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Miramontes v. Gower

United States District Court, E.D. California

July 18, 2017

PEDRO MIRAMONTES, Plaintiff,
v.
L GOWER, et al., Defendants.

          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, and during a meeting concerning an inmate grievance filed by plaintiff regarding access to his prison records, defendant Herrera threatened plaintiff with a transfer to a more restrictive prison in retaliation for plaintiff's use of the inmate grievance process.

         On May 20, 2016, defendant filed a motion for summary judgment arguing that plaintiff's claim arising under the First Amendment should be dismissed for failure to exhaust administrative remedies with respect to that claim. The motion was denied on August 31, 2016 as the court found there was at least a genuine issue of material fact as to whether a threat of retaliatory action by defendant Herrera rendered the grievance system unavailable at CCC so as to excuse plaintiff's failure to exhaust administrative remedies.

         In the court's ruling, the court informed defendant that under Albino v. Baca, 747 F.3d 1162, 1170-71 (9th Cir. 2014), the court is permitted to resolve material issues of fact as they pertain to exhaustion of administrative remedies and if defendant wished that the court do so, defendant should request an evidentiary hearing. Defendant did request an evidentiary hearing, and the hearing was held on January 9, 2017.

         I. Analysis

         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 alleges in his complaint that defendant told plaintiff during a meeting on January 6, 2014 that 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.”

         At the evidentiary hearing, plaintiff reiterated his allegations and the following matters of note were presented:

         1. Plaintiff reiterated that he never filed a prisoner grievance while at CCC concerning the allegedly retaliatory acts of defendant because plaintiff feared further retaliation from defendant. RT at 8.

         2. Plaintiff admitted there are no documents confirming that he had a meeting with defendant on January 6, 2014. RT 11.

         3. CCC Appeals Coordinator Michael Riley testified when a member of “custody staff, ” such as defendant, is named in a grievance, that person is not involved in reviewing or processing the grievance in order to maintain the “validity” of the process. RT 19-20.

         4. Plaintiff did not submit any grievances at CCC after January 6, 2014 (RT 22). Plaintiff was transferred to the California Rehabilitation ...


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