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Arellano v. Olson

United States District Court, S.D. California

September 23, 2019

RAUL ARELLANO, Plaintiff,
v.
R. OLSON, Defendant.

         ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION (DOC. NO. 68); (2) OVERRULING PLAINTIFF'S OBJECTIONS (DOC. NO. 80); (3) DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME AS MOOT (DOC. NO. 79); (4) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 57); AND (5) DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT, WITHOUT PREJUDICE (DOC. NO. 17.)

          Hon. Anthony J. Battaglia, United States District Judge

         On June 12, 2019, Magistrate Judge Linda Lopez issued a Report and Recommendation (the "R&R") on Defendant R. Olson's ("Defendant") motion for summary judgment. (Doc. Nos. 57, 68.) On August 12, 2019, Plaintiff Raul Arellano ("Plaintiff) filed a motion for extension of time to object to the R&R. (Doc. No. 79). On August 26, 2019, before the Court ruled on the motion for extension of time, Plaintiff filed his objections to the R&R. (Doc. No. 80.) For the reasons set forth below, the Court ADOPTS the R&R in its entirety, (Doc. No. 68), GRANTS Defendant's motion for summary judgment, (Doc. No. 57), DISMISSES Plaintiffs Second Amended Complaint ("SAC") WITHOUT PREJUDICE, (Doc. No. 17), OVERRULES Plaintiffs objections, (Doc. No. 80), and DENIES Plaintiffs motion for extension of time as moot.

         BACKGROUND

         This instant action arises out of events occurring at the Richard J. Donovan Correctional Facility ("RJD"). Plaintiff alleges that in January, February, and March of 2014, Plaintiffs family deposited a total of $160.00 into Plaintiffs inmate trust account. (Doc. No. 17 at 6.) Following these deposits, copy charges were subsequently deducted from Plaintiffs account each month. (Id.) Plaintiff filed two grievances regarding the January, February, and March 2014 copy charges debited from his account, claiming that the deductions were improper because the charges had been made when Plaintiff was indigent. (Doc. No. 68 at 3.) Defendant, an appeals coordinator at RJD, rejected both of Plaintiffs grievances on the ground that Plaintiffs appeal did not comply with the procedures for filing appeals. (Id. at 3-4.) Specifically, Plaintiffs appeal was rejected because the grievance involved multiple issues that did not derive from a single event. (Id.) Defendant eventually canceled Plaintiffs two grievances for failure to delete the allegations which took place more than 30 days before the date the appeal was submitted. (Id. at 4.)

         Plaintiff then submitted a third grievance, protesting the cancellation of his first and second grievances. (Id.) On first level review of Plaintiffs third grievance, Defendant rejected the third grievance once again on the ground that the appeal contained multiple issues. (Id. at 5.) Plaintiffs third grievance was also rejected on second level review on the basis that Plaintiff failed to properly separate the issues in his appeal. (Id.)

         On June 19, 2014, Defendant interviewed Plaintiff about Plaintiffs third grievance. (Id.) During the interview, Plaintiff explained to Defendant that: (1) he did not make any copies on the days he had been charged the copy charges; (2) even if he had made the copies, he should not have been charged for these copies because he was indigent at the time; and (3) all of the events were directly related and could be addressed in a single grievance requiring a single response. (Doc. No. 17 at 12.) Plaintiff alleges Defendant responded that: (1) Defendant still needed to deny the request because it would "look bad to reverse course"; (2) Plaintiff would never win the appeal because Defendant framed the facts in his "best interests"; (3) Defendant told Plaintiff that "an inmate [] don't got nothing coming"; and (4) Defendant told Plaintiff that "Plaintiff had filed too many grievances making Defendant work too much." (Id. at 12-13.) Plaintiff maintains that this conversation with Defendant demonstrated a retaliatory motive and explained why his copy charge grievances were rejected. (Doc. No. 68 at 5.) Plaintiffs third grievance was elevated to a third level review, and was also subsequently rejected. (Id.)

         As a result of these events, Plaintiff filed his Complaint on October 13, 2015 alleging claims under 42 U.S.C. § 1983. (Doc. No. 1.) On February 3, 2016, Plaintiff was granted leave to proceed in forma pauperis, and Plaintiffs Complaint was dismissed sua sponte for failure to state a claim. (Doc. No. 4.) On March 21, 2016, Plaintiff filed his First Amended Complaint. (Doc. No. 9.) Then, on May 2, 2016, the Court dismissed Plaintiffs First Amended Complaint for failure to state a claim. (Doc. No. 10.) On July 22, 2016, Plaintiff filed a Second Amended Complaint (Doc. No. 17), which was dismissed by the Court on August 22, 2016. (Doc. No. 18.) Plaintiff appealed the Court's dismissal of his Second Amended Complaint to the United States Court of Appeals for the Ninth Circuit. (Doc. No. 24.) The Ninth Circuit affirmed the Court's order with the exception of Plaintiffs retaliation claim. (Doc. No. 37.)

         Subsequently, on January 24, 2019, Defendant filed a motion for summary judgment on Plaintiffs remaining retaliation claim. (Doc. No. 57.) Plaintiff opposed the motion on March 21, 2019, and Defendant replied. (Doc. Nos. 61, 63.) On June 12, 2019, Magistrate Judge Linda Lopez issued the R&R. (Doc. No. 68.) The R&R required objections to be filed on or before July 12, 2019, and any reply to the objections be filed on or before July 26, 2019. (Id. at 13.) On June 24, 2019, Plaintiff requested an extension of time to file his objections to the R&R, (Doc. No. 69), which was granted, (Doc. No. 70). On August 12, 2019, Plaintiff moved the Court again for an extension of time to file his objections. (Doc. No. 79.) Before the Court ruled on Plaintiffs second motion for extension of time, Plaintiff filed his objections on August 26, 2019. (Doc. No. 80.) Defendant replied to Plaintiffs objections on September 6, 2019. (Doc. No. 81.)

         LEGAL STANDARD

         Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district judge's duties in connection with a magistrate judge's report and recommendation. The district judge must "make a de novo determination of those portions of the report ... to which objection is made[, ]" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely objection(s), the court "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b) advisory committee's note to 1983 amendment; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

         DISCUSSION

         The R&R recommends that the Court grant Defendant's motion for summary judgment, and dismiss Plaintiffs Second Amended Complaint, without prejudice. (Doc. No. 68.) The R&R finds that Plaintiff did not exhaust his administrative remedies before asserting his retaliation claim. (Id. at 8.) First, the R&R states "the record shows Plaintiff did not exhaust his retaliation claim against Defendant before filing suit. While Plaintiff filed numerous grievances regarding the disputed debits to his prisoner trust account, none of these grievances contain allegations Defendant retaliated against him." (Id. at 8.) Second, the R&R also finds that Plaintiffs failure to exhaust his administrative remedies should not be excused and that "Plaintiff has not provided any admissible evidence demonstrating his failure to exhaust should be excused." (Id. at 9.) Specifically, the R&R points out that Plaintiffs contention that he was threatened to not file a grievance for retaliation is solely in the form of an unsworn statement made in his opposition to the motion for summary judgment. (Id. at 9.) The R&R states that even if the Court considered the unsworn statements, the record shows that the "multiple occasions in which Plaintiff made use of the grievance process undermines any rational conclusion that Plaintiff was deterred from properly submitting and pursuing a specific grievance" (Id. at 11.)

         Plaintiff objects to the R&R asserting that: (1) the Magistrate Judge should have considered the unsworn declaration; (2) the Magistrate Judge made a factual error, and Plaintiff did not file grievances relating to retaliation; and (3) the Magistrate Judge "misunderstood" Plaintiff, and Plaintiff should be excused from his obligation to exhaust his administrative remedies because he was misled into thinking that his retaliation grievance was going to be heard concurrently ...


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