(PC) Tate v. Nakashyan

Opinion

DEREK TATE, Case No.: 1:22-cv-00624-SKO (PC) Plaintiff, ORDER GRANTING DEFENDANT CUSTER’S MOTION FOR SUMMARY v. JUDGMENT REGARDING EXHAUSTION OF ADMINISTRATIVE REMEDIES DIANA NAKASHYAN, et al., (Doc. 43) Defendants. Plaintiff Derek Tate is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s First Amendment retaliation claims against Defendants Custer and Nakashyan, Fourteenth Amendment substantive due process claim against Defendant Custer, and Fifth Amendment equal protection claim against Defendant Nakashyan. On December 1, 2023, the Court issued its Discovery and Scheduling Order. (Doc. 34.) On February 9, 2024, Defendants filed a motion to modify the scheduling order, seeking an extension of the exhaustion motion filing deadline. (Doc. 38.) On February 12, 2024, the Court granted Defendants’ motion and extended the deadline for the filing of an exhaustion motion from March 1, 2024, to April 30, 2024. (Doc. 39.) On April 8, 2024, Plaintiff filed a motion to modify the scheduling order, seeking an extension of the deadline for the completion of all discovery. (Doc. 40.) On April 9, 2024, the Court granted Plaintiff’s motion and extended the discovery deadline to June 15, 2024, and the dispositive motion filing deadline to August 15, 2024. (Doc. 41.) On April 30, 2024, Defendant Custer timely filed a Motion for Summary Judgment for Failure to Exhaust Administrative Remedies. (Doc. 43.) Plaintiff filed an opposition on May 22, 2024 (Doc. 45) and Defendants filed a reply on June 4, 2024 (Doc. 47). A. Summary Judgment Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations …, admissions, interrogatory answers, or other materials,” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, “the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). Summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, summary judgment … is satisfied.” Id. at 323. B. Exhaustion of Administrative Remedies The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). Inmates are required to “complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). The failure to exhaust administrative remedies is an affirmative defense, which the defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). On a motion for summary judgment, the defendant must prove (1) the existence of an available administrative remedy, and (2) that the plaintiff failed to exhaust that remedy. Albino, 747 F.3d at 1172 (citation omitted). If the defendant meets this burden, plaintiff then “has the burden of production. That is, the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. (citation omitted). “However, … the ultimate burden of proof remains with the defendant.” Id. An inmate “need not exhaust unavailable [remedies].” Ross v. Blake, 578 U.S. 632, 642 (2016). An administrative remedy is unavailable “when (despite what regulations or guidance unwilling to provide any relief to aggrieved inmates”; or when “an administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use, [i.e.,] some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate [the mechanism]”; or “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44. When the district court concludes that the prisoner has not exhausted administrative remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by Albino, 747 F.3d at 1168-69. “If a motion for summary judgment is denied, disputed factual questions relevant to exhaustion should be decided by the judge.” Albino, 747 F.3d at 1170. If the court finds that remedies were not available, the prisoner exhausted available remedies, or the failure to exhaust available remedies should be excused, the case proceeds to the merits. Id. at 1171. C. CDCR Grievance Process The California Department of Corrections and Rehabilitation (CDCR) has an administrative grievance system for prisoners to appeal a policy, decision, action, condition, or omission by the department or staff if it has an adverse effect on prisoner health, safety, or welfare. Prior to June 2020, the grievance process involved three levels of review. Cal. Code Regs. tit. 15, §§ 3084-85. As of June 1, 2020, prisoners are required to follow a two level review procedure. Cal. Code Regs. tit. 15, §§ 3480-3487. Compliance with 42 U.S.C. § 1997e(a) requires California-state prisoners to utilize CDCR’s grievance process to exhaust their claims prior to filing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010); see also Woodford, 548 U.S. at 85-86. III. PLAINTIFF’S RETALIATION CLAIM AGAINST DEFENDANT CUSTER The Court screened Plaintiff’s complaint in March 2023. The Court determined that Plaintiff stated cognizable First Amendment retaliation claims against Defendants Nakashyan and Custer, a Fourteenth Amendment substantive due process claim against Defendant Custer, and a other cognizable claim. (Doc. 17 at 10.) Plaintiff elected to proceed only on the claims found cognizable by the Court. (See Doc. 18.) In its screening order, the Court summarized Plaintiff’s factual assertions regarding the First Amendment retaliation claim involving Defendant Custer as follows: Plaintiff further alleges that on September 27, 2018, as “Chief Disciplinary Officer” of the Inter-Disciplinary Treatment Team, Defendant Custer heard the RVR “written by Sergeant C. Alvarez, after being authored by the Defendant Dr. Diana Nakashyan,” and denied Plaintiff’s request to call Nakashyan as an adverse witness. Plaintiff contends Custer asked Alvarez “questions intended for” Nakashyan. Custer asked Alvarez whether the RVR was issued in retaliation “for reporting the [PREA] violations; Alvarez replied “’no.’” Plaintiff contends both Defendants’ conducts violated sections of the California Code of Regulations. Plaintiff states he appealed the guilty RVR finding and at the third level of review his appeal was granted, requiring “a re-issue, re-hearing.” Plaintiff indicates the RVR was reduced to an administrative rules violation. Plaintiff also contends “the third level reviewer” rejected Defendant Custer’s claim that Plaintiff never requested witnesses. Plaintiff was transferred to Los Angeles County State Prison on or about November 1, 2018. (Doc. 17 at 4, internal citations omitted.) The Court then found that: Liberally construing the complaint, Plaintiff has plausibly asserted a retaliation claim against Custer. Plaintiff asserts Custer refused to allow him to call Nakashyan as a witness at his disciplinary hearing following issuance of an RVR, and instead called Alvarez so that Alvarez could deny any retaliatory motive associated with the filing of a PREA complaint (that complaint having been filed against Nakashyan). Because Plaintiff engaged in the protected activity of filing a PREA complaint against Nakashyan, and Custer allegedly interfered with Plaintiff’s ability to call a witness directly associated with that complaint, Plaintiff’s First Amendment rights were chilled in the absence of a legitimate correctional goal. (Doc. 17 at 7.) Defendant Custer’s Summary Judgment Motion re Exhaustion (Doc. 43) Defendant Custer contends Plaintiff failed to exhaust his administrative remedies on his First Amendment retaliation claim against Custer. Custer asserts that while Plaintiff has used the administrative grievance process at other times, Plaintiff did not submit a grievance related to his retaliation claim against him, thereby entitling Custer to summary judgment. Defendant Custer alleges Plaintiff submitted one grievance relevant to the allegations in his complaint: Log No. KVSP-19-00561. Defendant Custer asserts that between September 17, 2018—the date of the incident—and May 13, 2022, the date Plaintiff initiated this action, Plaintiff submitted more than 80 other grievances, but none were forwarded to Kern Valley State Prison (KVSP) for handling and review. Additionally, Plaintiff submitted 24 other appeals during that same period, but none involved Defendant Custer, or the incidents alleged to have occurred at Plaintiff’s Opposition (Doc. 45) Plaintiff contends he submitted a grievance regarding his claim against Defendant Custer while he was housed at California State Prison, Los Angeles, citing “appeal Log no. LAC-D-19- 00786; KVSP-0-19-00561” on January 27, 2019. Plaintiff alleges the processing of his grievance or appeal included “bizarre” actions meant to “vex and discourage” him. Plaintiff asserts that because such “gamesmanship would cause a prisoner of ordinary firmness to withdraw from the appeal process,” his constitutional right was chilled from the beginning and Defendant Custer “is therefore estopped from complaining that the Plaintiff has failed to exhaust administrative remedies.” Plaintiff asserts his administrative remedies were unavailable. Plaintiff contends Defendant Custer’s “misfeasance occurred on June 11, 2019 … not on September 17, 2018; during the rules violation report.” Plaintiff asserts he “could not argue Defendants First Amendment claim until after the second level reviewer’s decision on” of June 11, 2019, because Defendant Custer’s “false testimony occurred on 6/11/2019; not 9/17/2018; nor 1/27/2019, when Plaintiff filed his appeal KVSP-19-00561.” Plaintiff contends that on July 5, 2019, while he was housed in the administrative segregation unit at California State Prison, Los Angeles County, he “filed a retaliation grievance with the second watch law library/property correctional officer Grant.” He never received a response. Plaintiff asserts the administrative remedy was unavailable which he contends raises a genuine issue of material fact. // Defendant Custer’s Reply (Doc. 47) Defendant Custer contends that Plaintiff fails to establish he exhausted his administrative remedies prior to bringing suit and that Plaintiff is instead attempting to “assert new and different factual allegations for the basis of his retaliation claim other than what was screened by this Court.” Custer states that Plaintiff’s alleged retaliatory conduct “does not form the basis of any claim” in the action and is an unexhausted “non-existent claim.” To the extent Plaintiff contends KVSP ignored his grievance asserting same, any such grievance involves “a different basis than that identified as cognizable by this Court” and does not exhaust the claim asserted against Custer in this action. Defendant Custer states that the evidence shows Plaintiff only asserted a violation of his due process rights as to Custer’s failure to call Nakashyan as a witness in September 2018, in grievance Log No. KVSP-19-00561; even if Plaintiff submitted a grievance alleging retaliation by Custer in June 2019, “the conduct … in the alleged grievance is not the challenged conduct underlying the First Amendment claim about Custer in this case.” V. DEFENDANT CUSTER’S STATEMENT OF UNDISPUTED FACTS

No. Undisputed Material Fact Evidence Plaintiff’s Response 1 Plaintiff Derek Tate (P99822) is a pro ECF No. 1 Admit. (Doc. 45 at 26) se prisoner in the custody of the California Department of Corrections and Rehabilitation (CDCR), who at all times relevant to the allegations in his complaint, was housed at Kern Valley State Prison (KVSP) in Delano, California. 2 Between September 17, 2018 (the date Widman Admit. (Doc. 45 at 26) of the alleged events), through May 13, Decl., Ex. B 2022 (the date Plaintiff filed this lawsuit), Plaintiff was housed at eight different institutions, including KVSP, North Kern State Prison (NKSP), California State Prison-Los Angeles County (CSP-LAC), California State Prison-Sacramento (CSP-SAC), California Health Care Facility (CHCF), California Medical Facility (CMF), and Mule Creek State Prison (MCSP). 3 CDCR has an administrative grievance Garcia Deny. (Doc. 45 at 26) process that is available to all inmates Decl, ¶ 2; Plaintiff contends KVSP at KVSP and at every institution Contreras refused to process his Plaintiff was housed prior to filing suit. Decl, ¶ 2; grievances or appeals and that This process was available to all Neis Decl., CDCR routinely fails to inmates in 2018, when the alleged ¶ 2; respond to grievances and incident in this case occurred, and is Vasquez appeals, effectively denying currently available to all inmates. Decl., ¶ 2; administrative remedies. Stout Decl., ¶ 2. 4 Prior to June 1, 2020, an inmate was Moseley Admit. (Doc. 45 at 27) required to follow the procedures set Decl., ¶ 6; forth in California Code of Regulations, Garcia Title 15, sections 30843085. The Decl., ¶ 3; administrative grievance process Johnson consisted of three levels of review, Decl., ¶ 3; which the inmate initiated by Contreras submitting a CDCR Form 602 to the Decl., ¶ 3; institution’s grievance coordinator. Neis Decl., First and second-level grievances were ¶ 3; received and decided by the grievance Vasquez office at the institution where the issue Decl., ¶ 3. being grieved arose, while third-level grievances were received and decided by the Office of Appeals (OOA) located in Sacramento, California. A final decision by the OOA generally exhausted an inmate grievance. 5 As of June 1, 2020, an inmate is Moseley Admit. (Doc. 45 at 27) required to follow the procedures set Decl. ¶ 6; forth in CCR, Title 15, sections 3480- Garcia 3487 (effective June 1, 2020). The Decl. ¶ 4; administrative grievance process Johnson changed to two levels of review––a Decl. ¶ 4; review at the institution’s Office of Contreras Grievances (OOG) and a review at the Decl. ¶ 4; OOA in Sacramento. Completion of Neis Decl. ¶ the review process by OOA constitutes 4; Vasquez exhaustion of all administrative Decl. ¶ 4; remedies available to an inmate. Stout Decl. ¶ 2. 6 Between September 17, 2018 (the date Garcia Deny. (Doc. 45 at 27) of the alleged incident), and May 13, Decl. ¶ 7-8; Plaintiff contends he submitted 2022 (the date Plaintiff filed this Neis Decl. ¶ log no. KVSP-19-00561 on lawsuit), Plaintiff submitted one 89; 1/27/2019, and a “retaliation grievance that is relevant to the Moseley appeal” on 7/5/2019 for which Log No. KVSP19-00561. 7 In grievance log no. KVSP-19-00561, Garcia Deny. (Doc. 45 at 27) Plaintiff complained that the Senior Decl. ¶ 8, Plaintiff contends Defendant Hearing Officer, Defendant Custer, Ex. C; Custer interfered with his violated Plaintiff’s due process rights at Moseley rights, preventing him from a rules violation hearing on September Decl. ¶ 8, “presenting a defense to the 17, 2018, by denying Plaintiff’s request Ex. 3. Rules Violation log no. to call the employee who submitted the 5482347; surrounding rules violation report— Defendant retaliation.” Plaintiff asserts the Nakashyan—as a witness. The second level reviewer denied grievance was screened and bypassed his appeal on 6/11/2019 after the first level of review. [Fn. Omitted.] Custer “again interfered” with On June 11, 2019, the second level his right to file grievances. review (SLR) denied Plaintiff’s grievance. 8 Plaintiff appealed the SLR decision to Moseley Admit. (Doc. 45 at 28.) the OOA. Appeal Log No. 1908137 Decl. ¶ 10, Plaintiff notes the third level (an appeal of Grievance Log No. Ex. 3. reviewer found Defendant KVSP-19-00561) was received by the Custer impermissibly interfered OOA on July 9, 2019, and was granted with Plaintiff’s right to defense in part on September 10, 2019. against the charges in the RVR that Plaintiff’s “retaliation claim was denied by the Defendant J. Custer, on more than one instance.” 9 Plaintiff submitted more than 80 other Garcia Objection. (Doc. 45 at 28) grievances between September 17, Decl. ¶ 9- Plaintiff contends this fact is 2018 (the date of the alleged events) 11; Johnson conclusory and outside the and May 13, 2022 (the date Plaintiff Decl. ¶ 9; scope of these proceedings. He filed the complaint), but none of them Contreras asserts it is ambiguous and he were forwarded to KVSP for processing Decl. ¶ 8; cannot adequately respond. and review. Neis Decl. ¶ 10-20; Vasquez Decl. ¶ 8; Stout Decl. ¶ 8. 10 Plaintiff submitted 20 other appeals to Moseley Objection. (Doc. 45 at 28-29) the OOA during the time period Decl. ¶¶ 11- Plaintiff contends this fact is described above, but none of them 12. conclusory and outside the reference Defendant Custer or alleged scope of these proceedings. He incidents that occurred at KVSP. asserts it is ambiguous and he cannot adequately respond. (Doc. 43-1.) A. Procedural Background Grievance Log No. KVSP-O-19-00561 Plaintiff’s grievance provides as follows: On January 18, 2019, C/O M. IM at CSP-Los Angeles County delivered I/M Tate’s Disciplinary Hearing Results. Log #5482347, disrespect w/potential for violence. I/M Tate requests a re-issue/re- hearing in this matter. The Senior Hearing Officer Lieutenant J. Custer refused I/M Tate’s witness, Dr. Diana Nakashyan. I/M Tate has a right to question witnesses/adverse witnesses in this matter. (Title 15 section 3315(4)) … the reporting employee shall attend the disciplinary hearing or be available for questioning via speakerphone if requested by the inmate. I/M Tate requested Dr. Nakashyan’s presence so that I/M Tate could show that the RVR was in retaliation for I/M Tate’s filing a staff complaint Log # KVSP HC 18000843 on or about July 22, 2018, for emailing I/M Jones. (Title 15 section 3320(3)(L)) I/M may present documentary evidence in defense or mitigation of charges. This due process right was denied I/M Tate on 9-17-2018 at KVSP. (Doc. 43-2 at 14, 16.) Following screening and bypass at the first level of review (id. at 14), on June 11, 2019, Plaintiff’s grievance was denied at the second level (id. at 24-26). Plaintiff appealed the denial. (Doc. 43-5 at 24.) Appeal Log No. 1908137 In the Third Level Appeal Decision dated September 10, 2019, Plaintiff’s appeal of the second level response was granted in part: After considering the evidence and arguments presented to the Third Level of Review (TLR), it has been determined that the RVR hearing process and documentation has presented sufficient information to warrant a modification of the SLR. The Examiner notes the following circumstances of the offense: On August 14, 2018, the appellant openly displayed disrespect and contempt for Dr. Nakashyan who wrote the incident up on a CDCR 128-B chrono. Dr. Nakashyan does not have access to a digital signature via the Strategic Offender Management System (SOMS), so the RVR was submitted on behalf of [] Dr. Nakashyan by Correctional Sergeant (Sgt.) C. Alvarez. A review of the RVR indicates the appellant wanted the RE [reporting employee] as a witness at the hearing. At the hearing, Sgt. Alvarez was present as the RE. The appellant had two questions for the RE, but Sgt. Alvarez could not answer questions adequately because Sgt. Alvarez was not a witness to the incident and had entered the RVR into SOMS on behalf of the RE, Dr. Nakashyan. There is no mention in the record that an attempt was made to get Dr. Nakashyan to the hearing or have the doctor available via speaker phone. The RE was answer the appellant’s submitted questions resulting in a due process violation relative to witness handling. The TLR finds that the SHO [senior hearing officer]’s failure to call the RE as a witness in person or via speaker phone and failure to adequately address the reason for Dr. Nakashyan’s absence from the hearing represents a due process error which requires ordering the RVR Reissue/Rehear. (Doc. 43-5 at 21.) B. Plaintiff Failed to Exhaust His Retaliation Claim Against Custer The Court finds Defendant Custer has met his initial burden of showing there is no genuine issue of material of fact because there exists an available administrative remedy process available to all inmates in CDCR and that Plaintiff failed to exhaust his administrative remedies concerning the First Amendment retaliation claim asserted against Custer. (See UDF ¶¶ 3-8.) See In re Oracle Corp. Sec. Litig., 627 F.3d at 387; Albino, 747 F.3d at 1172. Defendant has shown that an available administrative remedy process exists and that Log No. KVSP-19-00561 alleges only that Custer violated Plaintiff’s due process by denying Plaintiff’s request to call Defendant Nakashyan as a witness at a disciplinary proceeding. Thus, Defendant has met his initial burden to show Plaintiff’s First Amendment retaliation claim against Custer is not exhausted and is subject to dismissal. The burden shifts to Plaintiff “to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The Court must determine whether Log No. KVSP-19-00561 serves to exhaust the retaliation claim or whether Plaintiff submitted another grievance that exhausts that particular claim. 1. Log No. KVSP-19-00561 Does Not Address Retaliation “A grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To provide adequate notice, the prisoner need only provide the level of detail required by the prison's regulations.” Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing Jones, 549 U.S. at 219). The grievance “need not include legal terminology or legal theories,” because “[t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009)). As noted above, Log No. KVSP-19-00561 pertains to Plaintiff’s allegation that Defendant Custer violated his due process rights by refusing to call Dr. Nakashyan at the disciplinary proceedings held September 17, 2018, and makes no mention of retaliation by Custer. Plaintiff’s statement explaining his dissatisfaction with the second level response to Log No. KVSP-19-00561 provides as follows: I/M is totally dissatisfied with the SLR. I/M Tate’s rules violation report at page 3 clearly requests the “RE” or reporting employee as a witness. When I/M Tate asked the senior hearing officer to have the RE/Dr. Nakashyan present, that request was denied, then the SHO called Sgt. Alvarez into the hearing, asking Sgt. Alvarez questions appropriate for Dr. Nakashyan who was the reporting employee of this rules violation. Sgt. C. Alvarez explains in the rules violation report that it is being written on behalf of Dr. Nakashyan, at circumstances of violation section. Sgt. C. Alvarez has no first hand knowledge of any of the events that led up to this event. Sgt. C. Alvarez did not observe of any of the actions described in the RVR. I/M Tate would have no reason to call Sgt. Alvarez as a witness in this matter. Dr. Nakashyan wrote this report. Dr. Nakashyan should have been called at the I/M request so that the truth of the matter could be arrived at. I/M Tate was denied this due process right. I/M Tate is entitled to an re-issue re-hearing in this matter w/out these violations. (Doc. 43-5 at 24, 26 [dated & signed 7/1/2019].) In appealing the denial following second level review, Plaintiff again makes no mention of retaliation by Custer. Thus, to the extent Plaintiff contends he only learned of Custer’s retaliation on June 11, 2019, when he received the second level response, Plaintiff’s appeal of the second level response is silent in that regard. Plaintiff makes no mention of retaliation by Defendant Custer in his original grievance or in his appeal to the second level response. Thus, the retaliation claim is unexhausted. See, e.g., Cortinas v. Vasquez, No. 1:19-cv-00367-JLT-SKO (PC), 2022 WL 16748864, at *12 (E.D. Cal. Nov. 7, 2022) (finding excessive force grievance did not serve to exhaust administrative remedies as to plaintiff's sexual assault claim because excessive force grievance made no mention of sexual assault or misconduct). 2. There Is Insufficient Evidence of Another Grievance Defendant Custer’s motion is supported by the Declaration of P. Neis, the grievance 2018, until September 4, 2019, and from September 12, 2019, to October 10, 2019. (Id., ¶ 7.) During that period, Plaintiff submitted one grievance concerning events occurring at KVSP; originally assigned Log No. LAC-19-00786, that grievance was screened and forwarded to KVSP for processing as it concerned a rules violation report generated at KVSP. (Id., ¶ 9.) LAC-19- 00786 thus became KVSP-19-00561. The 20 other grievances submitted by Plaintiff while he was housed at CSP-LAC do not involve Custer or any events occurring at KVSP. (Id., ¶¶ 10-18.) Plaintiff contends he filed a “retaliation grievance” on July 5, 2019, while housed at CSP- LAC, and gave that grievance to a correctional officer on second watch but never received a response. A remedy is available if it “capable of use for the accomplishment of a purpose” or “is accessible or may be obtained.” Eaton v. Blewett, 50 F.4th 1240, 1245 (9th Cir. 2022) (quoting Ross, 578 U.S. at 642). 3. Plaintiff’s Deposition Testimony Does Not Support His Claim of Exhaustion During his deposition, Plaintiff testified he “had no interactions with Defendant Custer” other than during the disciplinary proceedings concerning the RVR. (Tate Depo., at 101.) He did not discuss his grievances with Custer at the disciplinary hearing. (Id. at 102.) Plaintiff later testified he did speak with Custer about Defendant Nakashyan’s “RVR and the retaliation in the 602s and the complaints” that he filed. (Id. at 104.) When asked how many grievances Plaintiff filed concerning his allegations against Nakashyan, Plaintiff replied, “The only grievance that they replied to was the one” and that he “filed three grievances with the appeals at Kern Valley. Never got a response from any of them.” (Id. at 105.) When asked about Defendant Custer and whether he filed a grievance, Plaintiff stated he filed two grievances: “The first grievance I filed was the due process grievance, and the second grievance that I filed was the fact that he was dishonest during the appeal process. So I filed two grievances against them.” (Id. at 106-107.) Plaintiff testified that he only received a response to the grievance involving due process and he “never heard anything” about the other grievance. (Id. at 107.) Plaintiff stated that when he did not receive a response, he filed another grievance “after about six months,” for a total of three grievances. (Id.) When asked about the grievance to which he received a response, Plaintiff retaliation in there, and I talk about the fact that he refused my witness in there.” (Id.) Plaintiff identified the log number for the “grievance about due process and retaliation against Custer” as “K[V]SP1900561.” (Id. at 108.) Plaintiff testified he “filed two 602s on retaliation” but he did not have log numbers for those. (Id. at 108-109.) When asked why Custer retaliated against him, Plaintiff testified Custer “retaliated against me by giving false information during the appeals process. He wanted - - I guess, he wanted it to be over. And so when they asked him if I requested Dr. Nakashyan as a witness, he said no” (id. at 109) and that Custer wanted Plaintiff “to lose that appeal” (id. at 110). Plaintiff testified “it was sometime in 2019 - - I was in Ad Seg at the time I got [the second level response] back, I’m pretty sure - - at Lancaster. And that’s when I 602ed it.” (Id. at 112.) Plaintiff stated he “explained in the 602 that [Custer] gave false information during the appeals process. That’s what I explained.” (Id. at 113-114.) Plaintiff’s deposition testimony does not support his assertion that he exhausted his retaliation claim against Defendant Custer. Plaintiff did not allege any retaliatory behavior by Custer--either in the initial complaint or in his appeal to the second level response. Even assuming Plaintiff had alleged retaliation against Custer as a part of his appeal following the second level response, such assertions would not exhaust any retaliation claim against Custer.1 See McClintock v. Cooper, No. 2:18-cv-0560 JAM KJN P, 2022 WL 2818945, at *9 (E.D. Cal. July 19, 2022) (“While plaintiff may have attempted to raise retaliation claims in his appeals of the first and second level responses, the regulations required plaintiff to raise his retaliation claims in his originally submitted grievance. … By failing to raise a retaliation claim in the grievance originally submitted in MCSP-15-01803, plaintiff failed to comply with the applicable procedural rules. Therefore, MCSP-15-01803 could not have exhausted any retaliation claims raised in plaintiff's appeals from the first and second level decisions”); Tate v. Andres, No. 2:18- cv-00822-KJM-AC, 2022 WL 1104016, at *7 (E.D. Cal. Apr. 13, 2022) (“Plaintiff's primary argument is that he was prevented from utilizing the grievance process because he intended to 1See Cal. Code Regs. tit. 15, § 3084.2(a)(4) (requiring inmate to “state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form”); Cal. Code Regs. tit. 15, § 3084.1(b) (administrative remedies not exhausted as to “any new issue, information, or person later named by the appellant that was not included in the originally submitted explain his retaliation claim during the mandatory interview for his grievance but was denied when the second-level reviewer failed to interview him. … Plaintiff failed to raise the retaliation issue until he appealed to the third level”). In sum, the First Amendment retaliation claim against Defendant Custer screened by this Court does not include Custer’s alleged dishonesty during the appeals process, and instead pertains to Custer’s conduct during the disciplinary proceedings. Therefore, even if Plaintiff submitted a grievance while housed at CSP-LAC and after receiving the second level response, such a grievance does not exhaust the First Amendment retaliation claim against Custer in this action. 4. Plaintiff’s Vague and Conclusory Allegations Are Insufficient to Create a Factual Dispute Vague and conclusory allegations are insufficient to create a genuine dispute of material fact. See Sapp, 623 F.3d at 823-24 (plaintiff bears burden of demonstrating exception to exhaustion requirement based on prison officials’ misconduct thwarted attempts to exhaust remedies); Jeffries v. Fields, No. CV 12-1351 R(JC), 2014 WL 994908, at *18 (C.D. Cal. March 10, 2014) (stating conclusory allegations obstruction and tampering are insufficient to demonstrate that failure to exhaust was excused by prison officials’ misconduct) (citing Tubach v. Lahimore, 2012 WL 4490792, at *3 (E.D. Cal. Sept. 28, 2013) [“The vague assertion that [plaintiff's] grievances were not processed and that Defendant was stopping them from being processed is insufficient to make the requisite showing that exhaustion either occurred or was excused due to ... conduct on the part of prison officials which rendered the appeals process unavailable”]). Plaintiff offers only his own self-serving statements that his “retaliation grievance” was submitted in July 2019 but never responded to while he was housed at CSP-LAC. This is insufficient to raise a genuine issue of material fact. See Johnson v. Roesserr, No. CV 18-10207- VBF (KK), 2019 WL 3720096, at *6 (C.D. Cal. June 28, 2019) (“Plaintiff's conclusory statements do not present ‘evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to 2018) (“Plaintiff's assertions that he gave a deputy an inmate complaint form and then never heard anything again are simply too vague and inconclusive to create a genuine issue regarding exhaustion or the availability of administrative remedies”); Crayton v. Hedgpeth, No. C-08-00621 WHA (PR), 2011 WL 1988450, at *7 (E.D. Cal. May 18, 2011) (“The allegation that some grievances were lost or destroyed is not sufficient to support the inference that plaintiff’s administrative remedies were wrongfully obstructed for all his claims, particularly where there is ample evidence that many of plaintiff’s grievances were recorded and responded to through the director’s level of review”); Rodgers v. Reynaga, No. CV 1-06-1083-JAT, 2009 WL 2985731, at *3 (E.D. Cal. Sept. 16, 2009) (“To grant Plaintiff an exception to PLRA's demand for exhaustion based solely on Plaintiff's self-serving testimony that his grievance was surreptitiously destroyed by prison officials would completely undermine the rule”). Moreover, as noted above, even assuming Plaintiff submitted a separate grievance while housed at CSP-LAC, such a grievance would not exhaust the retaliation claim asserted against Custer in this action because the claim screened by the Court did not involve Custer’s alleged dishonesty at the second level of review. Viewed in the light most favorable to Plaintiff, the record reveals Plaintiff failed to exhaust any First Amendment retaliation claim against Defendant Custer and has failed to set forth evidence showing his failure to exhaust administrative remedies concerning his retaliation claim against Defendant Custer should be excused. See Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). Defendant Custer has met his ultimate burden to show Plaintiff failed to exhaust his administrative remedies regarding the First Amendment retaliation claim against Custer prior to filing suit. Albino, 747 F.3d at 1172. Therefore, Defendant Custer is entitled to summary judgment on that claim. Celotex, 477 U.S. at 322-33. // // // // // Based on the foregoing, IT IS HEREBY ORDERED that Defendant Custer’s motion for summary judgment for a failure to exhaust administrative remedies (Doc. 43) is GRANTED. Plaintiff’s First Amendment retaliation claim against Defendant Custer is DISMISSED without prejudice. IT IS SO ORDERED.

Dated: November 13, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE