FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. In his amended complaint, he alleges that defendants Levan, Burchfield, Mineau and Taylor, all employees of the California Department of Corrections and Rehabilitation (CDCR), improperly classified him as "Mexican" when they knew his ethnicity should have been listed as "other" because he is Cuban. He further alleges that this places him in jeopardy because of the "black inmates and Mexican inmates, prison gang members, as well as his own ethnicity inmates, all will retaliate upon him." Amended Complaint (Am. Compl.) at 5(A). Defendants have filed a motion for summary judgment on the merits or in the alternative for dismissal based on plaintiff's failure to exhaust administrative remedies.
I. The Motion For Summary Judgment
A. Summary Judgment Standards Under Rule 56
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of 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., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
On May 5, 2007, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Plaintiff entered the state prison system on July 28, 2005, accompanied by a probation report, which identified him as "Hispanic." Declaration of K.J. Anderson (Anderson Decl.) ¶¶ 4, 6-7 & Ex. B. Prison officials at North Kern State Prison (NKSP) Reception Center used this information to identify plaintiff as Mexican even though plaintiff told the officials that he is Cuban. Anderson Decl. ¶ 7; Opposition (Opp'n) at 3.*fn1 Plaintiff's ethnicity as "Mexican" was nevertheless entered into his central file and in OBIS, an electronic database that maintains information about CDCR inmates. Anderson Decl. ¶ 7. This material was included on the CDC-135 Transfer Order that accompanied plaintiff from NKSP to Folsom State Prison (FSP) in September 2005. Declaration of J. Mineau (Mineau Decl.) ¶¶ 6, 9 & Ex. A.
As part of the transfer process, an inmate's file is reviewed at Receiving and Release (R&R) and he is housed with other transferees for orientation. Anderson Decl. ¶ 10. At R&R, an inmate's photo is taken for his FSP ID card and for his central file. Anderson Decl. ¶ 13; Declaration of M. Burchfield (Burchfield Decl.) ¶¶ 2-3. When an officer enters an inmate's CDCR number into the computer, information about the inmate, including his ethnicity, appears on the screen. Burchfield Decl. ¶ 4; Anderson Decl. ¶ 13. Correctional officers do not have the authority to change an inmate's ethnicity designation in the photo lab and the equipment in the lab does not have the capability to change any information about the inmate. Levan Decl. ¶ 8; Burchfield Decl. ¶ 6; Mineau Decl. ¶¶ 5, 12. The card is printed with the information that had appeared on the computer screen, generated by OBIS. Burchfield Decl. ¶ 8. Only designated staff members have the authority to change or edit any information in OBIS. Burchfield Decl. ¶ 7; Anderson Decl. ¶¶ 15-16.
Plaintiff was transferred to FSP in September and went to the photo lab on arrival in R&R, either on September 15 or September 19, 2005. Deposition of Luis Armentero (Armentero Depo.) at 11:16; Anderson Decl. ¶ 13 & Ex. A. According to Armentero, Burchfield and Levan were on duty. Armentero Depo. at 11:20-21. Burchfield acknowledges working in the photo lab on some occasions in September 2005; Levan was not on duty from September 12 through September 18. Burchfield Decl. ¶ 2; Declaration of C. Levan (Levan Decl.) ¶ 2. Even though Armentero said he is Cuban, his ID card identified him as Mexican. Armentero Depo. at 11:22-23, 12:15-16. When he protested, the officers told him to see his counselor. Id. at 12:17.*fn2
Plaintiff lost his identification card and returned to the photo lab on September 22, where he was again issued a card designating him as Mexican. Id. at 26:10-11. The officer who created this card again told him to see his counselor about changing his ethnicity. Id. at 26:13-14. He encountered Sergeant Mineau as he left the photo lab and complained about the ethnic designation on his ID card. Id. at 26:15-17. Mineau said he could not correct the problem and that plaintiff should talk to his counselor. Id. at 26:21-22. Mineau avers he did not have the authority to change an inmate's ethnicity designation in his central file and did not have access to OBIS to change the ethnicity in the database. Mineau Decl. ¶¶ 7-8.
Plaintiff sent two requests for a meeting with his correctional counselor, defendant Taylor. Armentero Depo. at 24:5-6; Am. Compl. at 5A. On November 3, 2005, plaintiff was scheduled to see Taylor, but was hit in the knee. Id. at 28:2-3, 17-18. Taylor came to plaintiff's cell and told him he would have a classification review where he could ask that his ethnicity be changed. Id. at 24:24-25. This review never occurred and Taylor never followed up to fix the problem. Id. at 25:2, 33:4-5.
On November 23, 2005, plaintiff appeared before an Institution Classification Committee (ICC) for review of an order removing him from general population based on suspicion that he had participated in a riot. Anderson Decl. ¶ 21 & Exs. C & D. According to plaintiff, he was removed from general population only because he was designated as "Mexican." Armentero Depo. 23:6-7. Plaintiff told the committee he is Cuban, not black, and should be housed with those designated "other." Anderson Decl. ¶¶ 21-22 & Exs. C & D; Declaration of A. Orozco (Orozco Decl.) ¶ 4. Plaintiff did not say he would be in danger if released back to general population. Orozco Decl. ¶ 6 & Ex. A; cf. Armentero Depo. at 53:17. None of the defendants in this case were members of the ICC that met in November 2005. Anderson Decl., Exs. C & D.
Plaintiff's ethnicity was changed to "other" on February 10, 2006 as the result of a grievance. Anderson Decl. ¶¶ 24-25 & Ex. F. Even so, his identification card was not ...