Rodriguez v. Hubbard et al

Filing 154

FINDINGS and RECOMMENDATIONS Regarding Defendants' Motion for Summary Judgment 117 , signed by Magistrate Judge Dennis L. Beck on 2/9/16: Thirty-Day Objection Deadline; Matter referred to Judge Drozd. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIS VALENZUELA RODRIGUEZ,

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Plaintiff,

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v.

Case No. 1:10-cv-00858 DAD DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
[ECF No. 117]

HUBBARD, et al.,
THIRTY-DAY OBJECTION DEADLINE

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Defendants.

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Plaintiff Luis Valenzuela Rodriguez (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s Third Amended Complaint against Defendants Biter, Phillips, DaViega, Ozaeta,

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Betzinger, Gregory, Garza, Wegman, Alec, Speidell and Rankin on claims of violation of the Free

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Exercise Clause of the First Amendment, violation of the Equal Protection Clause of the Fourteenth

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Amendment, retaliation in violation of the First Amendment, and deliberate indifference to

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Plaintiff’s safety in violation of the Eighth Amendment.

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Defendants DaViega, Phillips, Betzinger, Gregory, Garza, Speidell, Ozaeta, Wegman, Biter,

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Alec, and Rankin filed the instant motion for summary judgment for failure to exhaust on April 29,

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2015. Plaintiff filed his opposition on October 13, 2015, and Defendants filed a reply on October

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20, 2015. The motion is ready for decision pursuant to Local Rule 230(l).

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A.

SUMMARY OF THIRD AMENDED COMPLAINT

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Plaintiff was previously incarcerated at Kern Valley State Prison (“KVSP”) in Delano,

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California, where the events giving rise to this action occurred. Plaintiff’s complaint is composed of

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three claims.

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1.

Religious Practice

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Plaintiff arrived at KVSP on February 11, 2009. Pl.’s Third Am. Compl. (“TAC”) ¶ 1.

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Plaintiff has been a participant in the enhanced outpatient program (“EOP”) for mental health care.

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Since 1994, Plaintiff has been recognized as a sacred “pipe holder” in CDCR. Id. ¶ 4. Plaintiff used

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tobacco as an essential herb in his daily smoking for sacred prayer. Id. ¶ 5. Plaintiff owned his own

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sacred prayer pipe within the CDCR since May of 2001. Id. ¶ 6. Plaintiff provided Defendants with

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documents dated 2001 through 2009 verifying possession and ownership and possession of prayer

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pipe, pipe bags, hawk wings, and owl wings. Id. ¶ 7.

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Defendants refused to enforce state and federal laws which established rights protecting

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Native American religious practices and sacred religious artifacts from February 11, 2009 to

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February 11, 2012. Id. ¶¶ 8, 9. Plaintiff submitted 602 inmate grievances complaining of sweat lodge

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access, sacred pipe ceremonies, ceremonial tobacco use, lack of access to a Native American

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spiritual advisor/chaplain, and not providing Native American religious services for KVSP

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administrative segregation. Id. ¶¶ 9, 10. Plaintiff resubmitted his grievance on March 2, 2009.

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Defendant Garza threatened Plaintiff with removal from the EOP program for the filing of the 602

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grievances. Id. ¶ 11.

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On March 24, 2009, Defendant Garza confiscated Plaintiff’s sacred pipe, sacred pipe bag,

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enclosed medicine bundle, two sacred hawk wings, two sacred owl wings, loose eagle feathers and a

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few spiritual necklaces. Id. ¶ 12. Plaintiff complains that Defendant Garza mishandled and

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wrongfully confiscated sacred religious artifacts. Id. Defendant Garza informed Plaintiff that all his

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religious artifacts would be discarded unless Plaintiff signed a statement that he authorized

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withdrawal from his prison account to send his items. Id. ¶ 22. Plaintiff complied with the demand

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rather than have the religious items discarded. Id. ¶ 25.

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Plaintiff provided Defendant Garza with a 602 inmate grievance on March 25, 2009. Id. ¶ 27.
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Defendant Garza told Plaintiff that he did not accept 602 inmate grievances, and told Plaintiff to set

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it down on the chair in the C-8 block’s captain’s office. Id. ¶ 28. Defendant Garza later told Plaintiff

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that he could not get his stuff because he kept filing complaints. Id. ¶ 30. Defendant Garza stated that

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he would talk to Freir and have Plaintiff removed from EOP. Id. ¶ 31. Plaintiff informed other

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Native American inmates, who would contact Captain Soto and Defendant Phillips. Id. ¶ 34.

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Plaintiff spoke to Defendant Ozaeta and informed him of the problem; he stated that he had

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already been informed by Defendant Garza and had told Defendant Garza that he could do whatever

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he wanted to do with the Indian stuff. Id. ¶ 35. Captain Soto and Lieutenant Phillips acquired

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possession of Plaintiff’s religious artifacts and told Plaintiff that they would hold the items while

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they looked into the problem. Id. ¶ 36.
Plaintiff was finally able to get a 602 grievance accepted and processed on January 17, 2010,

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which was denied by Defendant Betzinger on March 24, 2010; submitted on April 15, 2010, and

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partially granted by Grissom and Defendant Gregory on May 19, 2010; submitted on May 25, 2010,

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and denied at the second level by Defendant Biter on June 18, 2010; and submitted June 25, 2010,

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and denied at the third level by Davis and Foster on October 8, 2010, specifically concerning the

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wrongful confiscation and deprivation of the religious artifacts. Id. ¶ 40.

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On August 27, 2010, Defendants Wegman and Alec required Plaintiff to provide them an

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address to mail his sacred pipe, hawk and owl wings, and a few loose feathers, or the items would be

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destroyed. Id. ¶ 45. Defendants Wegman and Alec refused to provide Plaintiff with a reason for

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refusing to return the artifacts to Plaintiff, or allow him periodic access or use of the artifacts. Id. ¶

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46. Plaintiff was continually told by Defendants Garza, Betzinger, Gregory, Speidell, Wegman, and

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Alec that Plaintiff brought on the confiscation and total deprivation because of his filing on March 2,

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2009. Id. ¶ 47.

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Plaintiff further alleges that Defendants Biter, Phillips, DaVeiga, Ozaeta, Betzinger, Gregory,

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Garza, Wegman, Alec, and Speidell were informed of and knew that their actions deprived Plaintiff

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of the use of sacred prayer pipe, weekly sweat lodge ceremonies, and possession of the

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wings/feathers. Id. ¶ 74. Plaintiff was denied Native American religious services between December

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12, 2009 and February 1, 2012. Id. Plaintiff received only one sweat lodge service between February
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2009 and October 2009, and no sweat lodge services from November 2009 to February 2012. Id.

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Plaintiff also complains that Defendants denied him access to a spiritual advisor, with access once

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between February 2009 to June 2009 and no access from December 2009 to February 2012. Id.

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Plaintiff complains that other religious groups, such as Catholics and Protestants, have weekly

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services, while Native American religious groups were denied regular, established practices of

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weekly sweat lodge services or sacred pipe ceremonies. Id. ¶ 76.

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2.

Processing Appeals

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Plaintiff’s grievance, KVSP-0-09-00980, first submitted on March 2, 2009, had to be

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submitted multiple times because it was continuously rejected by Defendant DaViega, who used

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exaggerated excuses to prevent process and exhaustion. Id. ¶ 48. Defendant DaViega rejected the

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grievance seven times, and the grievance disappeared after Plaintiff re-submitted it for the eighth

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time. Id. ¶ 49. Plaintiff submitted an administrative notice on October 25, 2009, directly to

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Harrington concerning the conduct of his subordinates in refusing to respond to 602 inmate

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grievances. Harrington did not provide any response. Id. ¶ 53.

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C.

Inmate Attack

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On December 12, 2009, Plaintiff was stabbed by two purported Native American inmates on

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the KVSP facility C yard. Id. ¶ 55. Plaintiff as the sacred pipe holder was obligated, as stated by

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other inmates, to protect the sanctity of the pipe from desecration or wrongful confiscation with

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violence if necessary. Id. ¶ 57. Plaintiff had complained to Freir and Rankin and other KVSP staff

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that his life and safety were placed in danger between February 2009 and December 2009. Id. ¶ 58.

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As a result of this attempted murder, Plaintiff was stabbed numerous times in his face, head, eye, and

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back, and suffered a punctured lung. Id. ¶ 59. Plaintiff was also kicked in the head and face,

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suffering a swollen face, months of dizzy spells, and continued headaches. Id. ¶ 60. Freir and Rankin

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stated that in response to Plaintiff filing 602 inmate complaints against Freir, Rankin, and Garza,

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they removed Plaintiff from the EOP status in May 2009. Id. ¶ 63. This removal came in spite of

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numerous pleas by Plaintiff to remain in EOP, and knowingly exacerbated the threat of physical

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harm to Plaintiff. Id. ¶ 64. Plaintiff went on suicide watch twice in fear of being attacked. Id. ¶¶ 65,

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66. After the attack, Plaintiff remained in administrative segregation from December 2009 to August
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2010 pending transfer to another prison. Id. ¶ 68. Plaintiff suffered certain deprivations while in

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administrative segregation. Id. ¶ 69.

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Plaintiff contends a violation of the First, Eighth, and Fourteenth Amendments. Plaintiff

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requests declaratory relief, nominal, compensatory, and punitive damages, and appropriate injunctive

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relief.

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B.

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LEGAL STANDARD
The failure to exhaust is subject to a motion for summary judgment in which the court may

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look beyond the pleadings. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). If the Court

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concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice.

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Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

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Defendants bear the burden of proof in moving for summary judgment for failure to exhaust,

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Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative remedy,

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and that the prisoner did not exhaust that available remedy,” id. at 1172. If Defendants carry this

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burden, the burden of production shifts to Plaintiff “to come forward with evidence showing that

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there is something in his particular case that made the existing and generally available administrative

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remedies effectively unavailable to him.” Id. This requires Plaintiff to “show more than the mere

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existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.

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2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)). “If the

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undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a

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defendant is entitled to summary judgment under Rule 56.” Albino, 747 F.3d at 1166. However,

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“[i]f material facts are disputed, summary judgment should be denied, and the district judge rather

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than a jury should determine the facts.” Id.

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C.

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UNDISPUTED FACTS
Four appeals were submitted and accepted for review relating to the issues presented in the

TAC.

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Appeal Log No. KVSP-O-09-00980

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On June 23, 2009, Plaintiff’s appeal KVSP-O-09-00980 was accepted and assigned. Tarnoff

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Decl. ¶ 9, Ex. B. The appeal concerned the denial or lack of Native American religious services at
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KVSP. The appeal did not mention equal protection or the lack of access compared to other

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religions. On July 10, 2009, the appeal was partially granted at the First Level. Id. The appeal stated

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that KVSP had hired a Native American Spiritual Leader who would be conducting sweat services in

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the lodges, and religious services to all Native Americans at KVSP. Id. Plaintiff did not submit this

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appeal to the Second or Third Level of Review. Id.

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Appeal Log No. KVSP-O-10-00383

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Plaintiff’s appeal KVSP-O-10-00383 was accepted and assigned on February 24, 2010.

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Tarnoff Decl. ¶ 10, Ex. C. This appeal concerned the attack on Plaintiff by two inmates which

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occurred on December 12, 2009. Id. The appeal was processed as a staff complaint and bypassed to

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the Second Level of Review. Id. In the appeal, Plaintiff complained that Defendants Garza, Ozaeta,

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and Phillips committed fraud as they were involved in confiscating his sacred artifacts and refused to

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provide Plaintiff with a receipt or documentation indicating they were confiscated. Id. The appeal

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related to claims of failure to protect and/or deliberate indifference in that Plaintiff alleged that

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Defendants Garza, Philips, and Ozaeta were responsible for the attacks due to their confiscation of

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the sacred items. Id. No other Defendants were mentioned. Id.

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The appeal was processed to the Third Level of Review, and on July 12, 2010, the Third
Level Appeal Decision was issued. Voong Decl. ¶ 8, Ex. B.

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Appeal Log No. KVSP-O-10-00815

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Plaintiff submitted an appeal at the Second Level concerning the confiscation of his sacred

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pipe, hawk wings, owl wings, and other items. Voong Decl. ¶ 10, Ex. D. Plaintiff complained that

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his items were not returned to him after they had been used in a ceremony despite reassurances by

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Defendant Alec. Id. The appeal was denied. Id. Plaintiff pursued the appeal to the Third Level of

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Review. Id. The denial at the Third Level was issued on October 28, 2010. Id.

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Appeal Log No. KVSP-O-10-00254

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This appeal relates to the attack that occurred on Plaintiff on December 12, 2009. Voong

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Decl. ¶ 9, Ex. C. Plaintiff alleged that Correctional Officer Arreola used excessive force on him by

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pepper spraying him while he was on the ground in a prone position. Id. The Second Level

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Decision was issued on February 17, 2010. Id. Plaintiff pursued the appeal to the Third Level and
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the appeal was denied on June 21, 2010. Id. There were no allegations relating to a claim of failure

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to protect and/or deliberate indifference. Id.

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D.

DISCUSSION

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1.

Appeals Process

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California law affords prisoners the right to appeal administratively any departmental

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decision, action, condition, or policy which they can demonstrate have an adverse effect upon their

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health, safety, or welfare. Cal.Code Regs. tit. 15, § 3084.1(a). Since the revision of applicable

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regulations effective January 28, 2011, CDCR’s appeal process consists of three levels of appeal: (1)

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a first level appeal filed with one of the institution's appeals coordinators unless exempted; (2) a

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second level appeal filed with the institution head or designee; and (3) a third level appeal filed with

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the CDCR Appeals Chief. Cal.Code Regs. tit. 15, §§ 3084.7, 3084.8. The inmate must submit the

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first level appeal within 30 days of the occurrence of the event being appealed or of first having

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knowledge of the action or decision being appealed. Cal.Code Regs. tit. 15, § 3084.8(b). A prisoner

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exhausts the appeal process when he completes the third level of review. Cal.Code Regs. tit. 15, §

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3084.1(b); Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010). A “cancellation or rejection” of an

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appeal “does not exhaust administrative remedies.” Cal.Code Regs. tit. 15, § 3084.1(b).

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2.

Analysis

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Defendants argue that the afore-mentioned four appeals were the only appeals submitted by

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Plaintiff relative to the claims he raised in the TAC. Plaintiff contests that these were the only

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appeals. Further, he contests Defendants’ characterizations of the appeals.

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a. Denial or Lack of Religious Services

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With respect to Appeal Nos. KVSP-O-09-00980 and KVSP-O-10-00815, Defendants submit

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that these were the only appeals submitted concerning the denial or lack of religious services at

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KVSP. Plaintiff attempts to create a triable issue by claiming he submitted various appeals on this

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issue. In support, he cites to his TAC and his declaration, and further points to approximately 230

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pages of documents he attaches as exhibits to his declaration. Defendants argue persuasively that

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Plaintiff has done no more than make a broad-based declaration, and then haphazardly attach a vast

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amount of documents most of which have no relation to the case in a “kitchen sink” manner. The
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Court need not “examine the entire file for evidence establishing a genuine issue of fact, where the

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evidence is not set forth in the opposition papers with adequate references so that it could be

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conveniently found.” Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).

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Upon review of Plaintiff’s submission, it is clear the documents do not carry Plaintiff’s burden.

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The cited portions of the TAC do not show that Plaintiff submitted any appeals concerning

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the denial or lack of religious services apart from Appeal Nos. KVSP-O-09-00980 and KVSP-O-10-

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00815. The only appeal mentioned is in fact identified by Plaintiff as KVSP-O-09-00980. Likewise

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in the declaration, specifically pages 1-7, Plaintiff claims he submitted various appeals and did not

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receive a response. However, Plaintiff provides no specifics on the appeals, such as when he

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submitted them, what issue he was appealing, and the manner in which the appeal was submitted.

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Without more, Plaintiff’s allegation is insufficient to dispute the fact that KVSP-O-09-00980 and

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KVSP-O-10-00815 were the only appeals he took concerning the denial or lack of religious services

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at KVSP.

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As noted above, Plaintiff also points to the exhibits he attached to his declaration. However,

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none of these exhibits show Plaintiff attempted to appeal the denial or lack of religious services. In

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Exhibit 1, the screen-out notices by the KVSP Appeals Coordinator provide no information on what

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was being appealed, when the appeal was made, and whether Plaintiff received a response. The

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remaining documents do not concern the denial or lack of religious services at KVSP, and to the

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extent they do, they support Defendants’ argument that Plaintiff did not fully pursue his

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administrative remedies.
On page 12, Plaintiff’s appeal pertains to a claim of hate crimes by staff at MCSP. Clearly,

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this has no bearing on Plaintiff’s claims of denial of religious services at KVSP.

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Pages 13-17 appear to concern a loss of property at R&R during a transfer from MCSP to
KVSP.

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Page 18 concerns a complaint against Rev. Diego Baptista submitted while Plaintiff was at
MCSP.
Pages 19 and 20 concern a claim of lack of medical treatment. Again, none of the aforementioned documents have any relation to Plaintiff’s claim of denial of religious services at KVSP.
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Page 21 relates to a claim of refusal to provide Native American Religious Services;

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however, the appeal was clearly not taken beyond the informal level. The appeal was addressed at

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the informal level by Defendant Alec. The space provided to appeal to the formal level is left blank

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which clearly shows the appeal was not pursued to the First Level of Review.

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Page 22 is a screening form from MCSP dated August 2008.

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Pages 23-24 concern an appeal over the confiscation of art.

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Pages 25-27 are appeal forms concerning a request for transfer in May 2011.

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Page 28 concerns a deprivation of religious artifacts that could possibly relate to Plaintiff’s

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claimed denial of religious services; however, again the form shows that Plaintiff did not pursue the

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appeal beyond the informal level. The space provided to request an appeal at the formal level is

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blank, which clearly shows the appeal was not pursued .

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Page 29 is a memo that has no relation to this case.

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Page 30 is a duplicate of Page 21, and Pages 31-32 are duplicates of Pages 23-24.

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Pages 33-43 concern an appeal of an access to courts issue. These documents have no

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bearing on this case and in fact are subject of another suit. See Rodriguez v. Hefflefinger, Case No.

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1:13-cv-00231-LJO-DLB-PC.

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Page 44 concerns an appeal related to an allegation that Plaintiff received a retaliatory
response to a request for medical evaluation.
Pages 45-47 appear to be an appeal concerning his classification and/or transfer request.
Thus, Exhibit 1 provides no support for Plaintiff.
In Exhibit 2, Plaintiff again attaches a large number of documents which have no relation to

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his claim of denial or lack of religious services. Pages 49-93 have absolutely no relation to the case.

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The documents concern events that occurred prior to the alleged acts or omissions in this case while

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Plaintiff was housed at MCSP.

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Pages 94 and 95 consist of a letter written by Plaintiff to Warden Harrington complaining of

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problems accessing and pursuing the Administrative Appeal process. In the letter, Plaintiff

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complains that he has attempted to appeal his denial of religious services and confiscation of

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religious artifacts but the appeals were screened out at the informal level and by the appeals
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coordinator. However, there is no indication that the letter was mailed, and the letter does not by

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itself demonstrate that Plaintiff submitted appeals concerning his claims. Also, Plaintiff does not

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establish that the appeals were improperly screened out. Moreover, Plaintiff did pursue an appeal in

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Appeal Log No. KVSP-O-09-00980 that was addressed at the First Level; however as previously

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discussed, Plaintiff failed to pursue the appeal to the Second and Third Levels of Review.

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Pages 96-112 appear to be a Petition for Writ of Habeas Corpus concerning denial of

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religious services. However, the petition has no bearing on whether Plaintiff exhausted his

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administrative appeals.

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Pages 113-135 concern issues of transfer and custody classification.
Page 136 appears to be a copy of a letter Plaintiff wrote to the appeals coordinator

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concerning alleged confiscations of items, but the items and the officers involved are not relevant to

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this action. Therefore, Exhibit 2 does not support Plaintiff’s contention.

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In Exhibits 3-6, Plaintiff attaches a number of documents, but they concern an attack by
another inmate in 2008 while Plaintiff was housed at MCSP. The documents are totally irrelevant.

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Exhibit 7 concerns the issues of transfer and/or custody classification and is irrelevant.

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Exhibits 8 and 9 appear to be copies of a letter written by Plaintiff’s daughter to the warden

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concerning events at MCSP, and the warden’s response; they are irrelevant.
Exhibit 10 is a classification chrono concerning Plaintiff’s classification following the assault
at MCSP. The document is irrelevant.

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Nothing is included as Exhibit 11.

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Exhibit 12 is a newspaper clipping unrelated and irrelevant to the issue of exhaustion.

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Exhibit 13 is merely a copy of the declaration of D. Tarnoff submitted by Defendants in

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support of the Motion for Summary Judgment.
Exhibit 14 is an appeal concerning the denial of religious services and counseling. However,

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this appeal too is left blank where Plaintiff would have included a statement in order to pursue the

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appeal to the formal level. Accordingly, the appeal shows that Plaintiff only pursued it to the

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informal level and failed to exhaust.

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Exhibit 15 is a duplicate of Page 21 of Plaintiff’s declaration.
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Exhibit 16 is a request for interview with Defendant Alec concerning religious services, but it
is not an inmate appeal and does not show Plaintiff submitted an appeal.

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Exhibit 17 is left blank.

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Exhibit 18 is comprised of documents concerning events while Plaintiff was housed at

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Pelican Bay State Prison in the 1990s. It is irrelevant to this case.

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Exhibit 19 concerns appeals regarding confiscation of property in 2015 at R. J. Donovan
Correctional Facility. The documents are irrelevant.

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Exhibit 20 like Exhibit 19 concerns events in 2015 at R. J. Donovan.

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Exhibit 21 consists of several inmate appeals by Plaintiff. None of them however concern the

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issues in this case.
Therefore, after reviewing Plaintiff’s submission, the Court finds that there is no triable

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dispute over the fact that KVSP-O-09-00980 and KVSP-O-10-00815 were the only appeals received

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by KVSP concerning Plaintiff’s allegations of denial or lack of religious services. Further, there is

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no dispute that KVSP-O-09-00980 was not submitted to the Second and Third Levels of Review.

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Nor is there a dispute that the Third Level Decision in KVSP-O-10-00815 was issued on October 28,

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2010.

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Defendants have persuasively argued that Plaintiff failed to exhaust his claims concerning the

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denial or lack of religious services. Plaintiff filed the two appeals identified above on the issue but

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neither of the appeals sufficed to exhaust the appeal process. First, KVSP-O-09-00980 was not

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submitted to the Third Level of Review as required for exhaustion. Cal.Code Regs. tit. 15, §

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3084.1(b); Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010). Second, the appeal decision in

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KVSP-O-10-00815 was not issued until October 28, 2010, which was after Plaintiff filed suit in this

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case on May 5, 2010. Under the PLRA, Plaintiff must have completed the appeal process prior to

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filing suit. Jones, 549 U.S. at 211.

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Defendants also submit that neither appeal mentions equal protection or claims that Native

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Americans were being denied religious services while others were not. Plaintiff attempts to dispute

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this fact, but the appeals speak for themselves and there is no mention of equal protection or

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complaints of disparate treatment.
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Accordingly, the Court finds that Plaintiff failed to exhaust his First and Fourteenth
Amendment claims concerning the denial or lack of religious services at KVSP.

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b. Retaliation by Defendant Garza

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Defendants submit that the four above-noted appeals were the only appeals submitted by

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Plaintiff concerning the issues in this case, but none of the appeals concerned allegations of

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retaliation by Defendant Garza. Plaintiff attempts to dispute this fact by citing to paragraphs 27-29

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of the TAC, paragraph 6 of his declaration, and Exhibits 1-3.

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In paragraphs 27-29 of his TAC, Plaintiff alleges that he attempted to submit an inmate
appeal concerning the confiscation of religious artifacts. Defendants do not dispute this and in fact

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note that Appeal No. KVSP-O-10-00815 was submitted concerning the confiscation of religious

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materials. However, the appeal made no mention of retaliation by Defendant Garza.

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As to Plaintiff’s declaration and Exhibits 1-3, there is no mention of a retaliatory act done by

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Defendant Garza that would show that Plaintiff submitted or attempted to submit an appeal

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concerning Garza’s alleged retaliation.

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Accordingly, the Court finds that Plaintiff has failed to exhaust his claim of retaliation by
Defendant Garza.

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c. Failure to Protect/Deliberate Indifference

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With respect to Plaintiff’s allegations of deliberate indifference for failure to protect,

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Defendants state that Plaintiff submitted only two appeals concerning the allegations: KVSP-O-10-

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383 and KVSP-O-10-00254. Plaintiff disputes this and cites to paragraphs 4-6 of his declaration.

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But, there is nothing in paragraphs 4-6 or the exhibits that were referenced that tends to show

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Plaintiff submitted or attempted to submit an appeal concerning the December 12, 2009, attack, apart

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from the above two appeals.

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It is undisputed that KVSP-O-10-00383 relates to Plaintiff’s claim of deliberate indifference

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for failure to protect. Defendants further submit, and Plaintiff does not dispute, that KVSP-O-10-

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00254 related to the unnecessary use of force but not to a failure to protect. Likewise, Defendants

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state without dispute that the Third Level of Review decision in KVSP-O-10-00383 was issued on

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July 12, 2010, and the Third Level of Review decision in KVSP-O-10-00254 was issued on June 21,
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2010. Both appeals were thus decided after Plaintiff had filed his suit on May 5, 2010. As noted

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above, Plaintiff must have completed the appeal process prior to filing suit, Jones, 549 U.S. at 211,

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or the claims are unexhausted.

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In sum, it is undisputed that Plaintiff’s claims of denial of religious services, retaliation, and

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failure to protect are unexhausted. Nevertheless, Plaintiff asserts that he should be excused from the

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exhaustion requirement because he was precluded from exhausting.

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3.

Unavailability of Remedies

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Defendants have met their burden of raising and proving the absence of exhaustion. Thus the

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burden now shifts to Plaintiff “to come forward with evidence showing that there is something in his

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particular case that made the existing and generally available administrative remedies effectively

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unavailable to him." Albino, 747 F.3d at 1172, citing Hilao v. Estate of Marcos, 103 F.3d 767, 778

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(9th Cir. 1996) ("[T]he burden shifts to the plaintiff to rebut by showing that the local remedies were

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ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.") Plaintiff must meet

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this burden by showing “. . . more than the mere existence of a scintilla of evidence.” In re Oracle

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Corp., 627 F.3d at 387 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505

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(1986)).

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Here, Plaintiff argues that he was prevented from exhausting his claims by Defendants. In

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support of his contention, Plaintiff simply cites to Exhibits 1-18 of his declaration. As the Court

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previously discussed, most of the documentation is irrelevant to this case and does not tend to show

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Plaintiff submitted appeals concerning the underlying claims that were ignored or improperly

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screened out. Moreover, Plaintiff’s argument is belied by the fact that he did fully exhaust his

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remedies as to his claims of deliberate indifference for failure to protect (KVSP-O-10-00383) and

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denial of religious services (KVSP-O-10-00815), but as previously discussed, he failed to do so prior

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to filing suit. Furthermore, Defendants have submitted evidence that Plaintiff was successful in

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obtaining a decision at the Third Level of Review for at least fifteen separate appeals while housed

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at KVSP between the relevant time period of 2009-2012. See Voong Decl., Ex. A. Accordingly,

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Plaintiff fails to meet his burden of demonstrating that administrative remedies were effectively

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unavailable to him.
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E.

RECOMMENDATION
The Court therefore RECOMMENDS that Defendants’ motion for summary judgment be

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GRANTED and Plaintiff’s claims be DISMISSED without prejudice for failure to exhaust, thereby

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terminating this case.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30)

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days after being served with these Findings and Recommendations, any party may file written

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objections with the Court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within ten (10) days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

February 9, 2016

L. Beck

UNITED STATES MAGISTRATE JUDGE

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