United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
DEFENDANT WADDLE'S MOTION FOR SUMMARY JUDGMENT BE DENIED
(ECF NO. 96.)
S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Darnell Bryant (“Plaintiff”), a state prisoner
proceeding with counsel, filed this civil rights action
pursuant to 42 U.S.C. § 1983 on December 26, 2012. (ECF
No. 1.) This case now proceeds with the First Amended
Complaint (“FAC”), filed on December 2, 2013,
against defendants Lieutenant (Lt.) Constance Waddle and
Correctional Officer (C/O) E. Castellanos, for retaliation
against Plaintiff in violation of the First Amendment. (ECF
April 1, 2016, defendant Waddle (“Defendant”)
filed a motion for summary judgment. Fed.R.Civ.P. 56. (ECF
No. 96.) On June 16, 2017, Plaintiff filed an opposition, and
on June 30, 2017, Defendant filed a reply. (ECF No. 203.)
The motion has been submitted upon the record without oral
argument pursuant to Local Rule 230(l), and for the
reasons that follow, Defendant's motion should be denied.
SUMMARY JUDGMENT STANDARD
party may move for summary judgment, and the court shall
grant summary judgment if the movant shows that 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)
(quotation marks omitted); Washington Mut. Inc. v.
U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each
party's position, whether it be that a fact is disputed
or undisputed, must be supported by (1) citing to particular
parts of materials in the record, including but not limited
to depositions, documents, declarations, or discovery; or (2)
showing that the materials cited do not establish the
presence or absence of a genuine dispute or that the opposing
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The court
may consider other materials in the record not cited to by
the parties, but it is not required to do so. Fed.R.Civ.P.
56(c)(3); Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017
(9th Cir. 2010).
does not bear the burden of proof at trial and in moving for
summary judgment, he or she need only prove an absence of
evidence to support Plaintiff's case. In re Oracle
Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548 (1986)). If the defendant meets his or her
initial burden, the burden then shifts to the plaintiff
“to designate specific facts demonstrating the
existence of genuine issues for trial.” In re
Oracle Corp., 627 F.3d at 387 (citing Celotex
Corp., 477 U.S. at 323). This requires the plaintiff to
“show more than the mere existence of a scintilla of
evidence.” Id. (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).
in judging the evidence at the summary judgment stage, the
court may not make credibility determinations or weigh
conflicting evidence, Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks
and citation omitted), and it must draw all inferences in the
light most favorable to the nonmoving party and determine
whether a genuine issue of material fact precludes entry of
judgment, Comite de Jornaleros de Redondo Beach v. City
of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011)
(quotation marks and citation omitted). The court determines
only whether there is a genuine issue for trial. Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010)
(quotation marks and citations omitted).
ALLEGATIONS IN THE FIRST AMENDED COMPLAINT (FAC)
is presently incarcerated at Salinas Valley State Prison. The
events at issue occurred in 2010 and 2011 at Kern Valley
State Prison (KVSP) in Delano, California, when Plaintiff was
alleges as follows in his amended complaint. On June 7, 2010,
Plaintiff filed a form 602 prison appeal against C/Os R.
Romero and Patrick Gallagher concerning Plaintiff's
prison job assignment. On November 30, 2010, defendant Lt.
Waddle found out that Plaintiff had filed the appeal, and she
ordered Plaintiff locked up in administrative segregation
(Ad-Seg) claiming that she and Captain Cano were doing this
to prevent Gallagher and Romero from retaliating against him
if they were disciplined because of an investigation.
Plaintiff alleges, however, that Lt. Waddle did not do this
to protect Plaintiff, but to have Plaintiff moved to Facility
D so Waddle could have Plaintiff threatened and assaulted in
order to force Plaintiff to drop his appeal against Gallagher
and Romero. On March 10, 2011, C/O Redmon moved Plaintiff and
his cell mate from Building 6 to Building 1, cell 225. Redmon
told Plaintiff that Lt. Waddle wanted him moved.
alleges that Lt. Waddle conspired with C/O D. Sellers to get
Plaintiff assaulted for filing the 602 appeal. Plaintiff has
a signed declaration from inmate Cleave McCloud, J-55573,
stating that C/O Sellers told McCloud to assault Plaintiff
because of the appeal. On April 15, 2011, the day Sellers was
planning to have Plaintiff assaulted, Associate Warden Wood
called Plaintiff to the Captain's Office to speak to him.
Plaintiff told Wood about Sellers and Waddle conspiring to
have Plaintiff assaulted by inmates in Building 1. Wood
issued an order to move Plaintiff to Building 8 to try to
prevent the assault. Lt. Waddle spoke to Plaintiff on his way
out, telling Plaintiff that she runs this place and none of
Plaintiff's 602 appeals would ever be granted at KVSP
again as she knows somebody in the appeals office who is
going to see to that. Waddle also told Plaintiff to be very
careful about who Plaintiff files appeals or complaints
was moved to Building 8. Lt. Waddle conspired with C/O
Castellanos to have some inmates in Building 8 assault him.
On May 8, 2011, Castellanos withheld one of Plaintiff's
outgoing letters and stole 40 stamps out of it.
6, 2011, in Plaintiff's other lawsuit in this court,
1:11-cv-00046, Bryant v. Gallagher, Plaintiff filed
an emergency motion for a temporary restraining order and
protection. The court denied the motion but requested the
Warden (Harrington) check to see if Plaintiff was in any
danger. The Warden failed to do that.
29, 2011, defendant Castellanos went into Plaintiff's
cell while he was away at the law library, searched the cell,
and deliberately ripped the cable off the back of
Plaintiff's TV breaking off the whole piece that the
cable screws onto. Now there is nothing to screw a cable
2011, defendant Castellanos told Plaintiff that he knew
Plaintiff filed the staff misconduct appeal and the lawsuit
against C/Os Gallagher and Romero, and that if he doesn't
drop it all right away something bad is going to happen to
24, 2011, the building porter, inmate Moore #H-23858, told
Plaintiff that defendant Castellanos told him to get some
inmates together and have them all jump Plaintiff and hurt
him badly. Inmate Moore also told Plaintiff that defendant
Castellanos told him it was because of the lawsuit Plaintiff
filed against his friends Gallagher and Romero.
28, 2011, Sergeant (Sgt.) Rivera came to Building 8 to talk
to Plaintiff. Defendant Castellanos, CCI Lane, and another
officer were present. Sgt. Rivera asked Plaintiff to sign a
pink 128 chrono he had, which was allegedly written by
defendant Castellanos and falsely stated that Castellanos had
interviewed Plaintiff about some inmates who may be out to
get Plaintiff. Plaintiff told Sgt. Rivera that defendant
Castellanos had not interviewed him about this. Sgt. Rivera
asked Plaintiff if he knew of any inmates out to get
Plaintiff. Plaintiff asked him if he and Castellanos knew of
any. Sgt. Rivera refused to answer and told Plaintiff that if
he didn't sign the chrono he would lock Plaintiff up in
Ad-Seg. Plaintiff told him that his (Plaintiff's) only
safety concerns were about the officers who are conspiring to
harm him in retaliation for his appeals and lawsuit, and if
any inmates are out to harm Plaintiff it's because one of
the officers paid or manipulated them to do it. Plaintiff
signed the chrono under reservation of rights by writing
“All Rights Reserved” above his signature. As
soon as he signed it, Mr. Lane told Plaintiff, “Now if
you get stabbed we are not responsible or liable and you
can't sue us.” (ECF No. 16 ¶28.)
30, 2011, defendants Waddle and Castellanos conspired to have
Plaintiff stabbed by two inmates, during which time Plaintiff
believes that they were going to have the Building 8 control
booth officer shoot him with a mini 14 assault rifle and try
to kill him. Inmate Moore came to Plaintiff's cell and
told him that defendant Castellanos had paid two inmates to
assault Plaintiff by stabbing him because of the lawsuit and
his failure to drop it, like defendant Castellanos had
threatened. Inmate Moore lied, saying it was two Mexican
inmates and Castellanos who were going to open
Plaintiff's door and let them stab Plaintiff, but
Plaintiff saw it was two black inmates out in the rotunda
waiting. Moore was trying to trick Plaintiff into coming out
of his cell so they could stab him, where they had a clear
shot to shoot him. Plaintiff refused to come out of his cell.
Plaintiff began packing up all of his property in big trash
bags and boxes. At noon pill call, Plaintiff handed C/O B.
Rodriguez a note under his cell door that said, “My
life is in danger. Somebody is out to kill me.” (ECF
No. 16 ¶32.)
told C/O Rodriguez and defendant Castellanos that he wanted
to be placed in Ad-Seg for his safety and wanted to talk to
ISU Lt. Stiles. Defendant Castellanos became furious and
started calling Plaintiff vulgar names and cursing him out.
Castellanos demanded to know what Plaintiff was going to tell
the lieutenant, and told Plaintiff not to go to Ad-Seg,
begging Plaintiff to just let him move Plaintiff to Building
6 and not to tell anyone about this, promising not to have
Plaintiff assaulted. Plaintiff refused his offer and demanded
to be placed in Ad-Seg, so Castellanos began threatening
Plaintiff, stating that if he told ISU Lt. Stiles that he was
trying to have Plaintiff assaulted, he would send somebody to
kill Plaintiff's family members and have him murdered in
Ad-Seg or wherever he went. Defendant Castellanos told
Plaintiff to keep his mouth shut and drop the lawsuit and 602
appeals he filed, or Plaintiff and his family, including his
kids, would be killed.
Castellanos and C/O Rodriguez boxed up Plaintiff's
property out of Plaintiff's sight, while Plaintiff was
locked in the shower stall, and Castellanos stole over $500
worth of Plaintiff's property, including photos of
Plaintiff and his family and two address books containing
their addresses. They moved Plaintiff to a holding cage in
the program office where Castellanos continued to threaten
Plaintiff and asked him not to go to Ad-Seg or tell ISU what
happened. Defendant Castellanos told Plaintiff he stole
Plaintiff's property and admitted that he deliberately
broke Plaintiff's TV on June 29, 2011, because he did not
drop the lawsuits and appeals, and told Plaintiff he would
not get his property back unless he did this right now.
about August 2, 2011, Lt. Waddle came to Ad-Seg to allegedly
videotape his statement, but Plaintiff refused to talk to her
unless ISU Lt. Stiles was present. She became furious, cursed
Plaintiff, and told Plaintiff he would get what he had
coming. She tried to trick Plaintiff into giving a statement,
but he did not fall for it.
Plaintiff gave any statement or saw anyone from ISU,
defendant Waddle and Captain Henderson generated a false
investigation report which stated they had investigated all
of Plaintiff's allegations and nothing was found. They
recommended that Plaintiff be sent back to D-yard. Plaintiff
explained to Warden Martin D. Biter on August 9, 2011, that
the report was untrue.
August 17, 2011, defendant Waddle arranged to have inmate
Cleave McCloud put in Plaintiff's cell by force, because
Plaintiff refused to accept him. McCloud admitted to
Plaintiff that Lt. Waddle told him to assault Plaintiff and
force him to drop his lawsuit and appeals, and stop Plaintiff
from telling ISU what she and Castellanos conspired to do to
Plaintiff. Plaintiff has a second signed declaration from
McCloud stating what Lt. Waddle told him to do.
also found out that defendant Castellanos wrote a false 115
RVR stating that he found a razor blade in Plaintiff's
property on July 30, 2011. Castellanos had told Plaintiff he
was going to do this if Plaintiff didn't do what
time that the defendants threatened to harm Plaintiff and his
family, he was in constant fear for his life and his
family's lives, and he had to repeatedly talk to his
psychiatric case workers about his fears, and they documented
it every time. Plaintiff was interviewed about these events
by ISU Lt. Stiles and each interview was recorded by him, and
he alleged that an investigation would be conducted. Prison
officials, ISU staff, and the defendants conspired to cover
it all up to protect the defendants.
on these allegations, Plaintiff claims violations of the
SUMMARY JUDGMENT BASED ON EXHAUSTION
Statutory Exhaustion Requirement
1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA)
provides that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983],
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). Prisoners are
required to exhaust the available administrative remedies
prior to filing suit. Jones v. Bock, 549 U.S. 199,
211, 127 S.Ct. 910, 918-19 (2007); McKinney v.
Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
Exhaustion is required regardless of the relief sought by the
prisoner and regardless of the relief offered by the process,
Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819
(2001), and the exhaustion requirement applies to all
prisoner suits relating to prison life, Porter v.
Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002).
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, 549 U.S. at
218 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126
S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). See also
Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)
(“The California prison system's requirements
‘define the boundaries of proper
exhaustion.'”). An untimely or otherwise
procedurally defective appeal will not satisfy the exhaustion
requirement. Woodford, 548 U.S. at 90. However, the
Ninth Circuit has made clear: A grievance need not include
legal terminology or legal theories unless they are in some
way needed to provide notice of the harm being
grieved.Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th
Cir. 2009). A grievance also need not contain every fact
necessary to prove each element of an eventual legal claim.
the Ninth Circuit has recognized that a grievance suffices to
exhaust a claim if it puts the prison on adequate notice of
the problem for which the prisoner seeks redress. To provide
adequate notice, the prisoner need only provide the level of
detail required by the prison's regulations. Sapp v.
Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing
Jones, 549 U.S. at 218). The primary purpose of a
grievance is to alert the prison to a problem and facilitate
its resolution, not to lay groundwork for litigation.
Id; Griffin, 557 F.3d at 1120; see also
Jones, 549 U.S. at 219 (citing Johnson v.
Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We
are mindful that the primary purpose of a grievance is to
alert prison officials to a problem, not to provide personal
notice to a particular official that he may be sued; the
grievance process is not a summons and complaint that
initiates adversarial litigation.”). Thus, in this case
“[t]he California prison system's requirements
define the boundaries of proper exhaustion.”
Marella, 568 F.3d at 1027).
prisoner may be excused from complying with the PLRA's
exhaustion requirement if he establishes that the existing
administrative remedies were effectively unavailable to him.
See Albino v. Baca, 747 F.3d 1162, 1172-73 (9th Cir.
2014). When an inmate's administrative grievance is
improperly rejected on procedural grounds, exhaustion may be
excused as “effectively unavailable.”
Sapp, 623 F.3d at 823; see also Nunez v.
Duncan, 591 F.3d 1217, 1224-26 (9th Cir. 2010)
(warden's mistake rendered prisoner's administrative
remedies “effectively unavailable”); Ward v.
Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012)
(exhaustion excused where futile); Brown v. Valoff,
422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to
proceed to third level where appeal granted at second level
and no further relief was available); 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).
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. 2002); see also Cal. Code
Regs. tit. 15, § 3084.1(b) (explaining that a
cancellation or rejection of an inmate's appeal
“does not exhaust administrative remedies”).
However, a prisoner need not “press on to exhaust
further levels of review once he has received all
‘available' remedies at an intermediate level of
review or has been reliably informed by an administrator that
no remedies are available.” Brown, 422 F.3d at
936 (citing Booth, 532 U.S. at 736-739; see also
Finley v. Skolnik, 616 Fed.Appx. 263, 264 (9th Cir. 2012
(Reversing dismissal for failure to exhaust). Where prison
officials improperly screen out inmate grievances, they
render administrative remedies effectively unavailable.
See Sapp, 623 F.3d at 823. In such a case,
“the inmate cannot pursue the necessary sequence of
submitting an inmate grievance, California regulations
require a prisoner to “list all staff members
involved” and to “describe their involvement in
the issue.” Cal. Code Regs. tit. 15, § 3084.2(3).
However, the Ninth Circuit has recently held that “a
prisoner exhausts such administrative remedies as are
available . . . under the PLRA despite failing to comply with
a procedural rule if prison officials ignore the procedural
problem and render a decision on the merits of the grievance
at each available step of the administrative process.”
Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016);
see also Franklin v. Foulk, 2017 WL 784894, at *4-5
(E.D. Cal. Mar. 1, 2017); Franklin v. Lewis, 2016 WL
4761081, at *6 (N.D. Cal. Sept. 13, 2016). Thus, a
prisoner's failure to list all staff members involved in
an incident in his inmate grievance, or to fully describe the
involvement of staff members in the incident, will not
necessarily preclude his exhaustion of administrative
remedies. Reyes, 810 F.3d at 958; Franklin v.
Foulk, 2017 WL 784894, at *4 (“[T]he court in
Reyes found that even though the plaintiff's
grievance failed to name two physicians on the prison's
three-person pain committee, prison officials were put on
notice of the nature of the wrong alleged in the suit-that
the plaintiff was wrongfully denied pain medication.”);
Franklin v. Lewis, 2016 WL 4761081, at *6
(“[T]o the extent Defendants argue that Plaintiff
failed to comply with a procedural requirement by not naming
Defendants in [his appeal], this deficiency is not
necessarily fatal to Plaintiff's claim pursuant to
Reyes”); Grigsby v. Munguia, No.
2:14-cv-0789 GAB AC P, 2016 WL 900197, at *11-12 (E.D. Cal.
Mar. 9, 2016); see also Bulkin v. Ochoa, 2016 WL
1267265, at *1-2 (E.D. Cal. Mar. 31, 2016).
for administrative remedies to be exhausted by California
prisoners as to defendants who were not identified in the
inmate grievance, there must be a “sufficient
connection” between the claim in the appeal and the
unidentified defendants such that prison officials can be
said to have had “notice of the alleged
deprivation” and an “opportunity to resolve
it.” Reyes, 810 F.3d at 959 (finding that
plaintiff had satisfied PLRA exhaustion requirements as to
two prison doctors despite not having identified them in his
inmate appeals because there was a sufficient connection
between plaintiff's appeal based on inadequate pain
management, and the doctors, who served on the prison
committee that had denied plaintiff medication); McClure
v. Chen, No. 1:14-cv-00932-DAD-GSA-PC, 2017 WL 1148135,
(E.D. Cal. March 28, 2017) (remedies exhausted even though
doctors not named in appeal; prison was placed on notice)) .
California Department of Corrections and Rehabilitation
(CDCR) Administrative Grievance System
court takes judicial notice of the fact that the State of
California provides its prisoners and parolees the right to
appeal administratively “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).
The process is initiated by submitting a CDCR Form 602.
Id. at § 3084.2(a).
prisoners are required to submit appeals within thirty
calendar days of the event being appealed, and the process is
initiated by submission of the appeal at the first level.
Id. at '§ 3084.7(a), 3084.8(c) Three levels
of appeal are involved, including the first level, second
level, and third level. Id. at ' 3084.7. The
third level of review exhausts administrative remedies.
Id. at § 3084.7(d)(3). A final decision at the
third level of review satisfies the exhaustion
requirement under 42 U.S.C. § 1997e(a). Lira v.
Herrera, 427 F.3d 1164, 1166 (9th Cir. 2005). In order
to satisfy § 1997e(a), California state prisoners are
required to use this process to exhaust their claims prior to
filing suit. Woodford, 548 U.S. at 85 (2006);
McKinney, 311 F.3d. at 1199-1201.
Motion for Summary Judgment for Failure to
failure to exhaust in compliance with section 1997e(a) is an
affirmative defense under which defendants have the burden of
raising and proving the absence of exhaustion.
Jones, 549 U.S. at 216; Wyatt v. Terhune,
315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the
Ninth Circuit issued a decision overruling Wyatt
with respect to the proper procedural device for raising the
affirmative defense of exhaustion under § 1997e(a).
Albino (“Albino II”), 747 F.3d at 1168-
69. Following the decision in Albino II, defendants
may raise exhaustion deficiencies as an affirmative defense
under § 1997e(a) in either (1) a motion to dismiss
pursuant to Rule 12(b)(6)or (2) a motion for summary judgment
under Rule 56. Id. If the court concludes that
Plaintiff has failed to exhaust, the proper remedy is
dismissal without prejudice of the portions of the complaint
barred by § 1997e(e). Jones, 549 U.S. at
223-24; Lira, 427 F.3d at 1175-76.
judgment is appropriate when it is demonstrated that 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); Albino II, 747 F.3d at 1169
(“If there is a genuine dispute about material facts,
summary judgment will not be granted.”) A party
asserting that a fact cannot be disputed must support the
assertion by “citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials, or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). In judging
the evidence at the summary judgment stage, the court
“must draw all reasonable inferences in the light most
favorable to the nonmoving party.” Comite de
Jornaleros de Redondo Beach, 657 F.3d at 942. The court
must liberally construe Plaintiff's filings because he is
a pro se prisoner. Thomas, 611 F.3d at 1150.
summary judgment motion for failure to exhaust administrative
remedies, the defendants have the initial burden to prove
“that there was an available administrative remedy, and
that the prisoner did not exhaust that available
remedy.” Albino II, 747 F.3d at 1172. If the
defendants carry that burden, “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. The ultimate burden
of proof remains with defendants, however. Id.
“If material facts are disputed, summary judgment
should be denied, and the district judge rather than a jury
should determine the facts.” Id. at 1166.
Defendant Waddle's Motion
argues that there is no evidence, except Plaintiff's
vague allegations in the FAC, that Plaintiff filed any 602
appeals against Defendant. In support of this argument,
Defendant cites Plaintiff's FAC (ECF No. 16); the
declarations of defendant Waddle (Appendix, Exh. B, ECF No.
96-2 at 24-28), Appeals Coordinator D. Tarnoff (Id.,
Exh. C, ECF No. 96-2 at 29-32), Appeals Coordinator B.
Daveiga, (ECF No. 98-1 at 4-5 (Exh. A)), and M. Voong (Chief,
Office of Appeals) (Appendix, Exh. D, ECF No. 96-2 at 34-36);
and Plaintiff's deposition testimony (Appendix, Exh. A,
ECF No. 96-2 at 3-23).
FAC, Plaintiff alleges that he was obstructed from exhausting
his administrative remedies as to Defendant at the
institutional level, but that he repeatedly filed appeals
anyway, which were rejected by Appeals Coordinator B. Daveiga
to prevent exhaustion. (FAC at 4.) Defendant asserts that
Plaintiff never provided copies of the supposed rejections or
what they say, and that he fails to identify any dates when
he allegedly filed these appeals. Defendant provides evidence
that Plaintiff admitted in his deposition that he does not
recall if he ever filed a 602 against Defendant, and he does
not think that he ever had an appeal go to the third level
regarding Defendant. (Exh. A to Appendix, ECF No. 96-2,
Bryant Depo. at 74:19-25, 84:8-9.) Defendant also asserts
that there is no record at KVSP of Plaintiff submitting any
appeal against Defendant for retaliating against him and/or
trying to have him assaulted by other inmates, (Exh. C to
Appendix, ECF No. 96-2, Tarnoff Decl. ¶5), or having an
appeal decided by the Office of Appeals at the third level of
review relating to the allegation that Defendant tried to
have other inmates attack Plaintiff or that she retaliated
against him in any other way, (Exh. D to Appendix, ECF No.
96-2, Voong Decl. ¶9). Defendant argues that there is no
evidence that she (Waddle), the Appeals Coordinator, or
anyone else interfered with his ability to exhaust
Plaintiff's administrative remedies. Defendant provides
evidence that she never instructed former KVSP Appeals
Coordinator Daveiga or anyone else to screen out appeals
filed against her by Plaintiff or any other inmate. (Exh. A
to Appendix, ECF No. 96-2, Waddle Decl. ¶18.)
claims that he did submit 602 appeals against Defendant, but
that his appeals were improperly screened out, such that
Plaintiff could not pursue his administrative remedies.
Plaintiff submits as evidence his declaration and attached
exhibits (ECF No. 203) and inmate Cleave McCloud's
declaration of June 21, 2015. (See Exh. 6 to SSUF in
support of defendant Castellanos' MSJ, ECF No. 92-9.)
Plaintiff also requests the court to take judicial notice
pursuant to Fed.R.Evid. 201 of the docket and entries in case
1:11-cv-00466 BAM (USDC Eastern District of
argues that he satisfied his requirement to exhaust remedies
because he submitted several 602 appeals against Defendant
between August 18, 2011, and March 27, 2013, and these 602
appeals were repeatedly screened out for improper reasons or
never responded to. (Bryant Decl. ¶7 and documents
attached as Exhibit A thereto (ECF No. 203). Plaintiff
declares that Appeals Coordinator Daveiga wrongfully screened
the appeals out as duplicates or as “living
conditions” appeals, when the appeals were not
duplicates and addressed staff misconduct, not living
conditions. (Id.) Plaintiff declares that he
resubmitted the appeals with the appeal rejection letters he
received, with handwritten notes explaining why they were
wrongfully being screened out, and also mailed them to the
Director's Office requesting a response and protection
and in a further effort to exhaust administrative remedies.
(Id.) Plaintiff also asserts that Defendant told him
that she had a friend in the appeals office who would see to
it that none of his appeals would be processed or granted.
asserts that Defendant deceptively claims, in her motion for
summary judgment, that Plaintiff failed to file a 602 appeal
against her. Specifically, Plaintiff asserts that Defendant
took one page of Plaintiff's deposition out of context
and fails to provide the court with subsequent pages that
explain that Plaintiff stated he filed a 602 appeal against
Waddle and his appeals were improperly screened.
Q. Because in your first amended complaint, I don't see
anything about a specific date where you filed a written 602
against Lieutenant Waddle?
A. Let me see my statement. Well, yeah, they-I filed-said on
page 3 of the amended complaint that I submitted 602 appeals
and staff misconduct complaints-on page 3-and that they were
screened out by Ms. DeViega. And Ms. DeViega told
me-no-Waddle told me before that she has a friend in the
appeals office and that none of my appeals would ever be
granted at that prison.
(Bryant Depo. at 75: 8-18.)
set forth in his FAC:
I was deliberately obstructed from exhausting administrative
remedies at the institutional level on some of the matters
stated in this petition in bad faith by the prison officials
I named herein. But despite this I did repeatedly submit the
602 appeals anyway and appeals coordinator DaViega has
repeatedly rejected them to prevent exhaustion. And I also
filed claims on all this with the VCGCB which were denied.
(FAC, ECF No. 16 at 3.)
further testified during his deposition why his 602 appeal
against Defendant was screened out:
Q. And specifically what was-what was the reason why your
Complaint was screened out with regards to Lieutenant Waddle?
A. Because they were trying to cover up what she was doing.
She has a history of doing this.
(Bryant Depo. at 78: 6-10)
Q. But-so when you received the screened out appeal, what did
A. Screened out due to living-they classified it living
conditions. And I would have to get it to tell you exactly
what it says.
Q. So that's-specifically about your complaint against
Lieutenant Waddle was screened out because it said it's
about living conditions?
A. They tried to keep it from being categorized as a staff
misconduct complaint, because she was already being
investigated for other stuff that she was subsequently found
guilty of and disciplined for.
(Id. at 78:24 to 79:10).
Q. What did you do after it was screened out on the first
A. Wrote on there that they are screening it out illegally
and submitted it back to them and told them why they're
Q. And what happened after that?
A. They screened it out again. I think I have two
screened-out sheets on some of them.
Q. Okay. Well you- A. And I wrote-and I would write on those
that if you fail to process my appeal pursuant to state law
and pursuant to your rules and regulations, you waive all
defenses of failure to exhaust. And I documented that and I
served it on them again with proof of services.
(Id. at 79:17 to 80: 6).
also finds Defendant's claims deceptive that
“Bryant also admits that he does not think that he ever
had an appeal go to the third level regarding Lieutenant
Waddle, ” because Defendant has extracted one question
out of context that does not provide Plaintiff's complete
testimony. Plaintiff asserts that in his deposition, he
clarified that he believed he appealed the 602 to the third
level, although he was not required to do so as his 602
appeals were improperly screened out at the first level.
Q. So did you ever have an appeal go up to the third level
regarding Lieutenant Waddle?
A. I don't-I don't think so.
Q. Okay. So you never got a response back from the third
A. I think I mailed them a copy of the appeal with the
screened-out sheets and what I wrote, and I mailed it to them
and told them if you fail to provide me a response or process
my appeal, you hereby waive any defenses of failure to
exhaust, because you are not making any remedies available to
me administratively. So I wrote that on there and I mailed a
copy to them on several appeals because they refused to
Q. What dates did you write the third level?
A. I don't know. I would have to find the dates for you.
Q. Do you know approximate [sic] what dates?
A. No, I don't know approximate dates.
Q. And do you have copies of these letters?
A. I would hope so. If they're not missing from my
property. I'm still trying to get my property from
(Id. at 84: 8 to 85:4).
also asserts that he received letters from Appeals
Coordinator Daviega, screening out the 602 appeals he filed
against Defendant. Plaintiff submits three CDC-695 forms,
which serve as first level screening for 602 appeals. (Bryant
Decl., ECF No. 203-2 at ¶7 and Exh. A at 12-14.) These
forms are dated September 12, 2011, November 22, 2011, and
December 27, 2011. (Id.) The September 12, 2011,
form 695 refers to another 602 appeal filed by Bryant on
September 2, 2011. (Id.) The November 22, 2011, form
695 claims that the 602 appeal that it addresses was a
duplicate of a 602 appeal filed on November 17, 2011.
(Id.) Plaintiff asserts that the 602 appeal to which
the September 12, 2011 form 695 related was resubmitted for
improperly being screened as a cover-up for Waddle, and the
602 appeals to which the November 22, 2011, and December 27,
2011, 695 forms were resubmitted because they were improperly
screened out as “living conditions, ” while in
reality, these 602 appeals had to do with safety and security
and involved the allegations regarding Defendant's
retaliation against Plaintiff for exercising his First
Amendment rights. (Id.) The November 15, 2011, 602
appeal stated, in part:
“I make this life or death emergency request to the
institution head of KVSP due to an imminent threat of serious
injury from retaliation by staff. Nobody will tell the Warden
the Real truth about what happened to me and how I was
severely injured. Because of this I was assaulted by staff
again on 11/9/11. B-1 Ad-seg officer hit me in the mouth
busting my lip.”
(Bryant Decl., ECF No. 203-2 at 15-16 (Exh. A).
also filed other appeals against Defendant after the FAC was
filed, including one dated January 16, 2013, and another
dated March 27, 2013. (Id. ¶17 and Exhibit A at
1-4.) Plaintiff alleges that neither of the appeals was
responded to. (Id.).
Defendant Waddle's Reply
asserts that Plaintiff does not dispute that he never had an
appeal regarding his retaliation claims against her decided
at the third level. In reply to Plaintiff's argument that
he filed several appeals which were improperly screened,
Defendant argues that the appeals produced by Plaintiff in
his opposition are insufficient to show that administrative
remedies were not available to him. Defendant discusses
Plaintiff's appeals dated January 16, 2013, March 27,
2013, November 9, 2011, and November 15, 2011. The court
shall address these appeals and Defendant's arguments in
the discussion that follows.
is no dispute that KVSP has a process available for prisoners
to file grievances against prison staff. In her motion to
dismiss, Defendant provides sufficient evidence that there is
no record at KVSP that Plaintiff submitted any appeal during
the relevant time, accepted or screened out, against
Defendant for retaliating against him and/or trying to have
Plaintiff assaulted by other inmates. (Tarnoff Decl., ECF No.
96-2 at 32-33 ¶¶7, 8.) Defendant also cites
Plaintiff's deposition testimony in which Plaintiff
states that he does not recall if he ever filed a 602 appeal
against Defendant, and he does not think that he ever had an
appeal go to the third level regarding Defendant. (ECF No.
96-2, Exh. A to Appendix, Bryant Depo. at 74:19-25, 84:8-9.)
The court finds that Defendant has carried her initial burden
to prove that there was an available administrative remedy
and that Plaintiff did not exhaust that available remedy.
Therefore, the burden shifts to 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
does not dispute the fact that he never successfully
completed a form 602 appeal against Defendant through all
three levels of review. However, Plaintiff declares that he
submitted appeals against Defendant that were either
improperly screened out or not responded to. Plaintiff
provides copies of letters and 602 appeals he submitted and
responses that he received in Exhibit A to his declaration.
(ECF No. 203-2, Exh A.) Plaintiff states that he could not
find copies of two of the appeals. (Bryant Decl., ECF No.
203-2 ¶7.) Plaintiff declares that the documents found
in Exhibit A are “true and correct copies of some of
the 602 appeals he submitted and the rejection letters
described herein.” (Id.)
provides copies of letters dated August 2, 2011, August 3,
2011, August 9, 2011, September 28, 2011, March 7, 2012,
March 19, 2012, June 3, 2012, and October 6, 2012,
handwritten by Plaintiff to various places, including the
Appeals Coordinator, Internal Affairs, and the Prison Law
Office. (ECF No. 203-2, Exh. D.) Plaintiff also provides
copies of responses he received, some which clearly informed
him that “[i]t is important to note that the filing of
a letter does not meet the criteria of the Prison Litigation
Reform Act for exhaustion administrative remedies, ”
and informing him of his right to file a 602 appeal.
(Id., Exh D at 37, 43, 49.) There is evidence that
Plaintiff sent some of the letters after he filed this
lawsuit. (Id. at 49, 50, 51, 52, 53.) Nonetheless,
none of these letters or replies are evidence of exhaustion
of Plaintiff's administrative remedies at KVSP. See
Woodford, 548 U.S. at 91, 93 (exhaustion under the PLRA
requires “compliance with an agency's deadlines and
other critical procedural rules”); Wilson v.
Wann, 2008 WL 4166886, *2 (E.D.Cal. Sept.8, 2008)
(letters to Internal Affairs and warden were insufficient to
show exhaustion); see also Lees v. Felker, 2009 WL
2824862, *5 (E.D.Cal. Sept.1, 2009) (letter to warden is not
an alternative method to the inmate grievance process for
exhausting administrative remedies).
16, 2013, and March 27, 2013, Appeals
Plaintiff's appeals are dated January 16, 2013, and March
27, 2013. (ECF No. 203-2 at 8-10.) Defendant argues that
these two appeals are dated two years after Plaintiff claims
that Defendant allegedly threatened him, and the current
appeals coordinator at KVSP has verified that there is no
record that these appeals were ever submitted, accepted, or
screened out by the appeals office. (Gonzales Decl., ECF No.
206-3 at 3 ¶4.) The court finds that these two appeals
provide no evidence that Plaintiff still had administrative
remedies available when he filed suit, because they are dated
after December 26, 2012, the date he filed this lawsuit.
Prisoners are required to exhaust the available
administrative remedies prior to filing suit.
Jones, 549 U.S. at 211 (emphasis added).
9, 2011, Appeal ...