1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL LATU, No. 2:20-CV-1518-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 B. HOLMES, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendants’ unopposed motion for summary 19 judgment. See ECF No. 51. 20 The Federal Rules of Civil Procedure provide for summary judgment or summary 21 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 22 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 23 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 24 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 25 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 26 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 27 / / / 28 / / / 1 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 2 moving party

3 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 4 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 5 genuine issue of material fact.

6 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 7 If the moving party meets its initial responsibility, the burden then shifts to the 8 opposing party to establish that a genuine issue as to any material fact actually does exist. See 9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 10 establish the existence of this factual dispute, the opposing party may not rely upon the 11 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 12 form of affidavits, and/or admissible discovery material, in support of its contention that the 13 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 14 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 15 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 16 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 17 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 18 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 19 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 20 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 21 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 22 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 23 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 24 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 25 In resolving the summary judgment motion, the court examines the pleadings, 26 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 27 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 28 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 1 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 2 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 3 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 4 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 5 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 6 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 7 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 8 imposed.” Anderson, 477 U.S. at 251. 9 10 I. PLAINTIFF’S ALLEGATIONS 11 This action currently proceeds on Plaintiff’s third amended complaint. See ECF 12 No. 33. Plaintiff names the following as defendants: (1) S. Jackson, Correctional Counselor at 13 Mule Creek State Prison (MCSP); (2) N. Costa, Facility Captain at MCSP; and (3) B. Holmes, 14 Chief Deputy Warden at MCSP. See id. at 2. 15 Plaintiff states that he is a convicted sex offender. See id. at 15. When first 16 incarcerated, Plaintiff was placed into the Sensitive Need Yard (SNY). See id. at 7-9. After the 17 California Department of Corrections and Rehabilitation (CDCR) changed its housing policy, 18 Plaintiff was moved into a general population yard. Id. at 6-8. Plaintiff claims that laws have 19 recently changed that would have protected him from being placed into general population. Id. at 20 6. But because Plaintiff was deemed appropriate for transfer before the new laws were codified, 21 Plaintiff was still going to be transferred. Id. 22 Plaintiff objected to the transfer and filed a grievance explaining his concerns that 23 he would be assaulted if sent to a general population yard. See id. at 7. Plaintiff verbally 24 explained to each defendant why he needed to remain on the SNY. Id. Plaintiff claims that, after 25 being moved into a general population yard, he was assaulted several times. Id. at 8. One 26 assailant wielded a weapon that caused an injury requiring seventeen stiches. Id. According to 27 Plaintiff, the CDCR plans to move him to a new general population facility. Id. at 6. Plaintiff has 28 objected, citing his fears that he will be inevitably assaulted if transferred. Id. at 10. Plaintiff 1 believes under current CDCR policy he belongs at a SNY facility. Id. at 10-12. 2 3 II. DEFENDANTS’ EVIDENCE 4 Defendants’ unopposed motion for summary judgment is supported by: (1) a 5 separate statement of undisputed facts, ECF No. 51-2; (2) the declaration of defense counsel Jiaye 6 Zhou, Esq., ECF No. 51-4; (3) the declaration of MCSP Litigation Coordinator D. Santos, ECF 7 No. 51-5; and (4) the declarations of the named defendants, ECF Nos. 51-6, 51-7, and 51-8. 8 According to Defendants, the following relevant facts are not in dispute:

9 3. Plaintiff has been an inmate at MCSP since 2006. See ECF No. 33 (third amended complaint). 10 * * * 11 49. Plaintiff has been endorsed to a Level II NDPF [Non- 12 Designated Programming Facility] since 2019. See Plaintiff’s deposition, 54:11-17. 13 * * * 14 51-53. On July 1, 2020, Plaintiff appeared for his annual 15 classification and placement review and was re-endorsed for NDPF placement. See Costa Declaration, ¶ 6; Jackson Declaration, ¶ 15. 16 54. Plaintiff objected to the placement due to his crimes. See 17 Jackson Declaration, ¶ 15.

18 55. Before endorsing the placement, the classification committee cleared enemy concerns. See Costa Declaration, ¶ 6; Jackson 19 Declaration, ¶ 14.

20 * * *

21 59. The July 2020 classification committee included Defendants Jackson and Costa, neither of whom believed that Plaintiff’s 22 fears were substantiated. See Costa Declaration, ¶ 8; Jackson Declaration, ¶ 14. 23 * * * 24 62. Three weeks following his placement, Plaintiff filed a 25 grievance challenging the classification committee’s endorsement to a NDPF yard. See Holmes Declaration, ¶ 12; Jackson Declaration, ¶ 15. 26 63. In this grievance, Plaintiff stated: “Against the known 27 dangers to my personal safety and well-being, the CDCR is forcing me to integrate with mainline prisoners and calling them ‘non-designated.’ This 28 is a farce, as the CDCR knows all too well the immediate dangers of 1 housing mainline inmates with sensitive needs inmates.” See Holmes Declaration, ¶ 12. 2 * * * 3 67. Defendant Holmes denied Plaintiff’s grievance, assigned 4 Log No. 20094, on August 21, 2020. See Holmes Declaration, ¶ 12.

5 68. Defendant Holmes had no other involvement in the case other than to deny Plaintiff’s grievance. See Holmes Declaration, ¶ 12. 6 * * * 7 71. Plaintiff’s appeal of Defendants Holmes’ denial was denied 8 by the Office of Appeal at the headquarters level of review on November 11, 2020. See Holmes Declaration, ¶ 16. 9 * * * 10 73. Plaintiff initiated this lawsuit on July 29, 2020. See ECF 11 No. 1.

12 ECF No. 51-2. 13 14 III. DISCUSSION 15 In their unopposed motion for summary judgment, Defendants argue that summary 16 judgment is appropriate because: (1) Plaintiff failed to exhaust administrative remedies as to 17 Defendant Holmes prior to filing suit; and (2) Plaintiff cannot establish the necessary elements to 18 support his safety claim under the Eighth Amendment. See ECF No. 51-1, pg. 2. 19 A. Exhaustion 20 Prisoners seeking relief under § 1983 must exhaust all available administrative 21 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 22 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 23 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 24 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies 25 while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 26 Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and 27 held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint 28 because lack of exhaustion is an affirmative defense which must be pleaded and proved by the 1 defendants; (2) an individual named as a defendant does not necessarily need to be named in the 2 grievance process for exhaustion to be considered adequate because the applicable procedural 3 rules that a prisoner must follow are defined by the particular grievance process, not by the 4 PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not 5 all, claims are unexhausted. The defendant bears burden of showing non-exhaustion in the first 6 instance. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If met, the plaintiff bears the 7 burden of showing that the grievance process was not available, for example because it was 8 thwarted, prolonged, or inadequate. See id. 9 The Supreme Court held in Woodford v. Ngo that, in order to exhaust 10 administrative remedies, the prisoner must comply with all of the prison system’s procedural 11 rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, 12 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 13 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 14 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 15 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 16 quantity of prisoner suits “because some prisoners are successful in the administrative process, 17 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 18 When reviewing exhaustion under California prison regulations which have since been amended, 19 the Ninth Circuit observed that, substantively, a grievance is sufficient if it “puts the prison on 20 adequate notice of the problem for which the prisoner seeks redress. . . .” Griffin v. Arpaio, 557 21 F.3d 1117, 1120 (9th Cir. 2009); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) 22 (reviewing exhaustion under prior California regulations). 23 Exhaustion is defined by the prison, not the PLRA. See Reyes v. Smith, 810 F.3d 24 654, 657 (9th Cir. 2016) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). Under the CDCR 25 regulations in place at the time, an inmate grievance was required to describe all information 26 know to the inmate, including key dates, times, names, and titles of officers alleged to be 27 involved. See California Code of Regulations, Title 15, § 3482(c)(2). 28 / / / 1 Defendants argue that Plaintiff has failed to exhaust his administrative remedies as 2 to Defendant Holmes because Defendant Holmes was not listed in Plaintiff’s grievance filed 3 following his July 2020 classification to a NDPF yard. See ECF No. 51-1, pgs. 13-15. 4 According to Defendants:

5 Plaintiff alleges that CDW Holmes “had the power to override the committee decision or action and he has not stepped to the plate.” (Latu 6 Depo 110:6-11.) To comply with the exhaustion requirement and put CDW Holmes on notice, Plaintiff must file and exhaust a second 7 grievance, alleging that CDW Holmes’s decision to deny Plaintiff’s underlying grievance was unconstitutional or otherwise violated a law or 8 policy. However, Plaintiff failed to do so. (Latu Depo 77:18-78:3.) He conceded that he only filed one grievance regarding the committee’s 9 decision to endorse him to an NDPF facility, which did not concern CDW Holmes’s subsequent decision to deny his initial grievance. (Id.) 10 Therefore, Plaintiff failed to lay the groundwork for litigation against CDW Holmes. (See Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010), 11 stating that to provide adequate notice, an inmate must “provide the level of detail required by the prison’s regulations.”) 12 ECF No. 15-1, pg. 15. 13 14 At issue is the sufficiency of Plaintiff’s grievance, Log No. 20094, filed on July 15 22, 2020. This document, the institutional response denying the grievance, Plaintiff’s appeal, and 16 Defendant Holmes’ denial of Plaintiff’s appeal are attached as Exhibits 1-4 to the Holmes 17 declaration. See ECF No. 15-7, pgs. 7-20. In his grievance, Plaintiff claimed that his 18 classification to a NDPF yard posed dangers to his personal safety and well-being. See ECF No. 19 15-7, pg. 8. Plaintiff does not explain in the grievance why he believed his safety was at risk due 20 to classification to a NDPF yard. See id. at 8-9. Attached to this grievance is the “Classification 21 Committee Chrono” approving Plaintiff’s placement on a NDPF yard. See id. at 10-12. The 22 chrono was signed by Defendants Jackson and Costa. See id. at 11. Plaintiff’s grievance was 23 denied by Defendant Holmes on August 21, 2020. See id. at 14. Plaintiff appealed Defendant 24 Holmes’ denial on August 25, 2020. See id. at 16-18. Defendant Holmes denied Plaintiff’s 25 appeal on November 11, 2020. See id. at 19-20. 26 / / / 27 / / / 28 / / / 1 The Court finds that the evidence presented satisfies Defendants’ initial burden on 2 summary judgment of identifying the absence of a genuine dispute of material fact as to 3 Plaintiff’s exhaustion of administrative remedies concerning his claim against Defendant Holmes. 4 Specially, as Defendants assert, Plaintiff’s grievances did not name Defendant Holmes as 5 responsible for his July 2020 classification to a NDPF yard. Nor does Plaintiff’s appeal allege 6 Defendant Holmes’ responsibility. At best, Plaintiff’s assertion against Defendant Holmes arises 7 from his handling of Plaintiff’s grievance, which is not actionable. See Mann v. Adams, 855 F.2d 8 639, 640 (9th Cir. 1988); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding 9 that there is no liberty interest entitling inmates to a specific grievance process); see also Smith v. 10 Calderon, 1999 WL 1051947 (N.D. Cal 1999) (finding that failure to properly process grievances 11 did not violate any constitutional right); Cage v. Cambra, 1996 WL 506863 (N.D. Cal. 1996) 12 (concluding that prison officials’ failure to properly process and address grievances does not 13 support constitutional claim); James v. U.S. Marshal’s Service, 1995 WL 29580 (N.D. Cal. 1995) 14 (dismissing complaint without leave to amend because failure to process a grievance did not 15 implicate a protected liberty interest); Murray v. Marshall, 1994 WL 245967 (N.D. Cal. 1994) 16 (concluding that prisoner’s claim that grievance process failed to function properly failed to state 17 a claim under § 1983). 18 Plaintiff has not filed any opposition or otherwise responded to Defendants’ 19 motion. The Court thus concludes that Plaintiff has not met his burden on summary judgment of 20 pointing to evidence which would create a genuine dispute as to whether Plaintiff exhausted his 21 administrative remedies as to Defendant Holmes. The Court will recommend that summary 22 judgment be granted in favor of Defendant Holmes based on failure to exhaust. 23 B. Eighth Amendment 24 The treatment a prisoner receives in prison and the conditions under which the 25 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 26 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 27 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 28 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 1 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 2 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 3 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 4 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 5 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 6 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 7 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 8 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 9 official must have a “sufficiently culpable mind.” See id. 10 Under these principles, prison officials have a duty to take reasonable steps to 11 protect inmates from safety risks. See Hoptowit v. Ray, 682 F.2d 1237, 1250-51 (9th Cir. 1982); 12 Farmer, 511 U.S. at 833. Liability exists only when two requirements are met: (1) objectively, 13 the prisoner was incarcerated under conditions presenting a substantial risk of serious harm; and 14 (2) subjectively, prison officials knew of and disregarded the risk. See Farmer, 511 U.S. at 837. 15 The very obviousness of the risk may suffice to establish the knowledge element. See Wallis v. 16 Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). Prison officials are not liable, however, if evidence 17 is presented that they lacked knowledge of a safety risk. See Farmer, 511 U.S. at 844. The 18 knowledge element does not require that the plaintiff prove that prison officials know for a 19 certainty that the inmate’s safety is in danger, but it requires proof of more than a mere suspicion 20 of danger. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Finally, the plaintiff must 21 show that prison officials disregarded a risk. Thus, where prison officials actually knew of a 22 substantial risk, they are not liable if they took reasonable steps to respond to the risk, even if 23 harm ultimately was not averted. See Farmer, 511 U.S. at 844. 24 Defendants argue that Plaintiff cannot show that, objectively, his placement on a 25 NDPF yard posed a substantial risk to his safety. See ECF No. 15-1, pgs. 17-20. More 26 specifically, based on Plaintiff’s deposition testimony, Defendants contends that Plaintiff’s safety 27 concerns as expressed at the July 2020 classification committee were merely speculative. See id. 28 / / / 1 According to Defendants:

2 More specific to Plaintiff, each year, the classification committee cleared Plaintiff of enemy concerns before suggesting a transfer to a non- 3 designated yard. (DSUF 55, 88.) Counselor Jackson confirmed through Plaintiff’s Strategic Offender Management System (SOMS) files that 4 Plaintiff had no enemy living in the yards where the committee suggested. (Id.) Even Plaintiff himself could not identify a known enemy. (Latu Depo 5 86:24-87:17.) During his deposition, Plaintiff could not name any of his enemies living in the non-designated yard at MCSP, where Plaintiff would 6 be housed. (Id.) Instead, Plaintiff testified, “[a]nyone could be [his] enemies.” (Id.) 7 Q. Okay. Mr. Latu, is it your belief that if you move to a non- 8 designated yard, you will 100 percent get assaulted?

9 A. (Indiscernible).

10 Q. I’m sorry, I didn’t –

11 A. That’s correct.

12 Q. Can you tell me why? Do you have any enemies at Mule Creek?

13 A. Anyone can be my enemies. I have enemies. I didn’t mention them. My – my perpetrator that victimized me, and they are -- they are 14 buddies, they are homies, they go. If I show up, that's -- there's no help. I have nowhere to go. 15 Q. Are your enemies currently in the designated yard? 16 A. I have no knowledge. 17 (Id.) 18 ECF No. 51-1, pgs. 17-18. 19 20 The Court agrees with Defendants that the undisputed evidence shows that 21 Plaintiff’s safety concerns resulting from placement on a NDPF yard are speculative at best. 22 Plaintiff was unable to articulate any specific safety concern at the July 2020 classification 23 committee meeting, nor was he able to do so at his deposition. While Plaintiff’s sex offender 24 commitment offense could result in a safety risk, such risk would only arise when other inmates 25 are aware of the commitment offense. Here, Plaintiff has provided no evidence to suggest that 26 inmates on the general population knew that Plaintiff had been convicted of a sex offense. 27 / / / 28 / / / ] The Court finds that Defendants have met their initial burden on summary 2 || judgment of identifying the non-existence of a genuine dispute of material fact as to the objective 3 || component of Plaintiff's Eighth Amendment safety claim. Plaintiff has not filed an opposition or 4 || otherwise responded with evidence to suggest that, objectively, his placement on a NDPF yard 5 || could result in a risk to his safety. As such, the Court will recommend granting Defendants’ 6 || motion for summary judgment in favor of all defendants on the merits of Plaintiff's Eighth 7 || Amendment claim. 8 9 IV. CONCLUSION 10 Based on the foregoing, the undersigned recommends that Defendants’ unopposed 11 || motion for summary judgment, ECF No. 51, be granted. 12 These findings and recommendations are submitted to the United States District 13 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 14 | after being served with these findings and recommendations, any party may file written objections 15 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 16 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 17 Yist, 951 F.2d 1153 (9th Cir. 1991). 18 19 || Dated: September 17, 2025 Co 20 DENNIS M. COTA 7] UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1]