1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JASON SMITH, Case No. 18-06378 BLF (PR) 11 Plaintiff,

ORDER GRANTING

12 DEFENDANTS’ MOTION FOR v.

SUMMARY JUDGMENT

13

14 M. DAGUIO, et al., 15 Defendants.

16 (Docket No. 20)

17 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against prison officers at the Correctional Training Facility (“CTF”) in 20 Soledad. Dkt. No. 1. The Court dismissed the original complaint with leave to amend. 21 Dkt. No. 6. The Court found Plaintiff’s first amended complaint (“FAC”), Dkt. No. 7, 22 stated a cognizable First Amendment claim for retaliation, and ordered Defendants to file a 23 motion for summary judgment or other dispositive motion. Dkt. No. 8.1 Defendants R. 24 Avalos and M. Daguio filed a motion for summary judgment on the grounds that Plaintiff 25

26 1 In the same order, the Court dismissed Plaintiff’s access to the courts and equal protection claims for failure to state a claim after being given one opportunity to correct 27 the deficiencies of these claims, and dismissed his due process claim to filing as a separate 1 failed to exhaust administrative remedies, and that Plaintiff’s claim for damages against 2 them in their official capacity is barred by the Eleventh Amendment. Dkt. No. 20.2 3 Plaintiff filed opposition with exhibits, Dkt. No. 21, and Defendants filed a reply, Dkt. No. 4 22. For the reasons stated below, Defendants’ motion for summary judgment is 5 GRANTED for failure to exhaust administrative remedies. 6 7 DISCUSSION 8 I. Plaintiff’s Claims 9 Plaintiff claims that on January 23, 2018, he had Preferred Legal User (“PLU”) 10 status for the law library. Dkt. No. 7 at 6, ¶ 11. At 8:45 a.m. that morning, Plaintiff 11 attempted to go to the library but was stopped by Defendant M. Daguio who told him it 12 was an “Education release only” and ordered him back to his cell; Plaintiff complied. Id. 13 at ¶ 12. Plaintiff claims he was later allowed access to the library at 10:00 a.m. Id. at ¶ 13. 14 On the way to the library, Plaintiff complained about the delay to the Unit II Supervisor, 15 Sgt. Rendon. Id. 16 On January 25, 2018, at approximately 8:30 a.m., Plaintiff asked Defendant Daguio 17 for an “Inmate Temporary Pass” to access the law library. Id. at ¶ 14. Defendant Daguio 18 gave him the pass as requested. Id. at ¶ 15. At that time, Plaintiff also informed 19 Defendant Daguio that he intended to file an administrative grievance against him for 20 denying Plaintiff access to the law library on January 23, 2018. Id. at ¶ 14. Plaintiff 21 claims that in response, Defendant Daguio threatened to assign a cellmate to Plaintiff or 22 have him moved out of the unit before the day was over, also stating that he was tired of 23 hearing about all the grievances Plaintiff had submitted in the past. Id. at ¶ 15. Plaintiff 24 claims that he filed an inmate appeal (Log No. CTF-18-00262), that same day, alleging (1) 25 denial of access to the law library, and (2) retaliation. Id. at ¶ 16. 26 1 Plaintiff claims that later that same day after returning from the law library, 2 Defendant R. Avalos informed him that he was being assigned a cellmate, and that any 3 objections would result in a Rules Violation Report (“RVR”). Id. at ¶ 18. Plaintiff claims 4 this directive came from Defendant Daguio and that Defendant Avalos stated she would 5 stand with her colleague, “right or wrong.” Id. 6 After his prospective cellmate arrived and they had spoken, Plaintiff allegedly 7 informed Defendant Avalos that they were not compatible. Id. at ¶ 21. Plaintiff claims 8 that the cellmate posed a significant risk of physical safety because of the inmate’s interest 9 in possessing dangerous contraband. Id. Plaintiff claims Defendant Avalos responded, 10 “Like I told you earlier, M. Daguio my colleague said to give you an RVR and that’s what 11 I am going to do.” Id., id. at ¶ 22. 12 Based on the foregoing allegations, the Court found the amended complaint stated a 13 cognizable claim for retaliation under the First Amendment based on Plaintiff’s allegations 14 that Defendants’ adverse actions, i.e., assigning him a cellmate and issuing a false RVR 15 because he engaged in protected conduction, chilled his First Amendment rights and did 16 not reasonably advance a legitimate correctional goal. Dkt. No. 8 at 5. 17 II. Summary Judgment 18 Summary judgment is proper where the pleadings, discovery and affidavits show 19 that there is “no genuine dispute as to any material fact and the movant is entitled to 20 judgment as a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment 21 “against a party who fails to make a showing sufficient to establish the existence of an 22 element essential to that party’s case, and on which that party will bear the burden of proof 23 at trial . . . since a complete failure of proof concerning an essential element of the 24 nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. 25 Cattrett, 477 U.S. 317, 322-23 (1986). A fact is material if it might affect the outcome of 26 the lawsuit under governing law, and a dispute about such a material fact is genuine “if the 1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 2 Generally, the moving party bears the initial burden of identifying those portions of 3 the record which demonstrate the absence of a genuine issue of material fact. See Celotex 4 Corp., 477 U.S. at 323. Where the moving party will have the burden of proof on an issue 5 at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other 6 than for the moving party. But on an issue for which the opposing party will have the 7 burden of proof at trial, the moving party need only point out “that there is an absence of 8 evidence to support the nonmoving party’s case.” Id. at 325. If the evidence in opposition 9 to the motion is merely colorable, or is not significantly probative, summary judgment may 10 be granted. See Liberty Lobby, 477 U.S. at 249-50. 11 The burden then shifts to the nonmoving party to “go beyond the pleadings and by 12 her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on 13 file,’ designate specific facts showing that there is a genuine issue for trial.’” Celotex 14 Corp., 477 U.S. at 324 (citations omitted). If the nonmoving party fails to make this 15 showing, “the moving party is entitled to judgment as a matter of law.” Id. at 323. 16 The Court’s function on a summary judgment motion is not to make credibility 17 determinations or weigh conflicting evidence with respect to a material fact. See T.W. 18 Elec. Serv., Inc. V. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). 19 The evidence must be viewed in the light most favorable to the nonmoving party, and the 20 inferences to be drawn from the facts must be viewed in a light most favorable to the 21 nonmoving party. See id. at 631. It is not the task of the district court to scour the record 22 in search of a genuine issue of triable fact. Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 23 1996). The nonmoving party has the burden of identifying with reasonable particularity 24 the evidence that precludes summary judgment. Id. If the nonmoving party fails to do so, 25 the district court may properly grant summary judgment in favor of the moving party. See 26 id.; see, e.g., Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1028-29 1 A. Statement of Facts3 2 On January 25, 2018, Plaintiff submitted a grievance against Defendant Daguio, 3 which was labeled as Log No. CTF-S-18-00262. See supra at 2; Dkt. No. 7, ¶ 16; id. at 4 24-33 (Ex. A to FAC); Vasquez Decl., Ex. B at Dkt. No. 20-3. Plaintiff stated in the 5 grievance that the subject of the appeal was “denial of access to the law library,” and 6 described therein Defendant Daguio’s conduct on January 23, 2018. Dkt. No. 20-4 at 2, 4. 7 In the space provided for explaining the issue (Section A), there is no description of any 8 other action by Defendant Daguio, such as being assigned a cellmate or receiving an RVR 9 as alleged in the amended complaint, nor is Defendant Avalos mentioned. Id. Plaintiff 10 mentions Defendant Avalos and her actions for the first time when he stated his 11 dissatisfaction with the first level response on March 1, 2018; Plaintiff asserted that “he 12 was retaliated against for filing the said inmate grievance on 01/25/18 by C/O M. Daguio 13 and C/O R. Avalos” when the former threatened to give him a cellmate and the latter 14 threatened to issue an RVR if he refused the housing assignment. Id. at 3, 5. Plaintiff 15 sought the following relief in this grievance: (1) that Defendant Daguio adhere to 16 Operation Procedure #113 which provides staff with guidelines regarding Facility C 17 Release and Unlocks; (2) that Defendant Daguio “cease and desist from any further 18 retaliatory conduct direct or indirectly”; (3) the matter be investigated by Warden’s 19 designee to determine that Defendant Daguio did allow other inmates to the library at 8:30 20 a.m. on January 23, 2018, and the library log all ducats into SOMS; (4) that Unit I and II 21 Captains are responsible for ensuring compliance with procedures, and their failure to do 22 so makes them liable; and (5) compensation for Defendant Daguio’s “deliberate 23 indifference.” Id. at 2, 4. This grievance was administratively exhausted on July 3, 2018, 24 when the third level appeal decision, denying the grievance, was issued. Vasquez Decl., 25 Ex. B. 26 1 On January 26, 2018, Plaintiff received an RVR issued by Defendant Avalos, 2 charging him with the specific act of “Refusing to Accept Assigned Housing – Delaying a 3 Peace Officer of His Duties.” Dkt. No. 21 at 19. At the disciplinary hearing on January 4 31, 2018, Plaintiff was found guilty of the offense. Id. at 20. On March 18, 2018, Plaintiff 5 filed an inmate grievance Log No. CTF-S-18-00776, appealing the RVR. Id. at 17-18. 6 Plaintiff claimed that the senior hearing officer “possessed a predetermine[d] belief” of 7 Plaintiff’s guilt and denied him due process, as well as denying him witnesses, including 8 Defendant Avalos, at the hearing. Id. Plaintiff claimed that the inmate housing 9 assignment was done “in retaliation for appellant filing an inmate grievance against C/O 10 Daguio.” Id. at 18. Plaintiff wanted the appeals coordinator to investigate the due process 11 violations he alleged in the grievance, answer and confirm related questions, and dismiss 12 the RVR. Id. On May 29, 2018, the grievance was partially granted at the second level of 13 appeal, which directed the RVR be reissued and reheard due to a procedural error, i.e., the 14 senior hearing officer’s failure to record the reason for denying Plaintiff’s requested 15 witnesses. Id. at 24. On August 13, 2018, the Office of Appeals, which acts as the third 16 level of review, notified Plaintiff that the appeal to the third level was cancelled because 17 the issue under appeal “has been resolved at a previous level.” Id. at 16. 18 B. Exhaustion 19 The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to 20 provide that “[n]o action shall be brought with respect to prison conditions under [42 21 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 22 other correctional facility until such administrative remedies as are available are 23 exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and no longer left to the 24 discretion of the district court. Woodford v. Ngo, 548 U.S. 81, 84 (2006) (citing Booth v. 25 Churner, 532 U.S. 731, 739 (2001)). “Prisoners must now exhaust all ‘available’ 26 remedies, not just those that meet federal standards.” Id. Even when the relief sought 1 still exhaust administrative remedies. Id. at 85-86 (citing Booth, 532 U.S. at 734). The 2 PLRA’s exhaustion requirement requires “proper exhaustion” of available administrative 3 remedies. Id. at 93. An action must be dismissed unless the prisoner exhausted his 4 available administrative remedies before he or she filed suit, even if the prisoner fully 5 exhausts while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 6 2002); see Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where 7 administrative remedies are not exhausted before the prisoner sends his complaint to the 8 court it will be dismissed even if exhaustion is completed by the time the complaint is 9 actually filed). 10 The California Department of Corrections and Rehabilitation (“CDCR”) provides 11 its inmates and parolees the right to appeal administratively “any policy, decision, action, 12 condition, or omission by the department or its staff that the inmate or parolee can 13 demonstrate as having a material adverse effect upon his or her health, safety, or welfare.” 14 Cal. Code Regs. tit. 15, § 3084.1(a) (repealed eff. June 1, 2020).4 It also provided its 15 inmates the right to file administrative appeals alleging misconduct by correctional 16 officers. See id. § 3084.1(e). Under the regulations in effect at the relevant time of this 17 action, in order to exhaust available administrative remedies within this system, a prisoner 18 must submit his complaint on CDCR Form 602 (referred to as a “602”) and proceed 19 through three levels of appeal: (1) first formal level appeal filed with one of the 20 institution’s appeal coordinators, (2) second formal level appeal filed with the institution 21 head or designee, and (3) third formal level appeal filed with the CDCR director or 22 designee. Id. § 3084.7. 23

24 4 The regulations that set out the features of the administrative remedies process for California prisoners underwent a substantial restructuring earlier this year. On March 25, 25 2020, and effective June 1, 2020, California Code of Regulations, Title 15, sections 3084 through 3084.9 were repealed and replaced with renumbered and amended provisions at 26 sections 3480 through 3487. All the citations in this order to the California regulations are 1 Compliance with prison grievance procedures is all that is required by the PLRA to 2 “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). The level of detail 3 necessary in a grievance to comply with the grievance procedures will vary from system to 4 system and claim to claim, but it is the prison’s requirements, and not the PLRA, that 5 define the boundaries of proper exhaustion. Id. at 218. In California, the regulation 6 requires the prisoner “to lodge his administrative complaint on CDC form 602 and ‘to 7 describe the problem and action requested.’” Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 8 2010) (quoting Cal. Code Regs. tit. 15 § 3084.2(a)); Wilkerson v. Wheeler, 772 F.3d 834, 9 839 (9th Cir. 2014) (same). California regulations also require that the appeal name “all 10 staff member(s) involved” and “describe their involvement in the issue.” Cal. Code Regs. 11 tit. 15, § 3084.2(a)(3). 12 Where a prison’s grievance procedures do not specify the requisite level of factual 13 specificity required in the grievance, as in California, “‘a grievance suffices if it alerts the 14 prison to the nature of the wrong for which redress is sought.’” Griffin v. Arpaio, 557 F.3d 15 1117, 1120 (9th Cir. 2009) (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). 16 The grievance need not include legal terminology or legal theories unless they are needed 17 to provide notice of the harm being grieved. Id. Nor must a grievance include every fact 18 necessary to prove each element of an eventual legal claim. Id. The purpose of a 19 grievance is to alert the prison to a problem and facilitate its resolution, not to lay 20 groundwork for litigation. Id. The grievance should include sufficient information “to 21 allow prison officials to take appropriate responsive measures.” Id. (citation and internal 22 quotation omitted) (no exhaustion where grievance complaining of upper bunk assignment 23 failed to allege, as the complaint had, that nurse had ordered lower bunk but officials 24 disregarded that order); see Wilkerson v. Wheeler, 772 F.3d 834, 840 (9th Cir. 2014) 25 (claim properly exhausted where inmate described nature of the wrong and identified 26 defendant as a responding officer who applied pressure to inmate’s ankle deliberately to 1 Nonexhaustion under § 1997e(a) is an affirmative defense. Jones v. Bock, 2 549 U.S. 199, 211 (2007). Defendants have the burden of raising and proving the absence 3 of exhaustion, and inmates are not required to specifically plead or demonstrate exhaustion 4 in their complaints. Id. at 215-17. In the rare event that a failure to exhaust is clear on the 5 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6) of the 6 Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en 7 banc). Otherwise, defendants must produce evidence proving failure to exhaust in a 8 motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Id. 9 If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to 10 exhaust, a defendant is entitled to summary judgment under Rule 56. Id. at 1166. But if 11 material facts are disputed, summary judgment should be denied, and the district judge 12 rather than a jury should determine the facts in a preliminary proceeding. Id. 13 The defendant’s burden is to prove that there was an available administrative 14 remedy and that the prisoner did not exhaust that available administrative remedy. Id. at 15 1172; see id. at 1176 (reversing district court’s grant of summary judgment to defendants 16 on issue of exhaustion because defendants did not carry their initial burden of proving their 17 affirmative defense that there was an available administrative remedy that prisoner 18 plaintiff failed to exhaust); see also Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005) 19 (as there can be no absence of exhaustion unless some relief remains available, movant 20 claiming lack of exhaustion must demonstrate that pertinent relief remained available, 21 whether at unexhausted levels or through awaiting results of relief already granted as result 22 of that process). Once the defendant has carried that burden, the prisoner has the burden of 23 production. Albino, 747 F.3d at 1172. That is, the burden shifts to the prisoner to come 24 forward with evidence showing that there is something in his particular case that made the 25 existing and generally available administrative remedies effectively unavailable to him. 26 Id. But as required by Jones, the ultimate burden of proof remains with the defendant. Id. 1 C. Legal Analysis 2 Defendants argue that Plaintiff’s grievance is limited to the allegations he made 3 when he initially filed the grievance on January 25, 2018, i.e., specifically the conditions 4 or conduct described in Section A of the grievance form. Dkt. No. 20 at 7. As such, 5 Defendants assert that Plaintiff only exhausted his claims related to the delay in going to 6 the law library on January 23, 2018. Id. Moreover, Defendants assert that Plaintiff’s 7 original grievance does not identify Defendant Avalos. Id. Defendants assert that Plaintiff 8 should have filed a subsequent grievance regarding the specific conduct that occurred after 9 he filed the original grievance. Id. Defendants assert that Plaintiff’s record of inmate 10 grievances shows that he was not unfamiliar with but rather had a full understanding of the 11 CDCR’s grievance process. Id. He could have, but did not, submit a subsequent grievance 12 regarding Defendants Daguio and Avalos’ conduct that occurred later that day, after he had 13 filed the first grievance. Id. Therefore, Defendant asserts, summary judgment should be 14 granted for failure to exhaust administrative remedies before filing suit. Id. 15 In opposition, Plaintiff asserts that he has satisfied the PLRA requirements for 16 exhaustion, and that his inmate grievances exhausted all the claims in this action against 17 Defendants Daguio and Avalos. Dkt. No. 21 at 2. He asserts that in order to satisfy the 18 exhaustion requirement, “grievances generally need only be sufficient to alert the prison to 19 the nature of the wrong for which redress is sought,” and that “prisoners need not file 20 multiple, successive grievances raising the same issue, if the objectionable condition is 21 continuing.” Id. at 4. Plaintiff asserts that therefore, “once a prison has received notice of, 22 and an opportunity to correct, a problem, the prisoner has satisfied the purpose of the 23 exhaustion requirement.” Id. at 4-5. He also asserts that exhaustion is satisfied “if the 24 prison officials decided the potentially flawed grievance on the merits.” Id. at 5. Plaintiff 25 asserts that the grievance he filed on January 25, 2018, satisfied exhaustion as it clearly 26 indicated all the issues in this action. Id. at 6. He also asserts that exhaustion was 1 by Defendant Avalos which also contained the allegation that the inmate housing 2 assignment was done in retaliation for his filing an inmate grievance against Defendant 3 Daguio. Id., Ex. E. Lastly, he asserts that nowhere in the responses for the two grievances 4 did prison officials indicate that either grievance was procedurally barred but decided all 5 claims on the merits. Id. at 6. 6 In reply, Defendants assert that the evidence shows that prison officials never 7 considered Plaintiff’s retaliation claim based on the housing assignment that occurred after 8 he filed the grievance on January 25, 2018, nor did they waive the administrative grievance 9 procedures in later hearings or grievances. Dkt. No. 22 at 1-2. Defendants point out that 10 Plaintiff mentioned this new issue for the first time during the first level appeal interview 11 having failed to include it in the “appeal issues” section of the grievance. Id. at 2. 12 Defendants assert that none of the levels mention retaliation related to the housing 13 assignment, and that there is no evidence that the issue was adjudicated on the merits at all 14 three levels of review. Id. Defendants also assert that raising the issue for the first time in 15 Section D of the grievance violated the time guidelines under CDCR regulations and 16 therefore does not constitute exhaustion. Id. at 3-4. Lastly, Defendants assert Plaintiff’s 17 subsequent grievance challenging the RVR did not exhaust the retaliation claim because it 18 was not the subject of the grievance and it was screened out at the third level. Id. at 4. 19 Viewing the evidence in the light most favorable to Plaintiff, the Court finds that 20 Plaintiff did not properly exhaust all available administrative remedies with respect to his 21 claim that Defendants issued an inmate housing assignment in retaliation for filing 22 grievances. Contrary to his assertions, the grievance Plaintiff filed on January 25, 2018, 23 Log No. CTF-S-18-00262, did not explicitly identify retaliation as a subject of the 24 grievance. Rather, the “subject” of the appeal was clearly stated as being “denial of access 25 to the law library” which Plaintiff described as occurring on January 23, 2018. Dkt. No. 26 21 at 11. In Section A and B of the complaint, Plaintiff makes only vague references to 1 regarding a retaliatory housing assignment was not mentioned until over a month later on 2 March 1, 2018, when Plaintiff expressed dissatisfaction at the first level of appeal decision. 3 Id. at 3, 5. Based on this information in Sections A and B and the lack of any description 4 of other specific wrongful conduct, Plaintiff was clearly only complaining of Defendant 5 Daguio’s retaliatory act of denying him access to the library on January 23, 2018, when he 6 filed Log No. CTF-S-18-00262 on January 25, 2018. Furthermore, Plaintiff made no 7 mention of Defendant Avalos or described any desired action against her such that prison 8 officials were alerted to the fact that Plaintiff was also seeking relief from that officer’s 9 conduct. 10 Relying on Reyes v. Smith, 810 F.3d 654 (9th Cir. 2016), Plaintiff claims the issue 11 of retaliation in connection with the housing assignment was exhausted and that any 12 procedural defect was waived because the different appeal decisions nevertheless 13 addressed it on the merits. See supra at 10. If an inmate’s grievance does not comply with 14 a procedural rule but prison officials decide it on the merits anyway at all available levels 15 of administrative review, it is exhausted. Reyes, 810 F.3d at 656, 658.5 However, as 16 Defendants point out, the grievance was not decided on the merits at all available levels of 17 review. The first level appeal decision mentioned that Plaintiff alleged retaliation in 18 connection with a housing assignment during the first level interview on February 20, 19 2018, and that Defendant Daguio was interviewed about the allegation on the same day. 20 Dkt. No. 20-4 at 60. Its decision specifically referenced the 5 itemized actions that 21 Plaintiff requested in the grievance under Section B. Dkt. No. 20- at 6-7. With respect to 22 retaliation, it merely stated: “appellant’s request to have C/O Daguio cease and desist from 23 further retaliatory conduct direct or indirectly and to have no reprisals is moot as CTF is in 24

25 5 Thus, a California inmate whose grievance failed to name all staff members involved in his case, as required by 15 Cal. Code Regs. § 3084.2(a)(3), nevertheless exhausted his 26 claim of deliberate indifference to his serious medical needs because that claim was 1 compliance with California Code of Regulations, Title 15, Division 3, Chapter 1, Article 8. 2 § 3084.1(d).6” Id. The second level appeal repeated the “appeal issue” and “action 3 requested” that was stated in the first level decision, and found that the first level decision 4 was “complete and comprehensive and the appellate provided no information that would 5 justify any changes.” Id. at 8. The second level appeal decision also acknowledged 6 Plaintiff’s repeated allegation that Defendant Daguio retaliated against him with respect to 7 the housing assignment, but its final decision was identical to the first level appeal decision 8 in all respects, and did not specifically address nor mention the later added claim. Id. at 9. 9 Even if the Court were to construe the first and second level decisions as decisions 10 on the merits of Plaintiff’s retaliation claim in connection with the housing assignment, the 11 third level decision makes it clear that it was not addressing any such claim. The third 12 level appeal decision only discussed Plaintiff’s original allegations regarding the denial of 13 access to the library as described in Sections A and B of the grievance form filed on 14 January 25, 2018. Dkt. No. 20-3 at 2. Furthermore, its summary of the second level 15 decision only includes facts regarding the investigation into the denial of library access 16 claim. Id. In closing, the third level appeal decision made it clear that it was intentionally 17 not addressing any new issues and requests that Plaintiff had added to the appeal: “The 18 appellant has added new issues and requests to the appeal. The additional requested action 19 is not addressed herein as it is not appropriate to expand the appeal beyond the initial 20 problem and the initially requested action (CDC Form 602, Inmate/Parolee Appeal Form, 21 Sections A and B).” Id. Accordingly, the third level appeal decision clearly did not reach 22 the merits of Plaintiff’s claim that the housing assignment was retaliatory. Lastly, none of 23 the appeal decisions at any level addressed Plaintiff’s belated claim against Defendant 24 Avalos or issued any decision in that regard. Therefore, it cannot be said that the 25

26 6 At the time, § 3084.1(d) provided in part: “No reprisal shall be taken against an inmate or 1 exception in Reyes, 810 F.3d 654, applies here, where adjudication on the merits of the 2 challenged claim, i.e., the retaliatory housing assignment, did not occur at every level of 3 decision for appeal Log No. CTF-S-18-00262. 4 In addition, as Defendants point out, the third level appeal decision to limit 5 Plaintiff’s appeal to law library access invoked, rather than waived, the procedural defect. 6 Dk. No. 22 at 3. Plaintiff’s available administrative remedy at that point was to file a 7 separate grievance about the third level decision, but he did not do so. Therefore, 8 Defendants have shown that there were available administrative remedies which Plaintiff 9 did not exhaust before filing this action. Nor does Plaintiff assert that there was something 10 in his particular case that made the existing and generally available administrative 11 remedies effectively unavailable to him. See Albino, 747 F.3d at 1172. Accordingly, the 12 evidence shows that inmate appeal Log No. CTF-S-18-00262 did not exhaust the claim 13 that Defendants Daguio and Avalos acted in retaliation with respect to the inmate housing 14 assignment that was issued on January 25, 2018. 15 The evidence also shows that Plaintiff did not exhaust any of the relevant claims in 16 this action through appeal Log No. CTF-S-18-00776. In that grievance, Plaintiff was 17 alleging violations of due process in connection with the disciplinary action for refusing to 18 accept a housing assignment. See supra at 5-6. Although he alleged that the housing 19 assignment was a retaliatory action, Plaintiff requested no action in that grievance against 20 Defendants Daguio or Avalos to put prison officials on notice that he was seeking a 21 remedy against them rather than simply challenging the RVR. Id. at 6. Furthermore, as 22 Defendants point out, that appeal never received a decision on the merits at the third level 23 of review which cancelled the appeal because the matter was resolved at the previous 24 level. Dkt. No. 21 at 16. Defendants are correct in asserting that if Plaintiff believed the 25 cancellation was improper, he needed to file a grievance challenging that decision. Dkt. 26 No. 22. He did not. 1 exhaust all available administrative remedies with respect to his claim that Defendants 2 acted in retaliation when they issued an inmate housing assignment or the RVR on January 3 25, 2018. Plaintiff fails to show in opposition that there was something in his particular 4 case that made the existing and generally available administrative remedies effectively 5 unavailable to him or that he was incapable of filing a timely appeal. Albino, 747 F.3d at 6 1172. Accordingly, Defendants are entitled to summary judgment under Rule 56 based on 7 Plaintiff’s failure to exhaust administrative remedies with respect to these claims. Id. at 8 1166. 9 On the other hand, the evidence shows that Plaintiff did exhaust the claim that 10 Defendant Daguio’s actions were allegedly retaliatory when he denied Plaintiff access to 11 the law library on January 23, 2018 through inmate grievance Log No. CTF-S-18-00262.7 12 The Court did not consider this allegation as a separate retaliation claim in its screening 13 order. Dkt. No. 8. Therefore, the Court will screen the claim below. 14 III. Screening of Retaliation Claim for Denial of Law Library Access 15 A. Standard of Review 16 A federal court must conduct a preliminary screening in any case in which a 17 prisoner seeks redress from a governmental entity or officer or employee of a 18 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 19 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 20 upon which relief may be granted or seek monetary relief from a defendant who is immune 21 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 22 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 23 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 24 7 Plaintiff also alleged in the grievance that Defendant Daguio’s actions denied him access 25 to the courts. The Court found the allegations were insufficient to state such a claim, and directed Plaintiff to file an amended complaint to correct the deficiencies. Dkt. No. 6 at 3- 26 4. The Court dismissed the claim when Plaintiff’s amended complaint failed to do so. 1 elements: (1) that a right secured by the Constitution or laws of the United States was 2 violated, and (2) that the alleged violation was committed by a person acting under the 3 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 4 B. Analysis 5 “Within the prison context, a viable claim of First Amendment retaliation entails 6 five basic elements: (1) An assertion that a state actor took some adverse action against an 7 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 8 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 9 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 10 Cir. 2005) (footnote omitted). 11 Plaintiff’s allegations are insufficient to state a retaliation claim because he fails to 12 satisfy all the elements. While Plaintiff satisfies the first element, i.e., the adverse action 13 being the initial denial of library access at 8:45 a.m., there is no allegation that he was 14 denied access at that time “because of” the exercise of protected conduct, which are the 15 second and third elements. It was not until two days later on January 25, 2018, that 16 Defendant Daguio allegedly threatened Plaintiff with a housing assignment if he pursued 17 an administrative grievance against him. See supra at 2. There was no such threat on 18 January 23, 2018. Rather, Plaintiff’s allegations show that Defendant Daguio told him to 19 return to his cell because the 8:45 a.m. announcement was for “education release only” and 20 Plaintiff did not fall into that category. See supra at 2. Lastly, Plaintiff does not allege 21 that Defendant Daguio’s actions chilled the exercise of his First Amendment rights, nor 22 can he since he was permitted to go to the library just 90 minutes later. And at no time 23 during the inmate grievance process did Plaintiff allege that the 90-minute delay resulted 24 in harm. Dkt. No. 20-4 at 3, 5. A prisoner must at least allege that he suffered harm, since 25 harm that is more than minimal will almost always have a chilling effect. Rhodes, 408 26 F.3d at 567-68 n.11; see Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000) (holding that 1 Plaintiff has already been afforded one opportunity to amend, and this Court has 2 || broad discretion to deny leave to amend where Plaintiff has already been granted leave to 3 file an amended complaint. See Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (Oth Cir. 4 || 2003); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Furthermore, it does not 5 || appear that Plaintiff could in good faith allege additional facts to cure the defect of this 6 || claim. Accordingly, this retaliation claim is DISMISSED for failure to state a claim. 7 8 CONCLUSION 9 For the reasons stated above, Defendants R. Avalos and M. Daguio’s motion for 10 || summary judgment is GRANTED.® Dkt. No. 20. The retaliation claims against them are 11 DISMISSED for failure to exhaust administrative remedies, see Vaden, 449 F.3d at 1051. a 12 This order terminates Docket No. 20.

13 The Clerk shall close the file.

IT IS SO ORDERED.

15 || Dated: _December 30, 2020 ko ty Lay. | pout /

BETH LABSON FREEMAN

= 6 United States District Judge 17

Z 18

19 20 21 22 23 24 Order Granting MSJ PRO-SE\BLF\CR.17\05569Hackworth_grant-msj(exh) 25 26 07 8 Because there remain no viable claims in the instant action, the Court need not address Defendant’s motion for summary judgment on other grounds.