United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a civil rights
action seeking relief under 42 U.S.C. § 1983. Defendants
Turner and Virga have moved for summary judgment. Plaintiff
has filed an opposition to the motion, and defendants have
filed a reply. For the reasons explained below, it is
recommended that the motion be granted in part and denied in
is proceeding on an amended complaint. At screening,
then-Magistrate Judge Dale A. Drozd found that
plaintiff's amended complaint stated a cognizable claim
under the First Amendment for retaliation against defendants
Dreager-Smith and Porter. According to plaintiff, the
defendants issued him a rules violation report after they
reviewed his inmate appeal complaining about their failure to
address his concerns over inmates desecrating pagan religious
property. Judge Drozd also found that plaintiff's
complaint stated a cognizable First Amendment claim against
defendants Johnson, Guzman, Macomber, and Virga for allegedly
threatening to transfer plaintiff to a different prison in
retaliation for his prior litigation activities against
prison officials. Finally, Judge Drozd found that
plaintiff's amended complaint stated a cognizable claim
under RLUIPA, the First Amendment, and the Fourteenth
Amendment Equal Protection Clause against defendants Virga,
Smith, Porter, Detlefsen, Carter, Johnson, Guzman, Macomber,
and Elia because plaintiff informed these defendants that his
fellow inmates were destroying pagan religious property, but
the defendants allegedly refused to address the problem,
thereby substantially burdening his religion. ECF Nos. 16, 22
5, 2014, defendants filed a motion to dismiss plaintiff's
RLUIPA claim on the grounds that his request for injunctive
relief had been rendered moot. ECF No. 31. In response to the
motion, plaintiff moved to withdraw his RLUIPA claim. ECF No.
32. On November 21, 2014, Judge Drozd granted plaintiff's
request to withdraw his RLUIPA claim and denied
defendants' motion to dismiss as moot in light of that
withdrawal. ECF No. 34.
filed an amended answer to plaintiff's complaint, ECF No.
35, and on January 6, 2015, the court issued a discovery and
scheduling order, ECF No. 36. Thereafter, defendants filed
the pending motion for summary judgment. ECF No. 40.
Defendants argue that they are entitled to summary judgment
on the merits of plaintiff's claims and further argue
that plaintiff failed to exhaust his administrative remedies
with respect to all of his claims, except his First Amendment
retaliation claim against defendants Dreager-Smith and
Porter. Id. Finally, defendants argue that they are
entitled to qualified immunity. Id.
JUDGMENT STANDARDS UNDER RULE 56
judgment is appropriate when 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).
Summary judgment avoids unnecessary trials in cases in which
the parties do not dispute the facts necessary to the
determination of the issues in the case, or in which there is
insufficient evidence for a jury to determine those facts in
favor of the nonmovant. Crawford-El v. Britton, 523
U.S. 574, 600 (1998); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle
Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468,
1471-72 (9th Cir. 1994). At bottom, a summary judgment motion
asks whether the evidence presents a sufficient disagreement
to require submission to a jury.
principal purpose of Rule 56 is to isolate and dispose of
factually unsupported claims or defenses. Celotex Cop. v.
Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule
functions to "‘pierce the pleadings and to assess
the proof in order to see whether there is a genuine need for
trial.'" Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
Fed.R.Civ.P. 56(e) advisory committee's note on 1963
amendments). Procedurally, under summary judgment practice,
the moving party bears the initial responsibility of
presenting the basis for its motion and identifying those
portions of the record, together with affidavits, if any,
that it believes demonstrate the absence of a genuine issue
of material fact. Celotex, 477 U.S. at 323;
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001) (en banc). If the moving party meets its burden with a
properly supported motion, the burden then shifts to the
opposing party to present specific facts that show there is a
genuine issue for trial. Fed.R.Civ.P. 56(e);
Anderson, 477 U.S. at 248; Auvil v. CBS "60
Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
focus on where the burden of proof lies as to the factual
issue in question is crucial to summary judgment procedures.
Depending on which party bears that burden, the party seeking
summary judgment does not necessarily need to submit any
evidence of its own. When the opposing party would have the
burden of proof on a dispositive issue at trial, the moving
party need not produce evidence which negates the
opponent's claim. See e.g., Lujan v. National
Wildlife Fed'n, 497 U.S. 871, 885 (1990). Rather,
the moving party need only point to matters which demonstrate
the absence of a genuine material factual issue. See
Celotex, 477 U.S. at 323-24 (1986). ("[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.'"). 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. In such a
circumstance, summary judgment must be granted, "so long
as whatever is before the district court demonstrates that
the standard for entry of summary judgment . . . is
satisfied." Id. at 323. To defeat summary
judgment the opposing party must establish a genuine dispute
as to a material issue of fact. This entails two
requirements. First, the dispute must be over a fact(s) that
is material, i.e., one that makes a difference in the outcome
of the case. Anderson, 477 U.S. at 248 ("Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment."). Whether a factual dispute is
material is determined by the substantive law applicable for
the claim in question. Id. If the opposing party is
unable to produce evidence sufficient to establish a required
element of its claim that party fails in opposing summary
judgment. "[A] complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 322.
Prison Litigation Reform Act of 1995 ("PLRA"),
Congress amended 42 U.S.C. § 1997e to provide 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). The exhaustion requirement "applies to
all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether
they allege excessive force or some other wrong."
Porter v. Nussle, 534 U.S. 516, 532 (2002).
United States Supreme Court has ruled that exhaustion of
prison administrative procedures is mandated regardless of
the relief offered through such procedures. See Booth v.
Churner, 532 U.S. 731, 741 (2001). The Supreme Court has
also cautioned against reading futility or other exceptions
into the statutory exhaustion requirement. See Id .
at 741 n.6. Moreover, because proper exhaustion is necessary,
a prisoner cannot satisfy the PLRA exhaustion requirement by
filing an untimely or otherwise procedurally defective
administrative grievance or appeal. See Woodford v.
Ngo, 548 U.S. 81, 90-93 (2006). "[T]o properly
exhaust administrative remedies prisoners ‘must
complete the administrative review process in accordance with
the applicable procedural rules, ' [ ] - rules that are
defined not by the PLRA, but by the prison grievance process
itself." Jones v. Bock, 549 U.S. 199, 218
(2007) (quoting Woodford, 548 U.S. at 88). See
also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir.
2009) ("The California prison system's requirements
‘define the boundaries of proper
California, prisoners may appeal "any policy, decision,
action, condition, or omission by the department or its staff
that the inmate or parolee can demonstrate as having a
material adverse effect upon his or her health, safety, or
welfare." Cal. Code Regs. tit. 15, § 3084.1(a).
Most appeals progress through three levels of review. See
Id . § 3084.7. The third level of review
constitutes the decision of the Secretary of the California
Department of Corrections and Rehabilitation and exhausts a
prisoner's administrative remedies. See Id .
§ 3084.7(d)(3). A California prisoner is required to
submit an inmate appeal at the appropriate level and proceed
to the highest level of review available to him. Butler
v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005);
Bennett v. King, 293 F.3d 1096, 1098 (9th Cir.
may excuse a prisoner from complying with the PLRA's
exhaustion requirement if he establishes that the existing
administrative remedies were effectively rendered unavailable
to him. See Albino v. Baca, 747 F.3d 1162, 1172-73
(9th Cir. 2014). For example, where prison officials
improperly screen out inmate grievances, they can render
administrative remedies effectively unavailable. See Sapp
v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). In such
a case, "the inmate cannot pursue the necessary sequence
of appeals . . . ." Id. See also Nunez v.
Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (excusing an
inmate's failure to exhaust because he was precluded from
exhausting his administrative remedies by a warden's
mistaken instruction to him that a particular unavailable
document was needed for him to pursue his inmate appeal);
Marella, 568 F.3d 1024 (excusing an inmate's
failure to exhaust because he did not have access to the
necessary grievance forms to timely file his grievance).
PLRA exhaustion requirement is not jurisdictional but rather
creates an affirmative defense that defendants must plead and
prove. See Jones, 549 U.S. at 216 ("[I]nmates
are not required to specially plead or demonstrate exhaustion
in their complaints."); Albino, 747 F.3d at
1168. A defendant may move for dismissal under Federal Rule
of Civil Procedure 12(b)(6) "[i]n the rare event"
that a prisoner's failure to exhaust is clear on the face
of the complaint. Albino, 747 F.3d at 1168 & 1169.
More typically, defendants are required to move for summary
judgment under Federal Rule of Civil Procedure 56 and produce
probative evidence that proves a prisoner's failure to
exhaust. See Id . at 1166. Specifically, "the
defendant's burden is to prove that there was an
available administrative remedy, and that the prisoner did
not exhaust that available remedy." Id. at
1172. If the defendant carries that 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 particular case that made the
existing and generally available administrative remedies
effectively unavailable to him." Id. If the
undisputed evidence viewed in the light most favorable to the
prisoner demonstrates a failure to exhaust, the court should
grant defendant's motion for summary judgment.
Id. at 1166. On the other hand, if there are
material facts in dispute, the court should deny
defendant's motion summary judgment. Id. I.
Civil Rights Act Pursuant to 42 U.S.C. § 1983
Civil Rights Act under which this action was filed provides
Every person who, under color of [state law] . . . subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983. The statute requires that there be an
actual connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by plaintiff. See Monell v. Department of Social
Servs., 436 U.S. 658 (1978); Rizzo v. Goode,
423 U.S. 362 (1976). "A person ‘subjects'
another to the deprivation of a constitutional right, within
the meaning of § 1983, if he does an affirmative act,
participates in another's affirmative acts or omits to
perform an act which he is legally required to do that causes
the deprivation of which complaint is made." Johnson
v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
supervisory personnel are generally not liable under §
1983 for the actions of their employees under a theory of
respondeat superior and, therefore, when a named
defendant holds a supervisorial position, the causal link
between him and the claimed constitutional violation must be
specifically alleged. See Fayle v. Stapley, 607 F.2d
858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589
F.2d 438, 441 (9th Cir. 1978). Vague and conclusory
allegations concerning the involvement of official personnel
in civil rights violations are not sufficient. See Ivey
v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
FIRST AMENDMENT AND RETALIATION
the initiation of litigation before the court and the filing
of inmate appeals are protected conduct, and prison officials
may not retaliate against prisoners for engaging in these
activities. See Rhodes v. Robinson, 408 F.3d 559,
568 (9th Cir. 2005). As the U.S. Court of Appeals for the
Ninth Circuit has explained:
Within the prison context, a viable claim of First Amendment
retaliation entails five basic elements: (1) An assertion
that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and
that such action (4) chilled the inmate's exercise of his
First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.
Rhodes, 408 F.3d at 567-68. See also Silva v. Di
Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011) (prisoners
retain First Amendment rights not inconsistent with their
prisoner status or penological objectives, including the
right to file inmate appeals ...