Opinion
Joseph Patrick Roman Simon, Plaintiff, Pro se, Rancho Cucamonga, CA.
For James E Henning, Facility Chaplain, individual capacity, James E Henning, Facility Chaplain, official capacity, H Gomez, Facility Commander, individual capacity, H Gomez, Facility Commander, official capacity, Defendants: Adam Lee Miederhoff, LEAD ATTORNEY, San Bernardino County Counsel, San Bernardino, CA.
ORDER
R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE.
PROCEEDINGS
Plaintiff, an inmate incarcerated at the San Bernardino County West Valley Detention Center (" WVDC"), filed a pro so civil rights Complaint on December 19, 2013. The original Complaint alleged claims for denial of the First Amendment's free exercise and establishment clauses and for violation of due process and equal protection. Plaintiff essentially claimed that WVDC officials denied Plaintiff Kosher meals, a Jewish Passover and Jewish religious garments. The original Complaint named as Defendants San Bernardino County Sheriff John McMahon, WVDC Facility Administrator Dana Gould, WVDC Facility Commanders H. Gomez and Ilizaliturri, and WVDC Chaplain James Henning, all sued in their individual and official capacities.
On January 7, 2014, United States Magistrate Judge Margaret A. Nagle issued a " Memorandum and Order Dismissing Complaint With Leave to Amend." On February 18, 2014, Plaintiff filed a verified First Amended Complaint, the operative pleading. The First Amended Complaint asserts claims for violation of the First Amendment, conspiracy in violation of 42 U.S.C. section 1986 and violation of the Religious Land Use and Institutionalized Persons Act (" RLUIPA"), 42 U.S.C. § 2000cc-1(a). The First Amended Complaint names as Defendants WVDC " Religious Advisor" Henning and Facility Commander Gomez, sued in their individual capacities only (" Defendants"). Plaintiff seeks declaratory relief and compensatory and punitive damages.
On June 13, 2014, Defendants filed an Answer. The Answer pleads as an affirmative defense Plaintiff's alleged failure to exhaust administrative remedies. On June 17, 2014, Magistrate Judge Nagle issued a scheduling order setting a discovery cut-off date of December 12, 2014.
On August 15, 2014, Plaintiff filed a motion to compel discovery responses, which Magistrate Judge Nagle denied on September 25, 2014, on the ground that Defendants had submitted proof that they had served the discovery responses and Plaintiff had not filed any reply contesting Defendants' proof. On September 22, 2014, Plaintiff filed a second motion to compel discovery responses, which Magistrate Judge Nagle denied on October 31, 2014, again on the ground that Defendants had submitted proof that they had served the discovery responses and Plaintiff had not filed any reply contesting this proof. On October 20, 2014, Plaintiff filed a third motion to compel discovery responses, which Magistrate Judge Nagle granted in part and denied in part on November 20, 2014. Magistrate Judge Nagle granted this motion with respect to one interrogatory but otherwise denied the motion, ruling inter alia that the disputed requests for production were " grossly overly broad" and the disputed requests for admission were argumentative and assumed the alleged civil rights violations. On November 12, 2014, Plaintiff filed a fourth motion to compel. On December 1, 2014, Magistrate Judge Nagle denied the motion.
On December 22, 2014, Plaintiff filed an application for an extension of the discovery cut-off date, asserting inter alia that he had not completed discovery and he needed additional time to locate alleged third party witnesses, two of whom reportedly were incarcerated. On January 7, 2015, Magistrate Judge Nagle issued a Minute Order extending the discovery cut-off to March 8, 2015, for the sole purpose of allowing Plaintiff to pursue third party discovery concerning the three purported witnesses. The same Minute Order also extended the discovery motion cut-off to April 7, 2015, and the summary judgment motion cut-off to May 1, 2015.
On March 11, 2015, Plaintiff filed an application for an order requiring prison officials to allow Plaintiff to interview or correspond with the two alleged inmate witnesses. On March 11, 2015 and April 3, 2015, Plaintiff filed motions for an extension of time, inter alia seeking an extension of time to pursue discovery with respect to the purported third party witnesses. On April 10, 2015, Magistrate Judge Nagle granted the motions to the limited extent that Plaintiff sought additional time to complete the third party discovery directed to the three identified third party witnesses. Magistrate Judge Nagle extended the deadline for completing that limited discovery to May 18, 2015. Magistrate Judge Nagle ruled that Plaintiff had alleged no new facts justifying reopening the discovery period and had asserted no justification for his delay in seeking reconsideration of the earlier rulings on Plaintiff's previous motions to compel. Magistrate Judge Nagle expressly prohibited Plaintiff from propounding any other discovery to Defendants. Also on April 10, 2015, Magistrate Judge Nagle issued a Minute Order denying Plaintiff's application for an order requiring prison officials to permit Plaintiff to interview witnesses, on the ground that the Court lacked authority to order the relief sought. On April 13, 2015, Plaintiff filed a motion for leave to file an amended complaint to add Defendant Ilizaliturri as a " Doe" Defendant, which Magistrate Judge Nagle denied on April 27, 2015.
On May 1, 2015, Defendants filed a Motion for Summary Judgment, or in the Alternative for Summary Adjudication, on the grounds that: (1) Defendants allegedly are entitled to qualified immunity on Plaintiff's First Amendment claims; (2) Defendants allegedly did not violate RLUIPA; and (3) Plaintiff allegedly failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act of 1995 (Pub. L. No. 104-134, 110 Stat. 1321), 42 U.S.C. § 1997e(a) (" PLRA").
On May 5, 2015, Magistrate Judge Nagle issued a Minute Order inter alia advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035, 119 S.Ct. 2392, 144 L.Ed.2d 793 (1999).
On May 18, 2015, Plaintiff filed two motions inter alia seeking a further extension of time to complete the third party witness discovery. Also on May 18, 2015, Plaintiff filed: (1) " Objections" to several of Magistrate Judge Nagle's prior orders; and (2) a request for service of a subpoena on the Court Clerk for public records in another purported lawsuit. On May 27, 2015, Magistrate Judge Nagle issued a Minute Order denying the May 18, 2015 motions for an extension of time and the request for a subpoena and referring the " Objections" to the undersigned District Judge. On May 27, 2015, the undersigned District Judge issued an Order denying Plaintiff's May 18, 2015 requests to review the Magistrate Judge's prior orders as untimely with respect to certain prior orders and as premature with respect to others.
On May 29, 2015, Plaintiff filed a request for an extension of time to file opposition to Defendants' motion for summary judgment. Plaintiff alleged, among other things, that jail officials assertedly denied Plaintiff law library access and that the only discovery Plaintiff allegedly had received from Defendants was 150 pages from Plaintiff's " booking jacket." On June 2, 2015, Magistrate Judge Nagle denied the motion, observing that Plaintiff had not alleged an inability to research and write an opposition, that discovery had closed long ago, and that the court repeatedly had denied Plaintiff's motions to extend or reopen discovery. On June 22, 2015, the undersigned District Judge issued an order denying Plaintiff's request for review of the Magistrate Judge's May 29, 2015 order.
Plaintiff did not file any timely opposition to the Motion for Summary Judgment. On July 17, 2015, Magistrate Judge Nagle issued a Report and Recommendation recommending dismissal of the action without prejudice on the ground that Plaintiff had failed to exhaust available administrative remedies as required by the PLRA. Magistrate Judge Nagle found that: (1) Defendants had met their initial burden to show that Plaintiff had failed to exhaust available administrative remedies before filing suit; (2) Plaintiff had not filed any opposition and hence had not met his burden to show a triable factual dispute as to exhaustion; and (3) the Court had discretion pursuant to Local Rule 7-12 to grant the unopposed Motion. In support of finding (3), Magistrate Judge Nagle cited the Court's warning to Plaintiff regarding his obligation to oppose the Motion for Summary Judgment, Plaintiff's failure to file opposition to the Motion for Summary Judgment despite the passage of six weeks following the deadline for filing an opposition, and Plaintiff's preparation and filing of meritless motions in lieu of preparing and filing an opposition to the Motion for Summary Judgment. Magistrate Judge Nagle deemed " most weighty" the fact that Plaintiff appeared to have devoted his time to filing a " series of meritless motions challenging the Magistrate Judge's non-dispositive rulings" rather than devoting time to preparing an opposition to the Motion for Summary Judgment.
On August 13, 2015, Plaintiff filed: (1) a document titled " Plaintiff Herein Files This 352 Objection Motion Under the California Evidence Code, etc." (" 352 Objection"); and (2) a document titled " Plaintiff Herein Files Objections and Objections to the Respectable Magistrate Judge[']s Report and Recommendations, " accompanied by exhibits (" Objections"). In these documents, Plaintiff: (1) objects to the Report and Recommendation; (2) objects generally to all of Defendants' evidence submitted in support of their summary judgment motion; (3) objects to various previous orders issued by Magistrate Judge Nagle; (4) contends he requires additional discovery to oppose summary judgment; and (5) argues the substantive merits of the Motion for Summary Judgment.
The Court construes Plaintiff's Objection and 352 Objection to include a belated Opposition to the Motion for Summary Judgment. The Court declines to adopt the Report and Recommendation filed July 17, 2015, and, after considering all the disputed matters de novo, issues the present Order.
In Plaintiff's Objections, Plaintiff contends the Court should deny summary judgment based on the evidence accompanying the Objections (Objections, p. 39).
SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff's verified First Amended Complaint (" FAC") alleges the following:
Plaintiff is of the Jewish faith and a member of the House of Yahweh synagogue (FAC, Dkt. 16, p. 19). Plaintiff's faith requires him to consume a Kosher diet or " Kosherly prepared food products" ( id.). From September 21, 2012 through May 3, 2013, while Plaintiff was at WVDC, Defendant Henning denied Plaintiff Kosher meals and a Jewish passover ( id., pp. 11, 19). On March 19, 2013, Plaintiff spoke to Defendant Henning and requested permission to participate in Passover services ( id., p. 16). Henning denied the request and refused to provide any reasons ( id., pp. 16, 20). Henning is an adherent of Christianity " who does not believe in strict adhearence [sic] to Jewish food consumption with respect to Kosherly prepared meat and food product[s]" ( id., p. 19).
The First Amended Complaint consists of a form pleading to which is attached a handwritten First Amended Complaint. Because the document does not bear consecutive page numbers, the Court cites to the ECF pagination.
Due to the denial of Kosher meals for eight months, Plaintiff suffered " severe starvation, malnutrition, and overall suffering" ( id., p. 19). Defendant Henning knew or should have known that denying Plaintiff Kosher meals would cause injury to Plaintiff (id.). When Plaintiff informed Henning that Plaintiff was suffering " outright starvation" from lack of a Kosher diet, Henning was argumentative and irate, and ignored Plaintiff's pleas for relief ( id., p. 20).
Plaintiff exhausted his religious discrimination claims concerning these events through the WVDC grievance process ( id., p. 11). Plaintiff " presented the facts relating to this complaint" on October 22, 2012, but the grievance was denied on April 23, 2013 ( id., p. 17). Plaintiff appealed the denial (id.). Plaintiff also filed claims against the " Treasury of San Bernardino" on July 12, 2013 and August 6, 2013, which were rejected on August 2, 2013 and August 20, 2013, respectively ( id., pp. 17-18).
From May 30, 2013 through June 1, 2013, Plaintiff was confined at the Central Detention Center (id.). Defendant Henning faxed information to the Central Detention Center facility chaplain stating Plaintiff should not be given Kosher meals ( id., p. 12). The Central Detention Center chaplain followed Henning's orders ( id.). On or about June 12, 2013, Plaintiff was transferred to the Glen Helen Rehabilitation Center, where Plaintiff was given Kosher meals and Jewish garments ( id., p. 13). On or about August 21, 2013, Plaintiff was transferred back to WVDC ( id., p. 14).
Defendant Henning denied Plaintiff his religious rights and Defendant Gomez approved " the religious advisor's discretion" and neglected to investigate the situation (id.).
GOVERNING LEGAL STANDARDS
Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party's burden is met, the party opposing the motion is required to go beyond the pleadings and, by the party's own affidavits or by other evidence, designate " specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 987 (9th Cir. 2006). The party opposing the motion must submit evidence sufficient to establish the elements that are essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. at 322.
The Court must " view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party." Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007). Where different ultimate inferences reasonably can be drawn, summary judgment is inappropriate. Miller v. Glenn Miller Productions, Inc., 454 F.3d at 988. " At the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Porter v. California Dep't of Corrections, 419 F.3d 885, 891 (9th Cir. 2005) (citation omitted).
A factual dispute is " genuine" only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is " material" only if it might affect the outcome of the lawsuit under governing law. Id.
The Court may consider Plaintiff's verified First Amended Complaint to be an affidavit within the meaning of Fed.R.Civ.P. 56(e) to the extent that the pleading demonstrates that Plaintiff has personal knowledge of factual matters stated therein. See Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). However, parties generally may not rely on unsworn allegations in their pleadings or legal memoranda to defeat summary judgment. See John M. Floyd & Assocs., Inc. v. Tapco Credit Union, 550 Fed.Appx. 359, 360 (9th Cir. 2013) (complaint); British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979) (legal memoranda and argument). " Evidence may be offered 'to support or dispute a fact' on summary judgment only if it could be presented in an admissible form at trial." Southern California Darts Ass'n v. Zaffina, 762 F.3d 921, 925-26 (9th Cir. 2014) (citing Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003), cert. denied, 541 U.S. 937, 124 S.Ct. 1663, 158 L.Ed.2d 358 (2004) (internal quotations omitted). Purported evidence which " sets out mere speculation for the critical facts, without a showing of foundation in personal knowledge, for the facts claimed to be at issue" is insufficient. John M. Floyd & Assoc., Inc. v. Tapco Credit Union, 550 Fed.App'x at 360. Conclusory statements are insufficient to defeat summary judgment. Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 950 n.9 (9th Cir. 2011) (en banc), cert. denied, 132 S.Ct. 1566, 182 L.Ed.2d 168 (2012).
A district court may not grant summary judgment simply on the ground that the nonmoving party has failed to file an opposition. See Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003); Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995); Henry v. Gill Industries, Inc., 983 F.2d 943, 950 (9th Cir. 1993). To obtain summary judgment despite the absence of an opposition, Defendants must " affirmatively show that there is no genuine issue as to any material fact, " and that Defendants are entitled to judgment as a matter of law. Martinez v. Stanford, 323 F.3d at 1183; Henry v. Gill Industries, Inc., 983 F.2d at 950.
DISCUSSION
I. Law Governing Exhaustion of Administrative Remedies
Under the PLRA, a prisoner must exhaust available administrative remedies before bringing an action in federal court challenging prison conditions. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); McKinney v. Carey, 311 F.3d 1198, 1199-200 (9th Cir. 2002). " Proper exhaustion" is required, which means that the inmate must use " all steps that the agency holds out, " and must comply " with the system's critical rules." Woodford v. Ngo, 548 U.S. 81, 90, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (citation and internal quotations omitted). A plaintiff must complete the exhaustion process prior to bringing the action. McKinney v. Carey, 311 F.3d at 1199-200; see Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). An action is " brought" for purposes of the PLRA's exhaustion requirement when the plaintiff tenders the complaint to the court clerk for filing. Vaden v. Summerhill, 449 F.3d at 1050-51.
Exhaustion is an affirmative defense as to which the defendant bears the burden of proof. Jones v. Bock, 549 U.S. 199, 212-17, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). A defendant moving for summary judgment on exhaustion grounds must carry an initial burden of showing that an available administrative remedy existed and that the prisoner did not exhaust that remedy. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.) (en banc), cert. denied, 135 S.Ct. 403, 190 L.Ed.2d 307 (2014). Once the defendant has carried that burden, the plaintiff must come forward with evidence " showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. (citation omitted). The ultimate burden of proof remains with the defendant, however. Id.
In their Motion for Summary Judgment, Defendants relied on the superseded panel decision in Albino v. Baca, 697 F.3d 1023 (9th Cir. 2012), rehearing en banc granted, 709 F.3d 994 (9th Cir. 2013). The panel decision in Albino v. Baca applied previous Ninth Circuit authority holding that a defendant should raise an exhaustion defense in an " unenumerated Rule 12(b) motion rather than a motion for summary judgment." Albino v. Baca, 697 F.3d at 1029 (quoting Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert. denied, 540 U.S. 810, 124 S.Ct. 50, 157 L.Ed.2d 23 (2003) (internal quotations omitted)). The en banc Court in Albino v. Baca overruled this holding of Wyatt v. Terhune, and ruled that summary judgment is the appropriate vehicle to challenge a prisoner plaintiff's alleged failure to exhaust. See Albino v. Baca, 747 F.3d at 1166.
A prisoner exhausts a multi-level grievance procedure only when he or she completes the final level of review. See Brown v. Valoff, 422 F.3d 926, 934, 937-38 (9th Cir. 2005) (under Booth v. Churner, supra, " prisoner plaintiffs must pursue a remedy through a prison grievance process so long as some action can be ordered in response to the complaint"; original emphasis); Harvey v. Jordan, 605 F.3d 681, 684 (2010).
The PLRA's exhaustion requirement applies to Plaintiff's RLUIPA claim as well as to his constitutional claims. See Cutter v. Wilkinson, 544 U.S. 709, 723 n.12, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005); 42 U.S.C. § 2000cc-2(e) (nothing in RLUIPA " shall be construed to amend or repeal the Prison Litigation Reform Act of 1995").
II. Defendants' Evidence and Arguments
In Plaintiff's " 352 Objection, " Plaintiff objects generally to all of Defendants' evidence, purportedly pursuant to California Evidence Code section 352. Plaintiff contends Defendants' evidence assertedly is " prejudicial and a contradiction to the issues involved in this case." Section 352, which gives a California state judge the discretion to exclude evidence, does not apply in this federal case. See Fed.R.Evid. 101(a) (federal rules of evidence " apply to proceedings in United States courts"). Furthermore, Plaintiff's vague and general evidentiary objections are insufficient. See Galvan v. City of La Habra, 2014 WL 1370747, at *3 (C.D. Cal. Apr. 8, 2014) (objections that opponent's summary judgment evidence is irrelevant, speculative, argumentative, misleading, ambiguous, etc., " are challenges to the characterization of the evidence and are improper on a motion for summary judgment").
Defendants have submitted a copy of Section 12.210.0 of WVDC's " Inmate Grievance Policy" assertedly contained in Plaintiff's booking jacket (Declaration of Gordon Clemmmer filed in support of Defendants' Motion for Summary Judgment [" Clemmer Dec." ], Ex. L). The policy creates a process " through which inmates may seek formal review of issues, relating to conditions of confinement." Under the policy, inmates dissatisfied with the outcome of an initial grievance may file a grievance appeal. The grievance appeal is initially assigned to a lieutenant or the lieutenant's designee. Grievance appeals not resolved at this level may then be appealed to the facility commander, who is the final authority for the disposition of grievances. Under the policy, the grievance shall be placed in the inmate's booking jacket, with a copy placed in an administrative grievance file.
Defendants acknowledge that Plaintiff filed grievances concerning the denial of a Kosher diet, but contend that Plaintiff did not exhaust these grievances at the final level of review. Defendants' evidence shows Plaintiff submitted two grievances and one first level grievance appeal, but no further appeals:
1. Grievance Number 1234G10087
On October 10, 2012, Plaintiff submitted an " Initial Inmate Grievance, " Grievance Number 1234G10087, stating that Plaintiff had been denied a Kosher diet on September 28, 2012. Plaintiff stated Defendant Henning allegedly told Plaintiff that all meat served at WVDC was slaughtered according to Yahweh's Law and that the meals conformed to Plaintiff's religious diet (Clemmer Dec., Ex. B).
On October 22, 2012, officer D. Stuart authored an " Inmate Grievance Investigation" of Grievance Number 1234G10087, stating that Defendant Henning purportedly had contacted the House of Yahweh on October 18, 2012, and " confirmed the [WVDC] diet as pork free, blood free and shellfish free." Henning reportedly confirmed that WVDC culinary staff assertedly did not prepare or serve any food containing those items in the kitchen, thus allegedly avoiding any cross-contamination. The investigation report stated that no action was taken, and that Plaintiff had been advised of the findings on October 24, 2012 (Clemmer Dec., Ex. C).
According to Defendants, Plaintiff did not appeal the denial of this grievance.
2. Grievance Number 1334G04067
On April 6, 2013, Plaintiff submitted an " Initial Inmate Grievance, " Grievance Number 1334G04067, alleging that Plaintiff was being denied Kosher meals (Clemmer Dec., Ex. E). On April 8, 2013, Plaintiff submitted another " Initial Inmate Grievance, " also assigned Grievance Number 1334G04067, contending, inter alia, that Defendant Henning's statements concerning the House of Yahweh's purported approval of the WVDC mainline diet were false, and that the House of Yahweh believed in keeping all of Yahweh's 613 laws written in the Holy Scriptures (Clemmer Dec., Ex. F). Plaintiff asserted Henning denied Plaintiff a Kosher diet on March 6, 2013. Plaintiff also asserted Henning denied Plaintiff the ability to attend Passover services on March 25, 2013.
On April 17, 2013, officer R. Hall authored an " Inmate Grievance Investigation" in Grievance Number 1334G04067. In the " Findings" section of the investigation form, Hall reported, inter alia, that: (1) information from the House of Yahweh's website contradicted Plaintiff's claim; (2) the WVDC kitchen did not serve anything listed on the website's dietary laws as " unclean"; (3) there was no cross-contamination because the kitchen did not serve any food identified on the website as " unclean"; and (4) nothing in the 613 laws restricted Plaintiff from eating WVDC mainline food (Clemmer Dec., Ex. G).
On April 23, 2013, Plaintiff filed a " Grievance Appeal" of Grievance Number 1334G04067. Plaintiff alleged that Henning had denied Plaintiff's Passover on March 25, 2013, and had denied Plaintiff a Kosher diet on March 6, 2013. Plaintiff asserted Henning had lied about the House of Yahweh's purported approval of the mainline diet at WVDC. Plaintiff also asserted Henning denied Plaintiff's requests for tallits, a yarmulke and a shawl (Clemmer Dec., Ex. H).
On May 3, 2013, Sergeant Smith wrote an " Inmate Grievance Investigation" of Grievance Appeal Number 1334G04067. In the " Findings" portion of the investigation form, Smith stated that Henning had reported that the House of Yahweh had provided written confirmation that WVDC meals were sufficient for its members. Smith stated that Corporal Hall had researched the House of Yahweh's 613 laws and had found nothing which would restrict Plaintiff from consuming the mainline food at WVDC. Smith noted that Plaintiff's two previous requests for a Kosher diet were denied by Lieutenant Gomez on September 28, 2012, and by Lieutenant Ilizaliturri on March 6, 2013. Smith stated that Henning had never received Plaintiff's request for a Passover. Smith stated that no action would be taken because Plaintiff's complaints had been " asked and answered." (Clemmer Dec., Ex. I).
According to Defendants, Plaintiff did not appeal to the Facility Commander the denial of Plaintiff's appeal in Grievance Appeal Number 1334G04067.
Defendants' exhibits also include several of Plaintiff's " Religious Requests" for religious accommodation under RLUIPA, including requests for a Kosher diet, dated September 21, 2012, March 6, 2013, and September 18, 2013 (see, e.g., Clemmer Dec., Exs. A, D, J, K). These " Religious Requests" were not grievances, although responses to the Requests may have precipitated Plaintiff's grievances.
III. Plaintiff's Evidence and Arguments
Plaintiff alleges that he has exhausted his administrative remedies, referencing Grievance Number 1334G04067 (Objections, p. 43). Plaintiff agrees that, in 2012 and 2013, the WVDC had a grievance procedure requiring a final level of review by the Facility Commander (Objections, p. 50). Plaintiff does not present any evidence that he ever submitted any final level appeal of either of his grievances, including Grievance Number 1334G04067 (see Objections, p 47) (stating that Plaintiff " did not utilize the entire prison grievance procedures for a second appeal in this instance [sic] case"). Rather, Plaintiff alleges that he purportedly completed exhaustion by submitting two tort claims to the San Bernardino County, which the County Department of Risk Management allegedly rejected on August 2, 2013, and August 20, 2013 (Objections, pp. 44-45; 47-48, 50-51; First Amended Complaint, Ex. F). Plaintiff also contends that inmates entering WVDC do not receive a copy of the grievance policy (Objections, pp. 46-47). Plaintiff further seeks another continuance to respond to the Motion for Summary Judgment.
IV. Discussion
As indicated above, the Supreme Court requires " proper exhaustion" of PLRA administrative remedies, which means that the inmate must use " all steps that the agency holds out, " and must comply " with the system's critical rules." Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Filing a tort claim with a municipality does not satisfy the PLRA's exhaustion requirement. See O'Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1062-63 (9th Cir. 2007) (inmate's complaint filed with Department of Justice did not satisfy PLRA's exhaustion requirement because " the Supreme Court has made clear that the PLRA requires a prisoner to exhaust the prison's internal grievance process"); Panaro v. City of North Las Vegas, 432 F.3d 949, 953-54 (9th Cir. 2005) (inmate's participation in an internal affairs investigation against one of the officers who allegedly beat inmate did not suffice to exhaust excessive force claim); Valencia v. Harris, 2013 WL 238913, at *4 (E.D. Cal. Jan. 22, 2013) (" State administrative claims do not suffice to show exhaustion under the PLRA.") (citation omitted); Champion v. Smith, 2012 WL 930858, at *2 (E.D. Cal. Mar. 19, 2012) (" the exhaustion requirements under the PLRA and the Federal Tort Claims Act . . . are separate and distinct, and the satisfaction of one does not constitute satisfaction of the other") (citation and internal quotations omitted); see also Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (prisoner " cannot satisfy the PLRA's exhaustion requirement solely by filing . . . administrative tort claims").
It is undisputed that WVDC had a grievance procedure in place in 2012 and 2013 and that Plaintiff did not exhaust his administrative remedies to the final level of review by the Facility Commander. Accordingly, Defendants have met their burden to show that an available administrative remedy existed and that Plaintiff did not exhaust that remedy. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.) (en banc), cert. denied, 135 S.Ct. 403, 190 L.Ed.2d 307 (2014).
Plaintiff alleges no facts showing that " something in his particular case . . . made the existing and generally available administrative remedies effectively unavailable to him." Id. (citation omitted). Notably, in his First Amended Complaint, Plaintiff alleged that he " used the prison grievance procedure available" at WVDC (FAC, p. 11). Plaintiff does not and evidently cannot allege that he was unaware of that procedure. In his Objections, Plaintiff contends that WVDC does not distribute a copy of its grievance procedures to incoming inmates, but rather distributes only an " information pamphlet" which Plaintiff contends is inadequate to describe the grievance procedure (Objections, pp. 46-47). Plaintiff attaches to his Objections grievances Plaintiff submitted in 2014 and 2015 complaining, inter alia, that entering inmates allegedly did not receive a copy of the grievance procedures and that the grievance forms assertedly did not contain a checkbox for a third level review request (see Objections, Exs. A-C). Plaintiff alleges that a decision in his favor on this issue would " be good case precedent for future cases . . . which would benefit society in general" (Objections, p. 46). However, there is no evidence Plaintiff was unaware of WVDC's grievance procedures in 2012 and 2013 when he filed the grievances at issue here, or that the facility's grievance procedures were unavailable to Plaintiff during that period. All evidence is to the contrary.
It appears that, in response to one of these grievances, the investigator stated that WVDC, a jail and detention center, purportedly cannot afford to distribute a copy of its grievance procedures to every entering inmate, but does televise an orientation video describing the facility's grievance procedures (see Objections, Ex. B, Dkt. 120-1, p. 15). In a further appeal, Plaintiff alleged that the video did not recite the grievance procedures " verbatim" (Objections, Ex. C, Dkt. 120-1, p. 17). Any such dispute is immaterial to the issues presented here because there is no evidence Plaintiff was unaware of the WVDC grievance policy in 2012 and 2013 or that Plaintiff lacked access to that policy during that period of time.
In sum, Plaintiff has failed to produce evidence to show that he was unable to exhaust his administrative remedies at the final level of review. Plaintiff's failure to exhaust requires dismissal of the action without prejudice. See Payne v. Peninsula Sch. Dist., 653 F.3d 863, 881 (9th Cir. 2011) (citation omitted), overruled on other grounds, Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.) (en banc), cert. denied, 135 S.Ct. 403, 190 L.Ed.2d 307 (2014).
Plaintiff also argues, however, that Defendants' alleged failure to comply with their discovery obligations and the Court's previous orders denying Plaintiff's requests for discovery and continuances purportedly warrant a continuance of time to respond to the present Motion for Summary Judgment (see. e.g., Objections, pp. 25-26, 28, 35-36, 43).
Rule 56(d) of the Federal Rules of Civil provides:
If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
Plaintiff cites to former Rule 56(f) of the Federal Rules of Civil Procedure (see Objections, p. 36). The 2010 amendments to the Federal Rules of Civil Procedure moved the language formerly contained in Rule 56(f) to Rule 56(d). " As the notes of the Advisory Committee explain, new 'subdivision (d) carries forward without substantial change the provisions of former subdivision (f).'" Big Lagoon Rancheria v. California, 789 F.3d 947, 952 & n.3 (9th Cir. 2015) (en banc).
A district court " should continue a summary judgment motion upon a good faith showing by affidavit that the continuance is needed to obtain facts essential to preclude summary judgment." State of California v. Campbell, 138 F.3d 772, 779 (9th Cir.), cert. denied, 525 U.S. 822, 119 S.Ct. 64, 142 L.Ed.2d 51 (1998). " References in memoranda and declarations to a need for discovery do not qualify as motions under Rule [56(d)]." Id. (citation and internal quotations omitted). Rather, a party seeking a continuance to respond to a summary judgment motion must submit an affidavit setting forth " the particular facts expected from further discovery" (id.). " Failure to comply with these requirements is a proper ground for denying relief." United States v. Kitsap Phys. Serv., 314 F.3d 995, 1000 (9th Cir. 2002) (citations omitted).
Plaintiff has not submitted an affidavit in support of his request for a continuance. Moreover, Plaintiff fails to describe any " essential" evidence which Plaintiff does not already possess which would bear on the exhaustion issue, much less any evidence that would alter the result herein. Indeed, Plaintiff admits that Defendants provided Plaintiff with Plaintiff's " booking jacket" and does not dispute that the grievances attached to Defendants' Motion for Summary Judgment were contained in Plaintiff's booking jacket (Objections, pp. 14-15, 25; see Clemmer Dec., ¶ ¶ 5, 6, 8, 9, 10, 11, 12). Plaintiff also attached to his First Amended Complaint: (1) Grievance Number 1234G10087 and the related Inmate Grievance Investigation; and (2) the April 6, 2013 grievance identified as Grievance Number 1334G04067, the related Inmate Grievance Investigation and the first level appeal (FAC, Exs. A, B, C). Plaintiff did not submit any other grievances concerning the alleged violation of his religious rights, and simply failed to pursue any such grievance to the final level of review. Plaintiff's alleged need for a continuance to obtain additional evidence related to the merits of his underlying claims plainly does not warrant a Rule 56(d) continuance in the circumstances presented here. See Maljack Productions, Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 887-888 (9th Cir. 1996) (Rule 56(f) motion properly denied where nonmoving party " listed a number of facts that, even if established, would not have precluded summary judgment"); Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir. 1994) (district court did not abuse discretion in denying Rule 56(f) motion where " the information sought by [the party opposing summary judgment] would not have shed light on any of the issues upon which the summary judgment decision was based"). Therefore, Plaintiff's request for a continuance to file further opposition to the Motion for Summary Judgment is denied.
V. Plaintiff's Other Objections
Plaintiff further objects to various interlocutory orders made by the former Magistrate Judge, including orders denying Plaintiff appointment of counsel, continuances, discovery and access to the law library (see, e.g., Objections, Dkt. 120, pp. 4-36). To the extent the Court expressly has not rejected Plaintiff's objections above, the Court finds all of Plaintiff's objections to be meritless.
In light of this disposition, the Court need not and does not, determine the other issues raised in Defendants' Motion for Summary Judgment.
IT IS SO ORDERED.