United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO GRANT
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC.
NOS. 44, 64)
is a state prisoner proceeding pro se in this civil rights
action brought pursuant to 42 U.S.C. § 1983. The matter
was referred to a United States Magistrate Judge under 28
U.S.C. § 636(b)(1)(B) and Local Rule 302.
January 25, 2016, the assigned magistrate judge issued
findings and recommendations recommending that defendant
Escamilla’s motion for partial summary judgment with
respect to plaintiff’s Equal Protection claim be
granted because plaintiff had failed to exhaust his
administrative remedies prior to filing suit as required.
(Doc. No. 64.) Plaintiff has filed his objections to those
findings and recommendations, and defendant has filed a
reply. (Doc. Nos. 80, 85.)
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 304, the court has conducted a de
novo review of this case. Having carefully reviewed the
entire file, the court finds the findings and recommendations
to be supported by the record and by proper analysis.
advances two arguments in his objections to the findings and
recommendations, both of which are unavailing. (Doc. No. 80.)
First, plaintiff argues that he exhausted his administrative
remedies with respect to his Equal Protection claims because
the inmate grievances that he filed were sufficient to put
prison officials on notice of his Equal Protection claim.
(Id. at 13-14.) Plaintiff’s federal Equal
Protection claim as presented in his pending complaint is
based entirely on an allegedly derogatory statements made by
defendant Escamilla. (Doc. No. 10 at 6. However, the inmate
grievance plaintiff relies upon in claiming exhaustion do not
mention or allude to these statements in any way.
Accordingly, plaintiff’s inmate grievance did not
sufficiently provide notice to prison officials of the issues
underlying the Equal Protection claim he is now attempting to
litigate. See Shabazz v. Giurbino, No.
1:11-cv-01558-LJO-SAB (PC), 2015 WL 6706845, at *6 (E.D. Cal.
Nov. 3, 2015) (finding that plaintiff had not exhausted
administrative remedies when he attempted to raise federal
causes of action based on incidents not described in his
inmate grievances); cf. Coleman v. California Dept. of
Corrections and Rehabilitation, No. 2:13-cv-1021 JAM KJM
P, 2015 WL 4478156, at *15 (E.D. Cal. July 22, 2015) (finding
that plaintiff’s inmate grievance describing “a
race-based lockdown end” sufficiently placed prison
officials on notice of plaintiff’s equal protection
claim related to modified programming).
plaintiff argues that, even if he did not exhaust his
administrative remedies prior to filing suit, such remedies
were effectively unavailable to him because he feared
retaliation against himself and his cellmate. (Id.
at 6, 18) Plaintiff particularly disputes the magistrate
judge’s finding that any alleged fear of retaliation is
undermined by “the fact that he filed two grievances
complaining of Defendant’s conduct within a six month
period, ” (Id. at 8), arguing that his
willingness to file inmate grievances despite fear of
reprisal should not count against him. (Id. at 6.)
Plaintiff is correct that a prisoner’s willingness to
file other inmate grievances is not dispositive as to whether
the grievance system was effectively available to the
prisoner with respect to the subject grievance. See Kaba
v. Stepp, 458 F.3d 678, 684 (9th Cir. 2006) (the fact
that a prisoner filed other appeals when he alleges fear of
retaliation if he pursued the subject appeal is not, ipso
facto, dispositive whether the grievance system was
effectively available on the subject grievance); Barron
v. Alcaraz, No. 2:11-cv-2678 JAM AC P, 2015 WL 1013575,
at *9 (E.D. Cal. March 6, 2015); see generally McBride v.
Lopez, 807 F.3d 982, 988 (9th Cir. 2015) (finding that,
to excuse a failure to exhaust administrative remedies on the
basis of plaintiff s fear of retaliation, the court must find
both a subjective and an objective threat of retaliation).
However, here plaintiff has come forward with no evidence
suggesting an objective threat of retaliation in his case, as
required to trigger the exception to the PLRA’s
exhaustion requirement. See McBride, 807 F.3d at 988
(noting that an objective threat of retaliation exists if
there is “some basis in the record” 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”). Thus, plaintiff was
required to exhaust administrative remedies.
for the reasons set forth above:
January 25, 2016, findings and recommendations (Doc. No. 64)
are adopted in full;
Defendant’s July 1, 2015, motion for partial summary
judgment (Doc. No. 44) is granted;
Plaintiff s Equal Protection claim is dismissed for failure
to exhaust administrative remedies; and
action shall proceed only on plaintiffs First Amendment ...