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Bryant v. Romero

United States District Court, E.D. California

July 17, 2017

KEVIN DARNELL BRYANT, Plaintiff,
v.
R. ROMERO, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT WADDLE'S MOTION FOR SUMMARY JUDGMENT BE DENIED (ECF NO. 96.)

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Kevin 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 No.16.)

         On 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.[1] (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.

         II. SUMMARY JUDGMENT STANDARD

         Any 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).

         Defendant 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)).

         However, 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).

         III. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT (FAC) [2]

         Plaintiff 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 incarcerated there.

         Plaintiff 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.

         Plaintiff 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 against.

         Plaintiff 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.

         On June 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.

         On June 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 onto.

         In July 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 Plaintiff.

         On July 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.

         On July 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.)

         On July 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.)

         Plaintiff 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.

         Defendant 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.

         On or 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.

         Before 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.

         On 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.

         Plaintiff 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 Castellanos wanted.

         All the 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.

         Based on these allegations, Plaintiff claims violations of the First Amendment.

         IV. SUMMARY JUDGMENT BASED ON EXHAUSTION

         A. Legal Standards

         1. Statutory Exhaustion Requirement

         Section 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).

         “[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, 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. Id.

         Moreover, 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).

         A 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).

         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. 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 appeals.” Id.

         In 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).

         Nonetheless, 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)) .

         2. California Department of Corrections and Rehabilitation (CDCR) Administrative Grievance System

         The 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).

         California 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[3] 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.

         3. Motion for Summary Judgment for Failure to Exhaust

         The 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)[4]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.

         Summary 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.

         In a 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.

         B. Defendant Waddle's Motion

         Defendant 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).[5]

         In the 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.)

         C. Plaintiff's Opposition

         Plaintiff 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 California).[6]

         Plaintiff 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. (Id. ¶3.)

         Plaintiff 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.)

         Plaintiff 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.)

         Plaintiff 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 it say?
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 level?
A. Wrote on there that they are screening it out illegally and submitted it back to them and told them why they're wrong.
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).

         Plaintiff 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 level?
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 process them.
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 Corcoran.

(Id. at 84: 8 to 85:4).

         Plaintiff 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).

         Plaintiff 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.).

         D. Defendant Waddle's Reply

         Defendant 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.

         E. Discussion

         There 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 him.

         Plaintiff 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.)

         Letters

         Plaintiff 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).

         January 16, 2013, and March 27, 2013, Appeals

         Two of 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).

         November 9, 2011, Appeal ...


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