Jeremiah v. Nooth et al

Filing 61

Findings & Recommendation: Motion for Summary Judgment and Supporting Memorandum of Law 40 should be granted. Objections to the Findings and Recommendation are due by 1/2/2018. Signed on 12/18/2017 by Magistrate Judge Thomas M. Coffin.**15 PAGE(S), PRINT ALL**(Brian Jeremiah, Prisoner ID: 11464377) (jw)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

Case No. 2:16-cv-00532-TC

BRIAN A. JEREMIAH,

FINDINGS AND
RECOMMENDATION

Plaintiff,
v.

MARK NOOTH, Superintendent, SRCI;
et al.,
Defendants.

COFFIN, Magistrate Judge:
Plaintiff, an inmate at the Snake River Correctional Institution (SRCI), brought this
action pursuant to 42 U.S.C. § 1983 and alleged various violations of his constitutional rights.
Defendants now move for summary judgment on all claims. For the reasons explained below,
defendants' motion should be granted.
BACKGROUND
Plaintiff's claims arise from three separate incidents at SRCI. Claims 1 through 5 pertain
to an incident on August 3, 2015. On that day, plaintiff was in the common gym area and began
to feel gastrointestinal discomfort. He asked Officer Bidwell if he could use a bathroom in the
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gym. Officer Bidwell responded that those particular bathrooms were reserved for staff and told
plaintiff to return to his cell to use the bathroom. Plaintiff declined to do so and remained in the
gym. Several minutes later, plaintiff experienced an episode of uncontrollable and noticeable
diarrhea, with feces running down his legs and onto the floor. Officer Bidwell saw plaintiff and
loudly declared, in front of other inmates and prison gang members, that plaintiff had "shit" in
the gym. Plaintiff asked if he could clean up in a bathroom across the hall. Officer Bidwell
indicated that the hall bathroom was occupied and told plaintiff to return to his cell. Plaintiff did
not do so; instead, he waited for the hall bathroom to become unoccupied and entered it just as
he experienced a second episode of diarrhea. After plaintiff exited the bathroom, Sgt. Aly
allegedly asked him why he had "shit" all over the gym and escorted plaintiff to segregated
housing. Am. Compl. at 3-14 (ECF No. 9).
Plaintiff was charged with misconduct for failing to follow Officer Bidwell's order to
return to his cell. After a disciplinary hearing on August 10, 2015, plaintiff was found guilty of
disobeying an order and received seven days in disciplinary segregation and seven days' loss of
privileges. Pl.'s Response to MSJ, Ex. D (ECF No. 47-1at6).
Claims 6 through 13 relate to an incident that occurred on August 21, 2015. On that day,
plaintiff went to the prison dayroom to read a book. A fellow inmate threatened to hit plaintiff on
the head with a board if plaintiff did not return to his cell. Plaintiff immediately informed Officer
Dotson, who asked plaintiff who had threatened him. Plaintiff did not know and returned to his
dayroom seat. After a few minutes, plaintiff again informed Officer Dotson of the threat and
identified a group of inmates that could have included his potential assailant. Plaintiff then
returned to his seat in the dayroom and resumed reading. A short time later, an inmate took a
board from a shelf and struck plaintiff with the board and with his fists. As plaintiff attempted to
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flee to the guard station, Officer Dotson told plaintiff and his assailant to "stop fighting" and
sprayed them with pepper spray. Plaintiff was returned to his cell and given a wet towel to
remove the pepper spray. Plaintiff was not allowed to shower until his next shower rotation two
days later. Am. Compl. at 15-24.
Claims 14 through 16 relate to a July 2015 order directing plaintiff to cease sending
letters to his ex-wife after she complained that plaintiff was harassing her. Plaintiff sent his exwife another letter several months later, because he believed that the order "was a violation of
[his] civil rights." Am Compl. at 25. After his ex-wife notified SRCI officials, plaintiff was
issued a misconduct report and found guilty of violating the order.
DISCUSSION
Defendants argue that Claims 2, 4, and 13 fail to state a claim, Claims 6 and 7 lack merit,
and the remaining claims are barred for failure to exhaust administrative remedies. To prevail on
their motion for summary judgment, defendants must show there is no genuine dispute as to any
material fact and they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014)
("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."). The court must construe
the evidence and draw all reasonable inferences in the light most favorable to plaintiff. Torres v.
City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011 ).
A. Failure to Exhaust Administrative Remedies
Under the Prison Litigation Reform Act (PLRA), inmates must exhaust all available
administrative remedies before filing a court action to redress prison conditions or incidents. 42
U.S.C § 1997e(a). The exhaustion requirement is·mandatory and requires compliance with both
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procedural and substantive elements of the prison grievance processes. Woodfordv. Ngo, 548
U.S. 81, 85, 90 (2006). Inmates must complete the administrative review process and comply
with all applicable procedural rules by appealing a grievance decision to the highest level before
filing suit. Id.; McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam). The
PLRA does not require exhaustion when administrative remedies are "effectively unavailable."
Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010); Brown v. Va/off, 422 F.3d 926, 937 (9th
Cir. 2005) (an administrative remedy must be available "as a practical matter"). Once the
defendant shows that the inmate did not exhaust an available administrative remedy, the burden
shifts to the plaintiff to "come forward with evidence showing that there is something in his
particular case that made the existing and generally available administrative remedies effectively
unavailable to him." Albino, 747 F.3d at 1172.
The Oregon Department of Corrections (ODOC) employs a three-step grievance and
appeal process. Or. Admin. R. 291-109-0140(1 ). Inmates may file grievances for a variety of
issues, including "unprofessional behavior or action which may be directed toward an inmate by
an employee" or an "oversight or error affecting an inmate." See id. 291-109-0140(2)( c),(d).
Generally, the inmate must file a grievance within 30 days of the alleged condition or incident.
Id. 291-109-0150(2). If a grievance is returned on procedural grounds, the inmate may resubmit
the grievance within 14 days ifthe procedural errors can be corrected. Id. 291-109-0160(5). If a
grievance is accepted, the inmate may appeal the response within 14 calendar days from the date
the response was sent to the inmate. Id. 291-109-0170(1 )(b ). As with grievances, appeals
returned for procedural reasons may not be appealed further but may be resubmitted after
correction of the procedural errors. Id. 291-109-0170( 1)(c ),(2)(d). If an appeal is denied, the
inmate may file a second appeal within 14 days of the date the denial was sent to the inmate. Id.
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291-109-0170(2)( c). A decision following a second appeal is final and not subject to further
review. Id. 291-109-0170(2)(±).
1. Claims 1, 3 and 5
In Claims 1 and 3, plaintiff alleges that Officer Bidwell and Sgt. Aly violated his "14th
Amendment right to privacy (medical issue privacy)" and Eighth Amendment rights when they
announced that plaintiff had "shit" in the gym and Officer Bidwell ordered him to return to his
cell with diarrhea running down his legs. Am. Compl. at 3-6, 8-9. In Claim 5, plaintiff alleges
"First amendment violation of retaliation for a perceived intentional medical accident by Officer
Bidwell and Sgt. Aly" based on the same actions. Id. at 14.
Plaintiff attempted to grieve several issues relating to the gym incident. In Grievance
SRCI_ 2015 _ 08 _ 085, plaintiff complained that Officer Bidwell "blatantly disregarded my
medical privacy, tried to incite violence against me (and-or ridicule), was not paying attention to
his job while on the phone in the back room, he ordered me to walk down the hall with dripping
diarrhea coming out of my shorts." Taylor Deel. Att. 5 at 2 (ECF No. 41 ). Plaintiff also
referenced his disciplinary hearing for disregarding Officer Bidwell's order, and the grievance
was construed as an attempt to grieve a non-grievable misconduct order. See Or. Admin R. 291109-0140(3)(e) (an inmate may not grieve "[m]isconduct reports, investigations leading to or
arising from misconduct reports, or disciplinary hearings, findings and sanctions").
Consequently, plaintiff received a response stating that the grievance was being returned for noncompliance with the relevant rules because it pertained to a misconduct report. Taylor Deel. Att.
5 at 1. Based on this response, plaintiff argues that the grievance process was not available.
"[A]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."' Ross v. Blake, 136 S. Ct.
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1850, 1859 (2016) (citation omitted). In Ross, the Supreme Court enumerated three instances
where a grievance procedure, for practical purposes, is unavailable: 1) when the process operates
as a "simple dead end" with no actual possibility of relief to prisoners; 2) when the process is so

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opaque or confusing that it is "essentially 'unknowable' - so that no ordinary prisoner can make
sense of what it demands"; and 3) when prison officials "thwart" inmates from using the process
"through machination, misrepresentation, or intimidation." Id. at 1859-60.
Here, the response to Grievance SRCI_ 2015 _ 08 _ 085 did not invite plaintiff to submit a
corrected or revised grievance or otherwise suggest that the grievance process was available.
Taylor Deel. Att. 5 at 1. Therefore, it is arguable that the grievance process was not available to
plaintiff regarding these claims. Mare Ila v. Terhune, 568 F .3d 1024, 1027 (9th Cir. 2009) (per
curiam) (administrative remedies may be effectively unavailable where the prisoner is informed
that he is not permitted to appeal a decision). Regardless, these claims lack merit.
In his amended complaint, plaintiff alleged that after the "diarrhea ran down from [his]
shorts all over [his] legs and some on the floor," he "tried to wipe [his] legs off but to no avail,"
and Officer Bidwell "came out of his little room ... to a guy with diarrhea all over his legs." Am.
Compl. at 10 (ellipses in original). Given that plaintiff had an admittedly visible episode of
diarrhea in a common area of the prison, Officer Bidwell and Sgt. Aly did not violate plaintiffs
privacy or exhibit deliberate indifference to his health or safety by announcing what others could
plainly observe. 1 See Bell v. Wolfish, 441U.S.520, 537 (1979) (stating that the loss of privacy is
an "inherent incident[] of confinement."); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.
1

In his response to defendants' motion, plaintiff asserts that he "cleaned the area very
discreetly and sequestered himself around the corner in the office. Even if anyone had seen the
very small dot of feces left on the ground, there would be no way to identify the owner of said
feces." Pl.'s Response at 8. Given plaintiffs prior allegations and the photographic evidence
provided by defendants, I do not accept plaintiffs renewed version of facts. See Second Taylor
Deel. Ex. 2 (ECF No. 53).
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2010) (an Eighth Amendment claim requires a showing of deliberate indifference to a substantial
risk of harm to an inmate's health or safety).
Further, plaintiff alleges no adverse action taken by defendants because of conduct
protected by the First Amendment. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (a
"viable" First Amendment retaliation claim requires a showing that a state actor took adverse
action against an inmate because of the inmate's protected conduct). Plaintiffs isolated "medical
condition" of uncontrolled diarrhea is not protected conduct for purposes of a First Amendment
retaliation claim. Therefore, summary judgment should be granted on Claims 1, 3, and 5.
2. Claims 8 and 9
In Claims 8 and 9, plaintiff alleges violations of his Eighth and Fourteenth Amendment
rights based on defendants' alleged failure to accommodate the "safe and equal use" of prison
facilities by inmates with sex offense convictions. Am. Compl. at 18-19.
In Grievance SRCI_ 2015 _ 09 _ l 73, plaintiff complained that he was prevented from going
to the "yard" to exercise after telling Sgt. Aly that he might get attacked. Taylor Deel. Att. 9 at 2.
Plaintiff also complained that he was transferred to a "more dangerous" housing unit and that an
unidentified officer "spoke loudly" about plaintiffs safety concerns in front of numerous
inmates. Id. Plaintiffs grievance was returned because it raised several issues and did not
identify all of the officers allegedly involved. Id. Att. 9 at 1. Plaintiff did not submit a corrected
gnevance.
In Grievance SRCI_ 2016_01_060, plaintiff requested safe housing for him and similarlysituated inmates and complained that he could not use the yard, "except for a couple of spots,"
without the threat of assault from fellow inmates. Taylor Deel. Att. 10 at 2. This grievance also
was returned for grieving more than one incident or decision involving numerous officers. Id.
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Att. 10 at 1. Plaintiff did not file a corrected grievance. Therefore, these claims were not
exhausted and summary judgment should be granted.
3. Claims 6 (in part), 10 and 11
In Claim 6, plaintiff alleges that his substantive due process rights were violated by
Offcer Dotson's failure to protect him before the assault on August 21, 2015, and by the lack of
attention to plaintiffs condition afterward. Am. Compl. at 14-1 7. In Claims 10 and 11, plaintiff
alleges Officer Dotson and SRCI staff violated his Eighth Amendment rights to be free from
cruel and unusual punishment by pepper spraying him and not allowing him to wash off the
pepper spray. Id. at 20-21. Defendants argue that plaintiff did not exhaust any of these claims
except Officer Dotson's alleged failure to protect.
In Grievance SRCI_2015_09_029, plaintiff complained about Officer Dotson's failure to
protect plaintiff before the attack and his subsequent use of pepper spray. Taylor Deel. Att. 7 at
14. The grievance was returned for corrections. Id. at Att. 7 at 13. Plaintiff submitted a revised
grievance and complained that Officer Dotson took no action to prevent the attack; plaintiff did
not mention the use of pepper spray. Id. Att. 7 at 12. Accordingly, plaintiff did not exhaust his
claim regarding Officer Dotson's use of pepper spray. 2
In Grievance SRCI_ 2015 _ 09_ 080, plaintiff complained about the decontamination policy
regarding pepper spray and alleged that he did not receive "decontamination showers" after
being pepper sprayed. Id. Att. 8 at 8. Lt. Parks responded, noting that plaintiff was given a wet
towel, soap, and clean clothing, and that showers generally are not provided after pepper spray.

Id. Att. 8 at 6. Plaintiff appealed the denial of the grievance and stated that he had been denied a
second towel, replacement bedding, and a shower. Id. Att. 8 at 5. The acting superintendent
2

Even if plaintiffs grievance appeals could be construed to include Officer Dotson's use
of pepper spray, this claim fails on the merits. See infra at 13-14.
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denied plaintiffs first appeal and plaintiff filed a second appeal. Id. Att. 8 at 2-3. Plaintiffs
second appeal was returned for corrections based on plaintiffs failure to attach his original
grievance and the expanded scope of his appeal. Id. Att. 8 at 1. After plaintiff complained that
his original grievance was not returned to him, he was informed that his appeal would be
reviewed. Pl.'s Response, Ex.Fat 3-5 (ECF No. 47-1).
Plaintiffs second appeal was accepted on January 7, 2016 and, by his own admission,
plaintiff did not receive a response to his second appeal before he filed suit. Pl.' s Response at 16,
19. It is well established that a prisoner must complete the grievance process before filing suit
and that the relevant statute oflirnitations is tolled until the process is complete. Brown, 422 F.3d
at 943 (stating that "the applicable statute of limitations must be tolled while a prisoner
completes the mandatory exhaustion process"); McKinney, 311 F.3d at 1199. Therefore, plaintiff
failed to exhaust these claims and summary judgment should be granted.
4. Claim 12
In Claim 12, plaintiff alleges that he was denied chiropractic care for injuries sustained
during his assault. Plaintiff did not submit a medical grievance regarding the denial of care
during the relevant time period. See Taylor Deel. Plaintiff concedes this claim is subject to
dismissal, and summary judgment should be granted on this claim.
5. Claims 14, 15, and 16
In Claims 14 through 16, plaintiff alleges that his First Amendment and due process
rights were violated by the order prohibiting plaintiff from communicating with his ex-wife. Arn
Cornpl. at 24-26.
Plaintiff concedes that he did not attempt to grieve the mail restriction order before he
sent his ex-wife another letter and received a misconduct sanction. He nonetheless argues that no
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administrative remedy was available under Or. Admin. R. 291-131-0021. This rule provides that
ODOC "may prohibit an inmate from sending unwanted mail to a particular person" when
requested; and that an ODOC "manager or designee will notify the person requesting the
outgoing mail restriction of his/her decision. The decision will be final and will not be subject to
administrative review." Id. 291-131-0021 (1 ),(3). Thus, plaintiff maintains that no administrative
remedy was available to appeal the outgoing mail restriction against him.
However, the lack of administrative review under Rule 291-131-0021 does not render the
general grievance process unavailable. The rule governing ODOC's grievance process excludes
"[i]ncidents or actions for which there exists a separate or internal department appeal or review
process." Id 291-109-0140(3)(b). No internal administrative remedy exists for an outgoing mail
restriction, and defendants maintain that such a restriction may be grieved through the general
grievance process. This Court has agreed, finding that "the only reasonable interpretation of the
regulations is that an inmate must grieve an outgoing mail restriction through ODOC's Inmate
Communication and Grievance Review System." Crum v. Beal, No. 6: 16-cv-00600-HZ, 2017
WL 1946314, at *4 (D. Or. May 8, 2017).
Further, plaintiff does not contend that the interplay between Rules 291-109-0140(3)(b)
and 291-131-0021 is so confusing that it makes the availability of the general grievance process
"essentially unknowable" as a practical matter. See Ross, 136 S. Ct. at 1859 ("an administrative
scheme might be so opaque that it becomes, practically speaking, incapable of use. In this
situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or
navigate it"). In fact, plaintiff admits that he "decided to fight the no-contact order only after he
was disciplined with a major disciplinary order" and maintains that the misconduct order
prevented him from exhausting his remedies. Pl.'s Response at 17; Or. Admin. R. 291-10910

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0140(3)(e). In other words, plaintiffs own actions rendered the grievance process unavailable to
him. Accordingly, plaintiff failed to exhaust his administrative remedies on Claims 14 through
16, and they should be dismissed.
B. Failure to State a Claim and Dismissal on the Merits
1. Claim 2
In Claim 2, plaintiff alleges that his procedural due process rights were violated during

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his August 10, 2015 misconduct hearing when he was prevented from reading a document or
presenting witness testimony and was asked to 'just answer the questions." Am Compl. at 7-8 .

!

It is well established that prison officials must comply with the requirements of

procedural due process before taking action that implicates an inmate's protected liberty
interests. E.g. Sandin v. Conner, 515 U.S. 472, 478-80 (1995). However, the Due Process Clause
"confers no liberty interest in freedom from state action taken 'within the sentence imposed."' Id.
at 480 (citation omitted). Accordingly, a plaintiff must show that the challenged action imposed
an "atypical and significant hardship" when compared with ordinary aspects of prison life. Id. at
484.
Here, plaintiff does not allege that he was subjected to atypical and significant hardships
during the seven days he was in segregated housing and the seven days he was denied privileges.
See id. at 486 (finding that a 30-day "discipline in segregated confinement did not present the
type of atypical, significant deprivation in which a State might conceivably create a liberty
interest"); Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) (explaining that fifteen days
of segregation did not constitute an "atypical and significant hardship in relation to the ordinary
incidents of prison life"). In his surreply, plaintiff also asserts that he was denied access to
"multiple" prison services for six months as a result of his hearing. Pl.'s Surreply at 3 (ECF No.
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56). Plaintiff does not identify the withheld "services" or argue that the denial of such services
subjected him to atypical hardship. Accordingly, plaintiffs liberty interests were not implicated,
and summary judgment should be granted on this claim.
2. Claim 4
In Claim 4, plaintiff alleges: 1) "intentionally disbursing known incorrect information
(box #'s to send kytes to) to inmates"; 2) the failure to respond to "multiple kytes trying to
address this issue"; 3) the failure of the "available Inspector general" to return a phone call; 4)
the use of "harsh treatment and profanity in direct violation of the signed code of ethics form CD
1382 and the [ODOC] code of conduct 20.1.3"; and 5) the filing of "false reports directly saying
or insinuating that [plaintiff] had 'shat' in anger." Am. Compl. at 11-12.
Plaintiff fails to allege or present evidence that incorrect information or delays in
responding to kytes prejudiced him in any way. See, e.g., Brown, 422 F.3d at 942-43 & n.18
(stating that a delay in responding to grievances may defeat a motion to dismiss if the plaintiff
was prejudiced by the delay). Likewise, plaintiff alleges no violation of his rights arising from
the Inspector General's alleged failure to return his telephone call. Although officers' use of
"harsh" treatment (as alleged by plaintiff) or profanity is regrettable, plaintiff alleges no violation
of law. Finally, plaintiff alleges no violation of law arising from the alleged false reports; he was
disciplined for disobeying an order to return to his cell, not for defecating in the gym.
To the extent plaintiffs claims suggest state law or regulatory violations, this Court
should decline to exercise supplemental jurisdiction over them. 28 U.S.C. § 1367(c).
3. Claims 6 (in part) and 7
In Claims 6 and 7, plaintiff alleges violations of his substantive due process and Eighth
Amendment rights based on the failure to prevent his assault on August 21, 2015. Am. Compl. at
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14-18. Plaintiff alleges that Sgt. Garcia placed him in the housing unit where the attack occurred,
and that Officer Dotson failed to take appropriate action before the assault. Defendants concede
that plaintiff exhausted claims alleging Officer Dotson's failure to protect plaintiff. 3
Plaintiff cannot allege a substantive due process violation based on these facts. "[W]here
a particular Amendment provides an explicit textual source of constitutional protection against a
particular sort of government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims." Cnty. of Sacramento v.
Lewis, 523 U.S. 833, 842 (1998) (citation omitted). The Eighth Amendment is the explicit
textual provision that protects plaintiffs rights against deliberate indifference by prison officials
and due process analysis is not appropriate. See Woljfv. Hood, 242 F. Supp. 2d 811, 819 (D. Or.
2002); Whitley v. Sepulveda, 2017 WL 3641871, at *4 (N.D. Cal. Aug. 24, 2017).
"A prison official's 'deliberate indifference' to a substantial risk of serious harm to an
inmate violates the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 828 (1994).
Consequently, prison officials have a duty to take reasonable steps "to protect prisoners from
violence at the hands of other prisoners." Id. at 833 (citation omitted); Hearns v. Terhune, 413
F.3d 1036, 1040 (9th Cir. 2005). "It is not, however, every injury suffered by one prisoner at the
hands of another that translates into constitutional liability for prison officials responsible for the
victim's safety." Farmer, 511 U.S. at 834. Deliberate indifference must involve more than
ordinary lack of due care for a prisoner's safety and constitute conduct that is akin "obduracy and
wantonness." Whitley v. Albers, 475 U.S. 312, 319 (1986). Ultimately, a prison official is liable
under the Eighth Amendment if the official "knows of and disregards an excessive risk to inmate

3

Plaintiffs grievance did not mention a housing assignment by Sgt. Garcia or any other
correctional official; therefore, this issue was not exhausted. Taylor Deel. Att. 7.
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health or safety." Farmer, 511 U.S. at 837. Prison officials "may be found free from liability if
they responded reasonably to the risk, even if the harm ultimately was not averted." Id. at 844.
Here, based on plaintiffs own allegations, Officer Dotson did not ignore plaintiffs
concerns or fail to intervene on August 21, 2015. Officer Dotson asked plaintiff who had
4

threatened him, and plaintiff could not identify the person. Pl.'s Response at 20. After the
assailant began attacking plaintiff, Officer Dotson called for back-up and intervened by using
pepper-spray. At most, plaintiff alleges that Officer Dotson failed to pay adequate attention to a
potential assault and utilized an intervention method - pepper spray - that also harmed plaintiff.
While Officer Dotson's alleged inattention arguably could support a claim of negligence, it does
not constitute deliberate indifference. Moreover, the use of pepper spray to stop the attack was
not unreasonable under the circumstances. E.g., Hahn v. Murphy, 2011 WL 9378180, at *27 &
n.17 (C.D. Cal. Sept. 23, 2011) ("It is well settled that an unarmed prison official has no
constitutional obligation to intervene in an armed assault on an inmate when doing so would
endanger his own safety.") (citing cases), report and recommendation adopted, 2012 WL
5456385 (C.D. Cal. Nov. 1, 2012). Accordingly, summary judgment should be granted on
Claims 6 and 7.
4.

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Claim 13

In Claim 13, plaintiff alleges delays in processing his grievances, "equitable tolling" for
time spent in segregation absent wrongdoing, the spoliation of evidence based on the failure to
produce video evidence of his assault, and the failure to secure "weapons" - i.e., the shelf board
used to attack him - in the prison housing unit. Am. Compl. at 23. Plaintiff apparently concedes
the "equitable tolling" claim or allegation.
4

Defendants also maintain that Officer Dotson asked plaintiff to stay within his view and
suggested that plaintiff return to his cell. Plaintiff disputes these facts. Pl.' s Response at 20.
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With respect to the remaining allegations, plaintiff fails to allege or present evidence that
delays in responding to his grievances or the absence of video evidence prejudiced him in any
way. See Brown, 422 at 943 & n. 18. Further, the failure to secure "weapons" is akin to
plaintiffs failure to protect claim and fails for the same reasons. 5
CONCLUSION
For the reasons set forth above, defendants' Motion for Summary Judgment (ECF No.
40) should be granted and this case should be dismissed. This recommendation is not an order
that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(l), Federal Rules of Appellate Procedure, should not be filed until entry of
the district court's judgment or appealable order.
The parties shall have fourteen ( 14) days from the date of service of a copy of this
recommendation within which to file specific written objections with the court. Thereafter, the
parties shall have fourteen (14) days within which to file a response to the objections. Failure to
timely file objections to any factual determination of the Magistrate Judge will be considered as
a waiver of a party's right to de novo consideration of the factual issues and will constitute a
waiver of a party's right to appellate review of the findings of fact in an order or judgment
entered pursuant to this recommendation.
DATED this

{z;'~ay of December, 2017.

Thoma~

United States Magistrate Judge

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Plaintiff also moved to compel the production of evidence and documents. (ECF No.
51) The evidence sought by plaintiff would not affect my analysis of the claims, and the motion
is denied as moot.
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