McNair v. Kersten et al

Filing 34

REPORT AND RECOMMENDATION: IT IS RECOMMENDED that the District Judge enter an order GRANTING ECF No. 16 Kersten's Motion for Summary Judgment and DENYING AS MOOT ECF No. 21 Plaintiff's Cross-Motion for Summary Judgment. Objections to R&R due by 6/21/2017. Signed by Magistrate Judge William G. Cobb on 06/07/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6
7

CLARENCE MCNAIR,
Plaintiff,

8
9
10
11

Case No. 3:16-cv-00038-RCJ-WGC
REPORT & RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

v.
R. KERSTEN, et al.,
Defendants.

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

This Report and Recommendation is made to the Honorable Robert C. Jones, United
States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
Before the court is defendant Kersten’s Motion for Summary Judgment. (ECF No. 16;
Exhibits at ECF Nos. 16-1, 16-2, 16-3.) Plaintiff filed a response (ECF No. 18) and Kersten filed
a reply (ECF No. 19). In his motion, Kersten argues that Plaintiff failed to properly exhaust
available administrative remedies. Plaintiff subsequently filed a document that he titled a “crossmotion for summary judgment,” but it also addresses whether he properly exhausted
administrative remedies and whether those remedies were available. (ECF No. 21.) The
document largely repeats the argument made in his response to Kersten’s motion. (ECF No. 21.)
The cross-motion states that it is made pursuant to Rules 56(e) and 56(f). (ECF No. 21 at
1.) Federal Rule of Civil Procedure 56(e) addresses what the court’s options are when a “party
fails to properly support an assertion or fact or fails to properly address another party’s assertion
of fact as required by Rule 56(c).” Fed. R. Civ. P. 56(e). The court can: (1) give the party the
opportunity to properly support or oppose the fact; (2) consider the fact undisputed; (3) grant
summary judgment if the undisputed facts show that is appropriate; or (4) issue any other
appropriate order. Fed. R. Civ. P. 56(e)(1)-(4). Rule 56(f) provides that the court may,
independent of a motion for summary judgment filed by a party, and after giving notice and a

1
2
3
4
5
6
7

reasonable time to respond: “(1) grant summary judgment for a nonmovant; (2) grant the motion
on grounds not raised by a party; or (3) consider summary judgment on its own after identifying
for the parties’ material facts that may not be genuinely in dispute.” Fed. R. Civ. P. 56(f)(1)-(3).
Rule 56(f) is not applicable here. Therefore, the court construes Plaintiff’s filing (ECF No. 21) as
Plaintiff’s effort to properly further address the assertions of fact made in Kersten’s motion for
summary judgment under Rule 56(e)(1), and the court has considered it as such in addressing
Kersten’s motion.

8

After a thorough review, the court recommends that Kersten’s motion be granted.

9

I. BACKGROUND

10
11
12
13

Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC),
proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Pl.’s Am. Compl., ECF No. 6.)
The events giving rise to this action took place while Plaintiff was housed at Northern Nevada
Correctional Center (NNCC). (Id.) Defendant is Robert Kersten.

14
15
16
17
18
19
20
21
22
23
24
25
26

On screening, Plaintiff was allowed to proceed with an Eighth Amendment claim of
deliberate indifference as well as a First Amendment retaliation claim against Kersten.
(Screening Order, ECF No. 7.) The claims are based on allegations that after Plaintiff was
interviewed by an agent from the Inspector General’s Office concerning a sexual harassment
complaint Plaintiff had previously filed against Kersten under Prison Rape Elimination Act
(PREA), Kersten searched Plaintiff, shoved him, and called him a “handicapped homo,” “rat”
and “snitch” in front of other inmates, and warned him against filing any more civil complaints.
He alleges he has since been the target of violent from other inmates who reference Kersten’s
words.
Kersten moves for summary judgment arguing that Plaintiff failed to properly exhaust his
administrative remedies relative to the claims proceeding in this action.
II. LEGAL STANDARD
"The purpose of summary judgment is to avoid unnecessary trials when there is no
dispute as to the facts before the court." Northwest Motorcycle Ass'n v. U.S. Dep't of Agric.,
18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). In considering a motion for summary
-2-

1
2
3
4
5
6
7

judgment, all reasonable inferences are drawn in favor of the non-moving party. In re Slatkin,
525 F.3d 805, 810 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). "The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). On the other hand, where reasonable minds could differ on the material
facts at issue, summary judgment is not appropriate. See Anderson v. Liberty Lobby, Inc.,

13

477 U.S. 242, 250 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.

14

Fed. R. Civ. P. 56(c)(1)(A), (B).

8
9
10
11
12

15

If a party relies on an affidavit or declaration to support or oppose a motion, it "must be

16

made on personal knowledge, set out facts that would be admissible in evidence, and show that

17

the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

18

In evaluating whether or not summary judgment is appropriate, three steps are

19

necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine

20

dispute as to a material fact; and (3) considering the evidence in light of the appropriate standard

21

of proof. See Anderson, 477 U.S. at 248-250. As to materiality, only disputes over facts that

22

might affect the outcome of the suit under the governing law will properly preclude the entry of

23

summary judgment; factual disputes which are irrelevant or unnecessary will not be considered.

24

Id. at 248.

25

In deciding a motion for summary judgment, the court applies a burden-shifting analysis.

26

"When the party moving for summary judgment would bear the burden of proof at trial, 'it must
come forward with evidence which would entitle it to a directed verdict if the evidence went
uncontroverted at trial.'...In such a case, the moving party has the initial burden of establishing

-3-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

the absence of a genuine [dispute] of fact on each issue material to its case." C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations
omitted). In contrast, when the nonmoving party bears the burden of proving the claim or
defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate
an essential element of the nonmoving party's case; or (2) by demonstrating the nonmoving party
failed to make a showing sufficient to establish an element essential to that party's case on which
that party will bear the burden of proof at trial. See Celotex Corp. v. Cartrett, 477 U.S. 317, 32325 (1986).
If the moving party satisfies its initial burden, the burden shifts to the opposing party to
establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a genuine dispute of
material fact, the opposing party need not establish a genuine dispute of material fact
conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv.,
Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotation marks and
citation omitted). "Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The nonmoving party
cannot avoid summary judgment by relying solely on conclusory allegations that are
unsupported by factual data. Id. Instead, the opposition must go beyond the assertions and
allegations of the pleadings and set forth specific facts by producing competent evidence that
shows a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324.
That being said,
[i]f a party fails to properly support an assertion of fact or fails to properly
address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact; (2) consider the
fact undisputed for purposes of the motion; (3) grant summary judgment if the
motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to it; or (4) issue any other
appropriate order.

-4-

1
2
3
4
5
6
7

Fed. R. Civ. P. 56(e).
At summary judgment, the court's function is not to weigh the evidence and determine
the truth but to determine whether there is a genuine dispute of material fact for trial. See
Anderson, 477 U.S. at 249. While the evidence of the nonmovant is "to be believed, and all
justifiable inferences are to be drawn in its favor," if the evidence of the nonmoving party is
merely colorable or is not significantly probative, summary judgment may be granted. Id. at 24950 (citations omitted).

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

III. DISCUSSION
A. Exhaustion Standard
The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, 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). An inmate must exhaust his
administrative remedies irrespective of the forms of relief sought and offered through
administrative avenues. Booth v. Churner, 532 U.S. 731, 741 (2001).
The failure to exhaust administrative remedies is “‘an affirmative defense the defendant
must plead and prove.’” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (quoting Jones v.
Bock, 549 U.S. 199, 204, 216 (2007)), cert. denied., 135 S.Ct. 403 (Oct. 20, 2014). Unless the
failure to exhaust is clear from the face of the complaint, the defense must be raised in a motion
for summary judgment. See id. (overruling in part Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th
Cir. 2003)).
As such: “If undisputed evidence viewed in the light most favorable to the prisoner
shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If
material facts are disputed, summary judgment should be denied, and the district judge rather
than a jury should determine the facts [in a preliminary proceeding].” Id., 1168, 1170-71
(citations omitted). “Exhaustion should be decided, if feasible, before reaching the merits of a
prisoner’s claim. If discovery is appropriate, the district court may in its discretion limit
discovery

to

evidence

concerning

exhaustion,
-5-

leaving

until

later—if

it

becomes

1
2
3

necessary—discovery related to the merits of the suit.” Id. at 1170 (citation omitted). If there are
disputed factual questions, they “should be decided at the very beginning of the litigation.” Id. at
1171.

4
5
6
7
8

Once a defendant shows that the plaintiff did not exhaust available administrative
remedies, the burden shifts to the plaintiff “to come forward with evidence showing that there is
something in this particular case that made the existing and generally available administrative
remedies effectively unavailable to him.” Id. at 1172 (citations omitted). The ultimate burden of
proof, however, remains with the defendant. Id.

9
10
11
12
13
14
15
16
17
18
19
20

Exhaustion cannot be satisfied by filing an untimely or otherwise procedurally infirm
grievance; rather, the PLRA requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 89
(2006). “Proper exhaustion” refers to “using all steps the agency holds out, and doing so
properly (so that the agency addresses the issue on the merits).” Id. (citation omitted). Thus,
“[s]ection 1997e(a) requires an inmate not only to pursue every available step of the prison
grievance process but also to adhere to the ‘critical procedural rules’ of that process.” Reyes v.
Smith, 810 F.3d 654, 657 (9th Cir. 2016) (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)).
“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Jones, 549 U.S. at 218. That being said, an inmate exhausts available remedies
“under the PLRA despite failing to comply with a procedural rule if prison officials ignore the
procedural problem and render a decision on the merits of the grievance at each available step of
the administrative process.” Reyes, 810 F.3d at 658.

21
22
23
24
25
26

To reiterate, an inmate need only exhaust “available” administrative remedies. See Ross
v. Blake, 136 S.Ct. 1850, 1858 (2016). “Accordingly, an inmate is required to exhaust those, but
only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action
complained of.’” Id. at 1859 (quoting Booth, 532 U.S. at 738).
///
///
///

-6-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

If the court concludes that administrative remedies have not been properly exhausted, the
unexhausted claim(s) should be dismissed without prejudice. Wyatt, 315 F.3d at 1120. If the
court finds that the prisoner has exhausted available administrative remedies or that the
administrative remedies were not available to him, the case may proceed on the merits. Albino,
747 F.3d at 1171.
B. Administrative Remedies at NDOC
Administrative Regulation (AR) 740 governs the inmate grievance process within
NDOC. (ECF No. 16-1.) Inmates may use the procedure to resolve addressable inmate claims
including civil rights claims. (Id. at 3, AR 740.03.1.) If an inmate is not able to resolve the issue
informally through a discussion with the caseworker, the inmate must complete the grievance
process through three levels of review: the informal, first and second levels. (Id. at 5-9.)
C. Discussion
1. Grievance 20063003928
It is undisputed that Plaintiff did file a grievance (number 20063003829) concerning his
alleged July 1, 2015 interaction with Kersten, and took it through all levels of review. Kersten
contends, however, that the grievance does not discuss the allegations proceeding in this action,
i.e., that Kersten labeled him a snitch in front of others and that Kersten shoved him and
threatened him because he spoke to the Inspector General. (ECF No. 16 at 4-5.) In support of the
motion, Kersten has filed NDOC’s AR 740 which governs the inmate grievance process, as well
as Plaintiff’s inmate grievance history report. (ECF Nos. 16-1, 16-2.)1
In his response to Kersten’s motion, Plaintiff acknowledges that he did not state that he
was shoved or called a snitch or threatened in his grievance. (ECF No. 18 at 2.) He states that
this is because he was, and still is, in fear of his life, and would have been retaliated against if he

24
25
26

1

Kersten only provided the grievance history report, which summarizes inmate grievances and responses,
instead of the actual grievance documentation. The court has previously instructed the Attorney General’s Office that
when it raises the affirmative defense of failure to exhaust administrative remedies it may submit this report, but should
also submit the actual grievance documentation, as the summary frequently varies from or does not contain all of the
information from the actual grievance. Here, the problem is obviated in light of Plaintiff’s filing of the actual informal
level grievance at issue with his response to the motion. Defense counsel is reminded that any future motion raising the
failure to exhaust affirmative defense should be supported by the actual grievance documentation.

-7-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

had included these things in his grievance. (Id.)
In the informal level of grievance 20063003829, Plaintiff stated that Kersten violated his
Eighth and Fourteenth Amendment rights, harassed and retaliated against Plaintiff and
abandoned his assigned post. (ECF No. 18 at 19.) Plaintiff claimed that on July 1, 2015, after
leaving a conference with the Inspector General regarding a PREA complaint against Kersten,
Plaintiff went to the gym and then went to his housing unit. (Id. at 20.) He was required to pass
by Unit 3 where Kersten was working, and Kersten left his assigned post and ordered Plaintiff to
stop. (Id.) Kersten asked Plaintiff where he was going. (Id.) Plaintiff responded that he was
going back to his housing unit, and Kersten told Plaintiff that he would call the unit in twenty
minutes to make sure Plaintiff was there. (Id. at 20-21.) “[A]t this point the conversation ended
and Plaintiff proceeded to Unit 2.” (Id. at 21.) Plaintiff went on to state in the grievance that it
was his belief a phone call had been made to Kersten informing him that the Inspector General
was on site to talk to Plaintiff regarding the pending PREA complaint Plaintiff had filed against
Kersten, which prompted Kersten to look for and confront Plaintiff. (Id.) Plaintiff stated that this
constituted a violation of his Eighth and Fourteenth Amendment rights as well as deliberate
harassment and retaliation. (Id.) He asked that all retaliation and harassment by Kersten stop.
(Id.) Again, there is no dispute that Plaintiff took this grievance through the first and second
levels of review.
The court must now address whether Plaintiff properly grieved the claims that are
proceeding in this action, and if not, whether the grievance process was otherwise available to
Plaintiff.
2. Proper Exhaustion
As indicated above, the PLRA requires “proper exhaustion” which means “using all steps
the agency holds out, and doing so properly[.]” Woodford, 548 U.S. at 89 (citation omitted)
(emphasis original). The prison’s requirements “define the boundaries of proper exhaustion.”
Jones, 549 U.S. at 218.
Concerning what level of detail a grievance must contain, AR 740 merely states that
“[a]ll documentation and factual allegations available to the inmate must be submitted at [the
-8-

1
2
3
4

informal] level with the grievance.” (ECF No. 16-1 at 7, AR 740.05.5.A.) Where the grievance
system does not state the level of specificity required for exhaustion, the court requires the
grievance to alert the prison to the nature of the wrong for which the redress is sought. See
Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).

5
6
7
8

In his First Amended Complaint, Plaintiff complained that after he met with the Inspector
General’s Office concerning his PREA complaint, Kersten shoved him, called him a
“handicapped homo,” called him a “rat” and “snitch” in front of other inmates and threatened
him if he filed other complaints.

9
10
11
12
13
14
15
16
17
18
19
20
21
22

In the grievance, Plaintiff wrote that when he was going back to his housing unit, Kersten
abandoned his post and proceeded to ask Plaintiff where he lived. (ECF No. 18 at 20.) Plaintiff
responded that he lived in Unit 2, and Kersten asked him why he was out of his unit when it was
not his yard day. (Id.) Plaintiff responded that he was there for wheelchair exercise. (Id.) Kersten
then asked why Plaintiff was not in the gym. (Id.) Plaintiff said he was going back to his housing
unit. (Id.) Kersten asked if he was sure, and Plaintiff responded “absolutely.” (Id.) Kersten then
warned Plaintiff he would call Unit 2 in twenty minutes and “Plaintiff had better be there.” (Id.
at 20-21.) Plaintiff then wrote in the grievance: “at this point the conversation ended and plaintiff
proceeded to unit 2.” (Id.) Plaintiff referenced the Eighth and Fourteenth Amendments,
harassment and retaliation in the grievance, but made absolutely no mention of Kersten shoving
him, calling him a “rat” or “snitch” or threatening him if he filed other complaints, all of which
form the substantive basis of his claims and were essential to the court’s determination that he be
allowed to proceed with the Eighth Amendment and First Amendment retaliation claims in this
action.

23
24
25
26

Accordingly, the court finds that the informal level grievance did not sufficiently put the
prison on notice of “the nature of the wrong for which redress is sought.” Griffin, 557 F.3d at
1120.
3. Availability of Administrative Remedies
The court must now address Plaintiff’s argument that the grievance process was not
available to him based on his contention that he did not include these details in the grievance
-9-

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

because he feared for his life and would have been retaliated against by Kersten. (See ECF No.
18 at 2.)
In Ross v. Blake, the Supreme Court rejected the Fourth Circuit’s adoption of a “special
circumstances” excuse for non-exhaustion that had been applied to a prisoner found to have
made a reasonable mistake about the meaning of the prison’s grievance procedures. Ross, 136
S.Ct. at 1858. The Supreme Court nevertheless pointed to a non-exhaustive list of circumstances
where courts may conclude that administrative remedies are unavailable. Id. at 1858-1862. One
of the instances discussed by the Supreme Court where the administrative process may be
deemed unavailable to the inmate is “when prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation or intimidation” such
as when prison officials threaten inmates “so as to prevent their use of otherwise proper
procedures.” Id. at 1860 (citations omitted).
In McBride v. Lopez, 807 F.3d 982 (9th Cir. 2015), the Ninth Circuit recognized that
“fear of retaliation may be sufficient to render the inmate grievance procedure unavailable[.]”
McBride, 807 F.3d at 984. In McBride, the inmate allegedly had an altercation with guards
where he threw some sort of burning liquid into the eyes of a guard, and subsequently guards
punched and kicked him, claiming they needed to use the force to subdue McBride. McBride,
807 F.3d at 985. McBride was placed in administrative segregation and claimed that two of the
defendant guards involved came by and told him he was “lucky” and his injuries “could have
been much worse.” Id. He took this as a threat and claimed he did not immediately file his
grievance concerning excessive force out of fear of retaliation. Id. When he eventually filed the
grievance, it was two months late. Id. When he filed his section 1983 action, he attached his
grievances, including his explanation of untimeliness that he feared retaliation. Id. The
defendants moved to dismiss for failure to properly exhaust. Id. at 986.
The Ninth Circuit adopted the Eleventh Circuit’s test for determining when
administrative remedies are unavailable as a result of a threat of retaliation. Id. at 987. First, the
“prisoner must provide a basis for the court to find that he actually believed prison officials
would retaliate against him if he filed a grievance.” Id. “If the prisoner makes this showing, he
- 10 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

must then demonstrate that his belief was objectively reasonable.” Id. “That is, there must be
some basis in the record for the district court to conclude that a reasonable prisoner of ordinary
firmness would have believed that the prison official’s action communicated a threat not to use
the prison’s grievance procedure and that the threatened retaliation was of sufficient severity to
deter a reasonable prisoner from filing a grievance.” Id.
In McBride, the court concluded that the inmate satisfied the subjective prong when he
said he interpreted the defendants’ statement that he was “lucky” and his injuries “could have
been much worse” as threatening retaliation if he used the grievance system. Id. at 988. With
respect to the objective prong, however, the Ninth Circuit found the inmate did not make the
required showing. They considered “whether the guards’ statements could reasonably be viewed
as threats of retaliation if McBride filed a grievance.” Id. While “the threat need not explicitly
reference the grievance system in order to deter a reasonable inmate from filing a grievance, …
there must be some basis in the record from which the district court could determine that a
reasonable prisoner of ordinary firmness would have understood the prison official’s actions to
threaten retaliation if the prisoner chose to utilize the prison’s grievance system.” Id. The court
said that just because the guards who allegedly beat him made these statements did not render
the grievance system unavailable, objectively speaking. Id. “There is no reason to allow inmates
to avoid filing requirements on the basis of hostile interactions with guards when the interaction
has no apparent relation to the use of the grievance system.” Id.
Here, Plaintiff states in his opposition that he was, and is, in fear of his safety and life
and would have been retaliated against by Kersten if he included these facts in his grievance.
(ECF No. 18 at 2.) He includes a statement in his affidavit that when he interacted with Kersten
on July 1, 2015, Kersten specifically warned him against filing any more grievances or civil
complaints. (ECF No. 18 at 3.)
The undisputed evidence submitted by Plaintiff, however, also demonstrates that Plaintiff
did in fact proceed with filing a grievance against Kersten, which directly contradicts the
argument he makes now that he believed Kersten would retaliate against him if he filed a
grievance. While Plaintiff attempts to argue that he could not include these additional details out
- 11 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

of fear of retaliation, that is simply untenable when the actual grievance he filed squarely
accuses Kersten of misconduct, and utilizes the words retaliation and harassment. Plaintiff
cannot manufacture a genuine dispute of material fact, particularly when that fact is directly
refuted by his own evidence. See e.g. S.A. Empresa De Viacao Aerea Rio Grandense (Varig
Airlines) v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1982) (citations omitted);
see also Anderson, 477 U.S. at 249-50 (“If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted.”).
To the extent Plaintiff states that he was warned by other prison officials that he would
be “cuffed” and taken to segregation if he continued to complain about Kersten (ECF No. 18 at
4), he provides no factual context or timeframe for these statements so as to demonstrate that
they caused him to believe he could not utilize the grievance process here. Moreover, he still
went ahead with filing the grievance against Kersten.
Plaintiff references a previous grievance he had filed against Kersten stemming from a
confrontation the two had in July of 2014, but this grievance centers around a housing move
Plaintiff had refused and in response Kersten allegedly stood in front of Plaintiff and told him to
“stand up and take a swing at him.” (ECF No. 18 at 8.) When Plaintiff did not do so, Kersten
called him a “fag” and “chicken shit.” (Id.) They then had a verbal confrontation, and Officer
Atwood wheeled Plaintiff away to diffuse the situation. (Id.) This interaction, while undoubtedly
unpleasant for Plaintiff, does not reveal a basis for the court to conclude that Plaintiff
subjectively believed Kersten would retaliate against him if he filed a grievance. Plaintiff went
ahead with filing the grievance against Kersten in that instance, and in that interaction there was
no reference to filing grievances or any other basis for the court to conclude, subjectively as to
Plaintiff or objectively, that the conduct could be taken as a threat against using the grievance
process.
Plaintiff provides an affidavit from another inmate discussing a situation which the
inmate perceived Kersten as acting as inappropriate and harassing (ECF No. 18 at 36-37), but
this does not show anything with respect to Plaintiff’s subjective state of mind. Nor does it show
that a prisoner of ordinary firmness would have thought he could not use the prison grievance
- 12 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

process under the circumstances alleged by Plaintiff.
Finally, Plaintiff references informal grievances he filed against officer Atwood.
(ECF No. 18 at 40-53.) A December 25, 2014 grievance references an instance where Atwood
allegedly stared at Plaintiff, asked him if he had a problem, made Plaintiff go talk to a senior
officer, and then dismissed him when Plaintiff attempted to explain his version of events. (Id. at
50-51.) It also asserted that on December 8, 2014, Atwood confronted him and said: “good
morning sunshine,” which Plaintiff believed was said based on his sexuality and in retaliation for
a PREA complaint filed against Kersten and Atwood. (Id. at 52.)
The first incident described in the December 25, 2014 grievance has no connection to
Kersten. With respect to the second incident, it involved only Officer Atwood, but Plaintiff
stated his belief that Atwood made the statement because of the PREA complaint he had filed
against Atwood and Kersten. Plaintiff’s claim that Atwood’s purported conduct in December
2014 somehow made him fear filing a grievance against Kersten in July 2015 is uncorroborated
and attenuated.
Next, a September 27, 2016 grievance alleged that Atwood called Plaintiff a “rat” in front
of other inmates (id. at 41-42), and in an October 7, 2016 grievance, Plaintiff alleged that
Atwood had called him a “snitch” in front of other inmates (id. at 43-46). Neither of these
grievances have anything substantively to do with Kersten. Plaintiff makes an uncorroborated
claim that Kersten and Atwood were partners at some point, but makes no factual connection
between the incidents.
The grievances against Atwood do not show either that Plaintiff subjectively believed
Kersten threatened him from using the grievance process or that an inmate of ordinary firmness
would have understood Atwood’s action to threaten retaliation if the prisoner chose to use the
grievance system.
In sum, Plaintiff satisfies neither the subjective nor the objective prongs of McBride;
therefore, it cannot be said that the grievance process was unavailable to him due to a threat of
retaliation by Kersten. As a result, Kersten’s motion should be granted. While the failure to
exhaust normally results in a dismissal without prejudice, AR 740 gives an inmate six months to
- 13 -

1
2
3
4

file an informal level grievance involving a civil rights claim. (ECF No. 16-1 at 6, AR
740.05.4.A.) As such, Plaintiff would be time-barred from re-initiating the grievance process as
to these claims now. Therefore, summary judgment and dismissal of the claims with prejudice is
appropriate here.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

IV. RECOMMENDATION
IT IS HEREBY RECOMMENDED that the District Judge enter an order GRANTING
Defendant Kersten’s Motion for Summary Judgment (ECF No. 16).
Plaintiff’s cross-motion for summary judgment (ECF No. 21) should be DENIED AS
MOOT as the court considered it as Plaintiff’s effort to properly address the assertions of fact
made in Kersten’s motion for summary judgment under Rule 56(e)(1).
The parties should be aware of the following:
1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to
this Report and Recommendation within fourteen days of receipt. These objections should be
titled "Objections to Magistrate Judge's Report and Recommendation" and should be
accompanied by points and authorities for consideration by the district judge.
2. That this Report and Recommendation is not an appealable order and that any notice of
appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed
until entry of judgment by the district court.
DATED: June 7, 2017.

20
21
22

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

23
24
25
26

- 14 -