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Lee v. Fuga

United States District Court, S.D. California

August 28, 2019

PERRIS LEE, Plaintiff,
v.
L. FUGA, et al., Defendants.

          REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]

          HON. MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is submitted to United States District Judge Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California.

         For the reasons set forth herein, the Court RECOMMENDS Defendant K. Rodriguez's Motion for Summary Judgment be GRANTED.

         I. PROCEDURAL HISTORY

         Perris Lee (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in a civil complaint filed pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 3). On January 16, 2019, Plaintiff filed a Complaint against nine correctional officers and one prison psychiatrist generally claiming they violated his civil rights by using excessive force and failing to protect him during an emergency cell extraction. (ECF No. 1 at 1-4).[1]

         On June 17, 2019, Defendant K. Rodriguez, a prison psychiatrist, filed this Motion for Summary Judgment. (ECF No. 15). Defendant argues she is entitled to summary judgment because Plaintiff failed to file any grievance against her and therefore is barred from filing this suit because he did not exhaust his available administrative remedies. (Id.).

         On June 18, 2019, the Court issued a Klingele/Rand Notice advising Plaintiff of Defendant's Motion for Summary Judgment. (ECF No. 17). The notice explained the consequences of failing to oppose the motion. On July 8, 2019, Plaintiff filed his “Response in Opposition re Motion for Summary Judgment.” (ECF No. 20). Upon review of Plaintiff's submission, the Court determined the filing did not address the summary judgment motion, but instead addressed the Answer filed by all Defendants. (See ECF Nos. 16, 20).

         In light of the consequences of failing to oppose summary judgment, the Court provided Plaintiff with a second notice further explaining that Defendant filed a motion for summary judgment for failure to exhaust administrative remedies. (ECF No. 21). The Court granted Plaintiff additional time to oppose. Plaintiff's opposition was due on August 2, 2019.

         (Id.). On August 1, 2019, Plaintiff filed a motion to appoint counsel which the Court denied on August 2, 2019. (ECF Nos. 23, 24). As of the date of this Report and Recommendation, Plaintiff has not filed an opposition to the summary judgment motion.

         II. STATEMENT OF FACTS

         The following facts relate to the claims against Defendant K. Rodriguez only and are taken from Plaintiff's Complaint. They are not to be construed as findings of fact by the Court.

         In September 2017, Plaintiff was an inmate incarcerated at R.J. Donovan Correctional Facility. (ECF No. 1 at 1). At approximately 11:30 PM on September 18, 2017, Defendant Correctional Officer Fuga arrived at Plaintiff's cell and allegedly told him, “I don't like snitches, watch later.” (Id. at 5). Four hours later, Defendant Sgt. Kohler informed Plaintiff he was going to be transferred or he'll “beat [his] bitch ass.” (Id.). Plaintiff then informed Defendant Kohler he was scheduled for Institutional Classification Committee. (Id.). Kohler told Plaintiff, “no your [sic] not going.” (Id.). Kohler left and later returned to Plaintiff's cell with Lt. Rojas who told Plaintiff if he did not “cuff up” they were going to “demolish [him.]” (Id.).

         Plaintiff alleges Defendant K. Rodriguez, a prison psychologist, arrived at his cell at some point and told him to “stop bitching.” (Id. at 7). After Plaintiff informed her he would be filing a grievance against her, she allegedly lied to the custody officers saying Plaintiff had a razor and cut his arm. (Id.). Defendant Rodriguez then allegedly told Plaintiff “good luck when they kill you.” (Id. at 5). Plaintiff claims that Defendant Rodriguez's lie led to his emergency extraction involving officers Ramirez, E. Rodriguez, D. Madera, J. Juarez, R. Calvert, R. Escamilla, M. Patricio, L. Fuga, J. Sierra, Reed, and E. Ortegama. (Id.). Plaintiff alleges Defendant Fuga battered him during the extraction, leaving him with a black eye and other injuries. (Id.).

         III. LEGAL STANDARD

         A. Legal Standard ...


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