Roberts v. Beard et al

Filing 130

REPORT AND RECOMMENDATION Granting in Part 116 Defendants' Motion for Summary Judgment. Objections to R&R due by 6/13/2018. Signed by Magistrate Judge Peter C. Lewis on 05/25/2018.(All non-registered users served via U.S. Mail Service)(ajs)

1
2
3
4
5
6
7
8
9
10

IN THE UNITED STATE DISTRICT COURT

11

SOUTHERN DISTRICT OF CALIFORNIA

12
13
14
15
16
v.

17
18
19
20
21

Case No. 15cv1044 WQH PCL

Tony Roberts,

Plaintiff, REPORT AND
RECOMMENDATION GRANTING
IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT

J. Beard et al.,
Defendants.
I.

INTRODUCTION

22

Plaintiff Tony Roberts, an inmate currently incarcerated at California Health

23

Care Facility, has filed a 42 U.S.C. § 1983 lawsuit against staff at the RJ Donovan

24
25

Correctional Facility for violations of his First Amendment right to file grievances

26

and his Eighth Amendment right to be free from cruel and unusual punishment.

27

(Doc. 1, at 3-4.) Plaintiff alleges that Defendants R. Davis, A. Buenrostro, C. Meza,

28
1
15cv1044 WQH (PCL)

1
2
3

A. Parker, R. Solis, R. Santiago, L. Ciborowski, D. Arguilez, S. Sanchez, K. Seibel,
and Warden D. Paramo all retaliated against him for engaging in First Amendment

4

conduct, and that Defendant Buenrostro sexually assaulted him during a pat-down

5

search in violation of the Eighth Amendment. (Doc. 1, at 11-12.) Defendants have

6
7

filed a motion for summary judgment on the following grounds: 1) Plaintiff failed

8

to exhaust his administrative remedies as to all claims except the First Amendment

9

retaliation claim against Defendant Buenrostro; 2) the undisputed evidence shows

10
11

that Defendants did not retaliate against Plaintiff; and 3) the evidence shows that

12

Defendant Buenrostro did not violate his Eighth Amendment rights or violate

13

California law. For the following reasons, the Court recommends granting in part

14
15

and denying in part Defendants’ motion for summary judgment.

16

II.

17

Plaintiff alleges that “Defendants conspired to retaliate against [him] for

18
19

ALLEGATIONS

engaging in ‘protected conduct’ when [he] petitioned for redress of his grievances.”

20

(Doc. 1, at 19.) Plaintiff alleges that Defendants Davis and Buenrostro “engaged in

21

a series of unlawful and repressive conduct against Plaintiff and other mentally ill

22
23

inmates” when Plaintiff “attempted to access [RJ Donovan’s] inmate appeal

24

procedure to complain about these Defendants’ conduct” which “were either

25

screened out or were never responded to by [RJ Donvan’s] prison officials.” (Doc.

26
27
28

1, at 10.) Plaintiff states that after he wrote the “class monitors” of the California
Department of Corrections and Rehabilitation’s mental health delivery system,
2
15cv1044 WQH (PCL)

1
2
3

appointed under Coleman v. Brown et al., 28 F. Supp. 3d 1068 (E.D. Cal. April 10,
2014), Plaintiff was retaliated against and terrorized by Defendants A. Buenrostro,

4

R. Davis, C. Meza, A. Parker, R. Solis, R. Santiago D. Arguilez, S. Sanchez, L.

5

Ciborowski, K. Seibel, D. Paramo, and Warden J. Beard for engaging in First

6
7

Amendment conduct. (Doc. 1, at 10-11.)

8

Plaintiff claims that Defendants C. Meza and A. Buenrostro prohibited

9

Plaintiff’s ability to send written communications of public interest to government

10
11

officials. (Doc. 1, at 19.) Plaintiff states that Defendant C. Meza “illegal[ly]

12

obtained a copy of a written complaint Plaintiff had drafted and submitted” to the

13

Department of Justice and gave the complaint to Defendant Buenrostro, who then

14
15

concocted false allegations against Plaintiff in retaliation and arranged with other

16

officers Plaintiff’s transfer to another prison that caused Plaintiff “to experience an

17

exacerbation in his mental illness.” (Doc. 1, at 12.) Plaintiff claims that Defendants

18
19

A. Parker and A. Buenrostro conducted a cell search and confiscated legal

20

documents from Plaintiff including a civil rights complaint that was about to be

21

filed. (Doc. 1, at 20.) Plaintiff claims that Defendants Davis, Meza, and Buenrostro

22
23

falsely labeled Plaintiff a “snitch,” causing him to be attacked by other inmates, in

24

retaliation for exercising his First Amendment rights. (Doc. 1, at 21-24.) Plaintiff

25

claims that Defendant K. Seibel, the deputy chief warden, conspired to retaliate

26
27

against Plaintiff for filing grievances by authorizing the illegal activities of the

28
3
15cv1044 WQH (PCL)

1
2
3
4
5
6
7

other correctional officers under her and by placing him on a list for transfer to
another CDCR facility. (Doc. 1, at 14-15, 23.)
Finally, Plaintiff alleges that Defendant Buenrostro conducted a clothed body
search of Plaintiff on April 2, 2014 and intentionally rubbed Plaintiff’s private parts
for sexual gratification in retaliation for exercising his First Amendment rights.

8

(Doc. 1, at 11-12.) Plaintiff also accuses Buenrostro of sexual assault and battery in

9

violation of California law and his Eighth Amendment’s rights. (Doc. 1, at 21-23,

10
11

28.) Plaintiff alleges that on that same day, Buenrostro wrote up a false and

12

retaliatory rules violation report against him for exercising his constitutional rights.

13

(Doc. 1, at 11.)

14
15

III. EVIDENCE PRESENTED

16

A. Defendants’ Proffer

17

Plaintiff has filed administrative appeals as far back as 1989, and submitted

18
19

appeals at RJ Donovan every year between 2001 and 2007, before submitting more

20

appeals at RJ Donovan when he was transferred back there in 2014. (Doc. 116,

21

Exhibit B.) Plaintiff has submitted administrative appeals for third-level review

22
23

since 2005, and submitted approximately nine administrative appeals for third-level

24

review between 2005 and 2014. (Decl. M. Voong, ¶ 10 and Doc. 116, Exhibit A.)

25

In 2014, the year in which all of the events in this lawsuit are alleged to have

26
27
28

occurred, Plaintiff properly submitted only two administrative appeals. (Doc. 116,
Exhibit A.) In one of them, Log No. RJD-14-1803, Plaintiff appealed the rules
4
15cv1044 WQH (PCL)

1
2
3

violation report authored by Officer Buenrostro on April 2, 2014, and the guilty
finding made against him on May 1, 2014, based on that report. (Doc. 116, Exhibit

4

A.) When Plaintiff originally submitted the appeal, Officer Buenrostro was the only

5

Defendant named in it. (Doc. 116, Exhibit A.) The subject matter of this

6
7

administrative appeal was limited to the rules violation report authored by Officer

8

Buenrostro and the guilty finding made against Plaintiff. (Doc. 116, Exhibit A.)

9

Plaintiff’s contention was that Officer Buenrostro filed a “false” rules violation

10
11

report against him in retaliation for prior grievances. (Doc. 116, Exhibit A.) The

12

administrative appeal did not contain any allegations that Officer Buenrostro

13

improperly searched Plaintiff, intentionally rubbed Plaintiff’s private parts for

14
15

sexual gratification, or any of the other allegations made against Officer Buenrostro

16

in this lawsuit. (Doc. 116, Exhibit A.) After prison officials at RJ Donovan

17

conducted the second-level review of appeal Log No. RJD-14-1803, Plaintiff

18
19

completed Section F, requesting third-level review. (Decl. B. Self, ¶ 11.) Plaintiff

20

attempted to name other Defendants in this lawsuit, including Captain Sanchez and

21

Associate Warden Siebel, and to add new allegations. (Decl. B. Self, ¶ 11.) Under

22
23

California regulations, prisoners cannot expand the scope of the appeal and add new

24

issues or individuals after it is originally submitted. (Decl. B. Self, ¶ 11.) Plaintiff

25

did not properly submit any other administrative appeals naming Defendants in

26
27
28

2014. (Decl. B. Self, ¶ 12.) Plaintiff submitted approximately seven other
administrative appeals at RJ Donovan in 2014 that were screened out or cancelled
5
15cv1044 WQH (PCL)

1
2
3

for various reasons. (Decl. B. Self, ¶ 14.) In most cases, those appeals were
screened out because Plaintiff attempted to include multiple issues in the same

4

appeal, because he failed to provide specific names or dates, or because he failed to

5

use the CDCR-22 “Request for Interview” form, where appropriate. (Decl. B. Self ¶

6
7

14.) In each case, the appeals office issued Plaintiff a screen-out letter explaining to

8

him how he could properly resubmit the appeals. (Decl. B. Self, ¶ 14.) The only

9

administrative appeal that Plaintiff submitted to the Office of Appeals for third-

10
11

level review in 2014 was Institutional Log No. RJD-14-1803, the one concerning

12

the rules violation report issued by Officer Buenrostro on April 2, 2014. (Decl. M.

13

Voong, ¶ 9.)

14
15

Defendant Buenrostro declared that he did not take any adverse action against

16

Plaintiff because Plaintiff corresponded with the “class monitors” of CDCR’s

17

mental health delivery system, appointed under Coleman v. Brown et al., or for any

18
19

other reason. (Buenrostro Decl. ¶ 2.) Defendant Buenrostro stated that he never

20

refused to process Plaintiff’s outgoing mail and that he never interfered with

21

Plaintiff’s outgoing or incoming mail. (Buenrostro Decl. ¶ 3.) Defendant

22
23

Buenrostro was monitoring the inmates in Housing Unit A-1 on April 2, 2014.

24

(Buenrostro Decl. ¶ 3.) Defendant Buenrostro ordered Plainitff to leave the housing

25

unit and go to the dining hall for breakfast or return to his cell, but he stated that

26
27
28

Plaintiff ignored his orders. (Buenrostro Decl. ¶ 3.) Defendant Buenrostro
approached Plaintiff and again ordered Plaintiff to leave the housing unit or return
6
15cv1044 WQH (PCL)

1
2
3

to his cell and Plaintiff responded, “Don’t worry about what I’m doing, stupid
Mexican.” (Buenrostro Decl. ¶ 3.) Defendant Buenrostro stated that he searched

4

Plaintiff because Plaintiff’s actions were suspicious and unusual. (Buenrostro Decl.

5

¶ 4.) Defendant Buenrostro told Plaintiff that Plaintiff is expected to follow orders

6
7

and procedures within the housing unit. (Buenrostro Decl. ¶ 4.) Plaintiff was

8

agitated and angry and responded “Fuck you stupid Mexican. I’m going to do what

9

I want to do.” (Buenrostro Decl. ¶ 4.) Defendant Buenrostro placed Plaintiff in

10
11

handcuffs because of Plaintiff’s unusual behavior and agitated state, and as a safety

12

precaution, Plaintiff was escorted to the Program Support Unit. (Buenrostro Decl. ¶

13

4.) Defendant Buenrostro declared that he did not use excessive or improper force

14
15

on Plaintiff at any time during the incident and clothed body search on April 2,

16

2014. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro stated that he did not sexually

17

assault Plaintiff during that search and did not rub Plaintiff’s private parts for

18
19

sexual gratification. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro searched

20

Plaintiff because his actions were suspicious, and Defendant Buenrostro knew that

21

Plaintiff was not assigned to cell 210. (Buenrostro Decl. ¶ 5.) Defendant Buenrostro

22
23

also knew, based on his training, education, and personal experience within CDCR,

24

that inmates often try to go to other cells for improper purposes such as delivering

25

or obtaining contraband including drugs, weapons, currency, or electronic

26
27
28

equipment or other property that is not theirs. (Buenrostro Decl. ¶ 5.) This, and
Plaintiff’s agitated state, were the only reasons why Defendant Buenrostro
7
15cv1044 WQH (PCL)

1
2
3

performed a clothed body search of Plaintiff. (Buenrostro Decl. ¶ 5.) Defendant
Buenrostro wrote a 115 Rules Violation Report charging Plaintiff with behavior

4

that leads to violence in violation of California Code of Regulations, Title 15,

5

section 3005(d). (Buenrostro Decl. ¶ 6 and Exhibit A.) Defendant Buenrostro stated

6
7

that he did not write this report in retaliation. (Buenrostro Decl. ¶ 6 and Exhibit A.)

8

This Rules Violation Report was heard by a senior hearing officer, Correctional

9

Lieutenant R. Davis, on May 1, 2014. (Buenrostro Decl. ¶ 6 and Exhibit A thereto.)

10
11

Lt. Davis found Plaintiff not guilty of behavior that leads to violence, but instead

12

found him guilty of the lesser included offense of openly displaying disrespect in

13

violation of California Code of Regulations, Title 15, section 3004 (b). Lt. Davis’s

14
15

finding was based upon a preponderance of the evidence submitted at the hearing.

16

(Buenrostro Decl. ¶ 6 and Exhibit A.) This evidence included Defendant

17

Buenrostro’s written report which stated in part that Plaintiff said “don’t worry

18
19

about what I’m doing stupid Mexican,” and the testimony of Correctional

20

Counselor Hailey, who told Lt. Davis that he heard Plaintiff call Defendant

21

Buenrostro “a Mexican.” (Buenrostro Decl. ¶ 6 and Exhibit A.) Plaintiff was

22
23

assessed thirty days forfeiture of good-time credits, thirty days loss of evening yard

24

privileges, and thirty day loss of dayroom privileges. (Buenrostro Decl. ¶ 6 and

25

Exhibit A.) This 115 Rules Violation Report’s guilty finding has not been

26
27

overturned by the CDCR. (Buenrostro Decl. ¶ 6 and Exhibit A.)

28
8
15cv1044 WQH (PCL)

1
2
3

Defendant Buenrostro never contacted Sergeant Sanchez to plot Plaintiff’s
transfer to another prison, knowing that doing so would exacerbate Plaintiff’s

4

mental illness. (Buenrostro Decl. ¶ 8.) Defendant Buenrostro did not have authority

5

to have an inmate transferred, and he had no influence over the decision to transfer

6
7

an inmate. (Buenrostro Decl. ¶ 8.) Defendant Buenrostro has never sat on any of

8

Plaintiff’s classification committees, nor has he ever acted as a Classification Staff

9

Representative reviewing any action concerning Plaintiff. (Buenrostro Decl. ¶ 10.)

10
11

Defendants Buenrostro and Parker did not confiscate a civil rights lawsuit

12

during a search of Plaintiff’s cell on June 3, 2014. (Buenrostro Decl. ¶ 11; Parker

13

Decl. ¶ 2.) Defendants Buenrostro and Parker did not “concoct” false disciplinary

14
15

charges against Plaintiff. (Buenrostro Decl. ¶ 12; Parker Decl. ¶ 6.) Defendants

16

Buenrostro and Parker were working as the Floor Officers in Housing Unit A-1 at

17

RJ Donovan on June 3, 2014. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendants

18
19

Buenrostro and Parker randomly chose to search Plaintiff’s cell that day.

20

(Buenrostro ¶¶ 13, 15; Parker Decl ¶ 2, 4.) Defendant Parker discovered a small,

21

clear plastic bag lying on the lower-bunk mattress underneath a blue, state-issued

22
23

jacket. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) The bag was filled with tobacco.

24

(Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) The lower bunk was assigned to Plaintiff

25

at that time. (Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendant Parker took

26
27
28

possession of the tobacco and disposed of it per institutional procedures.
(Buenrostro Decl. ¶ 13; Parker Decl. ¶ 2.) Defendant Parker did not “plant” the bag
9
15cv1044 WQH (PCL)

1
2
3

of tobacco on Plaintiff’s bunk. (Parker Decl. ¶ 4.) Defendant Parker wrote a 115
Rules Violation Report charging Plaintiff with possession of contraband (tobacco)

4

in violation of California Code of Regulations, Title 15, section 3006. (Buenrostro

5

Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.) This Rules Violation Report was heard

6
7

by a senior hearing officer, Correctional Lieutenant R. Davis, on July 2, 2014.

8

(Buenrostro Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.) Lt. Davis ultimately found

9

Plaintiff not guilty of this charge and dismissed the rules violation report because of

10
11

insufficient evidence. (Buenrostro Decl. ¶ 14; Parker Decl. ¶ 3 and Exhibit A.)

12

Defendants Buenrostro and Parker did not search Plaintiff’s cell in retaliation for

13

any protected conduct that Plaintiff may have engaged in, or for any other improper

14
15

reason. (Buenrostro Decl. ¶ 15; Parker Decl. ¶ 4.) Defendants Buenrostro and

16

Parker searched Plaintiff’s cell because they were required to perform three to five

17

random cell searches during their shifts as floor officers. (Buenrostro Decl. ¶ 15;

18
19

Parker Decl. ¶ 4.) Defendant Parker did not conspire with Buenrostro, or any other

20

correctional staff member or inmate, to file false disciplinary charges against

21

Plaintiff, and no one ever asked or suggested that Parker do so. (Parker Decl. ¶ 6.)

22
23

Defendant Buenrostro neither manufactured any charges against Plaintiff at

24

any time, nor has he asked or pressured others to do so. (Buenrostro Decl. ¶ 20.)

25

Defendant Buenrostro has never taken any adverse action against Plaintiff that was

26
27
28

not based upon a legitimate, penological reason. (Buenrostro ¶ 20.) Defendant
Buenrostro never told Plaintiff that he would “get some payback” and never
10
15cv1044 WQH (PCL)

1
2
3

attempted to set up Plaintiff to be injured by other inmates. (Buenrostro Decl. ¶ 22.)
Defendant Buenrostro is not aware of any report or instance where Plaintiff was

4

attacked by other inmates from April through October 2014, and he is not aware of

5

any reports evidencing such an attack. (Buenrostro Decl. ¶ 22.) Defendant

6
7

Buenrostro has never threatened Plaintiff or bribed or caused another inmate to

8

assault, attack or hurt Plaintiff. (Buenrostro Decl. ¶ 22-24.) Defendant Buenrostro

9

has never called Plaintiff a snitch or child molester at any time. (Buenrostro ¶ 21.)

10
11

In addition to creating a threat of harm to the inmate and a security risk to the

12

institution, Defendants would have faced severe disciplinary action from their

13

supervisors and the prison administration had they called any inmate a “snitch” or a

14
15

“child molester.” (Buenrostro ¶ 21.)

16

Defendant Seibel reviewed Plaintiff’s transfer data on CDCR’s Strategic

17

Offender Management System (SOMS). (Seibel Decl. ¶ 5.) SOMS contains data on

18
19

each CDCR inmate’s case factors. (Seibel Decl. ¶ 5.) The information in SOMS

20

shows that Plaintiff was not placed on a transfer list in September and October 2014

21

to be sent out of RJ Donovan. (Seibel Decl. ¶ 6.) Defendant Seibel does not have

22
23

unilateral authority to place an inmate on a transfer list. (Seibel Decl. ¶ 6.)

24

Plaintiff’s records showed that RJ Donovan reviewed his case on February 18,

25

2014. (Seibel Decl. ¶ 8.) Plaintiff’s case was referred to the CSR with a

26
27
28

recommendation that Plaintiff be retained at RJ Donovan. (Seibel Decl. ¶ 8 and
Exhibit A.) The CSR endorsed the UCC’s recommendation on March 26, 2014, and
11
15cv1044 WQH (PCL)

1
2
3

Plaintiff remained at RJ Donovan. (Seibel Decl. ¶ 8 and Exhibit B thereto.) This
ruling was upheld at Plaintiff’s next UCC hearing on September 12, 2014. (Seibel

4

Decl. ¶ 9 and Exhibit C.) Defendant Seibel never had any knowledge that others

5

were planning to retaliate, or were retaliating, against Plaintiff at any time. (Seibel

6
7

Decl. ¶ 10.)

8

B. Plaintiff’s Proffer

9

On April 2, 2014, Plaintiff placed a CDCR Inmate Appeal 602 dated April 2,

10
11

2014 in Housing Unit #1 Appeals box, alleging sexual assault by Correctional

12

Officer A. Buenrostro. (Roberts Decl., Doc. 119, at 26.) Plaintiff declared that he

13

never received a response from any prison official regarding the appeal. (Id.)

14
15

On June 23, 2014, Plaintiff placed a CDCR 602 Appeal dated June 19, 2014

16

concerning senior CDCR administrators’ intentional failure to control Officers D.

17

Arguilez, A. Buenrostro, and R. Davis. (Doc. 119, at 27.) Plaintiff declared that he

18
19
20
21
22
23

never received a response addressing the appeal. (Id.)
On July 8, 2014, Plaintiff gave Officer L. Ciborowski an appeal dated June 28,
2014, alleging an ongoing conspiracy to retaliate against him. (Id.) Plaintiff also
submitted a CDCR Form 22 Inmate Request for Interview to Officer Ciborowski,

24

who accepted it and signed it. (Id.) However, Plaintiff never received a response to

25

the appeal. (Id.) Plaintiff stated that the administrative appeal submitted to Sergeant

26
27
28

Ciborowski on July 8, 2014 included sufficient detail to provide enough
information to allow prison officials to take appropriate responsive measures. (Doc.
12
15cv1044 WQH (PCL)

1
2
3

119, at 15.) Plaintiff declared that it has been his personal experience that RJ
Donovan fails to operate an Inmate Appeal system that conforms to state law and

4

places unreasonable restrictions on inmates’ ability to submit 602 appeals. (Roberts

5

Decl. ¶ 16; Doc. 119, at 31.) Plaintiff stated that he believes that his appeals either

6
7
8
9
10
11

vanished or were unlawfully rejected. (Roberts Decl. ¶ 17, 23; Doc. 119, at 31-33.)
Plaintiff declared that Officer A. Buenrostro engaged in unlawful and
repressive conduct against him as he attempted to access RJ Donvan’s inmate
appeal procedure to complain about the Defendants’ conduct. (Doc. 119, at 33.)

12

Plaintiff stated that Defendant A. Buenrostro refused to process as outgoing mail a

13

Coleman letter to class monitors on March 6, 2014. (Doc. 119, at 34.) Plaintiff then

14
15

concluded that as a result of his filing 602 appeals and other complaints, he was

16

retaliated against by Defendant Buenrostro, including a sexual assault of his male

17

organ during a pat down search. (Doc. 119, at 35.) Plaintiff stated that Defendant

18
19

Buenrostro issued him a false 115 Rules Violation Report for behavior that leads to

20

violence arising out of the April 2, 2014 incident. (Doc. 119, at 36.) Plaintiff

21

declared that Defendant Buenrostro falsely accused him of having contraband

22
23

during the search of his cell on June 3, 2014, an accusation for which he was found

24

not guilty. (Doc. 119, at 38.) Finally, Plaintiff declared that Defendant Buenrostro

25

told inmate Gerald Marshall that Plaintiff was a “snitch,” and that he told inmate

26
27

Curtis Rusher that Plaintiff was a “child molester.” (Doc. 119, at 41.)

28
13
15cv1044 WQH (PCL)

1
2
3

Plaintiff submitted a 602 appeal on April 2, 2015 documenting that Defendant
Buenrostro threatened Plaintiff with a transfer for engaging in First Amendment

4

conduct. (Doc. 119, at 45-46.) Plaintiff also mentioned Defendants Vasquez, Pena,

5

Warden Paramo, Secretary Beard, and Captain Larson as contributing to the

6
7
8
9
10
11

retaliation in their respective capacities. (Id.) However, this 602 appeal was rejected
at this first level of review on April 24, 2015. (Id. at 45.)
Plaintiff submitted the declarations of various inmates who also experienced
trouble filing grievances. Inmates Wydell Jones, Lewis Law, Dennis Davis, and

12

Jason Coleman all stated that they did not receive responses to their appeals. (Doc.

13

119, at 50-51, 58, 63-64, 66-70.) Inmate William Dawes stated that his appeals

14
15
16
17
18
19

were not accepted because he would not answer Defendant Buenrostro’s questions
about other inmates. (Doc. 119, at 55.)
Inmate Juley Gordon stated that Defendant Buenrostro told him that anyone
found helping Plaintiff file 602 appeals would be on his hit-list. (Doc. 119, at 83.)

20

Inmate Gerald Marshall declared that Defendant Buenrostro called Plaintiff Roberts

21

a “snitch” and told him the Crips “got off on his ass a couple of months ago on the

22
23

yard,” and told him not to help Plaintiff with his legal papers. (Doc. 119, at 98.)

24

Inmate Curtis Rusher declared that Defendant Buenrostro told him that Plaintiff

25

was arrested for child molestation in the 1980s, offered to provide the documents

26
27
28

showing that what he was saying was true, and expressed his desire to see Plaintiff
“handled good enough to get him out of here!” (Doc. 119, at 100.) Inmate Keith
14
15cv1044 WQH (PCL)

1
2
3

Williams declared that Defendant Buenrostro told him if he and his “homeboys”
put Plaintiff “in the hospital this time,” he would bring “anything you want in

4

here.” (Doc. 119, at 103.) Inmate Kelvin Singleton declared that in July 2014,

5

inmates who were West Coast Crip members said a correctional officer offered

6
7

“five hundred dollars” to “fuck up an EOP inmates named Roberts … for snitching

8

on him and some other officers who had come on A yard from the hole.” (Doc. 119,

9

at 110-111.) He stated that he heard from other inmates that Roberts was attacked

10
11

during night yard. (Id.)

12

IV. STANDARD OF REVIEW

13

A. General Rule

14
15

Rule 56(c) of the Federal Rules of Civil Procedure authorizes the granting of

16

summary judgment “if the pleadings, depositions, answers to interrogatories, and

17

admissions on file, together with the affidavits, if any, show that there is no genuine

18
19

issue as to any material fact and that the moving party is entitled to judgment as a

20

matter of law.” The standard for granting a motion for summary judgment is

21

essentially the same as for the granting of a directed verdict. Judgment must be

22
23

entered, “if, under the governing law, there can be but one reasonable conclusion as

24

to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “If

25

reasonable minds could differ,” however, judgment should not be entered in favor

26
27

of the moving party. Id. at 250-51.

28
15
15cv1044 WQH (PCL)

1
2
3

The parties bear the same substantive burden of proof as would apply at a trial
on the merits, including plaintiff’s burden to establish any element essential to his

4

case. Liberty Lobby, 477 U.S. at 252. The moving party bears the initial burden of

5

identifying the elements of the claim in the pleadings, or other evidence, which the

6
7

moving party “believes demonstrate the absence of a genuine issue of material

8

fact.” Celotex v. Catrett, 477 U.S. 317, 323 (1986). “A material issue of fact is one

9

that affects the outcome of the litigation and requires a trial to resolve the parties’

10
11

differing versions of the truth.” S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th

12

Cir. 1982). More than a “metaphysical doubt” is required to establish a genuine

13

issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

14
15

U.S. 574, 586 (1986).

16

The burden then shifts to the non-moving party to establish, beyond the

17

pleadings, that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. To

18
19

successfully rebut a properly supported motion for summary judgment, the

20

nonmoving party “must point to some facts in the record that demonstrate a genuine

21

issue of material fact and, with all reasonable inferences made in the plaintiff[’s]

22
23
24
25
26
27
28

favor, could convince a reasonable jury to find for the plaintiff[].” Reese v.
Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000).
While the district court is “not required to comb the record to find some reason
to deny a motion for summary judgment,” Forsberg v. Pacific N.W. Bell Tel. Co.,
840 F.2d 1409, 1418 (9th Cir. 1988), the court may nevertheless exercise its
16
15cv1044 WQH (PCL)

1
2
3

discretion “in appropriate circumstances,” to consider materials in the record which
are on file but not “specifically referred to.” Carmen v. San Francisco Unified Sch.

4

Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). However, the court need not “examine

5

the entire file for evidence establishing a genuine issue of fact, where the evidence

6
7
8
9
10
11

is not set forth in the opposing papers with adequate references so that it could be
conveniently found.” Id.
In ruling on a motion for summary judgment, the court need not accept legal
conclusions “in the form of factual allegations.” Western Mining Council v. Watt,

12

643 F.2d 618, 624 (9th Cir. 1981). “No valid interest is served by withholding

13

summary judgment on a complaint that wraps nonactionable conduct in a jacket

14
15
16
17
18
19

woven of legal conclusions and hyperbole.” Vigliotto v. Terry, 873 F.2d 1201,
1203 (9th Cir. 1989).
Morevover, “[a] conclusory, self-serving affidavit, lacking detailed facts and
any supporting evidence, is insufficient to create a genuine issue of material fact.”

20

F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997).

21

Nevertheless, “the district court may not disregard a piece of evidence at the

22
23

summary stage solely based on its self-serving nature.” Nigro v. Sears, Roebuck &

24

Co., 784 F.3d 495, 497-498 (9th Cir. 2015) (finding plaintiff’s “uncorroborated and

25

self-serving declaration sufficient to establish a genuine issue of material fact

26
27
28

because the “testimony was based on personal knowledge, legally relevant, and
internally consistent.”).
17
15cv1044 WQH (PCL)

1
2
3

“A trial court can only consider admissible evidence in ruling on a motion for
summary judgment.” Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th

4

Cir. 2002). “We have repeatedly held that unauthorized documents cannot be

5

considered in a motion for summary judgment.” Id. “To survive summary

6
7

judgment, a party does not necessarily have to produce evidence in a form that

8

would be admissible at trial, as long as the party satisfies the requirements of

9

Federal Rule of Civil Procedure 56.” Block v. City of Los Angeles, 253 F.3d 410,

10
11

418-419 (9th Cir. 2001). “The court need consider only the cited materials, but it

12

may consider other materials in the record.” FRCP 56(c)(3). “However, a self-

13

serving declaration does not always create a genuine issue of material fact for

14
15

summary judgment: The district court can disregard a self-serving declaration that

16

states only conclusions and not facts that would be admissible evidence.” Nigro v.

17

Sears, Roebuck and Co., 784 F.3d 495, 497 (9th Cir. 2015) (citations omitted).

18
19

“Mere submission of affidavits opposing summary judgment is not enough; the

20

court must consider whether the evidence presented in the affidavits is of sufficient

21

caliber and quantity to support a jury verdict for the nonmovant. A ‘scintilla of

22
23

evidence,’ or evidence that is ‘merely colorable’ or ‘not significantly probative,’ is

24

not sufficient to present a genuine issue as to a material fact.” United Steelworkers

25

of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (citations

26
27

omitted).

28
18
15cv1044 WQH (PCL)

1
2
3

B. Exhaustion Rule
Section 1997e(a) of the PLRA requires prisoners to exhaust all available

4

administrative remedies before filing a § 1983 action in federal court. See 42 U.S.C.

5

§ 1997e(a). Congress enacted the PLRA in part to “allow prison officials a chance

6
7

to resolve disputes regarding the exercise of their responsibilities before being

8

hailed into court; to reduce the number of prison suits; and to improve the quality of

9

suits that are filed by producing a useful administrative record.” Garcia v. Miller,

10
11

2015 WL 5794552, at *4 (S.D. Cal. Oct. 2, 2015). With the passage of the PLRA,

12

the exhaustion requirement was strengthened – it is “no longer left to the discretion

13

of the district court, but is mandatory.” Woodford v. Ngo, 548 U.S. 81, 85 (2006);

14
15

Ross v. Blake, 136 S. Ct. 1850, 1857 (“[M]andatory exhaustion statutes like the

16

PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.”).

17

“The obligation to exhaust ‘available’ remedies persists as long as some remedy

18
19

remains ‘available.’ Once that is no longer the case, then there are no ‘remedies …

20

available,’ and the prisoner need not further pursue the grievance.” Brown v.

21

Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (quoting Booth v. Churner, 532 U.S. 731,

22
23

739-41 (2001)). “Failure to exhaust is fatal to a prisoner’s claim.” Bush v. Baca,

24

2010 WL 4718512, at *3 (C.D. Cal. Sept. 3, 2010). “Proper exhaustion demands

25

compliance with an agency’s deadlines and other critical procedural rules.”

26
27
28

Woodford, 548 U.S. at 90. “The relevant rules governing exhaustion are not defined
by the PLRA, ‘but by the prison grievance process itself.’” Ayala v. Fermon, 2017
19
15cv1044 WQH (PCL)

1
2
3
4
5
6
7

WL 836193, at *5 (S.D. Cal. March 2, 2017) (quoting Jones v. Block, 549 U.S.
199, 219 (2007)).
However, “[a] federal court may nonetheless excuse a prisoner’s failure to
exhaust if the prisoner takes ‘reasonable and appropriate steps’ to exhaust
administrative remedies but prison officials render administrative relief ‘effectively

8

unavailable.’” Ellis v. Navarro, 2011 WL 845902, at *1 (N.D. Cal. March 8, 2011)

9

(citation omitted). The mandatory exhaustion requirement under the PLRA is

10
11

excused in three circumstances: (1) when an administrative procedure “operates as

12

a simple dead end – with officers unable or consistently unwilling to provide any

13

relief to aggrieved inmates”; (2) when “an administrative scheme might be so

14
15

opaque that it becomes, practically speaking, incapable of use”; and (3) when “a

16

grievance process is rendered unavailable when prison administrators thwart

17

inmates from taking advantage of it through machination, misrepresentation, or

18
19
20
21

intimidation.” Ross, 136 S. Ct. at 1853-54.
The issue of “[e]xhaustion should be decided, if feasible, before reaching the

22

merits of a prisoner’s claim.” Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014)

23

(en banc). In a summary judgment motion for failure to exhaust, the Ninth Circuit

24
25

instructs that it is defendant’s burden to use this evidence to “prove that there was

26

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

27

available remedy.” Albino, 747 F.3d at 1172. “Once the defendant has carried that

28
20
15cv1044 WQH (PCL)

1
2
3

burden, the prisoner has the burden of production. That is, the burden shifts to the
prisoner to come forward with evidence showing that there is something in his

4

particular case that made the existing and generally available administrative

5

remedies effectively unavailable to him.” Id. “If undisputed evidence viewed in the

6
7

light most favorable to the prisoner shows a failure to exhaust, a defendant is

8

entitled to summary judgment under Rule 56.” Id. at 1179. However, “[i]f material

9

facts are disputed, summary judgment should be denied, and the district judge

10
11

rather than a jury should determine the facts.” Id. at 1166. “[F]actual questions

12

relevant to exhaustion should be decided by the judge, in the same manner a judge

13

rather than a jury decides disputed factual questions relevant to jurisdiction and

14
15

venue.” Id. at 1170-71. “If ‘summary judgment is not appropriate,’ as to the issue of

16

exhaustion, ‘the district judge may decide disputed questions of fact in a

17

preliminary proceeding.’” Hamilton v. Hart, 2016 WL 1090109, at *4 (E.D. Cal.

18
19

March 21, 2016) (quoting Albino, 474 F.3d at 1168). “[W]hile parties may be

20

expected to simply reiterate their positions as stated in their briefs, ‘one of the

21

purposes of an evidentiary hearing is to enable [] the finder of fact to see the

22
23

witness’s physical reactions to the questions, to assess the witness’s demeanor, and

24

to hear the tone of the witness’s voice.’” Hamilton, 2016 WL 1090109, at *4

25

(quoting U.S. v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995)). “All of this assists the

26
27

finder of fact in evaluating the witness’ credibility.” Hamilton, 2016 WL 1090109,

28
21
15cv1044 WQH (PCL)

1
2
3
4

*4. “It is only in rare instances that credibility may be determined without an
evidentiary hearing.” Id. (internal citations and quotations omitted).
V.

DISCUSSION

5
6
7
8

A. Plaintiff Failed to Properly Exhaust His Administrative Remedies for
All Claims Except the Retaliation Claim against Buenrostro.
Defendants have put forth evidence showing that Plaintiff properly submitted

9
10
11
12
13

only one administrative appeal in 2014 containing any of the allegations in this
lawsuit. Plaintiff submitted appeal Log No. RJD-14-1803 on May 19, 2014,
contesting the guilty finding made against him on May 1, 2014, concerning a rules

14

violation report authored by Buenrostro on April 2, 2014, which charged Plaintiff

15

with behavior that leads to violence. Plaintiff contended that Buenrostro “falsified”

16
17

this rules violation report against him for the April 2, 2014 incident, in retaliation

18

for past grievances. Plaintiff argued that he was not guilty of “Openly Displaying

19

Disrespect” toward Buenrostro, which was the finding of the Senior Hearing

20
21
22
23
24
25

Officer. (Decl. B. Self, Exhibit A.) Plaintiff’s contentions were rejected, and his
disciplinary appeal was denied at both the second and third levels of review. Id.
Based on this administrative appeal, and Plaintiff’s contentions within it,
Plaintiff exhausted his administrative remedies concerning his claim that

26

Buenrostro retaliated against him by authoring a false rules violation report on

27

April 2, 2014. However, this is the only claim that Plaintiff exhausted. In the

28
22
15cv1044 WQH (PCL)

1
2
3

appeal, Plaintiff did not allege that Buenrostro improperly searched Plaintiff that
day or that Buenrostro intentionally touched Plaintiff’s private parts for his sexual

4

gratification. Plaintiff made no other claims against any other Defendant in the

5

appeal. Plaintiff tried to add new allegations and name new prison officials in

6
7

Section F of a subsequent appeal, including Captain Sanchez and Associate Warden

8

Siebel, after appeal RJD-14-1803 was reviewed at the second level. But California

9

regulations are clear that “administrative remedies shall not be considered

10
11

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

12

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

13

Code Regs. Tit. 15, § 3084.1(b) (emphasis added). This is why the Office of

14
15

Appeals specifically refused to address those new issues in the third level response.

16

(See Exhibit A to Decl. B. Self, third-level response, second paragraph under III,

17

“Third Level Decision,” A, “Findings.”)

18
19

The only other administrative appeal Plaintiff properly submitted in 2014 was

20

Log No. RJD-14-1209, which challenged the cancellation of a previous appeal, Log

21

No. RJD-14-1117. RJD-14-1117 concerned funds taken from Plaintiff’s trust

22
23

account. (Decl. B Self, ¶¶ 12-13.) Plaintiff submitted seven other administrative

24

appeals in 2014, which were screened out or cancelled for various reasons. (Decl.

25

B. Self, ¶ 14.) Evidence from the Office of Appeals shows that the only

26
27
28

administrative appeal Plaintiff advanced to the third-level of review in 2014 was
Log No. RJD-14-1803. (Decl. M. Voong ¶ 9.)
23
15cv1044 WQH (PCL)

1
2
3
4
5
6
7

Plaintiff did not properly submit any other administrative appeal naming
Buenrostro or any other Defendant in 2014. (Decl. B. Self, ¶ 12.)
B. Defendants are entitled to summary judgment as to Plaintiff’s
Exhausted Retaliation Claim Against Buenrostro.
The fundamentals of a retaliation claim are easily summarized. “Within the

8

prison context, a viable claim of First Amendment retaliation entails five basic

9

elements: (1) An assertion that a state actor took some adverse action against an

10
11

inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)

12

chilled the inmate’s exercise of his First Amendment rights, and (5) the action did

13

not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408

14
15

F.3d 559, 567-68 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d 443, 449 (9th

16

Cir. 2000). It is the plaintiff’s burden to prove each of those elements, including the

17

lack of any legitimate correctional goal for the challenged action. Pratt v. Rowland,

18
19

65 F.3d 802, 806 (9th Cir. 1995). Courts should afford appropriate deference and

20

flexibility to prison officials in the evaluation of proffered legitimate penological

21

reasons for conduct alleged to be retaliatory. Pratt, 65 F.3d at 807. A plaintiff must

22
23
24
25
26
27
28

prove that the alleged retaliatory motive was the but-for cause of the challenged
actions. Hartman v. Moore, 547 U.S. 250, 260 (2006).
Here, Plaintiff has failed to provide evidence that the alleged retaliatory
motive – to chill Plaintiff’s First Amendment rights to file grievances – was the butfor cause of Defendant Buenrostro’s report stating that Plaintiff openly displayed
24
15cv1044 WQH (PCL)

1
2
3

disrespect against him by calling him a “stupid Mexican.” It is a legitimate
penological goal to ensure that prisoners respect the correctional officers and that

4

internal order and discipline are maintained. Procunier v. Martinez, 416 U.S. 396,

5

412-413 (1972). Courts must “‘afford appropriate deference and flexibility’ to

6
7

prison officials in the evaluation of proffered legitimate penological reasons for

8

conduct alleged to be retaliatory.” Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.

9

1995) (quoting Sandin v. Conner, 515 U.S. 472, 482 (1995)). The evidence shows

10
11

that there was a legitimate reason for the issuance of the rules violation against

12

Plaintiff, and Plaintiff has not provided any reason to doubt the truth of the prison’s

13

finding him guilty of disrespectful behavior. Thus, Plaintiff’s claim that Defendant

14
15

Buenrostro “falsified” a rules violation report against him for the April 2, 2014

16

incident, in retaliation for past grievances, should be dismissed on summary

17

judgment.

18
19

C. Plaintiff is Entitled to an Evidentiary Hearing to Determine whether

20

He Effectively Exhausted His Remedies For His Remaining Claims.

21

Although Defendants have shown that Plaintiff failed to exhaust all but one of

22
23

his claims, Plaintiff has come forward “with evidence showing that there is

24

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

25

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

26
27
28

On April 2, 2014, Plaintiff declared that he placed a CDCR Inmate Appeal 602
dated April 2, 2014 in Housing Unit #1 Appeals box, alleging sexual assault by
25
15cv1044 WQH (PCL)

1
2
3

Correctional Officer A. Buenrostro. (Roberts Decl., Doc. 119, at 26.) Plaintiff
declared that he never received a response from any prison official regarding the

4

appeal. (Id.) On June 23, 2014, Plaintiff stated that he placed a CDCR 602 Appeal

5

dated June 19, 2014 concerning senior CDCR administrators’ intentional failure to

6
7

control Officers D. Arguilez, A. Buenrostro, and R. Davis. (Doc. 119, at 27.)

8

Plaintiff declared that he never received a response addressing the appeal. (Id.) On

9

July 8, 2014, Plaintiff gave Officer L. Ciborowski an Appeal dated June 28, 2014,

10
11

alleging an ongoing conspiracy to retaliate against him. (Id.) Plaintiff also

12

submitted a CDCR Form 22 Inmate Request for Interview to Officer Ciborowski,

13

who accepted it and signed it. (Id.) However, Plaintiff never received a response to

14
15

the appeal. (Id.) Plaintiff stated that the administrative appeal submitted to Sergeant

16

Ciborowski on July 8, 2014 included sufficient detail to provide enough

17

information to allow prison officials to take appropriate responsive measures. (Doc.

18
19

119, at 15.) Finally, Plaintiff submitted a 602 appeal on April 2, 2015 documenting

20

that Defendant Buenrostro threatened Plaintiff with a transfer for engaging in First

21

Amendment conduct. (Doc. 119, at 45-46.) Plaintiff also mentioned Defendants

22
23

Vasquez, Pena, Warden Paramo, Secretary Beard, and Captain Larson as

24

contributing to the retaliation in their respective capacities. (Id.) However, this 602

25

appeal was rejected at this first level of review on April 24, 2015. (Id. at 45.)

26
27
28

Plaintiff declared that it has been his personal experience that RJ Donovan
fails to operate an Inmate Appeal system that conforms to state law and places
26
15cv1044 WQH (PCL)

1
2
3

unreasonable restrictions on inmates’ ability to submit 602 appeals. (Roberts Decl.
¶ 16; Doc. 119, at 31.) Plaintiff stated that he believes that his appeals either

4

vanished or were unlawfully rejected. (Roberts Decl. ¶ 17, 23; Doc. 119, at 31-33.)

5

Plaintiff also submitted the declarations of various inmates who also experienced

6
7

trouble filing grievances. Inmates Wydell Jones, Lewis Law, Dennis Davis, and

8

Jason Coleman all stated that they did not receive responses to their appeals. (Doc.

9

119, at 50-51, 58, 63-64, 66-70.) Inmate William Dawes stated that his appeals

10
11
12
13
14
15

were not accepted because he would not answer Defendant Buenrostro’s questions
about other inmates. (Doc. 119, at 55.)
Because the material facts are disputed as to whether the prison thwarted
Plaintiff’s ability to file his administrative appeals, summary judgment should be

16

denied at this time and the district judge should hold an evidentiary hearing to

17

decide the disputed factual questions surrounding exhaustion.

18
19

VI. CONCLUSION

20

The Court submits this Report and Recommendation to United States District

21

Judge Hayes under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United

22
23

States District Court for the Southern District of California.

24

IT IS HEREBY ORDERED that any party to this action may file written

25

objections with the Court and serve a copy on all parties no later than June 13,

26
27
28

2018. The document should be captioned “Objections to Report and
Recommendation.” The parties are advised that failure to file objections within the
27
15cv1044 WQH (PCL)

1
2
3
4
5
6
7

specified time may waive the right to raise those objections on appeal of the Court’s
Order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst,
951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED.
DATE: May 25, 2018

8
9
10

Peter C. Lewis
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28

15cv1044 WQH (PCL)