1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KENNETH LEE TAYLOR, No. 2:21-cv-1042 TLN DB P 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 MARSHA INGRAM, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims that defendant retaliated against him in violation of his First 18 Amendment rights when she (1) wrote a false disciplinary report against him on August 4, 2019, 19 and (2) moved his housing assignment on August 8, 2019, after plaintiff told her that he intended 20 to submit a staff complaint against her. Presently before the court is defendant’s fully briefed 21 motion for partial summary judgment arguing she is entitled to summary judgment on plaintiff’s 22 claim that defendant retaliated against him by changing his housing assignment because plaintiff 23 failed to exhaust administrative remedies as to this claim. 1 For the reasons set forth below, the 24 undersigned will recommend that the motion be denied because administrative remedies were 25 effectively unavailable. 26 //// 27 1 Defendant’s motion states that plaintiff exhausted his claim that defendant retaliated by 28 authoring a disciplinary report against him. 1 BACKGROUND 2 I. Relevant Procedural History 3 Plaintiff initiated this action with the filing of the complaint on June 9, 2021.2 (ECF No. 1 4 at 8.) By order dated April 4, 2022, the undersigned screened the complaint and determined that 5 the complaint stated cognizable retaliation claims against defendant Ingram based on plaintiff’s 6 allegations that defendant (1) filed a false rules violation report (“RVR”) and (2) had plaintiff 7 transferred to another housing unit because plaintiff informed her that he intended to file a staff 8 complaint against her. (ECF No. 7.) Plaintiff was given the option to proceed immediately with 9 his retaliation claims against defendant Ingram or file an amended complaint. (Id.) Plaintiff 10 elected to proceed immediately, voluntarily dismissing all other claims and defendants. (ECF No. 11 10.) 12 Defendant was served (ECF No. 15), and this action was referred to the court’s Post- 13 Screening ADR (Alternative Dispute Resolution) Project (ECF No. 18). Defendant moved to opt 14 out of the Post-Screening ADR Project. (ECF No. 22.) The motion was granted, and defendant 15 was directed to file an answer. (ECF No. 23.) The answer was filed on October 14, 2022. (ECF 16 No. 24.) A discovery and scheduling order was issued on November 28, 2022. (ECF No. 25.) 17 Defendant filed the instant motion for partial summary judgment on January 30, 2023. (ECF No. 18 26.) Plaintiff moved for and was granted a forty-five-day extension of time to file an opposition. 19 (ECF Nos. 27, 29.) 20 Defendant filed a motion to compel plaintiff to respond to discovery requests. (ECF No. 21 30.) Plaintiff requested the appointment of counsel and moved to reopen discovery. (ECF No. 22 34.) The undersigned denied the motion without prejudice and directed plaintiff to file an 23 opposition or statement of no opposition to defendant’s motion to compel3 within thirty days and 24
25 2 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 26 (1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 105, 1059 (9th Cir. 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates). 27 3 The undersigned notes that plaintiff has not filed an opposition or statement of no opposition to 28 the motion to compel. That motion remains pending. 1 to file an opposition to defendant’s motion for summary judgment within sixty days. (ECF No. 2 36.) 3 In response, plaintiff moved for a ninety-day extension of time. (ECF No. 39.) The 4 motion was granted in part and denied in part. Plaintiff was directed to respond to the motion to 5 compel by June 30, 2023, and to the motion for summary judgment by July 31, 2023. (ECF No. 6 40.) The pretrial motion deadline set forth in the discovery and scheduling order was vacated. 7 (Id.) The undersigned ordered that pretrial motions were to be filed no later than sixty days after 8 a final ruling on the instant exhaustion-based summary judgment motion. (Id.) 9 II. Allegations in the Complaint 10 Plaintiff alleges that the events giving rise to the claim occurred while he was a California 11 Department of Corrections and Rehabilitation (“CDCR”) inmate housed at California Health Care 12 Facility, Stockton (“CHCF”). (ECF No. 1 at 5.) Correctional Officer Marsha Ingram is the sole4 13 defendant. (Id. at 2.) 14 Plaintiff alleges that on August 4, 2019, he made several requests for defendant to mail his 15 outgoing legal mail. (Id. at 4.) Defendant denied the requests and eventually “started yelling 16 emotionally at him out of control with extreme vulgarity.” (Id.) When defendant informed 17 plaintiff that she would not assist with plaintiff’s mail, plaintiff informed her that he intended to 18 “write a complaint against her” for her refusal. (Id. at 5.) In response, defendant threated “to 19 move plaintiff out of her housing unit.” (Id.) Correctional Officer C. Dubuisson intervened and 20 ordered plaintiff back to his cell, later telling plaintiff that “you can never win an argument with 21 the defendant (c/o Marsha Ingram) because of what she’ll write on paper.” (Id.) 22 Defendant wrote plaintiff up for a “false and fabricated” rules violation based on this 23 interaction. (Id. at 6.) Defendant also moved plaintiff from his “Honor Housing Unit Dormitory” 24 to a housing unit with a water supply contaminated with Legionnaire’s Disease. (Id. at 6.) As a
25 4 Plaintiff identified Correctional Sergeant R. Valencia as a defendant in the complaint. Upon screening, the undersigned determined that the allegations were not sufficient to state a claim 26 against Valencia. (ECF No. 7 at 6-7.) Plaintiff was given the option to amend the complaint or 27 proceed immediately on his claims against defendant Ingram. (Id. at 9.) Plaintiff elected to proceed immediately voluntarily dismissing all other claims and defendants. (ECF No. 10.) 28 Accordingly, defendant Ingram is the sole remaining defendant. 1 result of being placed in the new housing unit, plaintiff “contracted and suffered ‘skin rashes all 2 over his body that’s permanent to this date.’” (Id. at 7.) 3 Plaintiff alleges he suffered injury in the form of damage to his disciplinary history that 4 impacted his parole hearing, medical consequences, emotional distress, and more. (Id. at 4.) 5 Plaintiff requests relief in the form of a “chrono” stating the August 4, 2019, rules violation report 6 written by defendant was without merit and monetary damages in an unstated amount. (Id. at 8.) 7 MOTION FOR SUMMARY JUDGMENT 8 I. The Parties’ Briefs 9 A. Defendant’s Motion 10 Defendant argues that she is entitled to summary judgment on one of plaintiff’s retaliation 11 claims. (ECF No. 26.) Upon screening the complaint, the undersigned determined that plaintiff 12 alleged potentially cognizable retaliation claims based upon defendant Ingram (1) filing a “false 13 and fabricated” rules violation report and (2) transferring him from the Honor Housing Unit 14 Dormitory to another bed in the facility where he was exposed to Legionnaires Disease. (ECF 15 No. 7 at 6.) In the motion for partial summary judgment, defendant argues that plaintiff failed to 16 his exhaust his claim that defendant changed his housing assignment in retaliation. 17 Specifically, defendant argues that plaintiff filed a grievance regarding the retaliatory bed 18 move, but it was cancelled as untimely, and a cancelled grievance does not exhaust administrative 19 remedies. (ECF No. 26 at 5-7, 10-11.) 20 B. Plaintiff’s Opposition 21 In his opposition, plaintiff alleges that the events giving rise to the claim stem from an 22 incident that occurred on August 4, 2019. (ECF No. 42 at 1-3.) Plaintiff states that on that date, 23 defendant Ingram refused to process his legal mail after plaintiff advised her that he was going to 24 file a staff complaint against her, defendant threatened to move plaintiff out of his housing unit 25 and wrote a false rules violation report. (Id. at 2.) He further states that on August 8, 2019, 26 defendant moved plaintiff’s housing assignment, as she threatened to do on August 4, 2019. (Id.) 27 Plaintiff filed a grievance challenging all of defendant’s actions. (Id.) He claims the grievance 28 was improperly screened out because all three issues stemmed from a single event. (Id.) He 1 further argues that the rejection made it impossible for him to file both appeals within the time 2 limits. (Id.) 3 C. Defendant’s Reply 4 Defendant again argues that plaintiff failed to exhaust his retaliatory bed move claim 5 because the appeal was properly cancelled as untimely. (ECF No. 44.) Defendant further argues 6 that plaintiff’s initial grievance, where plaintiff included all of his allegations against defendant, 7 did not seek a remedy or request an investigation into the retaliatory bed move. (Id. at 3-4.) 8 Defendant claims that plaintiff did not exhaust because the rejected grievance failed to put the 9 prison on notice of plaintiff’s claim that defendant took adverse action against him. Specifically, 10 defendant argues the change in plaintiff’s housing assignment was not timely filed as the 11 grievance solely related to the retaliatory bed move. (Id. at 6.) 12 II. Summary Judgment under Rule 56 13 Summary judgment is appropriate when the moving party “shows that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 15 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party bears the burden of 16 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 17 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 18 party may accomplish this by “citing to particular parts of materials in the record, including 19 depositions, documents, electronically stored information, affidavits or declarations, stipulations 20 (including those made for purposes of the motion only), admissions, interrogatory answers, or 21 other materials” or by showing that such materials “do not establish the absence or presence of a 22 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 23 Fed. R. Civ. P. 56(c)(1). 24 “Where the non-moving party bears the burden of proof at trial, the moving party need 25 only prove there is an absence of evidence to support the non-moving party’s case.” Oracle 26 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 27 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 28 motion, against a party who fails to make a showing sufficient to establish the existence of an 1 element essential to that party’s case, and on which that party will bear the burden of proof at 2 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 3 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 4 a circumstance, summary judgment should “be granted so long as whatever is before the district 5 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 6 56(c), is satisfied.” Id. 7 If the moving party meets its initial responsibility, the burden shifts to the opposing party 8 to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 9 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 10 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 11 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 12 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 13 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 14 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 15 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 16 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 17 reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248. 18 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 19 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 20 v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) (citation 21 omitted). It is the opposing party’s obligation to produce a factual predicate from which the 22 inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 23 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 24 show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 25 (citations omitted). “Where the record is taken as a whole could not lead a rational trier of fact to 26 find for the non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l 27 Bank, 391 U.S. at 289). 28 //// 1 On a motion for summary judgment, it is inappropriate for the court to weigh evidence or 2 resolve competing inferences. “In ruling on a motion for summary judgment, the court must 3 leave ‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate 4 inferences from the facts to the jury.” Foster v. Metropolitan Life Ins. Co., 243 Fed.Appx. 208, 5 210 (9th Cir. 2007) (quoting Anderson, 477 U.S. at 255). 6 Generally, when a defendant moves for summary judgment on an affirmative defense on 7 which he bears the burden of proof at trial, he must come forward with evidence which would 8 entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. 9 South, 965 F.2d 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an 10 affirmative defense that must be raised in a motion for summary judgment rather than a motion to 11 dismiss. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for 12 summary judgment for non-exhaustion, the defendant has the initial burden to prove “that there 13 was an available administrative remedy, and that the prisoner did not exhaust that available 14 remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to the prisoner to 15 come forward with evidence showing that there is something in his particular case that made the 16 existing and generally available administrative remedies effectively unavailable to him.” Id. The 17 ultimate burden of proof remains with the defendant, however. Id. If material facts are disputed, 18 summary judgment should be denied, and the “judge rather than a jury should determine the 19 facts” on the exhaustion question, id. at 1166, “in the same manner a judge rather than a jury 20 decides disputed factual questions relevant to jurisdiction and venue,” id. at 1170-71. 21 III. Exhaustion 22 A. Legal Standards or Exhaustion of Administrative Remedies 23 1. PLRA Exhaustion Requirement 24 Because plaintiff is a prisoner challenging the conditions of his confinement, his claims 25 are subject to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA 26 mandates that “[n]o action shall be brought with respect to prison conditions under section 1983 . 27 . . or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility 28 until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The 1 exhaust requirement “applies to all inmate suits about prison life, whether they involve general 2 circumstances or particular episodes, and whether they allege excessive force or some other 3 wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 4 Regardless of the relief sought, a prisoner must purse an appeal through all levels of a 5 prison’s grievance process as long as some remedy remains available. “The obligation to exhaust 6 ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no longer 7 the case, then there are no ‘remedies . . . available,’ and the prison need not further pursue the 8 grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis and alteration in 9 original) (citing Booth v. Churner, 532 U.S. 731, 736 (2001)). 10 “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of 11 administrative remedies: An inmate . . . must exhaust available remedies, but need not exhaust 12 unavailable ones.” Ross v. Blake, 578 U.S. 632, 642 (2016) (brackets in original). In discussing 13 availability in Ross the Supreme Court identified three circumstances in which administrative 14 remedies were unavailable: (1) where an administrative remedy “operates as a simple dead end” 15 in which officers are “unable or consistently unwilling to provide any relief to aggrieved 16 inmates;” (2) where an administrative scheme is “incapable of use” because “no ordinary prisoner 17 can discern or navigate it;” and (3) where “prison administrators thwart inmates from taking 18 advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 19 643-44. “[A]side from [the unavailability] exception, the PLRA’s text suggests no limits on an 20 inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’” Id. at 639. 21 “[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, 22 foreclosing judicial discretion.” Id. 23 “[F]ailure to exhaust is an affirmative defense under the PLRA.” Jones v. Bock, 549 U.S. 24 199, 216 (2007). It is the defendant’s burden “to prove that there was an available administrative 25 remedy.” Albino, 747 F.3d at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th 26 Cir. 1996)). The burden then “shifts to the prisoner to come forward with evidence showing that 27 there is something in his particular case that made the existing and generally available 28 administrative remedies unavailable to him.” Id. 1 A prisoner is required to exhaust administrative remedies before filing suit. McKinney v. 2 Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam). Section 1997e(a) mandates that “[n]o 3 action shall be brought . . . until [the prisoner’s] administrative remedies . . . are exhausted. 42 4 U.S.C. § 1997e(a). “The ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint under § 5 1983 may be entertained.” Booth, 532 U.S. at 738. “Exhaustion subsequent to the filing of suit 6 will not suffice.” McKinney, 311 F.3d at 1199. 7 2. California’s Inmate Appeal Process 8 “The California prison system’s requirements ‘define the boundaries of proper 9 exhaustion.” Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (quoting Jones, 549 U.S. 10 at 218). California prisoner may appeal “any policy, decision, action, condition, or omission by 11 the department or its staff that the inmate or parolee can demonstrate a material adverse effect 12 upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). During the time 13 relevant to this action,5 inmates in California proceeded through three levels of appeals to exhaust 14 the appeal process: (1) formal written appeal on a CDC 602 inmate appeal form; (2) second level 15 appeal to the institution head or designee; and (3) third level appeal to the Director of the 16 California Department of Corrections and rehabilitation (“CDCR”). Cal. Code Regs. tit. 15, § 17 3084.7. Under specific circumstances, the first level may be bypassed. Id. The third level of 18 review constitutes the decision of the Secretary of the CDCR and exhausts a prisoner’s 19 administrative remedies. See id., § 3084.7(d)(3). However, a cancellation or rejection decision 20 does not exhaust administrative remedies. Id., § 3084.1(b). 21 A California prisoner is required to submit an inmate appeal at the appropriate level and 22 proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 23 (9th Cir. 2005); Bennet v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). In submitting a grievance, 24 an inmate is required to “list all staff members involved and shall describe their involvement in 25 the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). Further, the inmate must “state all facts known 26 5 In 2020, California changed the grievance system from a three-tier system to a two-tier system. 27 The change became effective on June 1, 2020, after plaintiff initiated the relevant appeals in the present case. See Cal. Code Regs. tit. 15, § 3480. All citations to the California code in the text 28 refer to the prior law. 1 and available to him/her regarding the issue being appealed at the time,” and they must “describe 2 the specific issue under appeal and the relief requested.” Id. § 3084.6(b)(8). 3 An inmate has thirty calendar days to submit their grievance from the occurrence of the 4 event or decision being appealed, or “upon first having knowledge of the action or decision being 5 appealed.” Cal. Code Regs. tit. 15, § 3084.8(b). 6 IV. Material Facts 7 Defendant filed a Statement of Undisputed Facts (“DSUF”) as required by Local Rule 8 260(a). (ECF No. 26-1.) Plaintiff’s opposition fails to comply with Local Rule 260(b). Rule 9 260(b) requires that a party opposing a motion for summary judgment “reproduce the itemized 10 facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny 11 those that are disputed, including with each denial a citation to the particular portions of any 12 pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in 13 support of that denial.” 14 The court is mindful of the Ninth Circuit’s instruction that district courts are to “construe 15 liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary 16 judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, 17 the court considers the record before it in its entirety despite plaintiff’s failure to be in strict 18 compliance with the applicable rules. However, only those assertions in the opposition that have 19 evidentiary support in the record will be considered. 20 In the opposition, plaintiff has not indicated any dispute regarding the appeals cited by 21 defendant or the date on which the appeals were submitted. 22 A. Facts regarding Appeals Process and Rules 23 At the time plaintiff submitted the relevant grievances, institutional staff had 30 working 24 days from the date they received an inmate grievance, to provide a first level response. (DSUF 25 (ECF No. 26-1) at ¶ 4.) If the grievance was denied or not resolved to the inmate’s satisfaction at 26 the first level, the inmate could appeal it to the second level within thirty calendar days. (Id.) 27 The time constraints are the same at the second level. (Id.) 28 //// 1 At the third level of review, the Chief of the Office of Appeals would issue a response. 2 Once an inmate receives a third level decision, the grievance is exhausted. (DSUF (ECF No. 26- 3 1) at ¶ 5.) A grievance may be rejected or cancelled if it fails to comply with the regulations 4 governing inmate appeals. (DSUF (ECF No. 26-1) at ¶ 6.) A cancelled appeal does not exhaust 5 administrative remedies. (DSUF (ECF No. 26-1) at ¶ 7.) If the inmate disagrees with the 6 cancellation, he can challenge the cancellation by filing a new administrative grievance regarding 7 that decision. (DSUF (ECF No. 26-1) at ¶ 8.) If the inmate prevails, the initial grievance will be 8 reinstated. (Id.) 9 B. Facts regarding Events and Timing 10 At all relevant times, plaintiff was incarcerated at CHCF. (DSUF (ECF No. 26-1) at ¶ 1.) 11 Plaintiff’s complaint alleges “that (1) on August 4, 2019, Defendant Ingram filed a false and 12 fabricated CDCR-128-A against him, and (2) on August 8, 2019, Defendant Ingram moved his 13 bed from his Honor Housing Unit Dormitory and Legionnaires’ free bed to a bed in a unit that 14 exposed him to Legionnaires disease; and, that Defendant Ingram took these actions in retaliation 15 for [plaintiff’s] threat to file a grievance against her in violation of his First Amendment Rights.” 16 (Id.) 17 Between August 4, 2019, the date on which the events giving rise to the claim 18 commenced, and June 14, 2021, the date the complaint was filed on the docket, plaintiff filed 19 three grievances related to the allegations in the complaint. (DSUF (ECF No. 26-1) at ¶ 2.) 20 Those three grievances, and the facts relevant to them are: 21 1. Grievance No. CHCF-E-19-03565 (“3565”) 22 This grievance was received by prison staff on August 26, 2019. (DSUF (ECF No. 26-1) 23 at ¶ 9.) Therein, plaintiff alleged that defendant issued a false rules violation report in retaliation 24 “(1) to taint [his] 10-year disciplinary-free history for [his] upcoming Jan. 2020 parole hearing to 25 cause [him] irreparable harms to parole; (2) to deter and prevent [his] regular and numerous 26 outgoing legal mailings because [he is] a known jailhouse lawyer who[] file[s] complaints and 27 sues prison officials and C/Os with a successful record []; for [plaintiff] successfully defeating a 28 ‘false and fabricated CDCR-128 RVR’ by her 2nd watch co-worker [c/o J. Green] on 7/30/2019, 1 Log No. CHCF-E-19-02690; and (4) as an alleged reason for ‘refusing’ to process [his] outgoing 2 legal mail during 3rd watch per prison policy.” (De Jesus Decl. (ECF No. 26-2) at ¶ 10.) 3 Plaintiff also provided allegations describing the August 4 interaction with defendant.6 (Id.) 4 The grievance was screened out and rejected on September 3, 2019 “because it contained 5 multiple issues that did not derive from a single event, or that were not directly related and could 6 not have been reasonably addressed in a single event.” (De Jesus Decl. (ECF No. 26-2) at ¶ 11.) 7 Plaintiff resubmitted the grievance, omitting allegations related to the August 8 bed move, on 8 September 17, 2019. (De Jesus Decl. (ECF No. 26-2) at ¶ 12.) The appeal was bypassed at the 9 first level and denied at the second level. (De Jesus Decl. (ECF No. 26-2) at ¶¶ 13, 14.) This 10 grievance, regarding plaintiff’s claim that defendant retaliated by issuing plaintiff a false RVR on 11 August 4, 2019, was exhausted at the second level of review because it was classified as 12 administrative. (DSUF (ECF No. 26-1) at ¶ 9.) 13 2. Grievance No. CHCF-E-19-04079 (“4079”) 14 This grievance was received on October 1, 2019. (DSUF (ECF No. 26-1) at ¶ 10.) 15 Therein, plaintiff alleged that he was moved to a “Legionnaires’ Disease contaminated water 16 supply housing unit” in retaliation for informing defendant he would file a staff complaint against 17 her. (Id.) Plaintiff also included allegations regarding defendant’s actions on August 4, 2019, in 18 addition to the August 8, 2019, bed move allegations. (De Jesus Decl. (ECF No. 26-2) at ¶ 16.) 19 This grievance was screened out and rejected at the first level because it related to multiple issues. 20 (De Jesus Decl. (ECF No. 26-2) at ¶ 17.) The rejection noted that plaintiff previously appealed 21 the August 4, 2019, incident and instructed that if he chose to rewrite an appeal involving the 22 August 8, 2019, bed move he should resubmit the grievance within 30 days. (Id.) 23 Plaintiff refiled the appeal relating to the August 8, 2019, bed move on October 7, 2019. 24 (De Jesus Decl. (ECF No. 26-2) at ¶ 18.) The grievance was cancelled at the first level because
25 6 The court notes that the original version of this grievance included a statement from plaintiff that he was “move[d] from a ‘Legionnaires’ Disease [FREE] E2A-116 Low Water Supply 26 Housing Unit,’ to a ‘Legionnaires’ Disease Contaminated Water Supply Housing Unit E5A-104 27 Low” without notice. (ECF No. 26-2 at 38; ECF No. 42 at 8.) While this grievance was included in exhibits filed by both parties (see id.), it was not included in the description of this grievance 28 within defendant’s statement of undisputed facts. 1 the time limits for submitting the appeal were exceeded. (DSUF (ECF No. 26-1) at ¶ 15.) 2 Plaintiff was informed he could appeal the cancellation. (DSUF (ECF No. 26-1) at ¶ 16.) 3 3. Grievance No. CHCF-E-19-04044 (“4044”) 4 This grievance was submitted on October 22, 2019. (DSUF (ECF No. 26-1) at ¶ 17.) 5 Therein, plaintiff challenged the cancellation of grievance 4079. (Id.) The appeal was rejected 6 on October 23, 2019, because it did not derive from a single event. Plaintiff was directed to 7 resubmit the grievance within thirty days along with necessary supporting documents. (De Jesus 8 Decl. (ECF No. 26-2) at ¶ 21.) 9 Plaintiff resubmitted the appeal with supporting documents on October 30, 2019. (DSUF 10 (ECF No. 26-1) at ¶ 19.) The grievance was accepted, and plaintiff was interviewed. (DSUF 11 (ECF No. 26-1) at ¶ 20.) On November 5, 2019, the grievance was denied at the second level. 12 (DSUF (ECF No. 26-1) at ¶ 21.) The explanation provided stated that grievance 4079 was 13 properly cancelled for being untimely because the bed move occurred on August 8, 2019, and 14 grievance 4079 was submitted more than 30 days later, on October 1, 2019. (Id.) 15 Plaintiff appealed the denial of grievance 4044 to the third level of review. (DSUF (ECF 16 No. 26-1) at ¶ 22.) The Office of Appeals adopted the second level’s decision that the 17 cancellation of grievance 4079 as untimely was proper. (DSUF (ECF No. 26-1) at 23.) 18 4. Other Grievances 19 Plaintiff filed one other grievance, log number CHCF-19-2923, prior to filing the original 20 complaint in this case. (DSUF (ECF No. 26-1) at ¶ 24.) However, the allegations contained 21 therein, do not relate to the events at issue in this case. (Id.) Records do not indicate that plaintiff 22 filed any other grievances during the relevant time period. (DSUF (ECF No. 26-1) at ¶ 25.) 23 V. Analysis 24 Defendant has put forth evidence showing that plaintiff filed three grievances regarding 25 his allegations in this action. (ECF No. 26.) Defendant states that plaintiff exhausted his claim 26 that defendant retaliated by filing a “false and fabricated” RVR, but failed to exhaust his claim 27 that defendant moved plaintiff’s housing assignment from honor dorm housing to a housing unit 28 where the water supply was infected with Legionnaires disease. 1 Plaintiff does not dispute that he did not receive a decision on the merits from the third 2 level of review on his grievance alleging he was subjected to a retaliatory bed move. (ECF No. 3 42.) Thus, defendant has met her burden of establishing that the institution provided an 4 administrative remedy and plaintiff did not exhaust as to this claim. See Albino, 747 F.3d at 5 1172. 6 It is plaintiff’s burden “to come forward with evidence showing that there is something in 7 his particular case that made the existing and generally available administrative remedies 8 effectively unavailable to him.” Id.; see also Ross, 578 U.S. at 642-44. 9 Plaintiff argues that grievance log No. 3565 exhausted all of his claims in this action or 10 alternatively that his retaliatory bed move claim was improperly screened out and administrative 11 remedies were unavailable because it would have been impossible for him to exhaust remedies as 12 to all of his claims within the time limits. (Id. at 1-3.) The court will address each argument in 13 turn below. 14 A. Improper Rejection 15 Plaintiff argues that the rejection of grievance 3565 for raising multiple issues was 16 improper because both the August 4 retaliatory RVR and the August 8 retaliatory bed move 17 stemmed from the same August 4 argument with defendant. (ECF No. 42 at 2.) 18 A prison inmate in California, during the time relevant to this action, would satisfy the 19 administrative exhaustion requirement by complying with the procedures set forth in §§ 3084.1- 20 3084.8 of Title 15 of the California Code of Regulations. Those regulations included a provision 21 that stated prison officials could reject grievances that involve “multiple issues that do not derive 22 from a single event, or are not directly related and cannot be reasonably addressed in a single 23 response due to this fact.” Cal. Code Regs., tit. 15, § 3084.6(b)(8). If a grievance was rejected 24 pursuant to § 3084.6(b), the regulations required that the inmate be given clear and sufficient 25 instructions regarding any further actions necessary to appeal the matter. Cal. Code Regs., tit. 15, 26 § 3084.6(a)(1). If the appeal was corrected and returned within the applicable deadline it may 27 later be accepted. Cal. Code Regs., tit. 15, § 3084.6(a)(2). 28 //// 1 Here, the CDC Form 695 rejecting appeal log No. CHCF-E-19-03565 advised plaintiff 2 that his appeal was being rejected pursuant to Cal. Code Regs. tit. 15, § 3084.6(b)(8) because it 3 “involve[d] multiple issues that do not derive from a single event, or are not directly related and 4 cannot be reasonably addressed in a single response.” (ECF No. 42 at 14.) Plaintiff was 5 instructed to rewrite the appeal, “being specific to the August 4, 2019 event” and further advised 6 that “all other issues shall be appealed separately.” (Id.) 7 Prison officials may screen out grievances for raising multiple issues, even when plaintiff 8 claims the allegations raised stem from a single issue. Rios v. Paramo, No. 14-1073, 2016 WL 9 4709063, at *5 (S.D. Cal. Sept. 9, 2016) (finding “no evidence that [grievance rejected under § 10 3084.6(b)(8)] was improperly screened out” where plaintiff argued that “his grievance was based 11 on a single issue—conspiracy”); Cochran v. Aguirre, No. 1:15-cv-1092 AWI SAB (PC), 2017 12 WL 3149585, at *11-12 (E.D. Cal. July 25, 2017) (finding plaintiff’s appeal was “properly 13 rejected as containing multiple issues where plaintiff alleged a number of concerns relating to 14 their status as a transgender inmate). 15 The court finds that the original version of grievance 3565 containing allegations about 16 defendant’s actions on August 4, 2019 and August 8, 2019 was rejected in accordance with 17 applicable regulations. “Plaintiff’s disagreement with the prison’s determination that this appeal 18 involved two separate incidents, does not generate a material dispute of fact.” Joyce v. Santoro, 19 No. 1:20-cv-1253 DAD SAB (PC), 2022 WL 2955012 at *10 (E.D. Cal. July 26, 2022). 20 Administrative remedies were not rendered effectively unavailable because the rejection was 21 proper. Accordingly, plaintiff’s claim that defendant retaliated against him by changing his 22 housing assignment on August 8, 2019, was not exhausted by grievance 3565.7 23 B. Unavailability 24 Plaintiff also argues that administrative remedies were unavailable because grievance 25 4079 was improperly rejected as untimely and time constraints imposed by applicable regulations 26
27 7 The undersigned notes that plaintiff resubmitted grievance 3565, omitting allegations related to the August 8 bed move claim, and pursued it through all three levels, exhausting his claim that 28 defendant retaliated by issuing an RVR on August 8, 2019. 1 made it impossible to submit grievances on all issues. (ECF No. 42 at 2-3.) Defendants argue 2 that grievance 4079 was properly rejected as untimely. (ECF No. 26 at 10-11.) 3 The parties agree that plaintiff mentioned the retaliatory bed move allegation in the 4 rejected grievance log number 3565 timely submitted on August 24, 2019. (ECF No. 26-2 at 38; 5 ECF No. 42 at 8.) The CDC Form 695 rejecting grievance 3565 for raising multiple issues in one 6 grievance was issued on September 3, 2019. (ECF No. 26-2 at 28; ECF No. 42 at 14.) The form 7 further advised plaintiff that he needed to “resubmit within 30 days,” but cautioned that he was 8 “subject to the submission of one non-emergency appeal every 14 calendar days.” (Id.) 9 Plaintiff resubmitted grievance 3565 with allegations solely related the August 4 incident 10 on September 13, 2019, and submitted a separate grievance, log number 4079, regarding the 11 retaliatory bed move on September 29, 2019. (ECF No. 26-2 at 29-32, 46-49, 58.) Plaintiff noted 12 in the appeal that he was filing a separate grievance as instructed by the rejection of grievance 13 3565. (Id. at 46.) Grievance log 4079 was rejected on October 2, 2019, because it involved 14 multiple issues. (ECF No. 26-2 at 50.) Plaintiff was instructed to rewrite the appeal with 15 allegations regarding only the August 8 bed move because he already submitted a grievance 16 regarding the August 4 incident. (Id.) Plaintiff resubmitted grievance 4079 and it was received 17 by the appeals office on October 7, 2019. (Id. at 58.) The appeal was cancelled because the 18 incident happened on August 8 and the appeals office received the grievance on October 1, 2019. 19 (Id. at 58.) 20 Thereafter, plaintiff submitted grievance 4044, challenging the cancellation of grievance 21 4079, on October 19, 2019. (Id.) The appeals office rejected the grievance because it alleged 22 multiple issues, specifically incidents that occurred on August 4 and August 8, 2019. (Id.) 23 Plaintiff resubmitted the appeal and it was accepted at the second level of review on October 31, 24 2019. (Id.) The appeal was denied at the second level. (Id.) Plaintiff submitted appeal log 4044 25 to the third level of review and received a letter stating the second level response served as the 26 Department’s decision. (ECF No. 26-3 at 12.) 27 Administrative remedies are “effectively unavailable” if plaintiff can show “that he 28 attempted to exhaust administrative remedies but was thwarted.” See Sapp, 623 F.3d at 822-24. 1 The Ninth Circuit also requires “a good-faith effort on the part of inmates to exhaust a prison’s 2 administrative remedies as a prerequisite to finding remedies effectively unavailable.” Albino, 3 697 F.3d at 1035. Here, plaintiff submitted grievance 4079 regarding the August 8 bed move 4 within thirty days of receiving the rejection which instructed him to file a separate grievance 5 within thirty days. (ECF No. 26-2 at 43-55; ECF No. 42 at 14.) The rejection notice further 6 advised plaintiff that he was “still subject to the submission of one non-emergency appeal every 7 14 calendar days.” (ECF No. 26-2 at 28; ECF No. 42 at 14.) 8 Plaintiff resubmitted grievance 3565 on September 17, fourteen days after receiving the 9 rejection notice, and grievance 4079 was received by prison officials fourteen days after that on 10 October 1, 2019. (ECF No. 26-2 at 29-30, 50-53.) Additionally, grievance 4079 was received 11 within the thirty-day time limit set forth in the September 3 rejection notice. However, prison 12 officials determined that grievance 4079 was not timely filed. (ECF No. 26-2 at 44.) Plaintiff 13 filed a separate grievance, log number 4044, challenging that determination and pursued that 14 grievance through all three levels of review. (ECF No. 26-2 at 57-70; ECF No. 26-3 at 12-24.) 15 Defendant argues that plaintiff could have submitted a grievance regarding the August 8 16 retaliatory bed move within thirty days. (ECF No. 44 at 5.) However, plaintiff’s opposition 17 indicates that he understood the September 3 rejection notice to mean that he had thirty days from 18 the date of receipt of the rejection form to submit a separate grievance. (ECF No. 42 at 1-3.) 19 Plaintiff should not be penalized for complying with the instructions provided in the rejection 20 form. Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (excusing inmate’s failure to 21 exhaust where he “took reasonable and appropriate steps to exhaust” his claim “and was 22 precluded from exhausting, not through his own fault but by the Warden’s mistake”). 23 Plaintiff attempted to exhaust his claim that defendant retaliated by moving his housing 24 assignment but was thwarted when prison officials cancelled grievance 4079 as untimely. 25 Additionally, plaintiff pursued all available administrative remedies by filing grievance 4044 and 26 presenting it for review at all three levels of review. The undersigned finds that plaintiff should 27 be excused from failing to comply with the PLRA’s exhaustion requirement on his retaliatory bed 28 move claim because prison officials’ rejection of grievance 4079 rendered administrative 1 | remedies effectively unavailable. See Sapp, 623 F.3d at 823 (improper screen-outs render the 2 | exhaustion process unavailable). Accordingly, defendant’s motion for partial summary judgment 3 | on plaintiff's retaliatory bed move claim should be denied. 4 CONCLUSION 5 Accordingly, IT IS HEREBY RECOMMENDED that defendant’s motion for partial 6 || summary judgment (ECF No. 26) be denied. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one (21) 9 | days after being served with these findings and recommendations, any party may file written 10 | objections with the court and serve a copy on all parties. Such a document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 | shall be served and filed within fourteen days after service of the objections. The parties are 13 || advised that failure to file objections within the specified time may waive the right to appeal the 14 | District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: August 29, 2023 16 17 18 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 20 21 DDE Prisoner Inbox/Civil Rights/S/tayl1042.mgj fr exh 22 23 24 25 26 27 28 18