United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [ECF No.
Enrique Huapaya is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion for summary
judgment, filed June 27, 2019.
action is proceeding against Defendants K. Witt, Satterfield,
Pauk, and Ratcliff for separate acts of retaliation and
violation of the California Bane Act and against Defendants
Piscotta and Witt for violation of the Equal Protection
filed an answer to the complaint on December 5, 2018.
an unsuccessful settlement conference on February 12, 2019,
the Court issued the discovery and scheduling order on
February 13, 2019.
previously stated, on June 27, 2019, Defendants filed a
motion for summary judgment.
filed an opposition on August 5, 2019, and Defendants filed a
reply on August 9, 2019. Therefore, Defendants' motion is
deemed submitted for review without oral argument. Local Rule
Statutory Exhaustion Requirement
Prison Litigation Reform Act (PLRA) of 1995, requires that
prisoners exhaust “such administrative remedies as are
available” before commencing a suit challenging prison
conditions.” 42 U.S.C. § 1997e(a); see Ross v.
Blake, __ U.S.__ 136 S.Ct. 1850 (June 6, 2016)
(“An inmate need exhaust only such administrative
remedies that are ‘available.'”). Exhaustion
is mandatory unless unavailable. “The obligation to
exhaust ‘available' remedies persists as long as
some remedy remains ‘available.' Once that
is no longer the case, then there are no ‘remedies
… available,' and the prisoner need not further
pursue the grievance.” Brown v. Valoff, 422
F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing
Booth v. Churner, 532 U.S. 731, 739 (2001)).
statutory exhaustion requirement applies to all inmate suits
about prison life, Porter v. Nussle, 534 U.S. 516,
532 (2002) (quotation marks omitted), regardless of the
relief sought by the prisoner or the relief offered by the
process, Booth v. Churner, 532 U.S. 731, 741 (2001),
and unexhausted claims may not be brought to court, Jones
v. Bock, 549 U.S. 199, 211 (2007) (citing
Porter, 534 U.S. at 524).
failure to exhaust is an affirmative defense, and the
defendants bear the burden of raising and proving the absence
of exhaustion. Jones, 549 U.S. at 216; Albino v.
Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the
rare event that a failure to exhaust is clear from the face
of the complaint, a defendant may move for dismissal under
Rule 12(b)(6).” Albino, 747 F.3d at 1166.
Otherwise, the defendants must produce evidence proving the
failure to exhaust, and they are entitled to summary judgment
under Rule 56 only if the undisputed evidence, viewed in the
light most favorable to the plaintiff, shows he failed to
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); Albino, 747 F.3d at 1166;
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, although
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).
defendants bear the burden of proof in moving for summary
judgment for failure to exhaust, Albino, 747 F.3d at
1166, and they must “prove that there was an available
administrative remedy, and that the prisoner did not exhaust
that available remedy, ” id. at 1172. If the
defendants carry their burden, the burden of production
shifts to the 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.” Id.
“If the undisputed evidence viewed in the light most
favorable to the prisoner shows a failure to exhaust, a
defendant is entitled to summary judgment under Rule
56.” Id. at 1166. However, “[i]f
material facts are disputed, summary judgment should be
denied, and the district judge rather than a jury should
determine the facts.” Id.
Description of CDCR's Administrative Remedy
is a state prisoner in the custody of the California
Department of Corrections and Rehabilitation
(“CDCR”), and CDCR has an administrative remedy
process for inmate grievances. Cal. Code Regs. tit. 15,
§ 3084.1 (2014). Compliance with section 1997e(a) is
mandatory and state prisoners are required to exhaust
CDCR's administrative remedy process prior to filing suit
in federal court. Woodford v. Ngo, 548 U.S. 81,
85-86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818
(9th Cir. 2010). CDCR's administrative grievance process
for non-medical appeals consists of three levels of review:
(1) first level formal written appeals; (2) second level
appeal to the Warden or designees; and (3) third level appeal
to the Office of Appeals (OOA). Inmates are required to
submit appeals on a standardized form (CDCR Form 602), attach
necessary supporting documentation, and submit the appeal
within thirty days of the disputed event. Cal. Code Regs.
tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b). The
California Code of Regulations also requires the following:
The inmate or parolee shall list all staff member(s) involved
and shall describe their involvement in the issue. To assist
in the identification of staff members, the inmate or parolee
shall include the staff member's last name, first
initial, title or position, if known, and the dates of the
staff member's involvement in the issue under appeal. If
the inmate or parolee does not have the requested identifying
information about the staff member(s), he or she shall
provide any other available information that would assist the
appeals coordinator in making a reasonable attempt to
identify the staff member(s) in question.
Cal. Code Regs. tit. 15, § 3084.2(a)(3).
Allegations of Complaint
January 8, 2016, Defendant Pisciotta denied Plaintiff from
attending Jumah services, despite the fact that Plaintiff had
a proper assignment ducat to attend the religious services.
Plaintiff is a White male and is Muslim. Jumah services are
Muslim services and those services are usually comprised of
all African American inmates. Plaintiff believes that
Pisciotta denied him access to the Jumah services because of
Plaintiff's race. Pisciotta became verbally aggressive
when Plaintiff communicated the Department Operational
Procedure relevant to religious services. Based on Defendant
Pisciotta's statement and demeanor Plaintiff believed he
intended to physically harm him. Pisciotta stated in a loud
threatening voice, “I don't give a (expletive) what
the DOM says, you're not coming in these gates!”
“Besides you're WHITE anyway so how are you even
Muslim?” Plaintiff views the act of Pisciotta as an
equal protection violation.
January 29, 2016, Plaintiff was again attempting to gain
access to Jumah services but he was ordered to stop by
Defendant Witt for physical inspection. Witt inspected
Plaintiff and stated, “Pull up your pants you're
not Black!” Plaintiff complied with the order but felt
humiliated. Defendant Witt then stated, “Wow cool teeth
too, confused?” “You're not Black dude
… sagging with gold teeth and you think you're
Muslim! You're not Black! You're White due!”
Plaintiff ignored Witt's comments and attempted to enter
the gate to go to Jumah services, but Witt stated,
“Where are [you] going?” Plaintiff responded
“to Jumah services.” Witt stated, “not
without boots White boy!” Plaintiff quoted the DOM and
informed Defendant Witt of the procedural standards and the
pending grievance he filed regarding Defendant Pisciotta.
Defendant Witt stated, “I don't give a (expletive)