(PC) Ardds v. Hicks ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE L. ARDDS, Case No. 1:18-cv-01324-JLT-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION 13 v. FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST 14 HICKS, et al., ADMINISTRATIVE REMEDIES 15 Defendants. (ECF No. 69) 16 FOURTEEN (14) DAY DEADLINE 17 18 FINDINGS AND RECOMMENDATIONS 19 I. Background 20 Plaintiff Antoine L. Ardds (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 22 Plaintiff’s second amended complaint against: (1) Defendants Hicks, Alcantar, McIntyre, Baylon, 23 and Sanchez for retaliation in violation of the First Amendment arising out of the alleged 24 November 9, 2017 assault; (2) Defendants Hicks, Amaya, Alcantar, McIntyre, Baylon, Sanchez, 25 and Severns1 for retaliation in violation of the First Amendment arising out of their alleged 26 attempt to improperly assign Plaintiff outside of his designated EOP mental health level of care 27 unit and place him in an occupied cell after a direction that he receive a single cell placement; and 28 1 Erroneously sued as “Severens.” 1 (3) Defendants Hicks, Amaya, Alcantar, McIntyre, Baylon, and Sanchez for failure to protect 2 Plaintiff from an alleged assault by Inmate Hall on November 9, 2017, in violation of the Eighth 3 Amendment. 4 On June 25, 2021, Defendants filed a motion for summary judgment on the ground that 5 Plaintiff failed to properly exhaust administrative remedies related to the claims asserted in this 6 action as required by the Prisoner Litigation Reform Act.2 Fed. R. Civ. P. 56(c), Albino v. Baca, 7 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 574 U.S. 968 (2014). (ECF No. 69.) 8 Following the Court’s order to show cause, Plaintiff filed an opposition on August 9, 2021. (ECF 9 Nos. 71, 72.) Defendants filed their reply on August 16, 2021. (ECF No. 73.) 10 The motion for summary judgment is deemed submitted. Local Rule 230(l). 11 II. Legal Standards 12 A. Statutory Exhaustion Requirement 13 Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action 14 shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal 15 law, by a prisoner confined in any jail, prison, or other correctional facility until such 16 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is 17 required regardless of the relief sought by the prisoner and regardless of the relief offered by the 18 process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to 19 all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002). 20 The failure to exhaust is an affirmative defense, and the defendants bear the burden of 21 raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino, 22 747 F.3d at 1166. “In the rare event that a failure to exhaust is clear on the face of the complaint, 23 a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, 24 the defendants must produce evidence proving the failure to exhaust, and they are entitled to 25 summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most 26 favorable to the plaintiff, shows he failed to exhaust. Id. 27 2 Concurrent with this motion, Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th 28 Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 69-1.) 1 Defendants must first prove that there was an available administrative remedy and that 2 Plaintiff did not exhaust that available remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th 3 Cir. 2015) (citing Albino, 747 F.3d at 1172) (quotation marks omitted). The burden then shifts to 4 Plaintiff to show something in his particular case made the existing and generally available 5 administrative remedies effectively unavailable to him. Williams, 775 F.3d at 1191 (citing 6 Albino, 747 F.3d at 1172) (quotation marks omitted). The ultimate burden of proof on the issue 7 of exhaustion remains with Defendants. Id. (quotation marks omitted). 8 B. Summary Judgment Standard 9 Any party may move for summary judgment, and the Court shall grant summary judgment 10 if the movant shows that there is no genuine dispute as to any material fact and the movant is 11 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 12 747 F.3d at 1166; Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each 13 party’s position, whether it be that a fact is disputed or undisputed, must be supported by 14 (1) citing to particular parts of materials in the record, including but not limited to depositions, 15 documents, declarations, or discovery; or (2) showing that the materials cited do not establish the 16 presence or absence of a genuine dispute or that the opposing party cannot produce admissible 17 evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may 18 consider other materials in the record not cited to by the parties, although it is not required to do 19 so. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 20 2001); accord Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 21 The defendants bear the burden of proof in moving for summary judgment for failure to 22 exhaust, Albino, 747 F.3d at 1166, and they must “prove that there was an available 23 administrative remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172. 24 If the defendants carry their burden, the burden of production shifts to the plaintiff “to come 25 forward with evidence showing that there is something in his particular case that made the 26 existing and generally available administrative remedies effectively unavailable to him.” Id. “If 27 undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, 28 a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f 1 material facts are disputed, summary judgment should be denied, and the district judge rather than 2 a jury should determine the facts.” Id. 3 III. Discussion 4 A. Summary of CDCR’s Administrative Review Process 5 At the relevant time, “[t]he California prison grievance system ha[d] three levels of 6 review; an inmate exhausts administrative remedies by obtaining a decision at each level.” Reyes 7 v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (repealed 8 June 1, 2020) & Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). See also Cal. Code Regs. 9 tit. 15, § 3084.7(d)(3) (“The third level review constitutes the decision of the Secretary of the 10 California Department of Corrections and Rehabilitation on an appeal, and shall be conducted by 11 a designated representative under the supervision of the third level Appeals Chief or equivalent. 12 The third level of review exhausts administrative remedies….”) (repealed June 1, 2020). 13 Pursuant to this system, an inmate may appeal “any policy, decision, action, condition, or 14 omission by the department or its staff that the inmate . . . can demonstrate as having a material 15 adverse effect upon his . . . health, safety, or welfare.” Id. at § 3084.1(a). 16 The process was initiated by submitting a CDCR Form 602, Inmate/Parolee Appeal. Id. at 17 § 3084.2(a). In the appeal form, prisoners must list all staff members involved and describe their 18 involvement in the issue. Id. at § 3084.2(a)(3). If the inmate does not have the requested 19 identifying information about the staff member, he must provide any other available information 20 that would assist the appeals coordinator in making a reasonable attempt to identify the staff 21 member in question. Id. 22 B. Relevant Allegations in Second Amended Complaint 23 Plaintiff is currently housed at California State Prison, Los Angeles County, in Lancaster, 24 California. The events in the second amended complaint are alleged to have occurred while 25 Plaintiff was housed at California State Prison, Corcoran (“CSP-Corcoran”) in Corcoran, 26 California. Plaintiff brings this action for damages and injunctive relief against the following 27 defendants: (1) Correctional Counselor II D. Sanchez; (2) Officer D. Hicks; (3) Officer A. 28 Baylon; (4) Officer J. Alcantar; (5) Officer J. McIntyre; (6) Lieutenant J. Amaya; and 1 (7) Correctional Licensed Social Worker R. Severns. 2 In October 2017, Plaintiff was rehoused in CSP-Corcoran’s 3B-Facility. Plaintiff alleges 3 that he became a target of reprisals because of his participation in several staff complaints and in 4 litigation against officials of the California Department of Corrections and Rehabilitation 5 (“CDCR”). He was continuously scheduled for RVRs and appeal grievance interviews with prior 6 institutions. Plaintiff believes that e-mails and phone calls to Defendants Hicks, Sanchez, and 7 Amaya prompted them to flag Plaintiff as an inmate who likes to write up and sue staff. Plaintiff 8 also believes that this prompted their sudden harassment, intimidation, threats and use of other 9 persons as an instrument of attacks and assaults. Plaintiff contends that this led to the November 10 9, 2017 vicious assault by Plaintiff’s cellmate, who struck Plaintiff in the face, causing severe 11 injuries to his right eye, nose and lips after being hit from behind with a state cup. Plaintiff 12 further believes that this information prompted Defendants Hicks and Amaya to instigate other 13 inmates by starting rumors regarding Plaintiff’s commitment offence with the office porters. 14 Plaintiff asserts that these defendants were aware that such an act would more than likely incite 15 other prisoners to attack and assault Plaintiff, which occurred on November 9, when he was 16 attacked and assaulted by his cellmate. 17 On or about October 30, 2017, Defendants Hicks and Amaya informed Defendants 18 Alcantar and MycIntyre that Plaintiff liked to sue and write up officers and to check out his c-file. 19 This allegedly prompted Defendants Alcantar and MycIntyre to display Plaintiff’s confidential, 20 privileged information to the unit porters from the unit computer. Plaintiff claims this was done 21 to incite other prisoners to attack and assault Plaintiff because defendants intended to punish him 22 for his crime and silence his complaints against CDCR officials. 23 On October 31, 2017, Defendants Hicks and Amaya were designated for housing and cell 24 assignment on CSP-Corcoran’s 3B-Facility. Defendants were aware of the substantial risk of 25 harm posed to Plaintiff by assigning a prior assaultive inmate into his cell. Defendants Hicks and 26 Amaya informed Defendants Alcantar and MycIntyre that they were reassigning Inmate T. Hall 27 to Plaintiff’s cell even though they were aware of 15 unoccupied cells in 3B02. 28 /// 1 On October 31, 2017, Plaintiff was informed by Defendants Alcantar and MycIntyre to 2 expect a cellmate soon. Plaintiff informed Defendants Alcantar and MycIntyre that a cellmate 3 would pose a threat to Plaintiff’s safety, displaying his CDCR documents, appeals and court 4 documents of complaints against staged assaults. Defendants stated that Plaintiff could either 5 accept his cellmate or be written up and still forced to accept his cellmate. Plaintiff continued to 6 address the matter, but he was told to take it up with his cellmate when he arrived. 7 Defendant Baylon escorted Inmate Hall into Plaintiff’s cell. Defendant Baylon reportedly 8 instigated this inmate to assault Plaintiff by releasing Plaintiff’s confidential privileged 9 information to him during their walk over to the unit. 10 On November 2, 2017, Defendants Severens and Sanchez were informed by Plaintiff of 11 his fears of being set up by CSP-Corcoran-3B officials for being an active participant in several 12 civil actions against CDCR officials. Between October 2017 and November 9, 2017, Plaintiff 13 made several requests to each defendant for a single cell placement due to his history of CDCR 14 officials staging in cell assaults by cellmates. Defendant Sanchez acknowledged her awareness of 15 such a threat posed to Plaintiff in his U.C.C. hearing and in his CDCR 128(b) chrono dated 16 November 2, 2017. Despite this knowledge, Defendant Sanchez ignored the risk factors and 17 failed to intervene to safeguard Plaintiff. 18 Plaintiff claims that due to the deliberate indifference of Defendants Severens and 19 Sanchez, Plaintiff was assaulted by his cellmate, Inmate T. Hall, on November 9, 2017. Plaintiff 20 sustained severe facial injuries from being struck from behind with a plastic cup. Inmate Hall had 21 a previous, similar attack on another inmate using a plastic cup. 22 Plaintiff alleges that Defendants Sanchez, Severens, Hicks, Alcantar, MycIntyre, Amaya 23 and Baylon were aware of Inmate Hall’s previous similar assaults on cellmates with state cups. 24 Plaintiff asserts that Defendant Hicks and Amaya were in charge of inmate housing assignments 25 and intentionally placed Inmate Hall in Plaintiff’s cell in retaliation for maintaining litigation 26 against several CDCR officials and Plaintiff’s commitment offense. 27 Plaintiff alleges that on January 19, 2016, the CDCR Director and Secretary sent a 28 memorandum to all CDCR Wardens and Associate Directors addressing inmate housing 1 assignment considerations during the screening and housing process. On or about October 2017 2 through November 9, 2017, Plaintiff supplied each defendant with a copy of this memorandum to 3 reiterate their obligations to consider the vulnerabilities of inmates with mental and medical 4 health conditions or severe developmental disabilities when determining whether to grant single 5 cell status under the Departmental Operational Manual. 6 Plaintiff contends that he had demonstrated on several occasions through departmental 7 evidence that he fit each set of criteria in the January 19, 2016 memorandum. Plaintiff claims that 8 each of these factors was intentionally ignored by Defendants Hicks, Alcantar, Sanchez, 9 Severens, Amaya, Baylon and MycIntyre due to their feelings about his commitment offense and 10 his participation in civil suits and staff complaints against CDCR officials. Plaintiff further 11 alleges that defendants ignored the length of his sentence, his enemies and victimization history, 12 his vulnerability due to medical or mental health and disabilities, history of in-cell assaults and/or 13 violence, nature of commitment offense, “R” or “S” suffix determination, and designated 14 protective custody. Plaintiff asserts that due to defendants’ failure to comply or implement an 15 assessment of these criteria, he was assaulted with a state plastic cup from behind by Inmate Hall 16 on November 9, 2017. At the time of the attack, Plaintiff was in the medication line, the attack 17 was unprovoked, and he had never met or had any words with Inmate Hall prior to the cell 18 assignment and November 9 assault. 19 Plaintiff alleges that on November 9, 2017, at approximately 8:00 p.m., he was assaulted 20 by his cellmate, Inmate T. Hall. Inmate Hall came behind Plaintiff during medication call and 21 struck him with a state plastic cup several times to his face, causing severe injuries to his right 22 eye, nose and lips, which later required x-rays. Plaintiff claims that the attack was unprovoked 23 because Inmate Hall was just placed in his cell by Defendants Hicks, Sanchez, Alcantar, 24 MycIntyre and Amaya, who had prior knowledge of Inmate Hall’s similar assaults and STG 25 affiliation to the SNY 2-5ers. 26 Plaintiff claims that on November 9, 2017, Defendants Alcantar and MycIntyre were in 27 position between the medication carts. Plaintiff asserts that both had a bird’s eye view of the 28 incident from beginning to end. 1 As relief, Plaintiff seeks compensatory and punitive damages. 2 C. Undisputed Material Facts (UMF)3 3 1. Plaintiff has been incarcerated within CDCR since September 13, 1999, and was a 4 prisoner at the time he filed this action. (Decl. of J. Mendez, ¶ 7; Plaintiff’s Complaint, 5 ECF No. 1, Filed September 21, 2018.) 6 2. Between October 1, 2017, and September 13, 2018, Plaintiff submitted five non-health 7 care inmate appeals that either (a) name or identify correctional officers J. Amaya, J. 8 McIntyre, or mental health staff member R. Severns; (b) allege that Plaintiff was assaulted 9 by inmate T. Hall on November 9, 2017; or (c) allege that Plaintiff was improperly 10 removed from the EOP level of care: Log Nos. CSPC-3-17-06269, CSPC-3-18-00093, 11 CSPC-8-18-03021, CSPC-3-18-04019, and CSPC-3-18-04385. (Mendez Decl., ¶ 7, 12 Exhibit A (IATS Log), Exhibit B (CSPC-3-17-06269), Exhibit C (CSPC-3-18-00093), 13 Exhibit E (CSPC-8-18-03433), Exhibit K (CSPC-3-18-04019), Exhibit M (CSPC-3-19- 14 04385).) 15 3. On November 28, 2017, Plaintiff submitted Log No. CSPC-3-17-06269, alleging that his 16 procedural due process rights were violated by staff in connection with a RVR, that he had 17 requested single cell status on November 3, 2017, and that he had been assaulted by his 18 cellmate T. Hall on November 9, 2017. (Mendez Decl. ¶¶ 7–8, Exhibit A (IATS Log), 19 Exhibit B (CSPC-3-17-06269).) 20 4. CSPC-3-17-06269 was accepted at the first level of review on December 7, 2017. 21 (Mendez Decl. ¶ 8, Exhibit A (IATS Log), Exhibit B (CSPC-3-17-06269).) 22 5. Plaintiff withdrew CSPC-3-17-06269 on January 4, 2018, stating that he was doing so to 23 “better address the issues on a separate appeal in regards to the inmate T. Hall assault and 24 battery upon myself. I therefore withdraw this appeal.” (Id.) 25 /// 26 3 ECF No. 69-3. Plaintiff did not provide a separate statement of undisputed facts in his opposition. Local Rule 260(a). As a result, Defendants’ Statement of Undisputed Facts in support of their motion for summary judgment is 27 accepted except where brought into dispute by Plaintiff’s declaration filed in support of his opposition to the motion for summary judgment, which was signed under penalty of perjury. Unless otherwise indicated, disputed and 28 immaterial facts are omitted from this statement and relevant objections are overruled. 1 6. On January 4, 2018, CSPC-3-18-00093 was received by the Appeals Office. In this 2 appeal, Plaintiff alleged that his procedural due process rights were violated with respect 3 to RVR 3701125, that he was assaulted on November 9, 2017, by his cellmate T. Hall, 4 that corroborating testimony was not used with respect to RVR 3701125, and that 5 unidentified Institutional Classification Committee (ICC) and Interdisciplinary Treatment 6 Team (IDTT) staff failed to protect him after he expressed a fear of assault. (Mendez 7 Decl. ¶ 9, Exhibit A (IATS Log), Exhibit C (CSPC-3-18-00093).) 8 7. CSPC-3-18-00093 was bypassed at the first level, and accepted at the second level of 9 review on January 4, 2018. A second-level decision was issued on January 24, 2018, 10 partially granting Plaintiff’s appeal and ordering that RVR 3701125 be reissued and 11 reheard. (Mendez Decl. ¶ 9, Exhibit A (IATS Log), Exhibit C (CSPC-3-18-00093), 12 Exhibit D (Second-level response, with RVR modification order).) 13 8. CSPC-8-18-03021 was filed on June 8, 2018, alleging that correctional officers D. Hicks, 14 Baylon, Vesques, and Lt. Amaya, attempted to have him stabbed by a cellmate on March 15 29, 2018. (Mendez Decl. ¶ 10, Exhibit A (IATS Log), Exhibit F (CSPC-8-18-03021).) 16 9. CSPC-8-18-03021 was screened at the first level on June 14, 2018, and sent to CSP- 17 Corcoran from California Men’s Colony, where Plaintiff was housed when he filed it. 18 The appeal was cancelled at the second level on June 20, 2018, at CSP-Corcoran for being 19 filed outside time constraints. (Mendez Decl. ¶ 10; Exhibit A (IATS Log), Exhibit F 20 (CSPC-8-18-03021), Exhibit G (First-level screening letter dated June 14, 2018), Exhibit 21 H (Second-level cancellation letter dated June 20, 2018).) 22 10. On July 12, 2018, CSPC-8-18-03433 was received by the Appeals Office. In this appeal, 23 Plaintiff alleged that he was appealing the cancellation decision issued in CSPC-8-18- 24 03021. On July 12, 2018, CSPC-8-18-03433 was rejected at the second level of review as 25 Plaintiff failed to attach necessary supporting documentation. (Mendez Decl. ¶ 10, 26 Exhibit A (IATS Log), Exhibit E (CSPC-8-18-03433), Exhibit I (Second-level 27 cancellation letter dated July 12, 2018), Exhibit J (Second-level decision for CSPC-8-18- 28 03433, upholding cancellation of CSPC-8-18-03021).) 1 11. On August 9, 2018, CSPC-8-18-03433 was accepted at the second level after Plaintiff 2 attached the required supporting documentation. On August 22, 2018, CSPC-8-18-03433 3 was denied at the second level, affirming the cancellation of CSPC-8-18-03021 for failure 4 to file within time constraints. (Mendez Decl. ¶ 10, Exhibit A (IATS Log), Exhibit E 5 (CSPC-8-18-03433), Exhibit J (Second-level decision for CSPC-8-18-03433, upholding 6 cancellation of CSPC-8-18-03021).) 7 12. On August 9, 2018, CSPC-3-18-04019 was received by the Appeals Office. In this 8 appeal, Plaintiff alleged that he was challenging a due process violation in RVR 03701125 9 because he was unable to present supporting evidence and testimony in his defense. This 10 appeal was bypassed at the first level and accepted at the second level of review on 11 August 14, 2018. (Mendez Decl. ¶ 11, Exhibit A (IATS Log), Exhibit K (CSPC-3-18- 12 04019).) 13 13. CSPC-8-18-04019 was granted in part at the second level on August 30, 2018. 14 Specifically, the Senior Hearing Officer failed to identify the specific portions of the 837 15 incident report relied upon in finding Plaintiff guilty of fighting in RVR 03701125. This 16 RVR was ordered reissued and reheard. (Mendez Decl. ¶ 11, Exhibit A (IATS Log), 17 Exhibit L (Second-level response, with modification order and RVR action).) 18 14. On June 29, 2019, Plaintiff submitted Log No. CSPC-3-19-04385, alleging assault and 19 battery by Correctional Officer D. Hicks, on June 27, 2019. The first level of review was 20 bypassed, and Plaintiff’s grievance was processed at the second level of review as a staff 21 complaint on July 9, 2019. An initial decision denying the appeal at the second level, and 22 determining that staff did not violate policy, was issued on August 16, 2019. (Mendez 23 Decl. ¶ 12, Exhibit A (IATS Log), Exhibit M (CSPC-3-19-04385), Exhibit N (Second- 24 level response).) 25 15. An amended second-level response from the Institutional Executive Review Committee 26 (IERC) was issued to Plaintiff in CSPC-3-19-04385 on January 17, 2020. (Mendez Decl. 27 ¶ 12, Exhibit A (IATS Log), Exhibit O (Amended second-level response from the IERC).) 28 /// 1 16. As of June 16, 2021, Plaintiff appealed one healthcare grievance to the CCHCS 2 Headquarters level of review that either (a) identified mental health staff member R. 3 Severns; (b) contained allegations regarding removal from the EOP level of care on or 4 around March 23, 2018; (c) alleged that healthcare staff retaliated against Plaintiff by 5 removing him from the EOP level of care; or (d) identified custody staff J. Amaya, A. 6 Baylon, D. Sanchez, D. Hicks, J. Alcantar, or J. McIntyre: healthcare grievance log no. 7 COR-HC-18000745. (Decl. of R. Hart ¶¶ 9–10, Exhibit A (HCARTS Log), Exhibit B 8 (COR-HC-18000745).) 9 17. COR-HC-18000745 was received at the institutional level on March 27, 2018. In that 10 grievance, Plaintiff alleged that R. Severns had continued to threaten to remove him from 11 the EOP level of care, that mental health patients had inadequate living conditions, and 12 that he needed protection from reprisals for speaking out against inadequate treatment. 13 An institutional-level decision was issued on or about April 27, 2018, informing Plaintiff 14 that he was appropriately at the CCCMS level of care and that the IDTT would continue 15 to monitor his mental healthcare and treatment. (Hart Decl. ¶ 10, Exhibit A (HCARTS 16 Log), Exhibit B (COR-HC-18000745), Exhibit C (Institutional-level decision to COR- 17 HC-18000745).) 18 18. An appeal of the institutional-level decision in COR-HC-18000745 was received at the 19 Headquarters level on August 29, 2018. In this appeal, Plaintiff included new allegations, 20 including that on March 29, 2018,4 he was retaliated against by correctional staff Baylon, 21 Alcantar, D. Hicks, and Lt. Amaya for reporting constitutional violations because they 22 forced him to cell with another inmate who produced razor blades in their cell. Plaintiff 23 also alleged he had been denied the full benefits of qualified mental health treatment. 24 (Hart Decl. ¶ 12, Exhibit A (HCARTS Log), Exhibit B (COR-HC-18000745), Exhibit C 25 (Institutional-level decision to COR-HC-18000745), Exhibit D (Appeal of institutional- 26 level decision in COR-HC-18000745).) 27 4 The appeal states that the retaliation occurred on March 29, 2017. (ECF No. 69-4, p. 20.) However, it appears this 28 is a clerical error and Plaintiff intended to write March 29, 2018. 1 19. A Headquarters-level decision was issued on or about November 26, 2018, informing 2 Plaintiff that his mental health condition would continue to be monitored by the IDTT, 3 that individual treatment plans include patient involvement, but do not require unanimity 4 between patients and providers, and that Plaintiff should speak with his health care 5 providers to communicate his concerns. Healthcare grievances shall not be submitted 6 regarding issues outside of healthcare jurisdiction, and allegations of staff misconduct 7 associated with healthcare grievances are specific to healthcare staff or behavior that 8 violates law, regulation, policy, procedure, or is contrary to an ethical or professional 9 standard. (Hart Decl. ¶ 13, Exhibit A (HCARTS Log), Exhibit E (Headquarters-level 10 decision in COR-HC-18000745).) 11 20. As of October 1, 2017, Plaintiff has filed two appeals to the Office of Appeals for review 12 at the third level that either (a) name or identify correctional officers J. Amaya, A. Baylon, 13 D. Sanchez, D. Hicks, J. Alcantar, J. McIntyre, or mental health staff member R. Severns; 14 (b) allege that Plaintiff was assaulted by inmate T. Hall on November 9, 2017; or 15 (c) allege that Plaintiff was improperly removed from the EOP level of care: appeal log 16 numbers COR-18-00093 (IAB 1802468) and COR-19-04385 (IAB 2001522). (Decl. of 17 H. Mosely, ¶¶ 6–8, Exhibit A (OOA IATS Log before June 1, 2020), Exhibit B (OOA 18 IATS Log after June 1, 2020), Exhibit C (CSPC-3-18-00093/TLR 1802468), Exhibit I 19 (CSPC-3-19-04385 third-level response).) 20 21. Plaintiff appealed Log No. CSPC-3-18-00093 (COR-18-00093/TLR 1802468) to the 21 Office of Appeals for review at the third and final level on March 12, 2018. Plaintiff’s 22 appeal was rejected on April 27, 2018, for being illegible. (Mosely Decl. ¶¶ 9–10, Exhibit 23 A (OOA IATS Log before June 1, 2020), Exhibit C (CSPC-3-18-00093/TLR 1802468), 24 Exhibit D (Rejection letter dated April 27, 2018).) 25 22. Plaintiff resubmitted an appeal of CSPC-3-18-00093 to the Office of Appeals on July 10, 26 2018. This appeal was cancelled on September 5, 2018, as Plaintiff failed to resubmit his 27 appeal within the required time constraints. (Mosely Decl. ¶ 10, Exhibit A (OOA IATS 28 Log before June 1, 2020), Exhibit C (CSPC-3-18-00093/TLR 1802458), Exhibit D 1 (Rejection letter dated April 27, 2018), Exhibit E (Cancellation letter dated September 5, 2 2018).) 3 23. Plaintiff resubmitted an appeal of CSPC-3-18-00093 to the Office of Appeals on July 24, 4 2018. This appeal was cancelled on September 12, 2018, as Plaintiff’s appeal had been 5 resolved at the second level when his RVR was ordered to be reissued and reheard. 6 (Mosely Decl. ¶ 10, Exhibit A (OOA IATS Log before June 1, 2020), Exhibit C (CSPC-3- 7 18-00093/TLR 1802468), Exhibit F (Cancellation letter dated September 12, 2018).) 8 24. Plaintiff resubmitted an appeal of CSPC-3-18-00093 to the Office of Appeals on August 9 1, 2018. This appeal was cancelled on September 21, 2018, as Plaintiff’s appeal had been 10 resolved at the second level when his RVR was ordered to be reissued and reheard. 11 (Mosely Decl. ¶ 10, Exhibit A (OOA IATS Log before June 1, 2020), Exhibit C (CSPC-3- 12 18-00093/TLR 1802468), Exhibit G (Cancellation letter dated September 21, 2018).) 13 25. Plaintiff appealed Log No. CSPC-3-19-04385 (COR-19-04385/TLR 2001522) to the 14 Office of Appeals for review at the third and final level on February 10, 2020. (Mosely 15 Decl. ¶ 11, Exhibit A (OOA IATS Log before June 1, 2020), Exhibit H (CSPC-3-19- 16 04385/TLR 2001522 third-level appeal).) 17 26. Plaintiff’s appeal of CSPC-3-19-04385 was denied at the third and final level of review on 18 April 29, 2020. (Mosely Decl. ¶ 11, Exhibit A (OOA IATS Log before June 1, 2020), 19 Exhibit I (CSPC-3-19-04385/TLR 2001522 third-level response).) 20 D. Discussion 21 1. Parties’ Positions 22 Defendants argue that Plaintiff initiated this lawsuit before obtaining a decision at the 23 third and final level of review for any of the appeals relating to the specific claims at issue in this 24 case, namely CSPC-8-18-03021 and COR-HC-18000745. While Plaintiff submitted several other 25 appeals that referred to the alleged assault on Plaintiff by inmate Hall, they did not identify any of 26 the defendants in this action, and alleged only due process violations during Plaintiff’s rules 27 violation hearings. Of the relevant appeals, Defendants argue that CSPC-8-18-03021 was 28 cancelled as untimely, and though Plaintiff appealed the cancellation in CSPC-8-18-03433, the 1 appeal of the cancellation was not submitted to the third and final level of review. Therefore, 2 Defendants contend that Plaintiff never submitted CSPC-8-18-03021 or CSPC-8-18-03433 to the 3 Office of Appeals for review at the third and final level prior to Plaintiff filing this action. 4 Finally, while Plaintiff received a decision at the Headquarters level of review for COR-HC- 5 18000745, that decision was not issued until over two months after Plaintiff filed the instant 6 action, and also included issues outside the healthcare jurisdiction. 7 Plaintiff argues in opposition that during the course of litigating this civil suit and other 8 similar lawsuits against Defendants, Defendant Hicks intentionally destroyed several legal 9 materials pertaining to the civil suits, resulting in interference with Plaintiff’s ability to file and 10 prosecute several actions before this Court and a violation of Plaintiff’s First Amendment rights, 11 particularly as a member of the Coleman and Armstrong protected class. Further, Plaintiff argues 12 that administrative remedies became unavailable by Defendants’ or their agents’ “acts of 13 intimidation, assaults, threats, or obstruct of access to court, by way of intentional destruction of 14 legal materials protaining to the active cases pending against defendants or their Subordinate 15 Employees and/or Supervisors.” (ECF No. 72, p. 4 (unedited text).) Plaintiff contends that he 16 made every necessary effort to exhaust his remedies until such remedies became unavailable, 17 specifically arguing that he withdrew his appeal in CSPC 3-17-06269 because Defendant Sanchez 18 was the chairperson in Plaintiff’s classification hearing on November 2, 2017, and it was a 19 conflict of interest for her to be a reviewer in addressing staff misconduct complaints against her. 20 (Id. at 5.) Plaintiff argues that this practice was authorized by the Hiring Authority, and directed 21 Plaintiff to essentially withdraw or give up the appeal and start over, (id.), and that Defendant 22 Sanchez’s threats of reprisal were intended to intimidate him and force him to withdraw the 23 grievance, (id. at 17). Plaintiff further asserts that his Due Process rights were violated in 24 connection with RVR Log No. 3701125, which was eventually reissued and reheard following 25 Plaintiff’s appeal of the original finding of guilt. Plaintiff also contends that there was a failure to 26 process his appeal CSPC-3-18-00093, and as soon as CSPC officials received his complaint, he 27 began to receive excessive retaliatory actions against him from defendants. (Id. at 8.) The 28 remainder of Plaintiff’s opposition and declaration in support contain allegations and arguments 1 regarding the merits of Plaintiff’s claims, and do not address the issue of exhaustion of 2 administrative remedies. 3 In reply, Defendants reiterate the argument that Plaintiff did not obtain a final-level 4 decision for most of his grievances, or he filed this lawsuit only after obtaining final-level 5 decisions on others. Further, Plaintiff did not identify any of the Defendants by name in CSPC-3- 6 17-06269, CSPC-3-18-00093, or CSPC-3-18-04019. Finally, Defendants contend that Plaintiff 7 has not provided sufficient evidence to create a material issue of fact that Plaintiff was thwarted 8 in his attempt to exhaust administrative remedies, and has not established that he exhausted 9 available administrative remedies or is excused from doing so. 10 2. Analysis 11 All of the claims at issue in this suit arose before the filing of the original complaint, and 12 all were alleged in the original complaint. Therefore, all were required to be exhausted prior to 13 Plaintiff initiating this action on September 21, 2018. 14 With respect to Plaintiff’s argument that Defendants have destroyed certain legal materials 15 or otherwise attempted to thwart his efforts to exhaust his administrative remedies, the Court does 16 not find these assertions credible. Plaintiff has not provided any details as to which legal 17 materials were destroyed, how they related to his efforts to exhaust, or otherwise explain how 18 Defendants prevented him from exhausting his administrative remedies. Plaintiff has failed to 19 present more than his own conclusory allegations, unsupported by evidence in the record. See 20 Rivera v. AMTRAK, 331 F.3d 1074, 1078 (9th Cir. 2003) (“Conclusory allegations unsupported 21 by factual data cannot defeat summary judgment.”); F.T.C. v. Publ'g Clearing House, Inc., 104 22 F.3d 1168, 1171 (9th Cir. 1997), as amended (Apr. 11, 1997) (“A conclusory, self-serving 23 affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine 24 issue of material fact.”). 25 The Court therefore turns to the appeals Plaintiff submitted. There is no dispute that 26 Plaintiff filed five non-healthcare inmate appeals that either: (a) name or identify correctional 27 officers Amaya, McIntyre, or mental health staff member Severns; (b) allege that Plaintiff was 28 assaulted by Inmate Hall on November 9, 2017; or (c) allege that Plaintiff was improperly 1 removed from the EOP level of care: Log Nos. CSPC-3-17-06269, CSPC-3-18-00093, CSPC-8- 2 18-03021, CSPC-3-18-04019, and CSPC-3-18-04385. (UMF 2.) Plaintiff also appealed one 3 healthcare grievance to the CCHCS Headquarters level of review that either: (a) identified mental 4 health staff member Severns; (b) contained allegations regarding removal from the EOP level of 5 care on or around March 23, 2018; (c) alleged that healthcare staff retaliated against Plaintiff by 6 removing him from the EOP level of care; or (d) identified custody staff Amaya, Baylon, 7 Sanchez, Hicks, Alcantar, or McIntyre: Log No. COR-HC-18000745. (UMF 16.) 8 As discussed below, the Court finds that Plaintiff fully exhausted his administrative 9 remedies with respect to his failure to protect claim against Defendants Hicks, Amaya, Alcantar, 10 McIntyre, Baylon, and Sanchez. However, the Court finds that Plaintiff failed to exhaust his 11 administrative remedies, prior to filing the instant action, with respect to his retaliation claims. 12 a. CSPC-3-17-06269 13 Plaintiff submitted CSPC-3-17-06269 on November 28, 2017, alleging that his procedural 14 due process rights were violated by staff in connection with a RVR, that he had requested single 15 cell status on November 3, 2017, and that he had been assaulted by Inmate Hall on November 9, 16 2017. (UMF 3.) Plaintiff withdrew CSPC-3-17-06269 on January 4, 2018, stating that he was 17 doing so to “better address the issues on a separate appeal in regards to the inmate T. Hall assault 18 and battery upon myself. I therefore withdraw this appeal.” (UMF 5.) 19 Plaintiff contends in his opposition that he withdrew this appeal because he informed 20 Defendant Sanchez that it was a conflict of interest for her to be reviewing him when she was the 21 subject of his complaint regarding his single cell placement request, and Plaintiff was threatened 22 with reprisal. (ECF No. 72, p. 17.) Plaintiff contends that this was intended to intimidate him 23 and force him to withdraw the grievance, and upon being forced to withdraw his appeal, Plaintiff 24 stated that he would better address the issues about the November 9, 2017 incident in another 25 appeal. (Id.) Plaintiff ultimately did submit a new appeal, CSPC-3-18-00093, on the same day he 26 withdrew CSPC-3-17-06269. (UMF 5, 6.) 27 /// 28 /// 1 Plaintiff presents only conclusory allegations regarding Defendant Sanchez’s intention to 2 intimidate him into withdrawing his appeal, which are not signed under penalty of perjury.5 3 Thus, there is no evidence before the Court, aside from Plaintiff’s own allegations, that Defendant 4 Sanchez intimidated him into withdrawing his appeal, and that Plaintiff withdrew his appeal due 5 to that intimidation. The only evidence before the Court indicates that Plaintiff withdrew his 6 appeal in order to address the issues in another appeal. (UMF 5.) Finally, there is evidence to 7 support the conclusion that Plaintiff did not feel threatened or unable to utilize the grievance 8 process, as he went on to submit a new appeal regarding the same issues on the same day he 9 withdrew the prior grievance. (UMF 6.) CSPC-3-17-06269 therefore did not exhaust Plaintiff’s 10 administrative remedies for any claims in this action. 11 b. CSPC-3-18-00093 12 Plaintiff submitted CSPC-3-18-00093 on January 4, 2018, alleging that his procedural due 13 process rights were violated with respect to RVR 3701125, that he was assaulted on November 9, 14 2017, by his cellmate T. Hall, that corroborating testimony was not used with respect to RVR 15 3701125, and that unidentified Institutional Classification Committee (ICC) and Interdisciplinary 16 Treatment Team (IDTT) staff failed to protect him after he expressed a fear of assault. (UMF 6.) 17 CSPC-3-18-00093 was bypassed at the first level and accepted at the second level, and a second- 18 level decision was issued on January 24, 2018, partially granting Plaintiff’s appeal and ordering 19 that RVR 3701125 be reissued and reheard. (UMF 7.) 20 Defendants contend that CSPC-3-18-00093 mentions the alleged assault on Plaintiff by 21 Inmate Hall, but does not identify any of the Defendants in this action, and while alluding to a 22 failure to protect, instead the appeal alleged due process violations during Plaintiff’s RVR 23 hearings. (ECF No. 69-2, p. 11.) This assertion is belied by Defendants’ own Undisputed 24 Material Facts setting forth exactly what Plaintiff alleged in the appeal, (ECF No. 69-3, ¶ 6;6 25 5 The Court notes that while Plaintiff’s declaration in support of his opposition is signed under penalty of perjury, his opposition is not, and therefore cannot be considered as evidence. See Johnson, 134 F.3d at 1399–1400. Nowhere in 26 Plaintiff’s declaration in support of his opposition does he raise any allegations regarding his motivations for withdrawing CSPC-3-17-06269. 27 6 ECF No. 69-3, ¶ 6 states, “On January 4, 2018, CSPC-3-18-00093 was received by the Appeals Office. In this appeal, Plaintiff alleged that his procedural due process rights were violated with respect to RVR 3701125, that he 28 was assaulted on November 9, 2017, by his cellmate T. Hall, that corroborating testimony was not used with respect 1 UMF 6), as well as the appeal itself, (ECF No. 69-5, pp. 24–27). Specifically, in CSPC-3-18- 2 00093 section A, Plaintiff explains his issue as follows: 3 Due to the Policies, Practices, Acts and/or Omissions of supervisory officials 4 either by their conduct of allowing their subordinate personnels to continue to violate Procedural Due Process rights or to be free from Cruel and Unusual 5 Punishment, this is filed because of the violation of officials not following policies or procedures of DOMS 54090.43 wherefore they have willfully delayed 6 and obstructed Applicant’s attempts at Resolving his disciplinary investigations and have the corroborated witnesses testimony use to assist him in his defense. On 7 November 9, 2017, at approximately 2:00 pm I was assaulted by my then cell 8 mate T. Hall from behind with a state issued cup, while I was in the med-line. This incident and my testimony was recorroborated by other inmate witnesses and 9 staff testimony at my disciplinary hearing on [blank] even though inmate witness, and some staff statements of the incident corroborates Applicants’, it was not used 10 and I was found guilty of fighting when I was actually assaulted. 11 (ECF No. 69-5, pp. 24, 26.) Plaintiff goes on in Section B to request the following action: 12 1) Declare that even upon given notice of fear of such assaults, that both ICC and 13 IDTT members violated Applicant’s Eighth Amendment rights when they failed to protect him from known risk of assault and he was severely assaulted as a 14 result of such failure. (2) Declare that ICC members and IDTT members breach a duty of reasonable care to protect him from assaults by other prisoners. Each has 15 breached such duty by failing to provide protection when Applicant informed them of his fear on November 2nd and November 3, 2017 of being assaulted and 16 showed supporting document supporting his fear. (3) Request for compensation 17 for Damages and opportunity to Exhaust All Available Administrative Remedies. 18 (Id.) 19 The Court finds that CSPC-3-18-00093 does more than “allude to” Plaintiff’s failure to 20 protect claim. Plaintiff specifically identifies “ICC members and IDTT members” as violating his 21 Eighth Amendment rights when they failed to protect him from a risk of assault after he informed 22 them on November 2, 2017 and November 3, 2017 that he feared such an assault. (Id.) Under the 23 PLRA, a grievance “suffices if it alerts the prison to the nature of the wrong for which redress is 24 sought.” Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (quoting Griffin v. Arpaio, 557 F.3d 25 1117, 1120 (9th Cir. 2009)). Plaintiff’s grievance, which was not required to include any legal 26 terminology or legal theories, could not have been more clear in alerting prison officials to the 27 to RVR 3701125, and that unidentified Institutional Classification Committee (ICC) and Interdisciplinary Treatment 28 Team (IDTT) staff failed to protect him after he expressed a fear of assault.” 1 problem. See Griffin, 557 F.3d at 1120. 2 The Court is also unpersuaded by Defendants’ argument that CSPC-3-18-00093 did not 3 exhaust Plaintiff’s administrative remedies because it failed to identify any of the Defendants by 4 name. While Defendant is correct that California regulations require that an inmate “list all staff 5 member(s) involved” in a grievance, the regulations further provide that if the inmate does not 6 have such information as the staff member’s name or other information, “he or she shall provide 7 any other available information that would assist the appeals coordinator in making a reasonable 8 attempt to identify the staff member(s) in question.” Cal. Code Regs. tit. 15, § 3084.2(a)(3). 9 Plaintiff identified the ICC and IDTT committee members on the dates of November 2, 2017 and 10 November 3, 2017. This information plainly put prison officials on notice that the members of 11 those committees were involved, and prison officials had the opportunity to resolve the issue of 12 Plaintiff’s failure to protect claim. See Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) (“The 13 grievance process is only required to alert prison officials to a problem, not to provide personal 14 notice to a particular official that he may be sued.” (citation and internal quotation marks 15 omitted)). 16 The Court notes, however, that neither Defendants nor Plaintiff have provided any 17 evidence clarifying which of the named Defendants were members of the ICC and/or IDTT 18 committees in question. In light of this lack of evidence, the Court finds that the undisputed 19 evidence viewed in the light most favorable to Plaintiff shows that Plaintiff exhausted his 20 administrative remedies as to his failure to protect claim against any Defendants who may have 21 been members of the ICC and IDTT committees on November 2, 2017 or November 3, 2017. See 22 Albino, 747 F.3d at 1166. To the extent that any of the remaining Defendants were not members 23 of those committees on the dates in question, the parties will have the opportunity to present 24 further evidence of that fact in a later motion for summary judgment. 25 Finally, the Court finds that CSPC-3-18-00093 was fully exhausted through all required 26 levels. Although the second-level decision issued on January 24, 2018 addressed only the due 27 process claim, as discussed above, Plaintiff clearly presented his failure to protect claim to prison 28 officials and provided an opportunity for them to address the issue. Prison officials failed to do 1 so, and when Plaintiff attempted to appeal the second-level decision, Plaintiff’s appeals were 2 repeatedly cancelled, and he was informed that his appeal had been resolved at the second level 3 when his RVR was ordered to be reissued and reheard. (UMF 23, 24); see also Harvey v. Jordan, 4 605 F.3d 681, 686 (9th Cir. 2010) (administrative process exhausted when prison officials 5 purported to grant relief that resolved grievance to plaintiff’s satisfaction). 6 c. CSPC-8-18-03021 7 Plaintiff submitted CSPC-8-18-03021 on June 8, 2018, alleging that correctional officers 8 Hicks, Baylon, Vesques, and Lt. Amaya attempted to have Plaintiff stabbed by a cellmate on 9 March 29, 2018. (UMF 8.) Specifically, Plaintiff alleges in the grievance that although his 10 doctor requested that Plaintiff be placed on single cell status due to Plaintiff’s suicidal ideations, 11 officers placed Plaintiff in a cell with another inmate in retaliation for bringing to the attention of 12 OIA the assault and battery or possible death of Inmate D. Cole on February 17, 2018. (ECF No. 13 69-5, pp. 56, 58.) The Court finds that this grievance put prison officials on notice of Plaintiff’s 14 retaliation claim arising out of Defendants’ attempts to improperly assign Plaintiff outside of his 15 designated EOP mental health level of care unit and place him in an occupied cell after a direction 16 that he receive a single cell placement. (See ECF No. 37, pp. 8, 11; ECF No. 39.) 17 However, CSPC-8-18-03021 did not fully exhaust Plaintiff’s administrative remedies, as 18 it was cancelled at the second level as untimely. (UMF 9.) Although Plaintiff submitted CSPC- 19 8-18-03433 to appeal the cancellation of CSPC-8-18-03021, CSPC-8-18-03433 was denied at the 20 second level, affirming the cancellation of CSPC-8-18-03021 as untimely. (UMF 11.) Plaintiff 21 did not submit a third level appeal for either CSPC-8-18-03021 or CSPC-8-18-03433. (See UMF 22 20.) 23 d. CSPC-3-18-04019 24 Plaintiff submitted CSPC-3-18-04019 to the Appeals Office on August 9, 2018, alleging 25 due process violations in RVR 03701125. (UMF 12.) The Court finds that this grievance only 26 served to put prison officials on notice that Plaintiff had a due process complaint, as it does not 27 reference any of the failure to protect or retaliation claims at issue in this action. (See ECF No. 28 69-5, pp. 67, 69.) Although Plaintiff mentions Defendants Alcantar and McIntyre in the 1 grievance, Plaintiff states only that their statements could have been offered during Plaintiff’s 2 RVR hearing to show “their awareness of inmate usage of a state cup in his attack on [Plaintiff] 3 on November 9, 2017.” (Id. at 69.) 4 e. CSPC-3-19-04385 5 Plaintiff submitted CSPC-3-19-04385 on June 29, 2019, alleging assault and battery by 6 Defendant Hicks on June 27, 2019. (UMF 14.) Plaintiff alleges that during a mandated search, 7 Defendant Hicks cut into Plaintiff’s right wrist with wire cutters, attempting to cut Plaintiff’s vein 8 in an effort to silence Plaintiff’s complaints. (ECF No. 69-5, pp. 91, 93.) Plaintiff further alleges 9 that this assault was done in retaliation for Plaintiff’s participation in civil litigation and 10 submission of several staff misconduct grievances. (Id. at 93.) 11 Although Plaintiff is proceeding in this action against Defendant Hicks on two retaliation 12 claims, those claims relate to the November 9, 2017 assault by Inmate Hall and the attempt to 13 improperly assign Plaintiff outside of his designated EOP mental health level of care single cell 14 placement and into an occupied cell. This action is not proceeding on any claims against 15 Defendant Hicks for retaliation related to an assault and battery on June 27, 2019. 16 Finally, even assuming that CSPC-3-19-04385 placed prison officials on notice of the 17 specific retaliation claims at issue in this action, Plaintiff did not receive a third-level decision on 18 CSPC-3-19-04385 until April 29, 2020, nearly two years after the complaint was filed in this 19 action. (UMF 26.) Therefore, CSPC-3-19-04385 did not fully exhaust any of the claims raised in 20 the instant action. 21 f. COR-HC-18000745 22 Finally, Plaintiff submitted COR-HC-18000745 at the institutional level on March 27, 23 2018, alleging that Defendant Severns had continued to threaten to remove him from the EOP 24 level of care, that mental health patients had inadequate living conditions, and that he needed 25 protection from reprisals for speaking out against inadequate treatment. (UMF 17.) After he 26 received the institution-level decision, Plaintiff filed an appeal to the Headquarters level on 27 August 29, 2018. (UMF 18.) Plaintiff included additional allegations stating that on March 29, 28 2018, Plaintiff was retaliated against by Defendants Baylon, Alcantar, Hicks, and Amaya for 1 reporting constitutional violations when they forced Plaintiff to cell with another inmate who 2 produced razor blades in their cell. (Id.) 3 Even assuming that COR-HC-1800745 properly put prison officials on notice of 4 Plaintiff’s retaliation concerns with respect to Defendant Severns—as well as Defendants Baylon, 5 Alcantar, Hicks, and Amaya—this appeal did not properly exhaust Plaintiff’s retaliation claims 6 with respect to these defendants. Plaintiff did not receive a final Headquarters-level decision on 7 COR-HC-1800745 until November 26, 2018, two months after the filing of the complaint in this 8 action. (UMF 19.) Thus, Plaintiff failed to exhaust his administrative remedies with respect to 9 these retaliation claims, prior to filing this action, and Plaintiff has not provided any evidence to 10 excuse him from this failure to exhaust. 11 IV. Recommendation 12 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 13 1. Defendants’ motion for summary judgment for failure to exhaust, (ECF No. 69), be 14 GRANTED IN PART and DENIED IN PART; 15 2. Plaintiff’s First Amendment retaliation claim against Defendants Hicks, Alcantar, 16 McIntyre, Baylon, and Sanchez arising out of the alleged November 9, 2017 assault be 17 DISMISSED, without prejudice, for the failure to exhaust administrative remedies; 18 3. Plaintiff’s First Amendment retaliation claim against Defendants Hicks, Amaya, Alcantar, 19 McIntyre, Baylon, Sanchez, and Severns arising out of their alleged attempt to improperly 20 assign Plaintiff outside of his designated EOP mental health level of care unit and place 21 him in an occupied cell after a direction that he receive a single cell placement be 22 DISMISSED, without prejudice, for the failure to exhaust administrative remedies; 23 4. Defendant Severns be DISMISSED from this action; and 24 5. This action proceed on Plaintiff’s second amended complaint against Defendants Hicks, 25 Amaya, Alcantar, McIntyre, Baylon, and Sanchez for failure to protect Plaintiff from an 26 alleged assault by Inmate Hall on November 9, 2017, in violation of the Eighth 27 Amendment. 28 * * * 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 3 fourteen (14) days after being served with these Findings and Recommendations, the parties may 4 file written objections with the Court. The document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file 6 objections within the specified time may result in the waiver of the “right to challenge the 7 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 8 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 IT IS SO ORDERED. 10 11 Dated: February 18, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28