Miramontes v. Gower et al
Filing
25
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 07/25/16 ORDERING the Clerk of the Court assign a District Judge to this case. U.S. District Judge John A. Mendez randomly assigned to this action. Also, RECOMMENDING that defendant's motion for summary judgment 22 be denied. MOTION for SUMMARY JUDGMENT 22 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
PEDRO MIRAMONTES,
12
Plaintiff,
13
v.
14
L GOWER, et al.,
15
No. 2:15-cv-1544 CKD P
ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.
16
17
Plaintiff is proceeding pro se with an action for violation of civil rights under 42 U.S.C. §
18
1983. Plaintiff’s remaining claims arise under the First Amendment of the United States
19
Constitution and California’s Constitution against defendant Herrera (defendant). Plaintiff claims
20
that on January 6, 2014, while he was an inmate at the California Correctional Center (CCC) in
21
Susanville, defendant Herrera threatened plaintiff with a transfer to a more restrictive prison in
22
retaliation for plaintiff’s use of the inmate grievance process. Defendant argues in a motion for
23
summary judgment that plaintiff’s claim arising under the First Amendment should be dismissed
24
for failure to exhaust administrative remedies.
25
Section 1997(e)(a) of Title 42 of the United States Code provides that “[n]o action shall be
26
brought with respect to prison conditions under section 1983 of this title, . . . until such
27
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997(e)(a). Administrative
28
procedures generally are exhausted with respect to the California prisoner grievance process once
1
1
the third level of review is complete. The third level of review constitutes the decision of the
2
Secretary of the California Department of Corrections and Rehabilitation (CDCR). Cal. Code
3
Regs. tit. 15, § 3084.7.
The exhaustion requirement demands “proper” exhaustion. Woodford v. Ngo, 548 U.S.
4
5
81, 90-91 (20016). In order to “properly exhaust” administrative remedies the prisoner must
6
generally comply with the prison’s procedural rules throughout the administrative process. Jones
7
v. Bock, 218 U.S. 199, 218 (2006).
8
9
10
If undisputed evidence viewed in the light most favorable to the prisoner / plaintiff shows
a failure to exhaust, a defendant is entitled to summary judgment under Rule 56 of the Federal
Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).
11
There is no dispute that plaintiff did not utilize the inmate grievance process with respect
12
to his claims against defendant which remains in this action. Plaintiff asserts the exhaustion
13
requirement should be waived with respect to his First Amendment claim, however, because
14
plaintiff feared retaliation from defendant if plaintiff filed a grievance against him.
15
In McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015), the Ninth Circuit held that a
16
threat of retaliatory action by a prison official would render a prison grievance system unavailable
17
so as to excuse a prisoner’s failure to exhaust administrative remedies if the following conditions
18
are met:
19
1. The threat of retaliation actually did deter the plaintiff inmate
from lodging a grievance or pursuing a particular part of the
process; and
20
21
2. The threat is one that would deter a reasonable inmate of
ordinary firmness and fortitude from lodging a grievance or
pursuing the part of the grievance process that the inmate failed to
exhaust.
22
23
24
Here, plaintiff essentially alleges defendant Captain Herrera told plaintiff he did not
25
“tolerate” accusations made against other correctional officers via the inmate grievance process at
26
CCC. Defendant then asked plaintiff “[y]ou know what happens to snitches in prison?” Finally,
27
defendant told plaintiff “maybe I should move you to Lassen . . . for your own safety.”
28
/////
2
1
According to plaintiff, “Lassen is a level III facility with a Segregation Housing Unit (SHU) also
2
known as the hole.”
3
In his complaint, plaintiff alleges, under the penalty of perjury, that he did not utilize the
4
inmate grievance process with respect to defendant’s actions because he feared further retaliation.
5
Defendant fails to present any evidence, such as other grievances filed by plaintiff against or
6
involving defendant after the events described above, which would undermine plaintiff’s asserted
7
fear of retaliation from him. The court finds these facts establish a genuine issue of material fact
8
as to whether plaintiff actually was threatened with retaliation for further use of the inmate
9
grievance process and whether that actually stopped plaintiff from filing a grievance concerning
10
the actions of defendant at issue in this action.
11
Further, the threats by defendant alleged by plaintiff in his complaint are clear enough
12
that, for purposes of defendant’s motion for summary judgment, a reasonable inmate would be
13
deterred from submitting a grievance against or involving defendant for fear that he might make
14
good on his retaliatory threat.
15
16
For these reasons, defendant is not entitled to summary judgment with respect to his
failure to exhaust argument.
17
Under Albino, the court is permitted to resolve material issues of fact as they pertain to
18
exhaustion of administrative remedies. Albino, 747 F.3d at 1170-1171. If defendant wishes the
19
court to conduct an evidentiary hearing to resolve whether plaintiff was actually threatened with
20
retaliation for further use of the inmate grievance process and whether that actually stopped
21
plaintiff from filing a grievance concerning the actions of defendant which form the basis of
22
plaintiff’s remaining First Amendment Claim, defendant shall so request no later than 14 days
23
after adoption of the findings and recommendations herein. If defendant fails to request an
24
evidentiary hearing within that time period, any remaining argument defendant might have as to
25
plaintiff’s failure to exhaust administrative remedies will be deemed waived.1
26
27
28
1
Facts material to the question of whether a plaintiff failed to exhaust available administrative
remedies prior to bringing suit “should be decided at the very beginning of litigation.” Id. at
1171.
3
1
2
3
4
In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court
assign a district court judge to this case; and
IT IS HEREBY RECOMMENDED that defendant’s motion for summary judgment (ECF
No. 22) be denied.
5
These findings and recommendations are submitted to the United States District Judge
6
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
7
after being served with these findings and recommendations, any party may file written
8
objections with the court and serve a copy on all parties. Such a document should be captioned
9
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
10
objections shall be served and filed within fourteen days after service of the objections. The
11
parties are advised that failure to file objections within the specified time may waive the right to
12
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
13
Dated: July 25, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
14
15
16
17
18
19
1
mira1544.exh
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?