Smith v. Martinez, et al.

Filing 41

FINDINGS and RECOMMENDATIONS to Grant Defendant's 29 Motion for Summary Judgment for Failure to Exhaust Administrative Remedies; Fourteen-Day Objection Deadline signed by Magistrate Judge Michael J. Seng on 4/9/2018. Referred to Judge Anthony W. Ishii. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL D. SMITH,

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CASE NO. 1:17-cv-01092-AWI-MJS(PC)

Plaintiff,

FINDINGS AND RECOMMENDATION TO
GRANT DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT FOR FAILURE
TO EXHAUST ADMINISTRATIVE
REMEDIES

Defendant.

(ECF NO. 29)

v.
MARTINEZ,

FOURTEEN-DAY DEADLINE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendant Martinez on Plaintiff’s First Amendment retaliation claim.

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Before the Court is Defendant’s motion for summary judgment on the ground that

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Plaintiff failed to exhaust his administrative remedies. (ECF No. 29.) Plaintiff opposes the

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motion. (ECF Nos. 35, 36, 37.) Defendant replied. (ECF No. 38.) Plaintiff filed an

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unauthorized sur-reply. (ECF No. 39.) Absent leave of court, no briefing on Defendants’

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motion is permitted beyond the opposition and reply. Local Rule 230(l). Plaintiff provides

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no justification for filing this reply to Defendant. The Court did not request or approve the

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reply. Nonetheless, Defendant did not move to strike the sur-reply and so the Court will

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consider it, but notes that it contains no new information.

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The matter is submitted. Local Rule 230(l).

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For the reasons set forth below, the undersigned will recommend that Defendant’s

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motion be granted.

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I.

Plaintiff’s Allegations

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Plaintiff’s allegations may be summarized as follows.

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On March 31 Plaintiff filed a 602 staff complaint alleging that Defendant Martinez

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was responsible for opening the vents in Plaintiff’s cell and filling it with “toxic smoke”.

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On April 13, 2017, while Plaintiff was showering, Defendant Martinez sprayed Plaintiff

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with water and shortened his shower time. When Plaintiff said Martinez was just mad

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because Plaintiff had filed a complaint against him, Defendant Martinez responded that

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Plaintiff should not have filed the complaint.

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Later on April 13, 2017, at 7:15 pm, Plaintiff asked Defendant Martinez for a

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phone call. Although other inmates were being released to use the phones, Martinez

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would not allow Plaintiff to do so, saying “I told you I would get you back.”

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The Court screened the complaint and concluded that these allegations stated a

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cognizable retaliation claim based on the shortened shower and denial of the phone

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time. (ECF Nos. 14, 16, 23.) However, the allegations regarding toxic smoke were

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deemed implausible and were therefore dismissed with prejudice. (Id.)

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II.

Factual Background

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All facts reflected here are undisputed unless otherwise noted.

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From the March 30, 2017 (the date of the first incident of toxic smoke described in

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the First Amended Complaint) until August 14, 2017 (the date Plaintiff filed his initial

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Complaint), Kern Valley State Prison (“KSVP”) Appeals Office received four appeals

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submitted by Plaintiff: KVSP-O-17-01105, KVSP-O-17-01146, KVSP-O-17-01404,

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KVSP-O-17-02384. (ECF No. 29-4 ¶ 5-32.)

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A.

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On March 30, 2017, Plaintiff submitted Appeal No. KVSP-O-17-01105, in which

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he stated that “toxic smoke” was coming through the vent in his cell for the past two

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days. (Id. at 14.) He further claimed that the “tower officer” was “taking the vent cover off

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of the roof and . . . spraying toxic smoke” in his cell. (Id.)

Appeal KVSP-O-17-01105

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On April 25, 2017, Appeal No. KVSP-O-17-01105 was rejected for failing to

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provide sufficient details. (Id. at 12.) Plaintiff was told to provide staff names and the

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times that alleged misconduct occurred. (Id.) On April 27, 2017, Plaintiff responded by

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adding that Defendant Martinez continued to spray toxic smoke in Plaintiff’s cell in

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retaliation against Plaintiff. (Id.)

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On May 15, 2017, Appeal No. KVSP-O-17-01105 was cancelled because it was

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determined that it was a duplicate of Appeal No. KVSP-O-17-01146, which was further

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along in the appeals process and had been forwarded to the Hiring Authority for

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processing as a Staff Complaint. (Id. at 11.)

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On May 23, 2017, Appeal No. KVSP-O-17-01105 was again rejected, this time on

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the ground that Plaintiff had re-submitted the appeal even though it had been cancelled

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on May 15, 2017. (Id. at 10.)

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B.

Appeal KVSP-O-17-01146

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On April 9, 2017, Plaintiff submitted Appeal No. KVSP-O-17-01146. (Id. at 22.)

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Plaintiff claimed that Defendant retaliated against him on April 8, 2017 and April 9,

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2017, and continued to spray “toxic smoke” in his cell. (Id.) Plaintiff requested that

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Defendant Martinez be removed from the tower. (Id.)

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Appeal No. KVSP-O-17-01146 was initially rejected on April 26, 2017, because

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inmate Smith had exceeded the number of appeals allowed in a fourteen-day period. (Id.

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at 19.) On April 27, 2017, Plaintiff responded that the appeals were within fourteen days,

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but that they had been sitting in the appeals office for more than two weeks. (Id.)

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Appeal No. KVSP-O-17-01146 was categorized as a Staff Complaint and

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bypassed the first level of review. On May 27, 2017, the second level of review partially
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granted Appeal No. KVSP-O-17-01146 insofar as a confidential appeal inquiry was

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conducted, and it was determined that staff did not violate CDCR policy. (Id. at 16-17.)

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On June 26, 2017 Appeal No. KVSP-O-17-01146 was received at the third level

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of review. (ECF No. 29-5 ¶ 9.) In this appeal Plaintiff stated that the hearing for this issue

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was unfair because Defendant Martinez was present. (Id. at 12.) Plaintiff repeated his

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complaint that Officer Martinez was retaliating against him by continuing to spray “toxic

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smoke" in his cell. (Id. at 14.) Plaintiff also stated that on April 11, 2017, Defendant

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Martinez shortened his shower to five minutes. (Id.)

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On August 22, 2017, Plaintiff’s appeal was denied at the third level of review. (Id.

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at 9.) The third level decision noted that Plaintiff’s allegations concerned Defendant

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Martinez allegedly spraying smoke in Plaintiff’s cell. (Id.) The third level decision

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reviewed the confidential inquiry and agreed with the determination that staff did not

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violate California Department of Corrections and Rehabilitation (“CDCR”) policy. (Id.)

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The decision did not address Plaintiff’s claim that Martinez shortened his shower to five

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minutes.

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C.

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On April 26, 2017, Plaintiff submitted April 26, 2017. (Id. at 30.) Plaintiff claimed

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that Appeals coordinator Almaguer was refusing to process his appeal concerning

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Officer Martinez spraying toxic smoke into his cell. (Id.)

Appeal KVSP-O-17-01404

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On May 17, 2017, the first level of review rejected Appeal No. KVSP-O-17-01404,

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Requested that Plaintiff “[c]larify what misconduct . . . A. Almaguer did.” (Id. at 28) The

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screen-out letter acknowledged that the KVSP Appeals Office had already “received two

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appeals regarding the alleged misconduct by C/O Martinez.” (Id.) Plaintiff appealed and

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responded that A. Almaguer was aware of the conduct and that the appeals office was

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purposely screening out Plaintiff’s appeals. (Id.)

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On May 30, 2017, the first level of review rejected Appeal No. KVSP-O-17-01404

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a second time because Plaintiff failed to clarify the conduct that he was complaining of.

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(Id. at 27.) The response reiterated that the Appeals Office had “received two appeals
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regarding the alleged misconduct by C/O Martinez,” and requested that Plaintiff specify

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“the continued material adverse effect” that he was appealing. (Id.) Plaintiff did not

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appeal. (Id. ¶ 25.)

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D.

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On August 4, 2017 Plaintiff filed Appeal No. KVSP-O-17-02384 and it was

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Appeal No. KVSP-O-17-02384

received by KVSP’s Appeals Office on August 10, 2017. (Id. ¶ 27)

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In Appeal No. KVSP-O-17-02384, Plaintiff stated that in retaliation for his lawsuit,

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staff at KVSP had installed a listening device into his cell and were broadcasting

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everything Plaintiff said over the intercom. (Id. at 38-39.) Plaintiff also stated that the

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tower officer was using the intercom system to tell other inmates that he was a snitch

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and was eating his own feces. (Id.) Plaintiff requested that the listening device in his cell

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be turned off, and that staff be held accountable for violating his rights. (Id.)

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Plaintiff’s appeal was bypassed at the first level of review and on August 29,

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2017, Plaintiff received a second level response that his appeal had been accepted as a

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staff complaint. (Id. at 34-36.) Plaintiff was informed that his appeal had been partially

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granted insofar that a confidential appeal inquiry was conducted and it was determined

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that staff did not violate CDCR policy. (Id.)

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On October 6, 2017, Plaintiff appealed on the grounds that institution did not

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conduct an investigation. (ECF No. 37 at 9.) On January 11, 2018, Plaintiff received a

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response from the third level of review. (Id. at 6.) The appeal concerned the installation

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of a listening device into Plaintiff’s cell as ongoing retaliation for Plaintiff’s filing of a

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lawsuit and the appeal was denied. (Id.) The third level of review concurred with the

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decision of the second level of review and found that staff did not violate policy. (Id.)

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III.

Legal Standards

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A.

Summary Judgment Standards

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The court must grant a motion for summary judgment if the movant shows that

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there is no genuine dispute as to any material fact and the moving party is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
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U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the

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case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is

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sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id.

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at 248-49.

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The party moving for summary judgment bears the initial burden of informing the

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court of the basis for the motion, and identifying portions of the pleadings, depositions,

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answers to interrogatories, admissions, or affidavits which demonstrate the absence of a

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triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet

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its burden, “the moving party must either produce evidence negating an essential

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element of the nonmoving party's claim or defense or show that the nonmoving party

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does not have enough evidence of an essential element to carry its ultimate burden of

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persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099,

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1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)

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(“When the nonmoving party has the burden of proof at trial, the moving party need only

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point out ‘that there is an absence of evidence to support the nonmoving party's case.’”)

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(quoting Celotex, 477 U.S. at 325).

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If the moving party meets its initial burden, the burden shifts to the non-moving

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party to produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins.

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Co., Ltd., 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or

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denials of the adverse party's evidence, but instead must produce admissible evidence

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that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at

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1076. If the non-moving party does not produce evidence to show a genuine issue of

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material fact, the moving party is entitled to judgment. See Celotex, 477 U.S. at 323.

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Generally, when a defendant moves for summary judgment on an affirmative

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defense on which he bears the burden of proof at trial, he must come forward with

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evidence which would entitle him to a directed verdict if the evidence went

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uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992).

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The failure to exhaust administrative remedies is an affirmative defense that must be
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raised in a motion for summary judgment rather than a motion to dismiss. See Albino v.

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Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for summary

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judgment for nonexhaustion, the defendant has the initial burden to prove “that there

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was an available administrative remedy, and that the prisoner did not exhaust that

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available remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to

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the prisoner 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

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effectively unavailable to him.” Id. The ultimate burden of proof remains with the

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defendant, however. Id. If material facts are disputed, summary judgment should be

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denied, and the “judge rather than a jury should determine the facts” on the exhaustion

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question, id. at 1166, “in the same manner a judge rather than a jury decides disputed

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factual questions relevant to jurisdiction and venue,” id. at 1170-71.

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In ruling on a motion for summary judgment, inferences drawn from the underlying

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facts are viewed in the light most favorable to the non-moving party. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Each party’s position,

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whether it be that a fact is disputed or undisputed, must be supported by (1) citing to

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particular parts of materials in the record, including but not limited to depositions,

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documents, declarations, or discovery; or (2) showing that the materials cited do not

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establish the presence or absence of a genuine dispute or that the opposing party

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cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1).

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A verified complaint may be used as an opposing affidavit under Rule 56, as long

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as it is based on personal knowledge and sets forth specific facts admissible in

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evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995)

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(treating plaintiff's verified complaint as opposing affidavit where, even though

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verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of

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perjury that contents were true and correct, and allegations were not based purely on his

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belief but on his personal knowledge). Plaintiff’s pleading is signed under penalty of

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perjury and the facts therein that are based on personal knowledge are evidence for

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purposes of evaluating Defendant’s motion for summary judgment.

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B.

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The State of California provides its inmates and parolees the right to appeal

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administratively “any policy, decision, action, condition, or omission by the department or

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its staff that the inmate or parolee can demonstrate as having a material adverse effect

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upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). In order

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to exhaust available administrative remedies, a prisoner must proceed through three

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formal levels of appeal and receive a decision from the Secretary of the CDCR or his

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CDCR Appeal System

designee. Id. § 3084.1(b), § 3084.7(d)(3).

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California prisoners are required to lodge their administrative complaint on a

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CDCR-602 form. The level of specificity required in the appeal is described in a

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regulation:
The inmate or parolee shall state all facts known and
available to him/her regarding the issue being appealed at
the time of submitting the Inmate/Parolee Appeal form, and if
needed, the Inmate/Parolee Appeal Form Attachment.

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Cal. Code Regs. tit. 15, § 3084.2(a)(4).
C.

Exhaustion under Prison Litigation Reform Act (“PLRA”)

Under the PLRA, “No 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 in prisoner cases covered by §
1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Ross v. Blake, 136
S. Ct. 1850, 1856-57 (2016) (mandatory language of § 1997e(a) forecloses judicial
discretion to craft exceptions to the requirement). All available remedies must be

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exhausted; those remedies “need not meet federal standards, nor must they be ‘plain,

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speedy, and effective.’” Porter, 534 U.S. at 524. Even when the prisoner seeks relief not

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available in grievance proceedings, notably money damages, exhaustion is a

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prerequisite to suit. Id.; Booth v. Churner, 532 U.S. 731, 741 (2001). Section 1997e(a)

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requires “proper exhaustion” of available administrative remedies. Woodford v. Ngo, 548

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U.S. 81, 93 (2006). Proper exhaustion requires using all steps of an administrative

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process and complying with “deadlines and other critical procedural rules.” Id. at 90. To

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properly exhaust, an inmate must comply with the grievance procedures rule and

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deadlines of the institution where he is incarcerated. Jones v. Bock, 549 U.S. 199, 218

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(2007).

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Under the PLRA, a grievance "suffices if it alerts the prison to the nature of the

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wrong for which redress is sought." Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010)

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(quoting Griffin, 557 F.3d at 1120). The grievance "need not include legal terminology or

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legal theories," because "[t]he primary purpose of a grievance is to alert the prison to a

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problem and facilitate its resolution, not to lay groundwork for litigation." Griffin v. Arpaio,

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557 F.3d 1117, 1120 (9th Cir. 2009). The grievance process is only required to "alert

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prison officials to a problem, not to provide personal notice to a particular official that he

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may be sued." Jones, 549 U.S. at 219 (citations omitted). The amount of detail in an

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administrative grievance necessary to properly exhaust a claim is determined by the

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prison's applicable grievance procedures. Jones, 549 U.S. at 218; see also Sapp, 623

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F.3d at 824 (“To provide adequate notice, the prisoner need only provide the level of

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detail required by the prison's regulations.”).

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The Ninth Circuit has recognized that the PLRA does not require exhaustion when

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circumstances render administrative remedies "effectively unavailable." See Sapp, 623

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F.3d at 824; Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). An inmate may be

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excused from exhaustion if he establishes (1) that he actually filed a grievance that, if

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pursued through all levels of administrative appeals, would exhaust the claim, and (2)

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that prison officials screened his grievance for reasons inconsistent with or unsupported

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by applicable regulations. Sapp, 623 F.3d at 823-24.

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Prison officials may not render the appeals process unavailable through error or

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misconduct and then take advantage of the prisoner's failure to complete the process.
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See Sapp, 623 F.3d at 823 (improper screening and/or processing of an inmate's

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administrative grievance “renders administrative remedies ‘effectively unavailable’”)

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(internal citations omitted). “[A]ffirmative actions by jail staff preventing proper

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exhaustion, even if done innocently, make administrative remedies effectively

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unavailable.” Albino, 697 F.3d at 1034. See also McBride v. Lopez, 807 F.3d 982, 984

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(9th Cir. 2015) (finding that a threat can render an administrative remedy unavailable).

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Exhaustion of administrative remedies may be deemed complete, despite the

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inmate's failure to comply with a procedural rule, if prison officials ignore the procedural

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problem and render a decision on the merits of the grievance at each available step of

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the administrative process. Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); e.g., Id. at

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659 (although inmate failed to identify the specific doctors, his grievance plainly put

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prison on notice that he was complaining about the denial of pain medication by the

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defendant doctors, and prison officials easily identified the role of pain management

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committee's involvement in the decision-making process).

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IV.

Parties Arguments

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Defendant moves for summary judgment on the ground that Plaintiff did not

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exhaust available administrative remedies on his retaliation claim against Defendant

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Martinez. Defendant argues that Plaintiff did not receive a third level response on any of

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his appeals before filing his complaint and that none of the appeals served to put prison

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officials on notice of the specific alleged retaliatory actions of Defendant Martinez that

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are the subject of this action.

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Plaintiff’s argues that appeals KVSP-O-17-01146 and KVSP-O-17-02384 serve to

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exhaust his remedies because they concerned the general ongoing retaliation by

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Defendant Martinez, and that both were exhausted before he filed suit because they

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bypassed the first level of review as staff complaints. Plaintiff also argues that remedies

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were effectively unavailable to him because Appeal No. KVSP-O-17-01105 was

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inappropriately screened out and this prevented him from exhausting.

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V.

Analysis

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Defendant has met his burden of demonstrating that there were available

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administrative remedies and that Plaintiff did not exhaust them. The evidence indicates

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that none of Plaintiff’s appeals concerned Plaintiff’s allegations that Defendant Martinez

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retaliated against Plaintiff by shortening his shower or denying him a phone call. The

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record reveals no mention of either the shower or phone incident during the institutional

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review of any of Plaintiff’s appeals.

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Plaintiff pursued two appeals to the third level review. Appeal No. KVSP-O-17-

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01146 concerned Defendant Martinez’ continued retaliation against Plaintiff for spraying

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“toxic smoke” in Plaintiff’s cell. (ECF No. 29-5 at 12-13.) In Appeal No. KVSP-O-17-

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02384 Plaintiff complained that prison officials had installed a listening device in his cell

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and were broadcasting defamatory information about him using the prison loudspeakers.

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(ECF No. 29-4 at 38-39.)

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Even assuming, without deciding, that both appeals were properly exhausted

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before Plaintiff’s complaint was filed (a matter which Defendant disputes), neither appeal

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concerned the allegations at issue in this action. The nature of these appeals are such

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that a reasonable prison official investigating Plaintiff’s complaints would be on notice

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only that Plaintiff believed that Defendant Martinez was retaliating against him by

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spraying smoke in his cell and that prison staff generally was retaliating against him by

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installing listening devices. The grievances would not have served to notify the prison

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that Defendant Martinez was engaging in other ongoing retaliatory activity, nor would the

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grievances have afforded the prison an opportunity to address these concerns. In order

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to satisfy a prisoner’s requirement to exhaust remedies a grievance must alert “the

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prison to the nature of the wrong for which redress is sought.” See Griffin, 557 F.3d at

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1120. From the grievances in the record prison officials would not know that Defendant

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Martinez was limiting Plaintiff’s showers or denying phone calls to Plaintiff in retaliation.

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Therefore, Plaintiff’s appeals did not sufficiently provide prison officials notice of the

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issues involved in this action and do not suffice to exhaust this claim.
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Plaintiff did raise the issue of a shortened shower when he appealed KVSP-O-17-

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01146 to the third level of review (ECF No. 29-5 at 14.) Plaintiff stated, “On 4-11-17 the

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retaliation continued by Officer Martinez limiting my five minute shower.” Prison officials

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did not respond to Plaintiff’s allegation regarding the shower. (See Id. at 9-10.)

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California prison regulations state, “Administrative remedies shall not be

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considered exhausted relative to any new issue, information, or person later named by

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the appellant that was not included in the originally submitted CDCR Form 602.” 15 CCR

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3084.1. Thus, Plaintiff’s later allegation does not conform to the procedural requirements

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of the CDCR’s grievance process. See Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a),

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3084.8(b). As noted supra, compliance with section 1997e(a) is mandatory and strictly

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construed. Woodford, 548 U.S. at 85-86; Sapp, 623 F.3d at 818. In order for Plaintiff’s

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failure to follow procedural rules to be excused prison official must issue a ruling on the

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merits “at each available step of the administrative process.” Reyes, 810 F.3d at 658.

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Plaintiff provides no information that this is the case here. Therefore, Appeal No. KVSP-

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O-17-01146 did not serve to exhaust Plaintiff’s administrative remedies as it relates to

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his claims against Defendant Martinez in this action.

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Accordingly, the undisputed evidence shows that California provides an

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administrative remedies system for California prisoners to complain about their

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conditions of confinement, and that Plaintiff used that California inmate-appeal system to

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complain about other events, but not those regarding the incidents at issue in this action.

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Since Defendant has met his burden, the burden thus shifts to Plaintiff to come forward

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with evidence that something in his particular case made the existing administrative

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remedies effectively unavailable to him. See Albino, 747 F.3d at 1172.

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Plaintiff argues that remedies were effectively unavailable to him because Appeal

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No. KVSP-O-17-01105 was inappropriately screened out and it would have served to

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exhaust his claims if it had been appropriately reviewed. Appeal No. KVSP-O-17-01105

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addressed Plaintiff’s allegation that the tower officer was spraying “toxic smoke” into his

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cell. (ECF No. 29-4 at 14.) The record indicates that KVSP-O-17-01105 was cancelled
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as a duplicate of KVSP-O-17-01146, which was further along in the review process, and

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concerned the same factual allegations that tower officials were spraying smoke in

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Plaintiff’s cell. (Id. at 11.) Nothing before the Court suggests that Appeal No. KVSP-O-

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17-01105 would have served to exhaust Plaintiff’s administrative remedies had it not

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been screened out. This grievance only concerned Plaintiff’s allegations regarding tower

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officials spraying smoke and not any other retaliatory acts. Again, as noted above, this

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does not serve to put prison officials on notice of “the nature of the wrong” and the

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redress sought. Griffin, 557 F.3d at 1120.

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Based on the foregoing, the undersigned thus concludes that Plaintiff failed to

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exhaust his administrative remedies because Defendant’s alleged retaliatory actions

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were not pursued through all levels of the administrative grievance process. Accordingly

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Defendant’s motion for summary judgment for failure to exhaust administrative remedies

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should be granted.

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VI.

Rule 56(d) Request

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Plaintiff asks the Court to hold the motion for summary judgment in abeyance to

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allow him to pursue discovery to support his claim that he exhausted administrative

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remedies. (ECF No. 35 at 1-3.) Plaintiff does not specify what information he seeks.

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“Rule 56(d) ‘provides a device for litigants to avoid summary judgment when they

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have not had sufficient time to develop affirmative evidence.’” Atigeo LLC v. Offshore

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Ltd., 2014 WL 1494062, at *3 (W.D. Wash. Apr. 16, 2014) (quoting United States v.

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Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002)). Federal Rule of Civil

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Procedure 56(d) permits the Court to delay consideration of a motion for summary

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judgment to allow parties to obtain discovery to oppose the motion. When a motion for

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summary judgment is filed “before a party has had any realistic opportunity to pursue

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discovery relating to its theory of the case,” a Rule 56(d) motion should be freely

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granted. Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of the Fort

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Peck Reservation, 323 F.3d 767, 773 (9th Cir. 2003).

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A party asserting that discovery is necessary to oppose a motion for summary

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judgment “shall provide a specification of the particular facts on which discovery is to be

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had or the issues on which discovery is necessary.” Local Rule 260(b). However, where

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“no discovery whatsoever has taken place, the party making a Rule 56[(d)] motion

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cannot be expected to frame its motion with great specificity as to the kind of discovery

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likely to turn up useful information, as the ground for such specificity has not yet been

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laid.” Burlington N., 323 F.3d at 774. “The Courts which have denied a Rule 56[(d)]

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application for lack of sufficient showing to support further discovery appear to have

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done so where it was clear that the evidence sought was almost certainly nonexistent or

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was the object of pure speculation.” VISA Int’l. Serv. Ass’n v. Bankcard Holders of Am.,

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784 F.2d 1472, 1475 (9th Cir. 1986) (citation omitted).

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Here, no discovery had been conducted at the time Defendant filed his motion.

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Nonetheless, Plaintiff provides no indication of what discovery would be necessary to

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oppose the motion for summary judgment. The Court notes that the record at this stage

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of the proceedings is limited to issues relating to exhaustion. Plaintiff does not suggest

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that the record in that regard is incomplete or that information regarding additional

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grievances is lacking. He raises no issues on which further discovery would impact the

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Court’s conclusion on the issue of exhaustion. Based on the argument presented, the

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Court finds no reasonable likelihood that additional discovery would permit Plaintiff to

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defeat summary judgment, and thus the Rule 56(d) request should also be denied.

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VI.

Conclusion

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Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendant’s

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motion for summary judgment for failure to exhaust administrative remedies be

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GRANTED.

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The findings and recommendation will be submitted to the United States District

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

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Within fourteen (14) days after being served with the findings and recommendation, the

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parties may file written objections with the Court. The document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond

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to another party’s objections by filing a response within fourteen (14) days after being

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served with a copy of that party’s objections. The parties are advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 9, 2018

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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