(PC) Gann v. Valley State Prison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NATHANIEL MARCUS GANN, 1:19-cv-01797-DAD-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ 13 vs. MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST REMEDIES BE 14 VALLEY STATE PRISON, et al., GRANTED (ECF No. 49.) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 18 19 I. BACKGROUND 20 Plaintiff Nathaniel Marcus Gann is a state prisoner proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983.1 This case now proceeds with 22 Plaintiff’s First Amended Complaint filed on February 7, 2020, against Defendants Warden 23 Raythel Fisher, Jr., Dining Hall Officer Paez, and Culinary Staff Members Anguiano, Chapas, 24 Lucero, Marquez, Cruz, and Moosebaur for violation of RLUIPA, violation of the First 25 Amendment Free Exercise Clause, and adverse conditions of confinement in violation of the 26 Eighth Amendment; against Defendants Warden Raythel Fisher, Jr., and Moosebaur for failure 27 28 1 Plaintiff has advised defense counsel that she is transitioning. (See ECF No. 48 at 2 fn.1.) Accordingly, defense counsel is using feminine pronouns for Plaintiff, and the Court follows suit. 1 to protect Plaintiff in violation of the Eighth Amendment; and against Defendant Moosebaur for 2 retaliation in violation of the First Amendment. (ECF No. 20.)2 3 On January 28, 2022, Defendants filed a motion for summary judgment based on 4 Plaintiff’s failure to exhaust administrative remedies.3 (ECF No. 49.) On March 7, 2022, 5 Plaintiff filed an opposition to the motion. (ECF No. 57.) On March 14, 2022, Defendants filed 6 a reply to the opposition. (ECF No. 58.) 7 Defendants’ motion for summary judgment was submitted upon the record on March 14, 8 2022 without oral argument pursuant to Local Rule 230(l), and for the reasons that follow the 9 court finds that Defendants’ motion for summary judgment should be granted. 10 II. PLAINTIFF’S ALLEGATIONS 11 Plaintiff is presently incarcerated at the California Institution for Men in Chino, 12 California. At the time of the events at issue, Plaintiff was housed at Valley State Prison (VSP) 13 in Chowchilla, California, in the custody of the California Department of Corrections and 14 Rehabilitation (CDCR). Plaintiff’s allegations follow: 15 1. Rotten, spoiled, and otherwise unfit for human consumption food is being served 16 in the Kosher diets. From December 26, 2016, to date, the meals are regularly served half- 17 cooked/prepared – in particular, meat. When brought to the attention of the Culinary Supervisor 18 Cook (CSC) and CSC II staff, the meals are not replaced. 19 Weekly, the Shabbat dinner is served with spoiled meat. The meat is supposed to be 20 vacuum sealed but is served to Plaintiff open and with mold growing on it. When eaten, the meat 21 causes illness and Plaintiff has suffered sickness from being served these meats by Defendants. 22 Similar sickness is caused by other meats when served uncooked or opened. 23 /// 24 25 2 On June 7, 2021, the court issued an order dismissing all other claims and defendants from this case based on Plaintiff’s failure to state a claim. (ECF No. 30.) 26 3 Concurrently with their motion for summary judgment, Defendants served Plaintiff with 27 the requisite notice of the requirements for opposing the motion. Woods v. Carey, 684 F.3d 934, 939-41 28 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998). (ECF No. 49-4.) 1 The turkey served in lunches is unfit for human consumption. It has been denatured by 2 having bone ground into it. The sharp and relatively large bone shards cause damage to Plaintiff’s 3 teeth and lacerations to Plaintiff’s mouth and throat. 4 The Kosher meal stock is delivered in a manner that causes the frozen food to spoil. It is 5 taken from the refrigerated delivery truck and left unrefrigerated in the open sun and out in the 6 elements at the docking area for entire shifts. Staff at the warehouse/central kitchen and culinary 7 staff do not want to inventory the meals upon arrival. After approximately ten hours the items 8 are finally inventoried and re-frozen. Upon need of the meals, they are again left out in the 9 elements and sun as they are transferred where they spoil further and are refrigerated again for 10 serving on the following day. 11 The internal components of the meals are open, spoiled, and otherwise contaminated. 12 Items that are sealed, such as applesauce, cream cheese, chips, bagels, and fruit cups, are either 13 opened by bacterial growth or by mechanical means such as crushing and then allowed to fester. 14 When revealed to CSC staff by Plaintiff, no correction follows. 15 Items in the Kosher meals are stolen by inmate culinary workers. When this problem is 16 taken directly to CSC staff by Plaintiff, Plaintiff is told, “Too bad,” and left without the stolen 17 parts of the meal. In addition, when stolen items are reported to custody staff, threats of rules 18 violations reports being issued against Plaintiff is used as a tool of reprisal and threat to prevent 19 further speech on the issue. Threats of violence by inmate workers against Plaintiff is also used, 20 and correctional and custodial staff refuse to protect Plaintiff from the threats of violence. 21 Culinary workers intentionally wear their serving gloves to the restroom and touch their “dirty 22 dick” with their hands prior to serving the meals. CSC and custodial staff refuse to address the 23 issue. 24 2. Food is transported, opened, and cooked in shared ovens and carts that are used 25 for non-Kosher foods. Kosher foods must be double-sealed or they are contaminated. However, 26 daily the seals on the food are breached, either by failures during a transportation process, such 27 as crushing and popping open of the meals, or by intentional actions of persons stealing the 28 contents of meals. These meals are served to Plaintiff and rendered non-Kosher. These meals are 1 cooked in ovens used to cook non-Kosher food, even at the same time, rendering the food non- 2 Kosher. 3 The sole Jewish worker, when objecting to this practice, is told by his supervisor, 4 defendant Moosebaur, to “get into the oven” while it is still hot. Defendant Moosebaur openly 5 states that his grandfather was a German SS wishing that all the Jews had been killed in the 6 Holocaust. 7 Then the food is transported in shared carts and stored in the same shared carts with the 8 meals open, served at the same time and placed with the non-Kosher food. The Kosher-only oven 9 was redirected for use for regular meals, so all meals are cooked together and the Kosher oven 10 has not been replaced. 11 3. The culinary workers are not trained in the procedures mandated by the California 12 Retail Food Code, nor by a Rabbi (necessary to serve Kosher food). The issue of training has 13 been raised repeatedly and ignored by VSP administration as well as by the CSC staff 14 (Defendants). The procedures for Kosher foods change every few days, perhaps not “officially,” 15 but in effect. Actual procedures are ignored and cause Plaintiff to be served non-Kosher and 16 contaminated food. 17 4. Kosher meals are served in communal areas wherein the tables are unclean both 18 ritually and literally. The same dirty rags are used to clean the non-Kosher food and then used to 19 clean the Kosher Diet Program (KDP) tables (when they exist), leaving chunks of non-Kosher 20 meals smeared across the tables daily. The promised Kosher utensils are not provided and 21 Plaintiff is required to cook many items because they are served uncooked/unprepared, but 22 Plaintiff is not permitted by correctional staff and VSP administration to return the item to the 23 housing unit to prepare it. 24 The separation of Glatt (meat) and Dairy requires the use of separate utensils, and the 25 separation of Passover Kosher from annual/regular Kosher meals requires separate utensils. 26 Cleaning of plastic utensils is unfeasible and therefore disposable utensils are supposed to be 27 issued daily by Defendants but are not, further creating a barrier to the observance of Kosher by 28 Plaintiff. 1 On fasting days when Plaintiff receives meals for the conclusion of the fast (three meals 2 issued at one time), Plaintiff is instructed by both correctional and CSC staff to eat all the meals 3 during the fasting hours or discard the meals. In this way, Plaintiff is not permitted to observe 4 fasting holidays. 5 5. When foods are rendered non-Kosher, CSC staff refuse to replace the meal. When 6 the meal is uncooked/unprepared/frozen, CSC staff refuse to replace the meal. In both scenarios, 7 custodial staff refuses to allow a call for a supervisor by use of threats and intimidation. Both hot 8 dinner and breakfast trays are served frozen. Items that are not to be frozen (refrigerate-only 9 items such as mayonnaise or cream cheese, other fluid items such as applesauce or jelly that when 10 frozen explode in the meals and cannot be eaten, like a soda placed into a freezer) are served 11 daily but are inedible and not replaced leaving Plaintiff with less of a meal than is reported on 12 the menu. 13 While the hexure (Kosher certification) of the meals is considered Kosher by some, it 14 does not meet the full standards of Orthodox Kosher. The meals are delivered with tape that 15 reads, “If tape is removed, Kosher status may be voided.” This tape is disturbed on at least six 16 (6) cases of meals per pallet, the contents of which are damaged and opened at the institution 17 warehouse. Main kitchen staff refuse to fix the issue despite repeated efforts by Plaintiff to fix 18 the problem. Plaintiff is then served the non-Kosher meals by culinary Defendants. 19 6. The served foods do not match the approved menu foods, neither by name nor 20 quantity. Three-ounce bagels have been permanently replaced by 2-ounce or 2.5-ounce bagels. 21 Replacements are the usual occurrence, and the very limited variety of foods is worsened when 22 the few items are replaced with duplicates from the previous day. For example, on bagel day the 23 bagels are stolen by culinary staff (inmates, despite efforts by Plaintiff to have the correct meal 24 served) and replaced with the peanut butter and jelly meal that was saved from the previous day. 25 CSC staff allow this practice to reward their workers as an “underground regulation.” The bagels 26 and other such items like cookies are taken back to the facility yard and sold. Correctional staff 27 allow the inmate workers to take these items back to the housing units and facility. These 28 Defendants are responsible for Plaintiff not receiving the nutrition Plaintiff should. The same is 1 true for dinner meals at the main kitchen. Main kitchen workers consume the more palatable 2 meals and replace them with the open and otherwise inedible meals, i.e., if the chili meal is 3 dropped onto the floor on Monday and spilled, it is used to replace a Wednesday meal (chicken 4 patty) after being stowed away for two days in the main kitchen. In this way the meals are 5 otherwise contaminated. The meals that are served are calorie rich and nutrient poor. The meals 6 are basically bread, sugar, and spoiled meat. 7 7. The foods served are past their expiration date and/or best-by date. All foods 8 served in this way are poor, with mold growing on them, stale, with opened bread, exploded, 9 waxy, etc. The foods have been taken directly to the supervisory staff – CSC, CSCII. Food 10 Manager, Food Administrator, etc. – and in response the Plaintiff suffered retaliation. The future 11 batches of meals no longer had dates on all the products and slowly the remaining products have 12 had their dates removed from them. The labeling from ABC Ventures had the expiration dates 13 removed (some of the dates were more than two (2) years past), and lot codes were issued. The 14 food served to Plaintiff by Defendants is still bad. The individual food items do not often have a 15 Kosher certification at all. 16 8. The Kosher Diet Program (KDP) is intended to allow for Kosher-observant 17 inmates like Plaintiff to eat their meals separate from non-Kosher meals. This is an important 18 requirement in Kashrus. These issues have been raised with correction staff and sergeants several 19 times and as a result Plaintiff suffered retaliation from Defendants repeatedly and the issue is not 20 resolved. Procedures were changed to include others in the Kosher diet release to include 21 diabetics, workers, students, and anyone who wishes to sneak out of the buildings during the 22 release period. Even the issue of inmates sneaking out has been raised, to no avail. Defendants 23 refuse to address the problem and there is further retaliation against Plaintiff, such as being forced 24 to eat in contaminated areas with non-Koshers, and the forced discarding of Kosher meals and 25 items. 26 Prayers, according to Orthodox law, require that persons of different faith be away while 27 they are spoken. Plaintiff is forced to be seated with the unfaithful, thus preventing Plaitiff from 28 saying the Holy and Sacred Prayers prior to meals. Meanwhile, the insurgents talk while eating, 1 spitting out their food onto KDP participants’ meals, rendering the meals non-Kosher. Regularly, 2 Plaintiff as a KDP is required to eat with Pagan and/or “Skinhead/White Power” individuals who 3 intentionally cause difficulties for Plaintiff. Plaintiff has raised this issue with correctional and 4 culinary staff (Defendants), to no avail, leaving Plaintiff at risk from the hateful anti-Semitic 5 persons at meals. 6 9. Plaintiff (KDP) is served whole meals and portions of regular non-Kosher meals 7 in place of Kosher meals. Items include non-Kosher bread, etc. This is done by Defendants 8 culinary staff and is done in particular when items from the Kosher meals are missing as the 9 result of the theft of those items by inmate workers, and permitted by culinary staff (Defendants). 10 So much of the Kosher food is stolen from the KDP that only non-Kosher replacements are 11 available for Plaintiff. When replacements from the main kitchen are requested by Plaintiff, these 12 requests are denied by both culinary staff and custodial staff (Defendants). Recently the salads 13 that were the most nutritious parts of the Kosher diets have had the most nutritious items removed 14 in retaliation by culinary staff for filing inmate grievances and CDCR 22’s. Replacing the salad 15 is a ball of shredded dry cabbage and two dirty radishes. 16 10. After multiple pleas and appeals, Plaintiff has been given repeated excuses for the 17 open, rotten, spoiled, uncooked, frozen, spilled, non-nutritious food, including regular blame of 18 the vendor (ABC Ventures). Yet Defendants continue to order from the same vendor for five 19 years. Plaintiff has filed appeals yet continues to face roadblocks such as cancellations (VSP-19- 20 01146, VSP-19-01285, TLR 1908537 and others). For three years Plaintiff has been trying to 21 resolve the issues with named Defendants culinary staff. 22 Requests for another supplier of Kosher foods were denied. Culinary and institutional, 23 Statewide Religious Review Committee (SRRC), and policy staff all refused to address all these 24 issues. Appeals to exchange rotten food were denied, appeals to have another vendor were 25 denied, and appeals to have a back-up plan were denied. The KDP, including Plaintiff, have all 26 collectively attempted to resolve every issue. 27 11. Plaintiff is an inmate. Plaintiff suffered because of Items #1-10 (written above) 28 and at all times was housed at Valley State Prison in the custody of the California Department of 1 Corrections and Rehabilitation and participating in the Kosher Diet Program (KDP) for reason 2 of sincerely-held belief. Plaintiff is an Orthodox Jew. 3 Plaintiff believes that the law of the Bible is an instruction from our Father and Creator, 4 and that Plaintiff has no choice but to adhere to the instruction given by Plaintiff’s loving Father. 5 The Teachings have been passed down from generation to generation starting with Moshe 6 (Moses), whereupon they were received from God. The problems faced by Plaintiff have been 7 caused by Defendants, each of them every day, and are accounted for from December 26, 2016 8 to December 20, 2019. The available Rabbi, P. Gordon, was made aware of the problems with 9 the KDP by Plaintiff. The Rabbi confirmed the problems and agreed to investigate. Upon his 10 investigation the Rabbi informed Plaintiff that these issues were being raised with the Religious 11 Review Committee (RRC) but there has been no solution. The issues with staff were also raised, 12 then forwarded to the Community Resource Manager (CRM), also to no avail. 13 1) Claim 1; U.S. Constitution, 1st Amendment: 14 a) Free Exercise of Religion: 15 Plaintiff is daily denied the ability to observe Kosher. At the time of filing, this restriction 16 from 1/26/16 totaled 1095 days and 3,285 meals/violations. Defendants have each failed to 17 provide Kosher meals as required by the U.S. Constitution, existing decisional case law, and 18 Jewish Kosher Law. There is no alternative to eating. A person must eat to survive and a Jew 19 must eat only Kosher meals. No alternative readily exists for Plaintiff to receive daily Kosher 20 meals. 21 Defendants CDCR and VSP (and therefore Raythel Fisher) are responsible for providing 22 the religious needs of Plaintiff, and they have failed in this duty. Statewide Religious Review 23 Committee (SRRC) members (Does #1, 2, and 3) are responsible for the creation and 24 implementation of statewide programs to meet these needs and to provide healthy meals 25 appropriate to meet both the nutritional and religious needs of Plaintiff, yet after multiple 26 problems chose year after year to retain the same vendor that had been blamed for the problems 27 of quality and contents. Defendants Knight, Thornton, and Fisher each personally reviewed the 28 administrative appeals and made intentional decisions to either deny or ignore the problems as 1 they were reported to them personally and directly by grievances. Defendant Anderson 2 personally took pride in his actions to intentionally contaminate and render Plaintiff’s meals un- 3 Kosher by handling his penis and wiping the external and internal components of the meals with 4 the sweat from his genitalia, likewise with Doe #4. 5 Correctional officers contributed to this denial of the right to freely exercise Plaintiff’s 6 religion in a reasonable manner. C/O Paez personally stood at the serving window and actively 7 prevented Plaintiff from seeking replacement foods on a regular basis, using threats and 8 retaliation to quell calls for change in active coordination with culinary staff member Anguiano. 9 Correctional Officer and Defendant Keene maliciously forced KDP inmates such as 10 Plaintiff to mix with the non-Kosher participants while stating, “So they think they’re fu**ing 11 special” and “I’m tired of these fu**ing Jews sitting all over the place.” 12 Correctional Officer and Defendant Avila-Gonzales repeatedly confiscated the 13 Yarmulkes of observant Jews in the dining hall and rummaged through Kosher meals 14 contaminating them with her dirty groves used to search shoes and other objects. These issues 15 were brought to Sergeants and Defendants Clements and Santoya in repeated face-to-face 16 conversations whereupon Sergeant Clements publicly intimidated and embarrassed KDP inmates 17 and then used retaliation, while Santoya repeatedly refused to correct the actions of his 18 subordinates. 19 Culinary staff Chapas, Lucero, Marques, and especially Anguiano were the frontline 20 refusers to replace spoiled and contaminated meals (and meals missing components) that were 21 served to Plaintiff. While the above defendants were the supervisors of the inmate workers, they 22 allowed the inmate workers to knowingly grossly contaminate the Kosher meals even after being 23 made aware of the issue by Plaintiff. Defendant Cruz refused to send replacements (meals) and 24 allowed for the theft of items inside the Kosher meals. Defendant Hayman and Defendant 25 Moosebaur repeatedly responded to the KDP and did not resolve issues, neither in person nor in 26 response to written inquiries. Moosebaur in particular refused to fix issues and even claims to 27 have eaten the rotten meat and instructed Gann to eat it while watching. Defendant Mohktar 28 received the CDCR 22’s documenting the issues and in response retaliated by removing items 1 from the KDP’s salads. Defendant Hernandez personally conducted interviews with Plaintiff and 2 other KDP, answered CDCR 22’s and CDCR-602’s, personally choosing not to correct any of 3 the issues presented in the documents and in the interviews. Defendant Hernandez chose not to 4 change the food in conspiracy with other culinary and administrative staff, used the same vendor 5 and did not investigate the practices leading to issues. 6 b) Retaliation for: 7 Exercise of Religion, Free Speech, and Conspiracy 8 Plaintiff suffered retaliation for her exercise of religion, by insisting that her meals be 9 kept Kosher and the subsequent complaints, grievances, and possibly this complaint in the near 10 future. The retaliatory actions were done by state actors against Plaintiff because of the exercise 11 of protected actions under the U.S. Constitution’s First Amendment and was done for the purpose 12 and did chill the exercise of that protected conduct. Defendants’ actions did not serve any 13 legitimate penological goal or interest. Several of the actions in #1-10 were done in concert with 14 other actors (Defendants) who were not directly present at that time, but in a conspiracy to 15 retaliate. Defendant Anderson, upon being confronted with his contamination of the meals by 16 use of his genitalia, retaliated by encouraging others to do the same (Does #4). 17 Officer and Defendant Keene, in response to Plaintiff reporting her (Keene’s) failure to 18 follow procedure to Sergeant and Defendant Clements, responded by intentionally disturbing 19 Plaintiff’s prayers and micro-managing the eating arrangement to ensure that KDP inmates were 20 forced to eat with the non-KDP in violation of the procedure. This action in combination with 21 her demeaning language about Jews shows her prejudice and intent. She interfered with the 22 religious practice of Plaintiff and retaliated. 23 Officer and Defendant Paez, in response to attempts to have spoiled meals exchanged at 24 the dining hall, used threats of rules violation reports, retaliatory searches (that factually 25 occurred), and threats to have Plaintiff removed from KDP. When Plaintiff raised the issue with 26 Sergeant and Defendant Clements, Clements intimidated KDP inmates publicly as a group and 27 made Plaintiff and other KDPs discard their meals that had been prepared for the conclusion of 28 the fast (for the following day). Defendant Santoya, in response to Plaintiff’s attempt to resolve 1 the various Kosher meal issues, denied Plaintiff the ability to participate in the Inmate Advisory 2 Counsel, used adverse changes to the Kosher Meal policies to hinder observance, used his 3 position to restrict corrective action, and instructed his subordinates to continue the disruptive 4 behavior. 5 Defendant Mohktar, in response to receiving Plaintiff’s complaints via CDCR 22 forms, 6 decided to have the contents of the Kosher salads reduced and made it known that this action was 7 specifically in retaliation via the KDPs King and Thomas who at that time worked for him. This 8 was done with the intention that it would curb further reports of Kosher program failures. 9 In retaliation for repeated complaints and grievances, defendant Moosebaur (a vocally 10 proud Neo-Nazi) told his workers (including inmates such as Israel Garcia-Trevino #AY-4957 11 and other “line backers”) that they no longer needed to wear gloves or hair nets while working 12 with the Kosher food. In addition, the meals that should have been used as replacements for 13 spoiled meals were given to his favorite workers instead of being used as replacements causing 14 Plaintiff to be forced to either eat spoiled meals or not to eat. 15 The training by Moosebaur extended to Defendant Anguiano and subsequently to 16 Anguiano’s 3rd watch inmate workers. When Plaintiff tried to have spoiled meat replaced, 17 Defendant Anguiano accused Plaintiff and other KDP inmates of fraud, requiring that every 18 Saturday night meal be opened in front of him – yet when Plaintiff was (and is) served rotten 19 meat, Defendant Anguiano still refused to replace the meat. This action was public and demeaned 20 and deterred further complaints and other such speech by Plaintiff, effectively chilling the 21 exercise of this protected conduct. The practice of Saturday public meal opening continues. 22 2) Claim 2: U.S. Constitution, 8th Amendment 23 a) Nutritionally Deficient Diet (Kosher Diet) 24 Inmates are not required to choose between two rights they are entitled to exercise, i.e. 25 choosing to observe Plaintiff’s faith (Kosher) or eating nutritionally adequate meals. Plaintiff has 26 the absolute right to both, and defendants have a duty to provide the means. Currently, Plaintiff 27 is suffering from a nutritionally deficient diet. 28 1 Food is a basic necessity of life and must be nutritionally adequate. The continuous 2 deprivation of nutritious food for 5 years is not a short-term dilemma for the duration of an 3 emergency. Each of the Defendants has an absolute duty to provide Plaintiff with nutritious diets 4 that also comply with her religious needs. Plaintiff has instead been given a long-term diet 5 consisting of high carbohydrate, high calorie food without adequate vitamins, minerals, healthy 6 oils, etc., without supplementation. 7 Defendants have each played a role in the food chain. From the development of an 8 inadequate menu based solely upon the number of calories and without consideration of nutrition, 9 the use of highly processed food (reduces the nutritional value of otherwise healthy similarly- 10 named items), and nutritionally deficient substitutions (i.e., food listed as chili lost its cheese 11 replaced with water, beans were reduced to under 10 beans and replaced with water, diced 12 tomatoes were replaced with a highly processed tomato paste mixed with a large volume of water 13 devoid of nutrition.) 14 b) Sanitation of meals 15 All meals served during the times mentioned herein were both ritually contaminated, 16 rendering them non-Kosher, and literally contaminated making them unsanitary. From the 17 serving environment to the intentional contamination by the restroom (i.e., feces, semen, urine, 18 etc.) and the genital sweat from the touching of the genitalia by inmate workers under the 19 supervision of Defendants Culinary Staff, Correctional Officers, Anderson, Does #4, and VSP 20 Administration. The meals are served on unclean tables, both literally and ritually. Dirty water 21 and rags are used. The actual policy is to use one time rags (clean) and a dedicated cleaner used 22 only for the Kosher Tables. This procedure is not followed by inmate workers, nor is it enforced 23 by the culinary staff or custodial staff. When raised to the aforementioned defendants, retaliation 24 ensues in the form of further barriers to religious expression. 25 The aforementioned conditions are dangerous to the health of Plaintiff. In particular when 26 the “restroom type” of contamination is exposed to the food and the eating areas are made dirty 27 with rags and water (used to clean the floor) are the cleaning tools for the Kosher meals and 28 1 areas. Illness has occurred to the Plaintiff, in particular sickness of the digestive tract caused by 2 the unsanitary conditions of the serving and eating area of Plaintiff. 3 Members of the SRRC (Defendants) have intentionally reduced the quality of the food 4 for the purpose of deterring inmates such as Plaintiff from participation in the KDP as is required 5 by Plaintiff’s religion. This is a form of punishment and discrimination based upon Plaintiff’s 6 religion and belief, used to try and force Plaintiff to quit the KDP and give up on religious tenets 7 as required by God of Plaintiff. 8 c) Mental Health 9 The failures of the KDP have caused great anguish and mental pain to Plaintiff. To 10 discover that Plaintiff’s meals had been repeatedly contaminated by sweaty anus residue and 11 semen was shocking and unfathomable. While Plaintiff took on the burden of keeping Kosher, 12 suffering nutritional deficits, trying to follow tenets of Plaintiff’s faith and the laws of God. The 13 incredible malpractice of Defendants in their respective roles (from either directly conducting 14 the acts, or after being made aware and failing to remedy the situation) and their failures to fulfill 15 the daily dietary needs, and by ignoring or providing boilerplate responses to grievances and 16 form 22’s to Plaintiff and other KDP inmates, have all contributed to the great depression, 17 anguish, and physical illnesses suffered by Plaintiff. 18 d) The Conditions of Confinement are Grossly Disproportionate to the Crime 19 As outlined above, the treatment of Plaintiff is extremely poor, unconstitutional, and 20 egregious. No one in these United States should ever be submitted to the treatment suffered by 21 Plaintiff. Plaintiff has suffered as described, emotionally, spiritually, and physically as a result 22 of Defendants as described in #1-10. The conditions of confinement do not further any 23 penological goal. The conditions were raised repeatedly by Plaintiff and KDP and were 24 deliberately ignored. These conditions affected the daily life (and continue to do so) of Plaintiff. 25 Plaintiff suffered anxiety, depression, damaged teeth, poor nutrition, physical illness (vomiting, 26 diarrhea, nausea, cramps, etc.). The circumstances were permitted to continue as a coordinated 27 effort by the Defendants in conspiracy to ignore the problems. Defendants actively conspired to 28 allow the conditions to continue. The discriminatory animus shown by the Defendants (with 1 emphasis by Anderson and Moosebaur) was egregious and shows example of the daily 2 circumstances of Plaintiff’s life trying to overcome the prejudice. The actions were meant to 3 deprive Plaintiff of equal privileges and right to nutritious food served in a sanitary manner and 4 the ability to observe necessary religious tenets. The motives are clear by the actions and 5 statement of Defendants, and Defendants’ actions have resulted in injury as described by 6 Plaintiff. 7 Our American society does not tolerate such treatment such as the physical contamination 8 of food as has occurred to Plaintiff. The acts of Defendants are degrading to Plaintiff and attack 9 her dignity without cause. 10 3) Claim 3: U.S. Constitution 14th Amendment: 11 a) Significant Hardship: 12 Daily hunger is a significant hardship, as with nutritional deficiency. When Plaintiff 13 cannot eat because of the food being contaminated or spoiled, it causes this hardship. The times 14 Plaintiff does eat are essentially ineffective because the food is nutritionally deficient, loaded 15 with unhealthy carbs and calorie dumps made from highly processed foods known to cause 16 cancer. 17 Having to file this suit, spending over 3 years collecting data and filing grievances, form 18 22’s, arguing with Defendants, risking and suffering retaliation is a hardship. Retaliatory searches 19 caused Plaintiff to suffer a lack of safety in her assigned housing. VSP is a dormitory setting 20 (crowded), and when a retaliatory search is conducted, allowable property is seized from 21 Plaintiff’s cell-mates with the intent and effect of causing strife, anger, and the very real potential 22 threat of violence against Plaintiff. Plaintiff lives in stress, anxiety, and depression, suffering 23 from the loss of sleep and fear due to Defendants. 24 To supplement the diet, Plaintiff must order additional foods or trade for them as ordered 25 from the packages or canteen. This additional financial burden and hardship is placed on Plaintiff 26 and Plaintiff’s family. By trying to observe Kosher laws and exercise Plaintiff’s right of free 27 expression, Plaintiff must endure this hardship. These rights are protected by the U.S. 28 1 Constitution and cannot be taken away, so fundamental that they are inseparable no matter what 2 process is used. 3 b) Discrimination: 4 Plaintiff has suffered discrimination from Defendants, members of the SRRC 5 (Defendants) made decisions with intent that denied Plaintiff nutrition and sanitation in meals 6 while using methods at their disposal to discourage the lawful participation in the Kosher Diet 7 Program as guaranteed by law. The SRRC has deliberately chosen to order food from ABC 8 Ventures, a known problem vendor that CDCR, VSP, and the Food Manager have blamed for 9 the known problematic food. Defendants CDCR, VSP, and Raythel Fisher, Jr. created policies 10 that deny KDP such as Plaintiff the ability to eat Kosher or even sanitary food. Those who are 11 required to eat Kosher by their faith, Plaintiff, suffer because of these policies. Culinary staff fail 12 to supervise their workers, and custodial staff refuse to admonish those found to contaminate 13 food and actively conspire with culinary Staff (Defendants – both) to force Plaintiff to accept 14 spoiled/contaminated food. RVR threats include refusal to obey orders, threats of inciting a riot, 15 hunger strike initiation, and assault on staff. Muslim inmates do not suffer such prejudice and 16 have no problems with their RMA meals. 17 Defendant Raythel Fisher, Jr., only allows access to the Rabbi one day a week for 18 Plaintiff. Plaintiff has raised the issues with the Rabbi who investigated and decided that there 19 were legitimate problems with the KDP and forwarded those issues to the RRC, Food Manager, 20 CRM, and Warden (Raythel Fisher, Jr.). Defendant Fisher has disallowed Shabbat (Saturday) 21 services and refuses to accommodate Shabbat work prohibition for Plaintiff, but permits the 22 Muslim holidays to be observed, unlike the majority of holidays required by Jewish law. 23 Likewise accommodations are readily made for the Christian services, whereas the two days of 24 Rabbi access was reduced to one day. 25 Inmates Anderson and Does #4 actively hate against the Plaintiff by contaminating the 26 Kosher food (Kosher is inherently a Jewish observation as it was delivered to the Jewish Nation 27 by Moshe/Moses at Mount Sinai) and disrupting Kosher observance. Anderson uses words to 28 1 describe Plaintiff such as “Fake a** Mother Fu**ers,” showing his racism, hate, and 2 discriminatory intent that he acts upon. 3 /// 4 Officers Keene and Avila-Gonzales (Defendants) and Sergeants Clements and Santoya 5 (Defendants) display their prejudice with their words and actions. They have actively caused the 6 inability to observe Plaintiff’s faith. Keene has disrupted the KDP and vocally displayed her 7 (Keene’s) motivations and reasons that are not related to any legitimate penological interest. 8 Avila-Gonzales targets Plaintiff for Plaintiff’s faith to harass Plaintiff and confiscate Plaintiff’s 9 head covering (Yarmulke) that is explicitly permitted. When the staff issues are raised to their 10 supervisors in face-to-face interactions Defendants Clements and Santoya refuse to act. Clements 11 has publicly embarrassed KDP inmates with intimidation. 12 Defendant Moosebaur brags about how his family murdered the Jewish population in 13 Germany. Moosebaur expresses his desire to “Kill all the Jews” and uses his position to 14 intentionally disrupt the Kosher Diet Program by having the meals served to Plaintiff go rotten 15 out in the elements, allowing his workers (with Defendant Cruz) to open and contaminate the 16 meals while stealing the meals’ contents (meals served to Plaintiff). Moosebaur tried to force 17 Plaintiff and KDP to eat rotten food while he watched and laughed. Moosebaur is prejudiced and 18 discriminatory. Defendant Anguiano likewise has taken an active role in taking away the ability 19 of Plaintiff to eat suitable food. He was trained by Moosebaur to deny requests for replacement 20 meals even when they are rotten, spoiled, spilled, open, contaminated, or otherwise unfit for 21 consumption (or rendered non-Kosher). The actions of Defendants are discriminatory and 22 resulted in the denial of protected conduct. Defendants acted in concert with one another to deter 23 by force (Paez and Anguiano), with threats of retaliation. 24 Defendant Mohktar shows his discriminatory animus by intentionally reducing the 25 nutritional content of the KDP and Plaintiff’s food (the on-site prepared salads, by removing 26 vegetables, etc.) in response to attempts to observe the Plaintiff’s religious tenets. In addition, 27 when the need for fasting arrives due to a mandated religious fast, defendants Mohktar and Fisher 28 1 disrupt this process despite approval from Sacramento (CDCR Headquarters) and the federal 2 RTM as referenced by the D.O.M. 3 /// 4 /// 5 4) RLUIPA: 6 a) The aforementioned restrictions placed upon Plaintiff are barriers placed 7 by individual decisions made by Defendants. The decisions do not serve any legitimate purpose. 8 Allowing the contamination by the intentional spoiling of food, the prejudice and retaliation 9 actions have no basis in legitimacy. 10 b) Defendants have placed a substantial burden on Plaintiff’s ability to 11 exercise Plaintiff’s faith and follow the tenets of Plaintiff’s religion. There is no compelling 12 reason to do so, and it is not in the furtherance of a government interest. It is not the “least 13 restrictive” manner to obtain any goal other than to hate on the faithful, such as Plaintiff. 14 c) Keeping Kosher (observing Kashrus) is a well-established “Central Tenet” 15 of Plaintiff’s faith. It is a mandatory requirement. 16 d) Prison officials have been made well aware of the inability of Plaintiff to 17 keep Kosher and have taken no corrective action. Defendants do not care, except to harm 18 Plaintiff. Defendants disregard the complaints of Plaintiff except to retaliate. When Plaintiff’s 19 food is served rotten, Plaintiff does not eat, and when the food is contaminated, it is only rarely 20 exchanged. Plaintiff often does not eat, or only eats portions that are not contaminated. Plaintiff 21 is always improperly fed. When fed Plaintiff is served nutritionally deficient food on a regular 22 basis and is subject to discriminatory treatment by Defendants, both inmates and staff 23 (culinary/custody). 24 e) Plaintiff has suffered emotionally, physically, and spiritually. The effect 25 that Defendants’ actions have had on Plaintiff are acute and lasting. 26 f) Plaintiff has a sincerely held belief that requires Plaintiff to eat only 27 Kosher. Plaintiff’s belief is Orthodox Judaism requiring Kosher. 28 5) State Tort Claims 1 a) This court has jurisdiction over the state tort claims due to supplemental 2 jurisdiction over the issues presented in the complaint. 3 b) There is no 11th Amendment immunity because Plaintiff is a citizen1 of 4 the State of California. Further, any immunity that may have existed is forfeited under the 5 California Tort Claims Act (CTCA) since Plaintiff filed under the act and filed this complaint in 6 compliance with CTCA and was instructed to file this complaint by the Government Claims 7 Board. 8 c) Defendants are sued jointly and severally for all state tort claims, in both 9 their personal and professional manners. 10 d) CCR 15 § 3054(a)(b) 11 Reasonable efforts to accommodate Plaintiff should have been made, but were not made, 12 and instead efforts were made to deter Plaintiff from exercising Plaintiff’s rights. Further 13 religious awareness training was either not conducted or conducted only on paper. The staff 14 regularly state that they are completely unaware of Jewish traditions and holidays. In fact, 15 Plaintiff has been accused of inventing holidays and has been disrespected for observing religious 16 tenets such as donning tzitzit, tefillin, and keeping Kosher. 17 e) CCR 15 § 3054.2 (d-f) (g[1]) 18 There is a requirement to adhere to KDP menus that has been ignored, and when the issue 19 has been raised, culinary staff reprisal in the form of retaliation is the default response, or threats 20 of force or retaliation. One of the KDP participants was accused of assaulting Officer Keene after 21 speaking to her at a distance while limping with his walker, and he subsequently fell when he 22 flinched as she made a violent gesture towards him (assault).4 23 Kosher Passover foods are to be provided, but due to contamination the foods provided 24 were not Kosher, nor Kosher for Passover. Appropriate training is to be done with “all workers, 25 custody and food service employees . . . supervisors, ordering, preparation, serving KDP.” There 26 has never been training for the inmate workers since the recording of this complaint. Custody has 27 28 4 Plaintiff is unable to locate him since her Ad-Seg placement. 1 not received training, or it has only been a paper training, i.e., they lock down the program, go to 2 the gymnasium and literally eat donuts, tell jokes, and sign a paper saying they were trained. The 3 food service employees admitted they were untrained except by an annual verbal instruction from 4 the Rabbi they had forgotten. The supervisory do not supervise, the ordering staff order non- 5 nutritious food that is rendered non-Kosher, the preparation staff prepare non-Kosher food, the 6 serving inmates handle their genitalia and refuse to wash their hands after using the restroom or 7 change their gloves, and then handle the Kosher food, including fruits and vegetables that are 8 often unwrapped. The review, procurement, storage, and distribution is greatly flawed. The foods 9 are opened, stolen from, allowed to rot and fester, and otherwise contaminated. 10 f) CCR 15 § 3050(a) 11 A wholesome, nutritionally balanced diet is not provided. 12 g) CCR 15 § 3052(a)(e) 13 The food is to be handled in accordance with the Health and Safety Code of California 14 (H&SC) § 113945 through § 114259.4 of the California Retail Food Code (CFC). The food is 15 not, the sanitation is absent, gloves are not changed, hands are not washed after using the 16 restroom, the trays are dirty, the tables are unclean, and vectors exist (pests and vermin). 17 Workers are not trained nor expected to follow sanitation standards of the CFC. The 18 workers do not follow those standards. Workers are not permitted to serve food until instructed 19 in these standards and are required by administrative law to follow them, yet they do serve food, 20 in violation. 21 h) CCR Title 3, Div. 2, Sub. 1, Article 2 § 901.1 22 Condemnation and Retention of Product: The packaging of the Kosher foods is disturbed 23 to a great extent. Ripped open, cut open, bacteria and mold growing in what is supposed to be 24 vacuum sealed products. In part, these things are to be retained and not distributed. However, 25 they are instead distributed. The vacuum sealed meats in particular, and the pastries. 26 i) CCR Title 3, Div. 2, Chapter 4, Sub. 2, Article 45 §1180.43(b)(2)(D) 27 Meat inedible by humans – Identification: To identify food that is inedible to humans, 28 one factor that is definite is “coarsely ground hard bone incorporated with the meat.” The turkey 1 in the lunches served has coarsely ground hard bone incorporated into it. This bone has caused 2 broken teeth and lacerations to the mouth and throat. This issue has been raised with Defendants 3 several times by the Plaintiff, but Plaintiff has been ignored. This food when served presents an 4 immediate danger when consumed. (Note also an 8th Amendment violation as conditions that 5 failed to meet public health standards as in this section, 5d.) 6 j) California Civil Code §52.1(b) 7 The lack of nutrition, harm from dangerous foods and subsequent broken teeth and 8 sickness, retaliatory actions, threats of force and violence, allow for the damages in the amount 9 of $25,000 per incident. While exercising a protected right, Plaintiff suffered at the hands of 10 Defendants as outlined in the complaint. 11 k) Tortious Actions of Defendants 12 As outlined, the intentional tortious actions of Defendants has caused harm to Plaintiff 13 and as such, Plaintiff is entitled to compensation and damages. 14 As relief, Plaintiff requests monetary damages, including punitive damages, declaratory 15 relief, and injunctive relief. 16 III. SUMMARY JUDGMENT BASED ON EXHAUSTION 17 A. Legal Standards 18 1. Statutory Exhaustion Requirement 19 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that “[n]o 20 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 21 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 22 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are 23 required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 24 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 25 (9th Cir. 2002). However, a prisoner who has fully complied with the PLRA’s exhaustion 26 requirement need not file an entirely new federal case simply because they had not exhausted 27 when they filed their original federal complaint. Jackson v. Fong, 870 F.3d 928 (9th Cir. 2017); 28 accord Saddozai v. Davis, --- F.4th ---, 2022 WL 1613616 (9th Cir. May 23, 2022.) Exhaustion 1 is required regardless of the relief sought by the prisoner and regardless of the relief offered by 2 the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion 3 /// 4 requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 5 532, 122 S.Ct. 983, 993 (2002). 6 “[T]o properly exhaust administrative remedies prisoners ‘must complete the 7 administrative review process in accordance with the applicable procedural rules,’ [ ]—rules that 8 are defined not by the PLRA, but by the prison grievance process itself.” Bock, 549 U.S. at 218 9 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). 10 See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison 11 system’s requirements ‘define the boundaries of proper exhaustion.’”). An untimely or otherwise 12 procedurally defective appeal will not satisfy the exhaustion requirement. Woodford, 548 U.S. 13 at 90. However, the Ninth Circuit has made clear: A grievance need not include legal 14 terminology or legal theories unless they are in some way needed to provide notice of the harm 15 being grieved. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). A grievance also need 16 not contain every fact necessary to prove each element of an eventual legal claim. Id. 17 Moreover, the Ninth Circuit has recognized that a grievance suffices to exhaust a claim 18 if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To 19 provide adequate notice, the prisoner need only provide the level of detail required by the prison’s 20 regulations. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing Bock, 549 U.S. at 218). 21 The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, 22 not to lay groundwork for litigation. Id; Griffin, 557 F.3d at 1120; see also Bock, 549 U.S. at 23 219 (citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the 24 primary purpose of a grievance is to alert prison officials to a problem, not to provide personal 25 notice to a particular official that they may be sued; the grievance process is not a summons and 26 complaint that initiates adversarial litigation.”). Thus, in this case, the grievance process used at 27 Valley State Prison where Plaintiff was incarcerated defines the boundaries of proper exhaustion. 28 1 A prisoner may be excused from complying with the PLRA’s exhaustion requirement if 2 they establish that the existing administrative remedies were effectively unavailable to them. See 3 Albino v. Baca (Albino II), 747 F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate’s 4 administrative grievance is improperly rejected on procedural grounds, exhaustion may be 5 excused as “effectively unavailable.” Sapp, 623 F.3d at 823; see also Nunez v. Duncan, 591 F.3d 6 1217, 1224–26 (9th Cir. 2010) (warden’s mistake rendered prisoner’s administrative remedies 7 “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012) (exhaustion 8 excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required 9 to proceed to third level where appeal granted at second level and no further relief was available); 10 Marella, 568 F.3d 1024 (excusing an inmate’s failure to exhaust because he did not have access 11 to the necessary grievance forms to timely file his grievance). In such a case, “the inmate cannot 12 pursue the necessary sequence of appeals.” Sapp, 623 F.3d at 823. 13 2. California Department of Corrections and Rehabilitation (CDCR) 14 Administrative Grievance System 15 The Court takes judicial notice of the fact that the State of California provides its prisoners 16 and parolees the right to appeal administratively “any policy, decision, action, condition, or 17 omission by the department or its staff that the inmate or parolee can demonstrate as having a 18 material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 19 3084.1(a) (2017). The process is initiated by submitting a CDCR Form 602. Id. at § 3084.2(a) 20 (2017). 21 On January 28, 2011, California prison regulations governing inmate grievances were 22 revised. Cal.Code Regs. tit. 15, § 3084.7. Now inmates in California proceed through three 23 levels of appeal to exhaust the appeal process: (1) formal written appeal on a CDC 602 inmate 24 appeal form, (2) second level appeal to the institution head or designee, and (3) third level appeal 25 to the Director of the California Department of Corrections and Rehabilitation (“CDCR”). 26 Cal.Code Regs. tit. 15, § 3084.7. Under specific circumstances, the first level review may be 27 bypassed. Id. The third level of review constitutes the decision of the Secretary of the CDCR 28 and exhausts a prisoner’s administrative remedies. See id. § 3084.7(d)(3). 1 Since 2008, medical appeals have been processed at the third level by the Office of Third 2 Level Appeals for the California Correctional Health Care Services. A California prisoner is 3 required to submit an inmate appeal at the appropriate level and proceed to the highest level of 4 review available to them. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 5 293 F.3d 1096, 1098 (9th Cir. 2002). Since the 2011 revision, in submitting a grievance, an 6 inmate is required to “list all staff members involved and shall describe their involvement in the 7 issue.” Cal.Code Regs. tit. 15, § 3084.2(a)(3). Further, the inmate must “state all facts known 8 and available to them regarding the issue being appealed at the time,” and they must “describe 9 the specific issue under appeal and the relief requested.” Cal.Code Regs. tit. 15, § 3084.2(a)(4). 10 Inmates now have thirty calendar days to submit their appeal from the occurrence of the event or 11 decision being appealed, or “upon first having knowledge of the action or decision being 12 appealed.” Cal.Code Regs. tit. 15, § 3084.8(b). 13 At the time of the events giving rise to the present action in 2016-19, California prisoners 14 were required to submit appeals within thirty calendar days of the event being appealed. 15 Cal.Code Regs. tit. 15, § 3084.8(b). The process was initiated by submission of the appeal to the 16 first formal level. Id. at § 3084.7(a). Three levels of appeal were involved, including the first 17 formal level, second formal level, and third formal level. Id. at § 3084.7. A final decision at the 18 third level5 of review satisfied the exhaustion requirement under 42 U.S.C. § 1997e(a). Id. at § 19 3084.7(d)(3); see Lira v. Herrera, 427 F.3d 1164, 1166 (9th Cir. 2005). 20 Until June 1, 2020, when California Code of Regulations Title 15, sections 3084 through 21 3084.9 were repealed and replaced with renumbered and amended provisions at sections 3480 22 through 3487, California state prisoners were required to use this process to satisfy § 1997e(a) 23 and exhaust their claims prior to filing suit. Woodford, 548 U.S. at 85 (2006); McKinney, 311 24 F.3d. at 1199-1201. A California prisoner is required to submit an inmate appeal at the 25 appropriate level and proceed to the highest level of review available to them. Butler, 397 F.3d 26 at 1183; Bennett, 293 F.3d at 1098. 27 28 5 The third level is sometimes known as the Director’s level. 1 3. Motion for Summary Judgment for Failure to Exhaust 2 The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under 3 which defendants have the burden of raising and proving the absence of exhaustion. Bock, 549 4 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the Ninth 5 Circuit issued a decision overruling Wyatt with respect to the proper procedural device for raising 6 the affirmative defense of exhaustion under § 1997e(a). Albino II, 747 F.3d at 1168–69. 7 Following the decision in Albino II, defendants may raise exhaustion deficiencies as an 8 affirmative defense under § 1997e(a) in either (1) a motion to dismiss pursuant to Rule 12(b)(6)6 9 or (2) a motion for summary judgment under Rule 56. Id. If the court concludes that Plaintiff 10 has failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the 11 complaint barred by § 1997e(e). Bock, 549 U.S. at 223–24; Lira, 427 F.3d at 1175–76. 12 Summary judgment is appropriate when it is demonstrated that there “is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 14 R. Civ. P. 56(a); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts, 15 summary judgment will not be granted.”) A party asserting that a fact cannot be disputed must 16 support the assertion by “citing to particular parts of materials in the record, including 17 depositions, documents, electronically stored information, affidavits or declarations, stipulations 18 (including those made for purposes of the motion only), admissions, interrogatory answers, or 19 other materials, or showing that the materials cited do not establish the absence or presence of a 20 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 21 Fed. R. Civ. P. 56(c)(1). In judging the evidence at the summary judgment stage, the court “must 22 draw all reasonable inferences in the light most favorable to the nonmoving party.” Comite de 23 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The 24 court must liberally construe Plaintiff’s filings because she is a pro se prisoner. Thomas v. 25 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 26 In a summary judgment motion for failure to exhaust administrative remedies, the 27 28 6 Motions to dismiss under Rule 12(b)(6) are only appropriate “[i]n the rare event a failure to exhaust is clear on the face of the complaint.” Albino II, 747 F.3d at 1162. 1 defendants have the initial burden to prove “that there was an available administrative remedy, 2 and that the prisoner did not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the 3 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 4 showing that there is something in their particular case that made the existing and generally 5 available administrative remedies effectively unavailable to them.” Id. The ultimate burden of 6 proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 7 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 8 1166. 9 In arriving at these findings and recommendations, the court carefully reviewed and 10 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 11 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 12 reference to an argument, document, paper, or objection is not to be construed to the effect that 13 this court did not consider the argument, document, paper, or objection. This court thoroughly 14 reviewed and considered the evidence it deemed admissible, material, and appropriate. 15 B. Undisputed Facts 16 In accordance with Local Rule 260(a), Defendants submit the following Statement of 17 Undisputed Facts with references to the supporting evidence. Unless otherwise noted, the 18 following facts are undisputed by the parties or as determined by the court based on a thorough 19 review of the record.7 20 UNDISPUTED FACTS 21 I. Plaintiff Gann’s Allegations Against Defendants 22 DEFENDANTS’ UNDISPUTED FACT PLAINTIFF’S RESPONSE 23 AND SUPPORTING EVIDENCE AND SUPPORTING EVIDENCE 24 1. At all times mentioned in the First 1. Undisputed. 25 Amended Complaint (FAC), Plaintiff Gann 26 27 7 These facts are taken from Defendants’ Statement of Material Undisputed Facts. (ECF 28 No. 49-1.) On March 7, 2022, Plaintiff submitted a response to Defendants’ undisputed facts. (ECF No. 57.) The court has considered all declarations and exhibits submitted in support of the parties’ statements. 1 was a California Prison inmate, housed at 2 Valley State Prison. See Gann’s first 3 amended complaint (FAC), ECF 20. 4 2. Gann alleges that she must be served a 2. Disputed: “. . . until she was transferred 5 kosher diet for religious reasons, but she did from VSP to CIM. . .” The allegation time 6 not receive proper kosher meals from frame did not include any time beyond the 7 approximately December 26, 2016, until she original filing, while many more bad meals 8 was transferred from VSP to CIM on or were served that verbiage does not find itself 9 around September 20, 2021. Gann’s FAC, in the FAC, specifically in regards to transfer. 10 ECF 20: at pp. 5-11:2-25; 22:24- 26; see ECF Evidence: FAC (First Amended Complaint).8 11 38, Notice of Change of Address, signed 12 September 20, 2021. 13 3. Gann alleges that from December 26, 2016 3. Disputed: “. . . until she was transferred out 14 until she was transferred out of VSP, the of VSP. . .” The allegation time frame did not 15 kosher meals at VSP contained food that was include any time beyond the original filing, 16 rotten, spoiled, and otherwise unfit for human while many more rotten, and spoiled meals 17 consumption. Gann’s FAC, ECF 20 at 5:2-5. were served beyond that time, verbiage does 18 not find itself in the FAC, specifically in 19 regards to transfer. Evidence: FAC (First 20 Amended Complaint).9 21 22 8 A material fact is genuinely disputed if the evidence is such as would permit a reasonable fact finder to return a verdict for the nonmoving party. Fed. R. Civ. P. Rule 56(a). Here, the 23 parties’ dispute of fact in UF 2 about the exact time frame during which Plaintiff did not receive proper 24 kosher meals is not material for purposes of the court’s analysis of Defendant’s motion. Therefore, UF 2 is not a genuinely disputed material fact and does not show that there exists a genuine issue for 25 trial. 26 9 A material fact is genuinely disputed if the evidence is such as would permit a reasonable fact finder to return a verdict for the nonmoving party. Fed. Rules Civ. Proc. Rule 56(a). Here, 27 the parties’ dispute of fact in UF 3 about the exact time frame during which Plaintiff did not receive proper 28 kosher meals is not material for purposes of the court’s analysis of Defendants’ motion. Therefore, UF 3 is not a genuinely disputed material fact and does not show that there exists a genuine issue for trial. 1 4. Alleged issues include meals with half- 4. Undisputed. 2 cooked, spoiled, or denatured meat; meats that 3 had spoiled due to thawing and refreezing 4 them during the delivery and distribution 5 process; and meal components, such as 6 applesauce, being open, spoiled, or 7 contaminated. Gann’s FAC, ECF 20 at 5: 1- 8 27. 9 5. Gann also alleges that inmate workers steal 5. Undisputed. 10 items in the kosher meals. Gann’s FAC, ECF 11 20 at 6:1. 12 6. Gann alleges that she complained to 6. Undisputed. 13 Defendants about this, but was told, “Too 14 bad,” and Defendants put Gann in danger by 15 sharing her complaints with the inmate 16 kitchen works. Gann’s FAC, ECF 20 at 6:1- 17 12. 18 7. Gann alleges that Defendants also 7. Undisputed. 19 allegedly caused inmate workers to wear their 20 serving gloves to the restroom before using 21 them for service. Gann’s FAC, ECF 20 at 22 6:10-12. 23 8. Gann alleges that kosher meals are 8. Undisputed. 24 prepared or served in ways that do not accord 25 with the mandates of Gann’s religion, 26 including: heating in non-kosher ovens; 27 28 . 1 preparation by kitchen staff not trained in 2 accordance with the California Retail Code or 3 by a rabbi; and, on fasting days, the provision 4 of all meals at once only for Defendants to 5 instruct Gann to eat them within a specific 6 time. Gann’s FAC, ECF 20 at 6-9: 1-25. 7 9. Gann alleges that the only Jewish worker 9. Undisputed. 8 objected to the use of non-kosher ovens, but 9 Moosbauer told him to “get in the oven” and 10 made other threatening offensive statements 11 about Jews. Gann’s FAC, ECF at 6:20-23. 12 10. Gann alleges that she complained about 10. Undisputed. 13 these issues to Defendants directly and 14 submitted grievances to no avail. Gann’s 15 FAC, ECF 20 at 13:12-28. 16 11. Gann alleges that Defendants blame the 11. Undisputed. 17 food vendor for issues, but nonetheless 18 continue to order food from that vendor. 19 Gann’s FAC, ECF 20 at 10-11:22-5. 20 12. Following screening, the claims 12. Undisputed. 21 remaining in this action include: (1) violation 22 of the Religious Land Use and Institutional 23 Persons Act (“RLUIPA”) against all 24 Defendants; (2) violation of the First 25 Amendment’s Free Exercise Clause against 26 all Defendants; (3) adverse conditions of 27 confinement in violation of the Eighth 28 Amendment against all Defendants; (4) 1 failure to protect Gann from harm to her 2 health in violation of the Eighth Amendment 3 against Defendants Fisher and Moosbauer 4 (food safety); and retaliation in violation of 5 the First Amendment against Defendant 6 Moosbauer only. The Court ordered that all 7 remaining claims and defendants be 8 dismissed. Screening Order, ECF 20 at 2. 9 II. Plaintiff Gann’s Administrative Grievances Related to the JKDP/KDP at VSP. 10 13. Since August 1, 2008, the California 13. Disputed: . . .“(OOA) Receives, reviews, 11 Department of Corrections and Rehabilitation . . .” The OOA does not necessarily receive 12 (CDCR) office of appeals (OOA) receives, all final level appeals. Many final-level 13 reviews, and maintains all final-level appeals appeals are mailed by inmates and do not 14 for non-health care issues. Declaration of arrive at the OOA, and only select appeals are 15 Howard E. Moseley in support of Defendants’ actually reviewed, many are considered 16 Motion for Summary Judgment (Moseley exhausted after a period of time and are not 17 Decl.) at ¶ 2. responded to or a notice is mailed stating that 18 the time has expired and adopt the local 19 review. Evidence: Gann Declaration P.210 20 14. When an inmate appeal is received by the 14. Undisputed. 21 OOA, it is assigned a tracking log number and 22 entered into a computer system. Moseley 23 Decl., at ¶ 3. 24 25 10 A material fact is genuinely disputed if the evidence is such as would permit a 26 reasonable fact finder to return a verdict for the nonmoving party. Fed. Rules Civ. Proc. Rule 56(a). Here, the parties’ dispute of fact in UF 13 about whether the OOA receives and reviews every final level appeal 27 is not material for purposes of the court’s analysis of Defendant’s motion. Therefore, UF 13 is not a 28 genuinely disputed material fact and does not show that there exists a genuine issue for trial. . 1 15. An “Appeal History Report” is available 15. Undisputed. 2 in the computer system for each offender. 3 Moseley Decl., ¶ 3. 4 16. The Appeal History Report includes the 16. Undisputed. 5 following information: the offender’s first and 6 last, name, the offender’s CDCR number, the 7 appeal log number, the appeal issue, the 8 appeal issue, the date the appeal was received, 9 the underlying grievance log number (which 10 includes the acronym of the institution or 11 parole region where the underlying grievance 12 arose), the date the appeal is closed, and the 13 final disposition of the appeal. Moseley 14 Decl., ¶ 3. 15 17. All offender appeals are reviewed and 17. Disputed: “. . . All offender appeals are 16 screened out or screened in by the OOA. reviewed and screened out or screened in by 17 Moseley Decl., at ¶ 4. the OOA . . .” Not all appeals, only the 18 received final-level reviews. Local or initial 19 appeals are not reviewed by the OOA, many 20 are not reviewed. Evidence: Gann 21 Declaration P.211 22 18. An appeal is screened out (and not 18. Disputed: “. . . if it does not comply with 23 24 11 A material fact is genuinely disputed if the evidence is such as would permit a 25 reasonable fact finder to return a verdict for the nonmoving party. Fed. Rules Civ. Proc. Rule 56(a). Here, the parties’ dispute of fact in UF 17 about whether the OOA receives and reviews every offender appeal 26 or only every Third Level appeal is not material for purposes of the court’s analysis of Defendant’s motion. Therefore, UF 17 is not a genuinely disputed material fact and does not show that there exists 27 a genuine issue for trial. 28 . 1 answered substantively) if it does not comply the regulations . . .” Appeals are often 2 with the regulations governing the appeal improperly screened out leaving no review for 3 process. Moseley Decl., at ¶ 4. appealants/inmates regardless of regulation 4 compliance. Evidence: Gann Declaration 5 P.212 6 19. If an appeal is screened out, the appeal is 19. Disputed: “. . . returned with a letter 7 returned with a letter instructing the offender instructing . . .” Many times the appeals are 8 how to cure the deficiency, if a cure is discarded, and not returned, other times the 9 possible. Moseley Decl., at ¶ 4. appeal is returned without indication on repair 10 information. Evidence: Gann Declaration 11 P.313 12 20. An appeal is screened in (and answered 20. Disputed: “. . . an appeal is screened in 13 substantively) if it complies with the (and answered substantively) if it complies 14 governing regulations. Mosely Decl., at ¶ 4. with the governing regulations . . .” Blatantly 15 untrue, substantive answers are exceedingly 16 rare, and compliance with regulation is often 17 disregarded on behalf of CDCR, improperly 18 screening appeals that do comply and not 19 providing response. Evidence: Gann 20 21 12 A material fact is genuinely disputed if the evidence is such as would permit a reasonable fact finder to return a verdict for the nonmoving party. Fed. Rules Civ. Proc. Rule 56(a). Here, 22 the parties’ dispute of fact in UF 18 about whether the OOA sometimes improperly screens out appeals 23 regardless of the regulations is not material for purposes of the court’s analysis of Defendant’s motion. Therefore, UF 18 is not a genuinely disputed material fact and does not show that there exists a 24 genuine issue for trial. 25 13 A material fact is genuinely disputed if the evidence is such as would permit a reasonable fact finder to return a verdict for the nonmoving party. Fed. Rules Civ. Proc. Rule 56(a). Here, 26 the parties’ dispute of fact in UF 19 about whether sometimes an appeal is not returned to the inmate, or sometimes is returned without a letter instructing the offender how to cure the deficiency is not material 27 for purposes of the court’s analysis of Defendant’s motion. Therefore, UF 19 is not a genuinely disputed 28 material fact and does not show that there exists a genuine issue for trial. 1 Declaration P. 3-414 2 21. The Appeal History Report includes 21. Disputed: “. . . Appeal History Report 3 appeals that were screened out or in; and if includes appeals that were screened out or in; 4 screened out, the report includes the reason for and if screened out, the report . . .” The 5 the screen-out. Moseley Decl., at ¶ 4. Appeal History report only contains ‘Some’ 6 of the appeals that were screened out. 7 Evidence: Gann Declaration P. 215 8 22. Decisions by the OOA represent the final 22. Disputed: “. . . OOA represents the final 9 level of review in the Department’s grievance level of review . . .” Grievances that are 10 and appeal process and are rendered on behalf denied review at the local level and 11 of the secretary of the department. Moseley improperly screened repeatedly provide an 12 Decl., at ¶ 5. impassible barrier to relief, in this occasion 13 the appeal is rendered exhausted, such as in 14 the circumstance of rejected appeals that 15 cannot be further appealed. Evidence: Gann 16 Declaration P. 1-216 17 23. If filing a grievance before June 1, 2020, 23. Undisputed. 18 19 14 A material fact is genuinely disputed if the evidence is such as would permit a 20 reasonable fact finder to return a verdict for the nonmoving party. Fed. Rules Civ. Proc. Rule 56(a). Here, the parties’ dispute of fact in UF 20 about whether an appeal is always screened in and answered 21 substantively if it complies with the governing regulations is not material for purposes of the court’s analysis of Defendant’s motion. Therefore, UF 20 is not a genuinely disputed material fact and does not 22 show that there exists a genuine issue for trial. 23 15 A material fact is genuinely disputed if the evidence is such as would permit a 24 reasonable fact finder to return a verdict for the nonmoving party. Fed. Rules Civ. Proc. Rule 56(a). Here, the parties’ dispute of fact in UF 21 about whether the Appeal History Report contains every appeal that 25 was screened out is not material for purposes of the court’s analysis of Defendant’s motion. Therefore, UF 21 is not a genuinely disputed material fact and does not show that there exists a genuine issue for 26 trial. 27 16 Plaintiff asserts that sometimes appeals are improperly screened, but he has not 28 disputed Defendants’ statement in UF 22 that “decisions by OOA represent the final level of review in the Department’s grievance and appeal process.” Therefore, UF 22 remains undisputed. 1 an offender was required to follow the 2 procedures set forth in CCR, title 15, sections 3 3084-3085 (repealed June 1, 2020). Moseley 4 Decl., at ¶ 6. 5 24. The OOA’s records of appeals are 24. Undisputed. 6 maintained in the course of the regularly 7 conducted activities of the OOA, and making 8 and maintain records is a regular practice of 9 those activities. Moseley Decl., at ¶ 7. 10 25. A search of the OOA computer system 25. Undisputed. 11 was conducted on January 3, 2022, under the 12 name Nathaniel Gann, CDCR No. G64542 for 13 all non-health care related appeals received by 14 the OOA. Moseley Decl., at ¶ 7; see Exh. 1. 15 26. A search was conducted of the OOA’s 26. Undisputed. 16 records to determine whether any appeals 17 submitted by Gann and received on or after 18 December 12, 2016, and before Gann initiated 19 this action on December 16, 2019,17 alleged 20 that Defendants Fisher, Paez, Anguiano, 21 Chapa, Lucero, Marquez, Cruz, or Moosbauer 22 violated RLUIPA. Moseley Decl., at ¶ 8. 23 27. A search was conducted of the OOA’s 27. Undisputed. 24 records to determine whether any appeals 25 submitted by Gann and received on or after 26 27 17 The Court’s record shows that Plaintiff filed the Complaint initiating this action on 28 December 26, 2019. (ECF No. 1.) Defendants’ statement in the Undisputed Facts that the action was initiated on December 16, 2019, appears to be a typographical error and shall be disregarded by the Court. 1 December 12, 2016, and before Gann initiated 2 this action on December 16, 2019, alleged that 3 Defendants Fisher, Paez, Anguiano, Chapa, 4 Lucero, Marquez, Cruz, or Moosbauer 5 violated the First Amendment Free Exercise 6 Clause. Moseley Decl., at ¶ 8. 7 28. A search was conducted of the OOA’s 28. Undisputed. 8 records to determine whether any appeals 9 submitted by Gann and received on or after 10 December 12, 2016, and before Gann initiated 11 this action on December 16, 2019, alleged that 12 Defendants Fisher, Paez, Anguiano, Chapa, 13 Lucero, Marquez, Cruz, or Moosbauer were 14 responsible for Gann’s alleged adverse 15 conditions of confinement in violation of the 16 Eighth Amendment on or after December 12, 17 2016. Moseley Decl., at ¶ 8. 18 29. A search was conducted of the OOA’s 29. Undisputed. 19 records to determine whether any appeals 20 submitted by Gann and received on or after 21 December 12, 2016, and before Gann initiated 22 this action on December 16, 2019, alleged that 23 Fisher and Moosbauer failed to protect Gann 24 in violation of the Eighth Amendment on or 25 after December 12, 2016. Moseley Decl., at ¶ 26 8. 27 30. A search was conducted of the OOA’s 30. Undisputed. 28 records to determine whether any appeals 1 submitted by Gann and received on or after 2 December 12, 2016, and before Gann initiated 3 this action on December 16, 2019, alleged that 4 Moosbauer retaliated against Gann in 5 violation of the First Amendment on or after 6 December 12, 2016. Moseley Decl., at ¶ 8. 7 31. On May 26, 2019, Gann and a nineteen 31. Undisputed. 8 other inmates at Valley State Prison submitted 9 an inmate/parolee group appeal (group 10 appeal). Mosely Decl., ¶ 10, Exhibit Exh 3, 11 pp. 12- 17. 12 32. The group appeal was received by the 32. Undisputed. 13 inmate appeals division of Valley State Prison 14 on May 28, 2019. Mosely Decl., ¶ 10, Exhibit 15 Exh 3, pp. 12- 17. 16 33. The group appeal was assigned Log # 33. Undisputed. 17 VSP-B-19-01146. Mosely Decl., ¶ 10, 18 Exhibit Exh 3, pp. 12- 17. 19 34. The group appeal, Log # VSP-B-19- 34. Undisputed. 20 01146, alleges as follows under section A. 21 Explain your issue: “The JKDP/KDP (Jewish) 22 Kosher Diet Program, is a complete failure. It 23 does not comply with the Cooper Settlement, 24 nor Jewish Kosher laws and traditions as 25 required and agreed [sic] upon in the Cooper 26 Settlement. Rotten, spoiled, and unfit for 27 consumption food is being served, and not 28 replaced. Food is transported, opened and 1 cooked in shared ovens/carts used for non- 2 kosher food. Food is served in shared tray slot 3 after nonkosher food. Food is handled and 4 served by workers untrained in Kosher and 5 CFC procedures. Food is to be eaten on 6 unclean tables contaminated with un-kosher 7 food when wiped down with dirty 8 contaminated rags. No kosher utensils are 9 provided. Cold and hot foods are improperly 10 sealed, rendering them unsealed and open, not 11 double wrapped) exposing the food during 12 cooling and transportation. KDP’s are denied 13 meals when spoiled meals are served. Served 14 food does not match the menu neither by name 15 or by weight/quantity. AC Ventures is not an 16 RTM approved Orthodox Kosher 17 Certification (uses Triangle [sic] K.) Served 18 food is either not dated or past the expiration 19 date. Individual food items often do not have 20 kosher hechsher (sic). Meals are neither 21 wholesome nor nutritious, empty calories, 22 bread and sugar. Fruits and vegetables are 23 broken/cracked rendered un-kosher. KDP’s 24 eat and share the dining hall and sometimes 25 tables with non-KPD’s, regular eaters sneak 26 out with the KDP. The prayerful are not 27 permitted to self-segregate [sic] for the 28 purpose of prayer. Attempts at resolution 1 results in instant retaliation. Violations of 2 CRC 15 S 3054.2 a, e, d-g, CCR 3 § 1180.43 3 (b)2((D). California Retail Food Code (CFC), 4 OP Sec, I, IV, VI A.1, B.2, 3-6, D.1, 4.3-6, 5 F.2.a-b, G.2.4. V (20003 Cooper Settlement), 6 H&SC §113945-4259.” Mosely Decl., ¶ 10, 7 Exhibit Exh 3, pp. 12- 17. 8 35. The group appeal, Log # VSP-B-19- 35. Disputed: “. . . written, signed, and dated 9 01146, was cancelled at the first screening . . .” The screening notice was not signed, 10 level via a written, signed, and dated there was a checked box. Evidence P. 318 11 screening letter. Mosely Decl., ¶ 10, Exhibit 12 Exh 3, p. 11. 13 36. The June 3, 2019 screening letter states, 36. Undisputed. 14 “The enclosed documents are being returned 15 to you for the following reasons: Your appeal 16 has been cancelled pursuant to the California 17 Code of Regulations, Title 15, Section (CCR) 18 3084.6(f). Unfortunately, this appeal cannot 19 be accepted as a group appeal as each inmates 20 issue with the Jewish Kosher Diet Program is 21 different and therefore responses will vary on 22 a case-by-case basis, as stated in Title 15, 23 Section 3084.2(h)(4). You may notify the 24 appellants that they may submit separate 25 18 A material fact is genuinely disputed if the evidence is such as would permit a 26 reasonable fact finder to return a verdict for the nonmoving party. Fed. Rules Civ. Proc. Rule 56(a). 27 Here, the parties’ dispute of fact in UF 35 about whether screening letter was signed or there was a checked box is not material for purposes of the court’s analysis of Defendant’s motion. Therefore, UF 28 35 is not a genuinely disputed material fact and does not show that there exists a genuine issue for trial. 1 appeals on their behalf.”. Mosely Decl., ¶ 10, 2 Exh 3, p. 11. 3 37. On June 14, 2019, Gann submitted an 37. Disputed: “. . . Gann submitted an 4 inmate/parolee appeal, CDCR-602. Mosely inmate/parolee appeal . . .” Gann submitted 5 Decl., ¶ 9, Exh 2, pp. 3-6. Two (2) appeals on that date. Evidence: Gann 6 Deposition P. 3, Gann declaration P. 1,4; 7 Evidence P. D19 8 38. Gann’s June 14, 2019 inmate parolee 38. Disputed: “ . . . appeal CDCR 602 weas 9 appeal CDCR-602 was received by the inmate received . . .” Two (2) CDCR 602 were 10 appeals division of Valley State Prison on reviewed. Evidence: Gann Declaration P. 3, 11 June 17, 2019. Mosely Decl., ¶ 9, Exh 2, pp. Evidence P. D20 12 3-6. 13 39. Gann’s June 14, 2019 inmate parolee 39. Disputed: “. . . inmate parolee appeal 14 appeal was assigned Log # VSP-B-19-01285. CDCR 602 was assigned . . .” Only 1 of the 2 15 Mosely Decl., ¶ 9, Exh 2, pp. 3-6. inmate appeals was assigned a log number. 16 Evidence: Gann Declaration P. 3, Evidence P. 17 D21 18 40. The subject of Gann’s June 15, 2019 40. Undisputed. 19 inmate/parolee appeal CDCR-602, Log # 20 VSP-B-01285 was “the cancellation of CDC 21 602 VSP-B-19-01146.” Mosely Decl., ¶ 9, 22 23 19 Plaintiff has not disputed any part of fact UF 37, which says that on June 14, 2019, 24 Gann submitted an inmate/parolee appeal, CDCR-602. Therefore, UF 37 remains undisputed. 25 20 Plaintiff has not disputed any part of fact UF 38, which says that his June 14, 2019 inmate parolee appeal CDCR-602 was received by the inmate appeals division of Valley State Prison on 26 June 17, 2019. Therefore, UF 38 remains undisputed. 27 21 Plaintiff has not disputed any part of fact UF 39, which says that his June 14, 2019 28 inmate parolee appeal was assigned Log # VSP-B-19-01285CDCR-602. Therefore, UF 38 remains undisputed. 1 Exh 2, p. 3. 2 41. Gann’s June 15, 2019 inmate/parolee 41. Undisputed. 3 CDC 602, Log # VSP-B01285 was appealed 4 to the office of appeals and assigned appeal 5 Log No. 1908537. Mosely Decl., ¶ 9, Exh 2, 6 pp. 1-2. 7 42. In Appeal Log No. 1908537, Gann 42. Undisputed. 8 alleged that “Neither 3094.6(F) nor 9 3084.2(h)(4) apply to the instant appeal. You 10 misunderstood the [sic] the issue. The Kosher 11 Diet Program is a failure for all in the group. 12 While there many examples of the failure – 13 only the examples that do apply to all are 14 listed in the group 602. Individual issues were 15 not listed. So you can see that under 3084.2(h) 16 we are required to proceed as a group appeal, 17 as this issue of the Kosher Diet Program has 18 effected each of us, every example has 19 happened to each and every one of us. There 20 can be no individual or different responses 21 because every example applies to all of us. By 22 endorsing [sic] the original appeal, each 23 signatory to the group appeal, did thereby 24 attest to suffering all the harms alleged via 25 appeal such that this erroneous cancellation 26 basis misconstrues the factual predicate 27 common among all appellants, and is not a 28 pretext to obstruct/deny proper exhaustion 1 aimed at artificially denying me and my 2 fellow appellants proper legal standing to 3 redress these harms via litigation.” Mosely 4 Decl., ¶ 9, Exh 2, pp. 3-6. 5 43. There is no reference to Defendants 43. Undisputed. 6 Fisher, Paez, Anguiano, Chapa, Lucero, 7 Marquez, Cruz, or Moosbauer in Gann’s 8 written appeal, Appeal Log No. 1908537. 9 Mosely Decl., ¶ 9; Exh. 2, pp. 3-6. 10 44. Gann’s written appeal, Appeal Log No. 44. Undisputed. 11 1908537, was received on July 17, 2019. 12 Mosely Decl., ¶ 9; Exh. 2, p. 3. 13 45. Gann’s written appeal, Appeal Log No. 45. Disputed: “. . . was in compliance with 14 1908537 was denied on October 8, 2019, the rules and regulations . . .” The appeal was 15 because cancellation of Grievance Log No. inappropriately denied because the grievance 16 VSP-19-01146 was in compliance with the Log No. VSP-19-01146 was in error. The 17 rules and regulations established by the relevant grievance should have been 18 CDCR. Mosely Decl., ¶ 9; Exh. 2, pp. 1-2. processed as a group appeal in accordance 19 with the regulations. Evidence: Gann 20 Declaration P. 4, Gann Deposition 16-37, 21 Evidence P. D22 22 46. The findings for Appeal Log No. 1908537 46. Undisputed. 23 are as follows: “The Third Level of Review 24 (TLR) examined the issues of the appellant’s 25 appeal and reaffirms the institutions 26 27 22 Plaintiff disputes UF 45, which states that the cancellation of Appeal VSP-19-01146 28 (Plaintiff’s group appeal) was in compliance with CDCR’s rules and regulations. However, Plaintiff’s evidence does not support her opinion and her opinion does not create a dispute of material fact. 1 examination and conclusions as addressed 2 with the [Second Level Review]. The 3 appellant has failed to present evidence that 4 the VSP staff acted in violation of any law, 5 policies, or procedures. The appellant’s filed 6 group appeal was appropriately screened back 7 to the appellant with instructions for the 8 inmates who signed on to the appellant’s filed 9 group appeal to be informed they had to 10 submit separate appeals themselves. The CCR 11 3084.2(h)(4), (4) states, ‘An appeal shall not 12 be accepted or processed as a group appeal if 13 the matter under appeal requires a response to 14 a specific set of facts (such as disciplinary and 15 staff complaint appeals) that are not the same 16 for all participants in the appeal. In such case, 17 the group appeal shall be screened out and 18 returned to the inmate or parolee submitting 19 the appeal with directions to advise all those 20 who signed the appeal attachment to submit 21 individual appeals on their separate issues.” 22 Mosely Decl., ¶ 9; Exh. 2, pp. 2-3. 23 47. Review of the OOA records shows that 47. Undisputed. 24 other allegations by Gann were processed 25 through the final level of review after 26 December 12, 2016, and before the filing of 27 this lawsuit: 1) Appeal Log No. 170949; 2) 28 Appeal Log No. 17055969; 3) 1707057; 4) 1 1709259; 5) 1709656; 6) 1710152; 7) 2 1711861; 8) 1715793; 9) 1804765; 10) 3 1910714; 11) 1915075; and 12) 1916286. 4 Moseley Decl., ¶ 11 (a)-(l); Exh. 4-15. 5 48. Among the appeal logs listed in UF # 47 48. Disputed: “. . . None reference allegations 6 (administrative appeals), none reference that the JKDP/KDP is a complete failure . . .” 7 allegations that the JKDP/KDP is a complete Several other appeals mention the failure of 8 failure. Moseley Decl., ¶ 11 (a)-(l); see Exh. the KDP, including Log No. VSP-B-19- 9 4-15. 01285. “The Kosher Diet Program is a 10 failure”, Final Review Number 1908537, 2d 11 on the list in UF #47. Evidence: Gann 12 Declaration P. 4, Gann Deposition P. 26-37, 13 Evidence P. D23 14 49. Among the appeal logs listed in UM # 47 49. Undisputed. 15 (administrative appeals), none reference any 16 claims that Defendants Fisher, Paez, 17 Anguiano, Chapa, Lucero, Marquez, Cruz or 18 Moosbauer violated RLUIPA. Moseley 19 Decl., ¶ 11 (a)-(l); see Exh. 4-15. 20 50. Among the appeal logs listed in UM # 47 50. Undisputed. 21 (administrative appeals), none reference any 22 claims that Defendants Fisher, Paez, 23 Anguiano, Chapa, Lucero, Marquez, Cruz or 24 Moosbauer violated the First Amendment 25 Free Exercise Clause. Moseley Decl., ¶ 11 26 27 23 In her statement about UF 48, Plaintiff discusses Appeal no. VSP-B-19-01285/1908537 28 as one of the appeals listed in UF 47, but this appeal is not listed in UF 47. Therefore, UF 48 remains undisputed. 1 (a)-(l); see Exh. 4-15. 2 51. Among the appeal logs listed in UM # 47 51. Undisputed. 3 (administrative appeals), none reference any 4 claims that Defendants Fisher, Paez, 5 Anguiano, Chapa, Lucero, Marquez, Cruz or 6 Moosbauer subjected Gann to adverse 7 conditions of confinement in violation of the 8 Eighth Amendment. Moseley Decl., ¶ 11 (a)- 9 (l); see Exh. 4-15. 10 52. Among the appeal logs listed in UM # 47 52. Undisputed. 11 (administrative appeals), none reference any 12 claim that Fisher and Mossbauer failed to 13 protect Gann in violation of the Eighth 14 Amendment. Moseley Decl., ¶ 11 (a)-(l); see 15 Exh. 4-15. 16 53. Among the appeal logs listed in UM # 47 53. Undisputed. 17 (administrative appeals), none reference any 18 claim that Moosbauer retaliated against Gann 19 in violation of the First Amendment. Moseley 20 Decl., ¶ 11 (a)-(l); see Exh. 4-15. 21 54. The OOA records also show that one 54. Disputed: “. . . one related appeal, Appeal 22 unrelated appeal, Appeal Log No. 1800364, Log No. 1800364, was received and screened 23 was received and screened out during the out during the relevant timeframe . . .” 24 relevant timeframe. Moseley Decl., ¶ 12; see Additional appeal(s) were screened not listed 25 Exh. 16. in the OOA record referenced. Evidence: 26 27 28 1 Gann Declaration P. 1, 2, 324 2 3 C. Defendants’ Motion for Summary Judgment 4 Defendants move for summary judgment under Federal Rule of Civil procedure 56 on the 5 ground that there is no genuine dispute that Plaintiff failed to exhaust applicable administrative 6 remedies against Defendants for Plaintiff’s claims against them prior to filing suit as required by 7 the PLRA, 42 U.S.C. § 1997e(a), and thus Defendants are entitled to judgment as a matter of law. 8 Defendants’ evidence consists of the First Amended Complaint (ECF No. 20); Undisputed 9 Facts (ECF No. 49-1); Declaration of Howard E. Mosely (Associate Director of the Office of the 10 Appeals) (ECF No. 49-2) and its exhibits 1-16 (ECF No. 49-3), which include copies of 11 Plaintiff’s appeals, responses thereto, and other prison records; and, the Court’s record. 12 Defendants argue as follows. 13 First, a search was conducted of the office of appeals (OOA) records for appeals submitted 14 by Plaintiff on or after December 12, 2016, and before the filing of this action on December 26, 15 2019 (mistakenly stated as December 16, 2019 by defendants), concerning Plaintiff’s claims 16 against Defendants. (Moseley Decl. ¶¶ 7, 8 & Exh. 1, ECF no. 49-2 at 3; 49-3 at 1-3.) Defendants 17 found that on May 26, 2019, Plaintiff and nineteen other inmates submitted a group appeal, Log 18 No. VSP-B-19-01146, complaining that the Jewish Kosher Diet Program (JKDP/KDP) is a 19 complete failure. (Id. ¶ 10 & Exh 3, ECF No. 49-2 at 4, ECF No. 49-3 at 16-21.) The group 20 appeal was cancelled at the First Level of review on June 3, 2019, on the basis that a group appeal 21 was not appropriate for this issue. Plaintiff was advised to file her own separate appeal. (Id. ¶ 22 10 & Exh. 2-A, ECF No. 49-2 at 4, ECF No. 49-3 at 15.) 23 Because Plaintiff used the grievance process for the group appeal, Defendants argue that 24 the appeals process was available to Plaintiff and she was aware of it. 25 26 27 24 Plaintiff asserts that UF no. 54 does not refer to the additional appeals that were received and screened out, but Plaintiff has not disputed the fact as stated in UF 54. Therefore, UF 54 28 remains undisputed. 1 Instead of resubmitting a new separate appeal concerning the JKDP/KDP on Plaintiff’s 2 own behalf, Plaintiff filed an appeal on June 14, 2019, Log No. VSP-B-19-01285, contending 3 that her appeal Log No. VSP-B-19-01146 was inappropriately cancelled. (Id. ¶ 9 & Exh 2, ECF 4 No. 49-2 at 3-4, ECF No. 49-3 at 1-6.) Plaintiff’s appeal Log No. VSP-B-19-01285 (assigned 5 appeal log #1908537) was denied at the Third Level of review. (Id. ¶ 10 & Exh. 2, ECF No. 49- 6 2 at 4, ECF No. 49-3 at 5-6.) 7 Defendants argue that only the claims concerning cancellation of Plaintiff’s appeal were 8 exhausted through the Third Level of Review, and therefore Plaintiff’s claims in this action 9 against Defendants for violations of RLUIPA, the First Amendment and the Eighth Amendment 10 rights were not exhausted. (Id.) 11 Defendants found that other appeals filed by Plaintiff that were processed through the final 12 level of review after December 12, 2016 but before the filing of this lawsuit, that none of these 13 grievances allege that the JKDP/KDP (Jewish) Kosher Diet Program was a complete failure, or 14 refer to any of the claims against the individual Defendants at issue in this lawsuit. (Id. ¶ 11 (a)- 15 (l) & Exhs. 4-15, ECF No. 49-2 at 3-4, ECF No. 49-3 at 140-451.) 16 Defendants argue that prison officials were not on notice of Plaintiff’s claims against 17 Defendants in this case concerning the JKDP/KDP because Plaintiff did not complain of any 18 wrongdoings by Defendants, or identify any of them in the group appeal, and no such claims 19 have been reviewed at the Third and final level, and thus should be dismissed. (Id. ¶ 10 & Exh 20 3, ECF No. 49-2 at 4, ECF No. 49-3 at 11.) 21 D. Defendants’ Burden 22 The court finds that Defendants have carried their initial burden to prove that there was 23 an available administrative remedy and that Plaintiff failed to exhaust that remedy. Therefore, 24 the burden now shifts to Plaintiff to come forward with evidence showing that Plaintiff did 25 exhaust the available remedies for her claims against Defendants, or that there is something in 26 her particular case that made the existing and generally available administrative remedies 27 effectively unavailable to her. 28 E. Discussion 1 In opposition to Defendants’ motion for summary judgment, Plaintiff argues that she 2 exhausted her administrative remedies for her claims in this case with Grievance Number VSP- 3 B-19-01285/1908537, because she submitted the grievance for Third Level review and was 4 provided a response informing her that “[t]his decision exhausts the administrative remedy 5 available to the appellant within CDCR.” (Moseley Decl., ¶ 9, Exh. 2, ECF No. 49-3 at 5-6.) In 6 addition, Plaintiff argues that she took extraordinary measures to ensure that prison officials were 7 on notice regarding her claims. 8 Plaintiff’s evidence includes her responses to Defendants’ Undisputed Facts (ECF No. 57 9 at 13-17 (Exh. A)); her sworn declaration (ECF No. 57 at 19-22 (Exh. B)); her verified complaints 10 (ECF Nos. 1, 20); her affidavit dated July 2, 2020 (ECF No. 57 at 53-56); copies of Plaintiff’s 11 form CDCR-22 inmate requests (ECF No. 57 at 25-30 (Exh. C)); copies of three appeals (ECF 12 No. 57 at 31-44 (Exh. D)); copy of the response by the California Department of General Services 13 concerning Plaintiff’s state claim No. 19004717 (ECF No. 57 at 46 (Exh. E)); declarations of 14 other inmates (ECF No 57 at 48-52 (Exh. F)); and, copies of excerpts from Plaintiff’s deposition 15 testimony (ECF No. 57 at 68-80 (Exh. G)).25 16 1. Plaintiff’s Claims. 17 There is no dispute that this case now proceeds only with Plaintiff’s five claims in the 18 First Amended Complaint: 19 (1) Violation of RLUIPA (Religious Land Use and Institutionalized Persons 20 Act), against Defendants Warden Raythel Fisher, Jr., Dining Hall Officer Paez, and 21 Culinary Staff Members Anguiano, Chapas, Lucero, Marquez, Cruz, and Moosebaur, in 22 their official capacities; 23 (2) First Amendment Right to Free Exercise of Religion, against Defendants 24 Fisher, Paez, Anguiano, Chapas, Lucero, Marquez, Cruz, and Moosebaur, in their 25 26 25 Plaintiff states that she filed her opposition without serving a subpoena or interrogatories on defense witness H. Mosley, but she reserves the right to supplement the opposition 27 should the court grant permission. Plaintiff is advised that the deadline for conducting discovery, 28 including the serving of subpoenas and interrogatories, expired on March 21, 2022, thus the Court denies Plaintiff’s request to supplement the opposition. 1 individual capacities; 2 (3) Failure to Protect Plaintiff in Violation of the Eighth Amendment, against 3 Defendants Moosebaur and Fisher; 4 (4) Conditions of Confinement in Violation of the Eighth Amendment, against 5 Defendants Fisher, Paez, Anguiano, Chapas, Lucero, Marquez, Cruz, and Moosebaur, in 6 their individual capacities; and 7 (5) Retaliation in violation of the First Amendment, against Defendant 8 Moosebaur. 9 (ECF No. 30.) 10 /// 11 2. Plaintiff’s Grievances/Appeals 12 The alleged incidents at issue in this case took place between December 26, 2016, (ECF 13 No. 20 at 5 ¶1), and December 26, 2019 (mistakenly stated as December 16, 2019 by 14 defendants), when Plaintiff filed the initial Complaint for this case (ECF No. 1). 15 The parties do not dispute that an administrative remedy process was available to Plaintiff 16 at VSP and that Plaintiff was aware of it and used it. Plaintiff argues that she exhausted all of 17 her available administrative remedies against Defendants prior to filing suit for her claims as 18 required by the PLRA and regulations because since mid-2019 she filed three separate appeals 19 regarding the Kosher food issues at Valley State Prison. The parties do not dispute that only 20 three of Plaintiff’s grievances or appeals addressed the Jewish Kosher Diet Plan at Valley State 21 Prison, which is the subject of Plaintiff’s complaint in this action.26 Neither party disputes the 22 following history of the three relevant appeals. 23 (1) The First Appeal -- (Group Appeal) 24 Plaintiff states that after several individual appeals were disregarded by officials and were 25 not screened, answered, or returned, a group of inmates including Plaintiff opted to file a group 26 appeal grieving joint issues about the Kosher Diet Program they shared. The Group Appeal was 27 28 26 The Court interchangeably refers to Plaintiff’s appeals as either appeals or grievances. 1 submitted on May 26, 2019, by Plaintiff and nineteen other inmates at Valley State Prison, and 2 assigned log no. VSP-B-19-01146. (Mosely Decl., ¶ 10, Exh 3, pp. 12- 17). According to 3 Plaintiff, the Group Appeal intentionally omitted individual issues and only addressed shared 4 issues about the Jewish Kosher Diet Program (JKDP or KDP) . (ECF No. 57 at 4:26-28.) 5 (1) Appeal Log. No. VSP-B-19-01146, submitted on May 26, 2019 6 Food Services: Kosher Diet Program is Failure. (Jewish) Kosher Diet Program is a complete failure. It does not comply with the Cooper Settlement, nor Jewish 7 Kosher Laws and Traditions as required and agreed upon in the Cooper Settlement. Human consumption food is being served, and not replaced. Food is 8 transported, opened and cooked in shared ovens/carts used for non-Kosher food. Food is served in shared tray slot after non-kosher food. Food is handled and 9 served by workers untrained in Kosher and CRC procedures. Food is to be eaten on unclean tables contaminated with un-kosher food and when wiped with dirty 10 contaminated rags. No kosher utensils are provided. Cold and hot foods are improperly sealed, rendering them unsealed and open (not double wrapped) 11 exposing the food during cooking and transportation. KSP’s are denied meals when spoiled meals are served. Served food does not match the menu neither by 12 name or by weight/quantity. ABC Ventures is not an RIM approved Orthodox Kosher Certification (uses Triangle K). Served food is either not dated or past the 13 expiration date. Individual food items often do not have a Kosher Hexure. Meals are neither wholesome nor nutritious, empty calories, bread and sugar. Fruits and 14 vegetables are broken/cracked rendered unkosher. KDP’s eat and share the dining hall and sometimes tables with non-KDP’s, regular eaters sneak out with the KDP. 15 The prayerful are not permitted on occasion to self segregate for the purposes of prayer. Attempts at resolution results in instant retaliation. Violations of CCR 15 16 § 3054.2 a,e,d-g, CCCR 3 § 1180.43 (B) 2(D), California Retail Food Code (CFC), OP Sec. I, IV, VI A.1. B.2, 3-6, D.1, 4,3-6, F.2.a-b, G/2-4. V (2003 Cooper 17 Settlement), H&SC §113945-4259. 18 (Decl. Mosely Exh. 3 at 84, ECF No. 49-3 at 84, 86; Decl. Plaintiff, Exh. D at 39, ECF No. 57 at 19 39-40.) On June 3, 2019, the Group Appeal was cancelled at the First Level of review. The 20 screening letter provided to Plaintiff stated: 21 “The enclosed documents are being returned to you for the following reasons: Your appeal has been cancelled pursuant to the California Code of Regulations, 22 Title 15, Section (CCR) 3084.6(f). Unfortunately, this appeal cannot be accepted as a group appeal, as each inmates [sic] issue with the Jewish Kosher Diet is 23 different and therefore responses will vary on a case-by-case basis, as stated in Title 15, Section 3084.2(h)(4). You may notify the appellants that they may 24 submit separate appeals on their behalf.” 25 (Mosely Decl., ¶ 10, Exh 3, p. 11.) 26 Plaintiff argues that the Group Appeal should not have been cancelled because it 27 met every requirement for a Group Appeal. However, the Group Appeal was properly 28 cancelled under the applicable regulation, which provides: 1 “An appeal shall not be accepted or processed as a group appeal if the matter under appeal requires a response to a specific set of facts (such as disciplinary and 2 staff complaint appeals) that are not the same for all participants in the appeal. §3084.2(h)(4). In such case, the group appeal shall be screened out and returned 3 to the inmate submitting the appeal with directions to advise all those who signed the appeal attachment to submit individual appeals on their separate issues.” 4 Title 15 of the California Code of Regulations § 3084.2(h)(4). 5 Plaintiff’s Group Appeal was properly rejected because the facts about the Kosher Diet 6 Program are not the same for all participants in the Group Appeal. Each of the individual 7 plaintiffs in the Group Appeal has a different story to tell by alleging facts about their own 8 experiences with each of the Defendants, including how each Defendant personally conducted 9 themselves in violation of each individual plaintiff’s rights. Therefore, the Group Appeal was 10 not improperly cancelled. 11 Nonetheless, Plaintiff argues that the Group Appeal was improperly screened out and she 12 should be excused from exhausting it to the Third Level of review because the improper 13 screening caused exhaustion to be unavailable to her. The Court in Sapp, 623 F.3d at 823, carved 14 out an exception to exhaustion if a grievance was improperly screened. To qualify for the 15 exception, “a prisoner must show that he attempted to exhaust his administrative remedies but 16 was thwarted by improper screening.” Id. This showing requires an inmate to establish: (1) that 17 he actually filed a grievance or grievances that, if pursued through all levels of administrative 18 appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court, and 19 (2) that prison officials screened his grievance or grievances for reasons inconsistent with or 20 unsupported by applicable regulations. Id. at 823-24. 21 Proper exhaustion must be in accordance with applicable regulations and “demands 22 compliance with [a prison’s] deadlines and other critical procedural rules.” Woodford, 548 U.S. 23 at 90. The regulations in effect when Plaintiff filed her grievances required a grievance to: 24 “[L]ist all staff member(s) involved and [] describe their involvement in the issue. 25 To assist in the identification of staff members, the inmate or parolee shall include the staff member’s last name, first initial, title or position, if known, and the dates 26 of the staff member’s involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff 27 member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff 28 member(s) in question. 1 15 Cal. Code Regs. § 3084.2(a)(3). 2 Plaintiff’s Group Appeal does not fall within the exception of Sapp. First, the 3 Group Appeal did not comply with regulations requiring Plaintiff to include Defendants’ 4 names and therefore would not have sufficed to exhaust Plaintiff’s claims. Second, prison 5 officials screened out the Group Appeal for reasons consistent with the applicable 6 regulations. 7 Plaintiff admits that she did not name any of the Defendants in her Group Appeal, but she 8 responds that pursuant to Valdez v. Walker, No. CIV. S-08-01978 DAE, 2011, WL 1230890, at 9 *4, (E.D. Cal. Mar. 30, 2011), she “was not required to name defendants, only provide enough 10 information to take the appropriate response measures.” As argued by Defendants, Valdez is not 11 applicable here because the 602s at issue in Valdez were submitted over ten years ago when the 12 administrative exhaustion procedures set forth in Title 15 did not contain any instructions 13 requiring an inmate to identify the parties or individuals involved with the complained of activity, 14 or instruct the inmate to provide any particular level of detail. Therefore, the 2011 Title 15 15 regulations are irrelevant to any 602s Plaintiff submitted in 2019 when proper exhaustion 16 required Plaintiff to “[L]ist all staff member(s) involved and shall describe their involvement in 17 the issue.” 15 Cal. Code Regs. § 3084.2(a)(3). 18 However, cases in the Ninth Circuit have found that a prisoner’s failure to list all staff 19 members involved in an incident in their inmate appeal, or to fully describe the involvement of 20 staff members in the incident, will not necessarily preclude exhaustion of administrative 21 remedies. Anderson v. Gonzales, No. 114CV00362AWIBAMPC, 2017 WL 3226048, at *5 22 (E.D. Cal. July 31, 2017), report and recommendation adopted in part, rejected in part, No. 23 114CV00362AWIBAMPC, 2017 WL 4325773 (E.D. Cal. Sept. 29, 2017) (citing McClure v. 24 Chen, 246 F.Supp.3d 1286, No. 1:14-cv-00932-DAD-GSA-PC, 2017 WL 1148135, at *2 (E.D. 25 Cal. Mar. 28, 2017) (citing Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); Washington v. 26 Guerra, 2017 WL 1197861, at * 5 (C.D. Cal. Jan. 31, 2017), report and recommendation accepted 27 28 1 by, 2017 WL 1197667 (C.D. Cal. Mar. 29, 2017); Bulkin v. Ochoa, No. 1:13-cv-00388 DAD 2 DLB PC, 2016 WL 1267265, at * 2 (E.D. Cal. Apr. 1, 2016)). 3 Relying on Reyes, 810 Fed.3d 654, Plaintiff reiterates that she exhausted her 4 administrative remedies even though she did not name all of the Defendants (Id. at 3–4.). In 5 Reyes, the Ninth Circuit held that “a prisoner exhausts such administrative remedies as are 6 available . . . under the PLRA despite failing to comply with a procedural rule if prison officials 7 ignore the procedural problem and render a decision on the merits of the grievance at each 8 available step of the administrative process.” Id. (quoting Reyes, 810 F.3d at 658); see also 9 Bulkin, 2016 WL 1267265, at *1–2 (declined to dismiss reckless endangerment claims based on 10 failure to name two defendants in appeal because prison officials addressed the claim on the 11 merits, were alerted to the problem, knew the actors involved, and were given an opportunity to 12 rectify the alleged wrong). However, in order to exhaust administrative remedies as to defendants 13 who were not identified in an appeal, “there must be a ‘sufficient connection’ between the claim 14 in the appeal and the unidentified defendants such that prison officials can be said to have had 15 ‘notice of the alleged deprivation’ and an ‘opportunity to resolve it.’” Id. (quoting McClure, 16 2017 WL 1148135 at *3 (quoting Reyes, 810 F.3d at 659); Franklin v. Lewis, No. 13-cv-03777- 17 YGR (PR), 2016 WL 4761081, at *6 (N.D. Cal. Sept. 13, 2016) (same)). The circumstances in 18 Reyes are different from the case at bar. In Reyes, plaintiff made reference to the Pain 19 Management Committee and alleged wrongdoing by its members. Id. at 659. The two unnamed 20 individuals were part of that committee and thus, the Reyes court concluded, prison officials had 21 full notice of the contours of his claim. Id. Nothing so specific was referenced in the grievances 22 relevant to this case. Id. An unadorned reference to “correctional officers” simply does not 23 provide the same type of indirect identification contemplated by Reyes. Id. 24 Based on the foregoing, the Court finds that Plaintiff failed to show that she exhausted 25 her administrative remedies with Appeal Log. No. VSP-B-19-01146, or that there is anything in 26 her particular case that made administrative remedies effectively unavailable to her as to Appeal 27 Log. No. VSP-B-19-01146. 28 (2) The Second Appeal 1 On June 14, 2019, Plaintiff filed a second grievance, following prison officials’ 2 instructions in the screening letter cancelling the First Appeal. (Mosely Decl., ¶ 10, Exh 3, p. 3 11.) Plaintiff referred to the Second Appeal as a “Solo appeal” and identified her issue as 4 follows: 5 (2) The Second Appeal – No Log no. assigned, submitted on June 14, 2019 6 I AGAIN am filing on the blatant failure at every level of the Kosher Diet program. I re-iterate everything in the group appeal (attached) with log number 7 VSP-B-19-01146. Stop impeding my grievance/appeals. 8 Stop the practice of preventing legal action and process my appeal. Take care of the prejudice [sic] staff and the rotten food. (See original group appeal), 9 and yes this is a “Solo” appeal. 10 (ECF 57 at 44.) (emphasis in original) 11 Plaintiff submitted a copy of her First Appeal (Group Appeal) as an attachment to the 12 Second Appeal. No log number was assigned to the Second Appeal and it was rejected at the 13 First Level of review for being a duplicate of Plaintiff’s First Appeal. Plaintiff was advised in 14 the rejection notice: 15 Brief Description of 602: Duplicate of VSP-B-19-01146. Duplicate appeal/same issue. CCR 3084.6(c)(2). Comment Section of CDCR 695: Duplicate appeal, no 16 correction possible – rejected. 17 (ECF No. 57 at 43.) 18 Plaintiff argues that her attachments to the Second Appeal addressed her individual issues 19 with the Kosher Diet Plan, but Defendants argue that Plaintiff’s explanation of the issues in the 20 attachments was simply a reiteration of the explanation provided in the cancelled Group Appeal 21 and therefore not a supporting document as defined in subsection 3084(h) of Title 15. The rules 22 for supporting documents are found in 15 Cal.Code Regs. § 3084: 23 Only supporting documents, as defined in subsection 3084(h), necessary to clarify the appeal shall be attached to the appeal. 24 15 Cal.Code Regs. § 3084.2(b)(1): 25 Supporting documents do not include documents that simply restate the matter 26 under appeal, argue its merits, or introduce new issues not identified in the present appeal form.” Id. 27 15 Cal.Code Regs. § 3084(h). 28 1 The Court finds that Plaintiff’s supporting document to the Second Appeal, a copy of the 2 Group Appeal, did not allege facts about Plaintiff’s individual encounters with each of the 3 Defendants, including how each Defendant personally interacted with Plaintiff in violation of 4 Plaintiff’s rights, as Plaintiff was instructed. 5 Plaintiff argues that the Second Appeal was improperly screened because she had been 6 told by officials to file the appeal again, but the staff refused to process the appeal and told her 7 no correction was possible. As with the First Appeal, the Second Appeal does not fall within the 8 exception of Sapp. Even if the Second Appeal had not been rejected as a duplicate appeal, it still 9 would not have exhausted Plaintiff’s claims if completed to the Third Level of review because it 10 does not allege facts about Plaintiff’s individual claims with each of the Defendants with respect 11 to the Kosher Diet Program. Also, according to applicable regulations, prison officials 12 did not screen the Second Appeal for reasons inconsistent with or unsupported by applicable 13 regulations, which provide: 14 [A]n appeal may be cancelled if “the appeal duplicates an inmate or parolee’s previous appeal upon which a decision has been rendered or is pending.” 15 15 Cal Code Regs § 3084.6(c)(2) 16 Moreover, Plaintiff did not follow prison officials’ instructions when she filed her “solo” 17 appeal. Plaintiff was instructed to submit a separate appeal on her own behalf that articulated 18 what claims and allegations from the group appeal specifically applied to her. (emphasis added) 19 Instead of following instructions, Plaintiff submitted a 602 appeal that did nothing more than 20 reiterate the claims in the group appeal. (ECF 57 at 44 (“I reiterate everything in the group appeal 21 (attached) with log number VSP-B-19- 001146.”)) 22 Plaintiff argues that pursuant to Holmes v. Estock,27 she exhausted her remedies when 23 her Second Appeal was rejected because inmates are not required to initiate more appeals. As 24 argued by Defendants, the case law in Holmes does not support Plaintiff’s contention that she 25 exhausted her remedies. In Holmes, the Court adopted the “continuing violations” doctrine to 26 27 28 27 Holmes v. Estock, No. 16CV2458-MMA-BLM, 2021 WL 568790 (S.D. Cal. Feb. 16, 2021). 1 issues of timeliness raised by an applicable statute of limitations. Holmes, 2021 WL 568790, at 2 *16. The exhaustion issues in Defendants’ motion in the case at bar have nothing to do with 3 “continuing violations” or a statute of limitations defense. As such, Holmes does not apply to 4 the facts in this case. 5 Plaintiff argues that in Vaught v. Williams,28 the Court found that “there is no need for 6 duplicate appeals.” (ECF No. 57 at 2:10-12.) Defendants respond that in Vaught, the Court 7 found that “[t]he policy underlying the PLRA exhaustion requirement would not be served by 8 requiring an aggrieved prisoner to bring a separate, largely duplicative round of administrative 9 appeals every time another administrative reviewer manifests the same type of alleged deliberate 10 indifference to the same type of medical claim.” (Id. at *7.) Defendants argue that such is not 11 the case here. 12 Here, when the group appeal was cancelled the reviewer advised Plaintiff that, 13 “[u]nfortunately, this appeal cannot be accepted as a group appeal as each inmates’ issue with 14 the Jewish Kosher Diet Program [JKDP] is different and therefore responses will vary on a case- 15 by case-basis as stated in Title 15, Section 3084.2(h)(4). You may notify the appellants that they 16 may submit separate appeals on their behalf.” 17 Because the facts in this matter are clearly distinguishable from the facts in Vaught, 18 Defendants argue that the Court should ignore Plaintiff’s reliance as well as her argument that 19 she is excused from exhausting her administrative remedies because there is “no need for 20 duplicate appeals.” Plaintiff argues that the solo appeal should not have been rejected as a 21 duplicate of her first appeal. Defendants conclude that the Court should ignore Plaintiff’s 22 reliance on Vaught. 23 Plaintiff asserts that this rejection inhibited her from pursuing an appeal to fix the Kosher 24 problem. She contends that further review was not possible because prison officials refused to 25 26 27 28 Vaught v. Williams, No. ED CV 17-1693-DOC(E), 2018 WL 4622030 (C.D. Cal. Aug. 28 21, 2018). 1 allow her appeals to proceed at the local level and so her appeals could not proceed to the final 2 level of review. However, Plaintiff nonetheless proceeded to file a Third Appeal. 3 Based on the foregoing, the Court finds that Plaintiff failed to show that she exhausted 4 her administrative remedies with her Second Appeal, or that there is anything in her particular 5 case that made administrative remedies effectively unavailable to her as to Second Appeal. 6 (3) The Third Appeal 7 On June 19, 2019, Plaintiff submitted a Third Appeal requesting that her cancelled Group 8 Appeal be allowed to proceed. The appeal of the cancellation of Log no. VSP-B-19-01146 was 9 assigned Log no. VSP-B-19-01285. It was appealed to the office of appeals and assigned appeal 10 Log. No. 1908537 there. 11 (3) Appeal No. VSP-B-19-01285/1908537, submitted on June 14, 2019 12 Neither 3084.6(f) nor 3084.2(h)(4) apply to the instant appeal. You misunderstand the issue. The Kosher Diet Program is a failure for all in the group. 13 While there are many examples of the failure – only the examples that do apply to all are listed in the group 602. Individual issues were not listed. So you can 14 see that under 3084.2(h) we are required to proceed as a group appeal, as this issue of the Kosher Diet Program has effected [sic] each of us. There can be no 15 Individual or different responses because every example applies to all of us. 16 By endorsing the original appeal, each signatory to the group appeal did thereby attest to suffering all the harms alleged via appeal such that this erroneous 17 cancellation basis misconstrues the factual predicate common among all appellates [sic], and is but a pretext to obstruct/deny proper exhaustion aimed at 18 artificially denying me and my fellow appellants proper legal standing to redress these harms via litigation. 19 (Moseley Decl., ¶ 9, Exh. 2, ECF No. 49-3 at 7-9; Exh. D to Pltf’s Decl, ECF No. 57 at 37.) 20 The Third Appeal, which challenged Plaintiff’s cancelled appeal, was denied at the Third 21 Level of Review informing Plaintiff that “[t]his decision exhausts the administrative remedy 22 available to the appellant within CDCR.” (Moseley Decl., ¶ 9, Exh. 2, ECF No. 49-3 at 5-6.) 23 Plaintiff contends that no further recourse was available and this appeal notified officials of all 24 of the Kosher issues in the complaint and had an attachment of all the original claims, as well as 25 the cancellation. Plaintiff states that she believed she had exhausted her remedies. (See Gann 26 27 28 1 Declaration29) She asserts that even the Third Level of review addressed each and every Kosher 2 issue, and they were attached and discussed at length during the appeal interview process. 3 Defendants contend that Plaintiff’s attachments were not properly included as supporting 4 documents. The rules for supporting documents are found in 15 Cal.Code Regs. § 3084.1(b)(1): 5 “Supporting documents do not include documents that simply restate the matter under appeal, 6 argue its merits, or introduce new issues not identified in the present appeal form.” Id. (emphasis 7 added.) “Only supporting documents, as defined in subsection 3080(h), necessary to clarify the 8 appeal shall be attached to the appeal.” 9 Plaintiff was advised at the Third Level that her remedies were exhausted. Plaintiff 10 mistakenly believed that she had exhausted all of her remedies (see Gann Deposition30). She 11 asserts that the Third Level addressed each and every Kosher issue, which were attached and 12 discussed at length during the appeal interview process. She attached all of the original claims 13 and a copy of the cancelled First Appeal believing that it informed officials of all her claims 14 about Kosher food issues. Plaintiff argues that no further recourse was available, and this appeal 15 notified officials of all of the Kosher issues in the complaint. 16 Plaintiff also argues that she notified prison officials of her individual issues with the 17 Kosher Diet Program during her interview after she filed the Third Grievance. Plaintiff asserts 18 that she was interviewed about the failings of the Kosher Diet Program for about an hour, and 19 the interviewer agreed with Plaintiff. According to Plaintiff the interviewer told Plaintiff that 20 she (interviewer) would speak to her supervisor because she was told to deny the appeal and 21 thought the signatories were not all members of the Kosher Diet Program. Plaintiff alleges that 22 she told the appeals interviewer the names of staff involved and raised every issue in detail during 23 this process. Plaintiff indicates that she was surprised when the appeal was denied. This appeal 24 had proceeded to the final level of review and Plaintiff was told in the Third Level response that 25 her administrative remedies were exhausted. Plaintiff states that she had every reason to believe 26 27 29 Plaintiff refers the Court generally to her declaration, found at ECF No. 57 at 19-22. 28 30 Plaintiff refers the Court generally to her deposition testimony, found at ECF No. 57 at 68-79. 1 that her appeal was exhausted and therefore her burden to exhaust administrative remedies before 2 filing suit was met. 3 The appeal of the cancellation of Plaintiff’s First Appeal was completed through the Third 4 Level of review. However, the cancellation decision at the Third Level did not constitute a 5 decision on the merits that would satisfy the exhaustion requirement under Reyes, 810 F.3d 654. 6 Wilson v. Zubiate, 718 F. App’x 479, 481 (9th Cir. 2017) CDCR’s third-level decision does not 7 discuss the substance of Plaintiff’s grievance. Id.; See Semtek Int’l Inc. v. Lockheed Martin 8 Corp., 531 U.S. 497, 501–02, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (“The original connotation 9 of an ‘on the merits’ adjudication is one that actually ‘pass[es] directly on the substance of [a 10 particular] claim’ before the court.”) (quoting Restatement (Second) of Judgments § 19, comment 11 at 161 (1980)). A decision on the merits must discuss the substance of the grievance. See Wilson, 12 718 Fed. Appx at 481-82. 13 Plaintiff argues that her appeals and other efforts gave adequate notice to the prison and 14 Defendants of her claims against them. While Plaintiff does not contest that her grievances fail 15 to name any defendants, she argues that she thoroughly notified prison officials of the 16 violations of her rights. 17 After Plaintiff filed her appeals she filed a claim with the California Department of 18 General Services (CDGS), and on or about July 3, 2019, the claim was denied. (ECF 57 at 8- 19 13.) The CDGS informed Plaintiff that she could initiate a court action if she chose to pursue the 20 matter further. However, in this case none of Plaintiff’s claims are state claims and therefore her 21 claim submission to the CDGS is immaterial to the outcome of this motion for summary 22 judgment. 23 Plaintiff argues that there is no doubt that officials were placed on notice – she took 24 extraordinary measures and also submitted numerous CDCR-22 form Requests. The various 25 CDCR-22 forms were delivered to various staff members and a correctional food manager, etc. 26 Plaintiff contends that there is no argument that state officials were denied the opportunity to 27 remedy the problem internally. She argues that she met the exhaustion requirement again, 28 contending that these CDCR-22 forms are sufficient to exhaust her administrative remedies. 1 However, pursuant to Title 15, section 3086 (h)(i), “an inmate or parolee’s documented use of a 2 Request for Interview, Item or Service form does not constitute exhaustion of administrative 3 remedies as defined in subsection 3084.1(b).” Furthermore, the CDCR-22 forms attached to the 4 Plaintiff’s opposition do not name or identify all of the Defendants and would not have put 5 Defendants on notice. 6 Defendants argue that some of the cases cited by Plaintiff in support of her arguments do 7 not apply to the case at bar. Beltran v. O’Mara, 405 F. Supp. 2d 140, 150 (D.N.H. 2005); 8 Crawford v. Clarke, 578 F.3d 39 (1st Cir. 2009); Grenning v. Klemme; 34 F. Supp. 3d 1144 9 (E.D. Wash. 2014); Norwood v. Robinson, 436 F. App’x 799 (9th Cir. 2011); Hudson v. 10 Dennehy, 538 F. Supp. 2d 400 (D. Mass. 2008), Blake v. Ross, 787 F.3d 693 (4th Cir. 2015); 11 Powers v. Corr. Corp. of Am., No. CV1501396PHXROSDMF, 2016 WL 11658180 (D. Ariz. 12 Aug. 3, 2016); and Johnson, 383 F.3d 503. Defendants argue that these cases are not persuasive 13 authority and the Court is not bound by them. Defendants contend that more importantly, unlike 14 Plaintiff’s 602s, the internal grievances at issue in these lawsuits originated out of prisons and 15 institutions located in Arizona, Massachusetts, Texas, Washington, and New Hampshire, and 16 were therefore not regulated by Title 15 of the California Code of Regulations. Because these 17 cases concern exhaustion requirements related to prisons and institutions outside of California 18 and the CDCR, and thus not regulated by Title 15, Defendants conclude that these cases and 19 opinions cited in Plaintiff’s opposition are not applicable to the facts of her case. The Court finds 20 that Defendants’ arguments meritorious. 21 Plaintiff appears to argue that she was somehow treated unfairly during the grievance 22 process and was prevented by prison officials from exhausting her appeals to the final level of 23 review. An inmate need only exhaust “available” administrative remedies. See Ross v. Blake, 24 136 S.Ct. 1850, 1858 (2016). “Accordingly, an inmate is required to exhaust those, but only 25 those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action 26 complained of.’” Id. at 1859 (quoting Booth, 532 U.S. at 738). When prison administrators 27 thwart inmates from taking advantage of a grievance process through machination, 28 misrepresentation, or intimidation, such interference with an inmate’s pursuit of relief renders 1 the administrative process unavailable. In Woodford, the Supreme Court recognized that 2 officials might devise procedural systems (including the blind alleys and quagmires just 3 discussed) in order to “trip[ ] up all but the most skillful prisoners.” Ross, 578 U.S. at 644) (citing 4 Woodford, 548 U.S. at 102)). “And appellate courts have addressed a variety of instances in 5 which officials misled or threatened individual inmates so as to prevent their use of otherwise 6 proper procedures.” Id. 7 Under the PLRA, administrative exhaustion might be excused where repeated rejections 8 of an inmate’s grievances at the screening stage give rise to a reasonable good faith belief that 9 administrative remedies are effectively unavailable. Sapp, 623 F.3d 813. Courts in other Circuits 10 have held that administrative remedies were not “available” for purposes of the PLRA based on 11 improper conduct by officials. Nunez, 591 F.3d at 1229–30 (citing see, e.g., Turner v. Burnside, 12 541 F.3d 1077, 1081, 1085 (11th Cir. 2008) (holding that administrative remedies were 13 unavailable where the warden tore up prisoner’s initial grievance in front of the prisoner and 14 threatened to transfer the prisoner away from his family if the prisoner continued to file such 15 grievances); Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir. 2006) (holding that administrative 16 remedies were not available where the prison official warned the prisoner not to file a grievance 17 and successfully pressured other inmates to assault the prisoner in order to prevent the prisoner 18 from pursuing the grievance); Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002) (holding 19 that a complaint was sufficient to survive a motion to dismiss for failure to exhaust where prisoner 20 alleged that prison officials told him he could not file a formal grievance until the completion of 21 an investigation, but failed to tell him when that event occurred); Miller v. Norris, 247 F.3d 736, 22 738, 740 (8th Cir. 2001) (holding that the prisoner’s allegation and evidence that prison officials 23 refused to mail the prisoner the required administrative forms was sufficient to raise an inference 24 that he had exhausted available remedies); cf. Panaro v. City of N. Las Vegas, 432 F.3d 949, 25 952–53 (9th Cir. 2005) (holding that pretrial detainee must allege that the detention center’s 26 grievance process was “systematically unavailable to him”). 27 As previously discussed, when Plaintiff’s First Appeal (Group Appeal) was screened out, 28 prison officials advised her that she could submit a new appeal concerning the Jewish Kosher 1 Diet Program on her own behalf. Then, when she filed the new appeal officials rejected it as 2 duplicative of her first appeal. Plaintiff argues that she followed instructions and when the 3 Second Appeal was rejected as duplicative, she had no other remedy available to her. 4 However, Plaintiff did not follow the instructions she was given. The instructions clearly 5 advised Plaintiff that her Group Appeal could not be accepted as a group appeal because each of 6 the individual inmate’s issues with the Jewish Kosher Diet is different and therefore should be 7 addressed case-by-case in separate appeals filed by appellants on their own behalf. Yet Plaintiff 8 proceeded to file another appeal admittedly “re-iterat[ing] everything in the group appeal 9 (attached) with log number VSP-B-19-01146.” (ECF No. 57 at 4.) Instead of following 10 instructions to file an appeal addressing her own personal facts taking issue with the Jewish 11 Kosher Diet Program, Plaintiff filed a new appeal that restated the claims in the Group Appeal 12 which, according to Plaintiff, “in great deal outlined all the problems with the Kosher meals that 13 were shared by the inmates, individual issues and personal issues [] omitted intentionally.” (ECF 14 No. 57 at 4:26-28.) Then, when she filed the new appeal, officials rejected it on June 17, 2019 15 as duplicative of her first appeal. 16 MOST IMPORTANTLY, the law in this area is clear, the obligation to exhaust available 17 remedies persists as long as some remedy remains available (see, Brown v. Valoff, 422 F.3d 926, 18 935 (9th Cir. 2005). Here, even if arguably the group appeal was improperly screened out, which 19 the court finds was not, all Plaintiff needed to do was follow the instructions set forth in the 20 decision rendered at the 3rd level of Review pertaining to Appeal log # 1908537 (see above). 21 Plaintiff failed to follow this instruction and cannot now argue that no further remedies were 22 available to her following that Review. 23 The rejections of Plaintiff’s First and Second Appeals at the screening stage, described 24 above, do not give rise to a reasonable good faith belief that administrative remedies were 25 effectively unavailable due to the improper conduct of prison officials. In this case, Plaintiff has 26 not shown evidence of such improper actions by prison officials. 27 Based on the foregoing, the Court finds that Plaintiff did not exhaust her administrative 28 remedies for the claims at issue in this case, nor was Plaintiff excused from the requirement to 1 exhaust remedies. Therefore, Defendants’ motion for summary judgment should be granted, and 2 this case should be dismissed. 3 IV. CONCLUSION AND RECOMMENDATIONS 4 The Court finds, based on the record before it, that Plaintiff failed to exhaust her available 5 administrative remedies for her claims in this case against Defendants, as required by the Prison 6 Litigation Reform Act, 42 U.S.C. § 1997e(a). Plaintiff also failed to submit any competent 7 evidence sufficient to create a genuine dispute for trial that Plaintiff exhausted her remedies. 8 Therefore, Defendants’ motion for summary judgment, filed on January 28, 2022, should be 9 granted and this case dismissed without prejudice. 10 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 11 1. Defendants’ motion for summary judgment, filed on January 28, 2022, be 12 GRANTED; 13 2. This case be DISMISSED, without prejudice, based on Plaintiff’s failure to 14 exhaust available administrative remedies before filing suit; and 15 3. The Clerk be directed to CLOSE this case. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 18 (14) days after being served with these findings and recommendations, any party may file written 19 objections with the court. Such a document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 21 within ten days after service of the objections. The parties are advised that failure to file 22 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 23 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 24 (9th Cir. 1991)). 25 IT IS SO ORDERED. 26 27 Dated: July 11, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 28