United States District Court, S.D. California
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [ECF NO. 15]
MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE
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
reasons set forth herein, the Court
RECOMMENDS Defendant K. Rodriguez's
Motion for Summary Judgment be GRANTED.
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
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.
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).
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.
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
STATEMENT OF FACTS
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
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.).
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.
Legal Standard ...