United States District Court, E.D. California
ROBERT O. SOLIS, Plaintiff,
R. GONZALES, Defendant.
FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S RETALIATION
CLAIM FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DOC.
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
Gonzales moves for summary judgment on Plaintiff's
retaliation claim on the grounds that Plaintiff failed to
exhaust administrative remedies prior to filing suit. (Doc.
28.) Plaintiff filed a statement of non-opposition to
Defendant's motion on November 27, 2019. (Doc. 34.) For
the reasons set forth below, the Court
RECOMMENDS that Defendant's motion be
GRANTED and that Plaintiff's retaliation
claim be DISMISSED.
judgment is appropriate when the moving party “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). The moving party “initially bears
the burden of proving the absence of a genuine issue of
material fact.” In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The moving party may accomplish this by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations …,
admissions, interrogatory answers, or other materials,
” or by showing that such materials “do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). When
the non-moving party bears the burden of proof at trial,
“the moving party need only prove that there is an
absence of evidence to support the non-moving party's
case.” Oracle Corp., 627 F.3d at 387 (citing
Celotex, 477 U.S. at 325); see also Fed. R.
Civ. P. 56(c)(1)(B).
judgment should be entered against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial. See Celotex,
477 U.S. at 322. “[A] complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23. In such a circumstance, summary
judgment should be granted, “so long as whatever is
before the district court demonstrates that the standard for
the entry of summary judgment … is satisfied.”
Id. at 323.
Exhaustion of Administrative Remedies
Prison Litigation Reform Act of 1995 provides that
“[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). Exhaustion of administrative remedies is
mandatory and “unexhausted claims cannot be brought in
court.” Jones v. Bock, 549 U.S. 199, 211.
Inmates are required to “complete the administrative
review process in accordance with the applicable procedural
rules, including deadlines, as a precondition to bringing
suit in federal court.” Woodford v. Ngo, 548
U.S. 81, 88, 93 (2006). The exhaustion requirement applies to
all inmate suits relating to prison life, Porter v.
Nussle, 534 U.S. 516, 532 (2002), regardless of the
relief sought by the prisoner or offered by the
administrative process, Booth v. Churner, 532 U.S.
731, 741 (2001).
failure to exhaust administrative remedies is an affirmative
defense, which the defendant must plead and prove.
Jones, 549 U.S. at 204, 216. The defendant bears the
burden of producing evidence that proves a failure to
exhaust; and, summary judgment is appropriate only if the
undisputed evidence, viewed in the light most favorable to
the plaintiff, shows the plaintiff failed to exhaust.
Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014).
On a motion for summary judgment, the defendant must prove
(1) the existence of an available administrative remedy and
(2) that Plaintiff failed to exhaust that remedy.
Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir.
2015) (citations omitted). If the defendant meets this
burden, “the burden shifts to the plaintiff, who must
show that there is something particular in his case that made
the existing and generally available administrative remedies
effectively unavailable to him….” Id.
If the plaintiff fails to meet this burden, the court should
dismiss the unexhausted claims or action without prejudice.
See Lira v. Herrera, 427 F.3d 1164, 1175 (9th Cir.
Solis is housed at Valley State Prison in Chowchilla,
California. (See Doc. 1 at 1.) Plaintiff alleges
that, on April 4, 2017, Defendant-Correctional Officer
Gonzales violated his right to freely exercise his religion
under the First Amendment and the Religious Land Use and
Institutionalized Persons Act (RLUIPA) when she confiscated
his rosette, a “Native Spiritual Artifact, ”
which the California Department of Corrections and
Rehabilitation (CDCR) operations manual allows Plaintiff to
possess. (Doc. 1 at 7-8, 13-14; see also Doc. 16 at
1.) Plaintiff further alleges that, on July 19, 2017,
Defendant retaliated against him in violation of the First
Amendment when she threw his dreamcatcher on the floor and
threatened him after he filed a grievance against her. (Doc.
1 at 9-10, 15; see also Doc. 16 at 1.)
CDCR Grievance Process
CDCR has an administrative grievance system for prisoners to
appeal a policy, decision, action, condition, or omission by
the department or staff if it has an adverse effect on
prisoner health, safety, or welfare. Cal. Code Regs., tit.
15, § 3084.1(a). Compliance with 42 U.S.C. section
1997e(a) requires California state prisoners to use
CDCR's grievance process to exhaust their claims before
filing suit in court. See Sapp v. Kimbrell, 623 F.3d
813, 818 (9th Cir. 2010); see also Woodford, 548
U.S. at 85-86. All administrative appeals are ...