United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
Plaintiff
is proceeding pro se with an action for violation of civil
rights under 42 U.S.C. § 1983. Plaintiff’s
remaining claims arise under the First Amendment of the
United States Constitution and California’s
Constitution against defendant Herrera (defendant). Plaintiff
claims that on January 6, 2014, while he was an inmate at the
California Correctional Center (CCC) in Susanville, defendant
Herrera threatened plaintiff with a transfer to a more
restrictive prison in retaliation for plaintiff’s use
of the inmate grievance process. Defendant argues in a motion
for summary judgment that plaintiff’s claim arising
under the First Amendment should be dismissed for failure to
exhaust administrative remedies.
Section
1997(e)(a) of Title 42 of the United States Code provides
that “[n]o action shall be brought with respect to
prison conditions under section 1983 of this title, . . .
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997(e)(a). Administrative
procedures generally are exhausted with respect to the
California prisoner grievance process once the third level of
review is complete. The third level of review constitutes the
decision of the Secretary of the California Department of
Corrections and Rehabilitation (CDCR). Cal. Code Regs. tit.
15, § 3084.7.
The
exhaustion requirement demands “proper”
exhaustion. Woodford v. Ngo, 548 U.S. 81, 90-91
(20016). In order to “properly exhaust”
administrative remedies the prisoner must generally comply
with the prison’s procedural rules throughout the
administrative process. Jones v. Bock, 218 U.S. 199,
218 (2006).
If
undisputed evidence viewed in the light most favorable to the
prisoner / plaintiff shows a failure to exhaust, a defendant
is entitled to summary judgment under Rule 56 of the Federal
Rules of Civil Procedure. Albino v. Baca, 747 F.3d
1162, 1166 (9th Cir. 2014).
There
is no dispute that plaintiff did not utilize the inmate
grievance process with respect to his claims against
defendant which remains in this action. Plaintiff asserts the
exhaustion requirement should be waived with respect to his
First Amendment claim, however, because plaintiff feared
retaliation from defendant if plaintiff filed a grievance
against him.
In
McBride v. Lopez, 807 F.3d 982, 987 (9th Cir. 2015),
the Ninth Circuit held that a threat of retaliatory action by
a prison official would render a prison grievance system
unavailable so as to excuse a prisoner’s failure to
exhaust administrative remedies if the following conditions
are met:
1. The threat of retaliation actually did deter the plaintiff
inmate from lodging a grievance or pursuing a particular part
of the process; and
2. The threat is one that would deter a reasonable inmate of
ordinary firmness and fortitude from lodging a grievance or
pursuing the part of the grievance process that the inmate
failed to exhaust.
Here,
plaintiff essentially alleges defendant Captain Herrera told
plaintiff he did not “tolerate” accusations made
against other correctional officers via the inmate grievance
process at CCC. Defendant then asked plaintiff “[y]ou
know what happens to snitches in prison?” Finally,
defendant told plaintiff “maybe I should move you to
Lassen . . . for your own safety.” According to
plaintiff, “Lassen is a level III facility with a
Segregation Housing Unit (SHU) also known as the hole.”
In his
complaint, plaintiff alleges, under the penalty of perjury,
that he did not utilize the inmate grievance process with
respect to defendant’s actions because he feared
further retaliation. Defendant fails to present any evidence,
such as other grievances filed by plaintiff against or
involving defendant after the events described above, which
would undermine plaintiff’s asserted fear of
retaliation from him. The court finds these facts establish a
genuine issue of material fact as to whether plaintiff
actually was threatened with retaliation for further use of
the inmate grievance process and whether that actually
stopped plaintiff from filing a grievance concerning the
actions of defendant at issue in this action.
Further,
the threats by defendant alleged by plaintiff in his
complaint are clear enough that, for purposes of
defendant’s motion for summary judgment, a reasonable
inmate would be deterred from submitting a grievance against
or involving defendant for fear that he might make good on
his retaliatory threat.
For
these reasons, defendant is not entitled to summary judgment
with respect to his failure to exhaust argument.
Under
Albino, the court is permitted to resolve material
issues of fact as they pertain to exhaustion of
administrative remedies. Albino, 747 F.3d at
1170-1171. If defendant wishes the court to conduct an
evidentiary hearing to resolve whether plaintiff was actually
threatened with retaliation for further use of the inmate
grievance process and whether that actually stopped plaintiff
from filing a grievance concerning the actions of defendant
which form the basis of plaintiff’s remaining First
Amendment Claim, defendant shall so request no later than 14
days after adoption of the findings and recommendations
herein. If defendant fails to request an ...