deterred from lodging a grievance due to threats of 1 test. Plaintiff asserts prison staff made “comments about the attempted murder that had taken 2 place” and thus he knew that to file a 602 “would end with another attempt on [his] life.” (Doc. 3 53 at 3.) This Court finds Plaintiff’s assertions are like the hostile interactions at issue in 4 McBride: 5 Though the guards’ statements may have seemed threatening, an inmate would not have reasonably understood that the guards 6 intended to retaliate for filing a grievance. The only potentially relevant fact McBride alleges is that he was beaten, and that the 7 guards (who beat him) made the statements. If this fact, standing alone, were sufficient, any hostile interaction between a prisoner and 8 prison officials would render the prison’s grievance system unavailable. There is no reason to allow inmates to avoid filing 9 requirements on the basis of hostile interactions with guards when the interaction has no apparent relation to the use of the grievance 10 system. Hostile interaction, even when it includes a threat of violence, does not necessarily render the grievance system 11 “unavailable.” 12 McBride, 807 F.3d at 988; see also Garcia v. Heath, No. 2:13-cv-1952 JAM AC P, 2016 WL 13 4382684, at *11 (E.D. Cal. Aug. 17, 2016) (rejecting plaintiff's argument that fear of retaliation 14 excused non-exhaustion where plaintiff's evidence did not show “direct connection” between 15 alleged retaliatory conduct and failure to exhaust appeal), report and recommendation adopted, 16 2016 WL 7451556 (E.D. Cal. Dec. 27, 2016). 17 There is no basis in this record to conclude that a reasonable prisoner of ordinary firmness 18 could have believed that the prison officials’ action communicated a threat not to use the prison’s 19 grievance procedure and that the threatened retaliation was of sufficient severity to deter a 20 reasonable prisoner from filing a grievance. Neither the previous assaultive incidents, nor the 21 comments made by Defendants giving rise to Plaintiff’s claim in the second amended complaint 22 involve a threat relating to the filing of a grievance. Hence, there is no direct connection between 23 the alleged retaliatory conduct and the failure to exhaust administrative remedies. 24 Plaintiff’s Correspondence to the Office of Internal Affairs 25 As to Plaintiff’s argument that his correspondence to the Office of Internal Affairs served 26 to exhaust his administrative remedies, the Court is not persuaded. First, Plaintiff’s own Exhibit B 27 to his sur-reply belies Plaintiff’s position. It expressly states: “It was determined that there are no 1 CDCR-602 process to address your concerns and submit it to the Inmate Appeals Office, within 2 30 days of the occurrence.” (Doc. 57 at 6 [Exhibit B].) As long as some relief was still available 3 to Plaintiff through the administrative process, he was required to continue his exhaustion efforts 4 even if the exhaustion process would ultimately prove futile. Brown v. Valoff, 422 F.3d 926, 940- 5 45 (9th Cir. 2005). Here, despite arguing his correspondence included emergent or urgent issues, 6 Plaintiff failed to submit a grievance as advised where an available remedy remained. 7 Next, the California prison system’s grievance regulations “define the boundaries of 8 proper exhaustion.” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009). And in Wilson v. 9 Wann, No. CIV S-06-1629 GEB KJM P, 2008 WL 4166886, *2 (E.D. Cal. Sept. 8, 2008), this 10 Court held that letters to the warden and internal affairs do not exhaust administrative remedies 11 under analogous regulations. See also Cato v. Darst, No. 2:14-cv-0959 TLN KJN P, 2016 WL 12 1734759, at *14 (“While [a letter to the CDCR Director] caused a use of force investigation to be 13 initiated, a use of force investigation does not satisfy the administrative exhaustion requirement of 14 the PLRA”). More recently, in Dillingham v. Garcia, No. 1:19-cv-00461-AWI-GSA-PC, 2022 15 WL 16751947 (E.D. Cal. Nov. 7, 2022), at *8, the plaintiff’s “argument that the confidential 16 inquiry exhausted his administrative remedies” was determined to be without merit. According to 17 the CDCR’s grievance procedures, request for interview forms (CDCR 22), sending complaints to 18 the hiring authority, or writing letters to other state agencies do not suffice to provide notice and 19 exhaust the administrative remedies. 20 In sum, Plaintiff’s letter to the Inmate Appeals Office did not serve to exhaust his 21 administrative remedies. 22 SATF-E-18-4309-1 23 Plaintiff contends that grievance log number SATF-E-18-4309-1 operates to exhaust his 24 administrative remedies because it put CDCR on notice of his claims against Defendants Burden 25 and Strebel, claiming it should “be seen as one with the letters I sent to OIA.” (Doc. 53 at 2.) 26 Defendants reply that Plaintiff’s argument lacks merit because this grievance does not name 27 defendants or refer to the claims in this suit; instead, it concerns a hearing on a rules violation 1 (Doc. 55 at 6.) Moreover, Defendants contend the grievance was transferred to MCSP after screen 2 out by SATF, and “eventually canceled at the final level of review,” meaning it “did not and 3 could not have served to exhaust Plaintiff’s claims in the Second Amended Complaint.” (Id. at 6- 4 7.) In his sur-reply, Plaintiff essentially argues that CDCR erred—because he was not informed of 5 the cancellation, CDCR “completely failed to respond,” and that the “appeals process was 6 effectively refused to [him] for this and other appeals issues after [he] left CDCR’s jurisdiction 7 four years ago.” (Doc. 57 at 1.) 8 Exhibit 8 to the Declaration of Gabriel Lujan is a copy of the grievance or appeal bearing 9 the numbers “SAFT-E-18 4309 1” and “MCSP-C 18-03560,” and includes Plaintiff’s explanation 10 of his grievance: 11 On July one (1), 2018, RVR #3405147 was heard after being rejected by D.A. Before the hearing commenced the SHO was informed that 12 I had not met with a SA (staff assistant) 24 hours before the hearing; that the I.E. had failed his duty by not discovering I/M Caudle, as 13 discussed for the investigation, and by changing the name LVN “BLOCK” to “BROCK,” and claiming she no longer exists within 14 the system; I/M Requested the R.E. be available at the hearing in some fashion and was denied; Credible and relevant witnesses were 15 denied – SHO said that to question all relevant witnesses would take too long; the guilty finding was based on a “Credibility 16 determination” based on a “He said/She said basis,” and yet SHO denied character witnesses (staff and inmate), some of which (staff) 17 heard the LT say, “I set you up to be here,” about this RVR; SA wasn’t present during Q’s of I.Es. 18 Additionally, I/M was not given Initial RVR (as seen on pg. 2 of 11 19 of DHR’s “6/8/2018”) even though I.E. Flippin was informed that all property had been confiscated several months before. I/M was 20 accused of “playing games when inquiring about it. …SHO fabricated multiple statements of I/M, including the plea…vision 21 impairment was not acknowledged…C/O Garza was introduced as S/A on 6/21/18, not Williams. … SHO makes contradictory 22 statements out of fabricated statements, claiming that “There is no evidence of …” was an admission of guilt, stating, … “he did not 23 intentionally expose himself.” The presen[c]e of witnesses was denied at the hearing w/o cause…More to add 24 (Doc. 49-4 at 50, 52.) As noted by Defendants in their reply, this appeal was forwarded to MCSP 25 on August 1, 2018. (Id. at 77.) The grievance was ultimately screened out or cancelled on April 26 15, 2019. (See Doc. 49-10 at 6, 9 [Moseley Declaration].) 27 Significantly here, and as revealed in the above quoted passage, the grievance relied upon 1 | by Plaintiff is not related to the claims asserted in Plaintiff's second amended complaint. 2 | Therefore, SATF-E-18-4309-1 does not operate to exhaust Plaintiff's administrative remedies. 3 VI. CONCLUSION AND RECOMMENDATIONS 4 Based on the foregoing, the Court recommends that Defendants’ motion for summary 5 | judgment for a failure to exhaust administrative remedies (Doc.49) be GRANTED. Judgment 6 | should be entered in favor of Defendants Burden and Strebel. Plaintiff's complaint should be 7 | dismissed without prejudice. 8 These Findings and Recommendations will be submitted to the United States District 9 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 10 | of the date of service of these Findings and Recommendations, the parties may file written 11 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 12 | Findings and Recommendations.” Failure to file objections within the specified time may result in 13 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 14 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 | IT IS SO ORDERED. '© | Dated: _Mareh 13, 2023 | Wr bo 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 99.