Arellano v. Self

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 15-cv-2300-AJB-LL 12 Plaintiff, ORDER: 13 v. (1) ADOPTING THE REPORT AND 14 R. OLSON, RECOMMENDATION (Doc. No. 68); 15 Defendant. (2) OVERRULING PLAINTIFF’S 16 OBJECTIONS (Doc. No. 80); 17 (3) DENYING PLAINTIFF’S 18 MOTION FOR EXTENSION OF 19 TIME AS MOOT (Doc. No. 79);

20 (4) GRANTING DEFENDANT’S 21 MOTION FOR SUMMARY JUDGMENT (Doc. No. 57); AND 22 23 (5) DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT, 24 WITHOUT PREJUDICE (Doc. No. 25 17.)

28 1 On June 12, 2019, Magistrate Judge Linda Lopez issued a Report and 2 Recommendation (the “R&R”) on Defendant R. Olson’s (“Defendant”) motion for 3 summary judgment. (Doc. Nos. 57, 68.) On August 12, 2019, Plaintiff Raul Arellano 4 (“Plaintiff”) filed a motion for extension of time to object to the R&R. (Doc. No. 79). On 5 August 26, 2019, before the Court ruled on the motion for extension of time, Plaintiff filed 6 his objections to the R&R. (Doc. No. 80.) For the reasons set forth below, the Court 7 ADOPTS the R&R in its entirety, (Doc. No. 68), GRANTS Defendant’s motion for 8 summary judgment, (Doc. No. 57), DISMISSES Plaintiff’s Second Amended Complaint 9 (“SAC”) WITHOUT PREJUDICE, (Doc. No. 17), OVERRULES Plaintiff’s objections, 10 (Doc. No. 80), and DENIES Plaintiff’s motion for extension of time as moot. 11 BACKGROUND 12 This instant action arises out of events occurring at the Richard J. Donovan 13 Correctional Facility (“RJD”). Plaintiff alleges that in January, February, and March of 14 2014, Plaintiff’s family deposited a total of $160.00 into Plaintiff’s inmate trust account. 15 (Doc. No. 17 at 6.) Following these deposits, copy charges were subsequently deducted 16 from Plaintiff’s account each month. (Id.) Plaintiff filed two grievances regarding the 17 January, February, and March 2014 copy charges debited from his account, claiming that 18 the deductions were improper because the charges had been made when Plaintiff was 19 indigent. (Doc. No. 68 at 3.) Defendant, an appeals coordinator at RJD, rejected both of 20 Plaintiff’s grievances on the ground that Plaintiff’s appeal did not comply with the 21 procedures for filing appeals. (Id. at 3–4.) Specifically, Plaintiff’s appeal was rejected 22 because the grievance involved multiple issues that did not derive from a single event. (Id.) 23 Defendant eventually canceled Plaintiff’s two grievances for failure to delete the 24 allegations which took place more than 30 days before the date the appeal was submitted. 25 (Id. at 4.) 26 Plaintiff then submitted a third grievance, protesting the cancellation of his first and 27 second grievances. (Id.) On first level review of Plaintiff’s third grievance, Defendant 28 rejected the third grievance once again on the ground that the appeal contained multiple 1 issues. (Id. at 5.) Plaintiff’s third grievance was also rejected on second level review on the 2 basis that Plaintiff failed to properly separate the issues in his appeal. (Id.) 3 On June 19, 2014, Defendant interviewed Plaintiff about Plaintiff’s third grievance. 4 (Id.) During the interview, Plaintiff explained to Defendant that: (1) he did not make any 5 copies on the days he had been charged the copy charges; (2) even if he had made the 6 copies, he should not have been charged for these copies because he was indigent at the 7 time; and (3) all of the events were directly related and could be addressed in a single 8 grievance requiring a single response. (Doc. No. 17 at 12.) Plaintiff alleges Defendant 9 responded that: (1) Defendant still needed to deny the request because it would “look bad 10 to reverse course”; (2) Plaintiff would never win the appeal because Defendant framed the 11 facts in his “best interests”; (3) Defendant told Plaintiff that “an inmate [] don’t got nothing 12 coming”; and (4) Defendant told Plaintiff that “Plaintiff had filed too many grievances 13 making Defendant work too much.” (Id. at 12–13.) Plaintiff maintains that this 14 conversation with Defendant demonstrated a retaliatory motive and explained why his copy 15 charge grievances were rejected. (Doc. No. 68 at 5.) Plaintiff’s third grievance was elevated 16 to a third level review, and was also subsequently rejected. (Id.) 17 As a result of these events, Plaintiff filed his Complaint on October 13, 2015 alleging 18 claims under 42 U.S.C. § 1983. (Doc. No. 1.) On February 3, 2016, Plaintiff was granted 19 leave to proceed in forma pauperis, and Plaintiff’s Complaint was dismissed sua sponte for 20 failure to state a claim. (Doc. No. 4.) On March 21, 2016, Plaintiff filed his First Amended 21 Complaint. (Doc. No. 9.) Then, on May 2, 2016, the Court dismissed Plaintiff’s First 22 Amended Complaint for failure to state a claim. (Doc. No. 10.) On July 22, 2016, Plaintiff 23 filed a Second Amended Complaint (Doc. No. 17), which was dismissed by the Court on 24 August 22, 2016. (Doc. No. 18.) Plaintiff appealed the Court’s dismissal of his Second 25 Amended Complaint to the United States Court of Appeals for the Ninth Circuit. (Doc. No. 26 24.) The Ninth Circuit affirmed the Court’s order with the exception of Plaintiff’s 27 retaliation claim. (Doc. No. 37.) 28 Subsequently, on January 24, 2019, Defendant filed a motion for summary judgment 1 on Plaintiff’s remaining retaliation claim. (Doc. No. 57.) Plaintiff opposed the motion on 2 March 21, 2019, and Defendant replied. (Doc. Nos. 61, 63.) On June 12, 2019, Magistrate 3 Judge Linda Lopez issued the R&R. (Doc. No. 68.) The R&R required objections to be 4 filed on or before July 12, 2019, and any reply to the objections be filed on or before July 5 26, 2019. (Id. at 13.) On June 24, 2019, Plaintiff requested an extension of time to file his 6 objections to the R&R, (Doc. No. 69), which was granted, (Doc. No. 70). On August 12, 7 2019, Plaintiff moved the Court again for an extension of time to file his objections. (Doc. 8 No. 79.) Before the Court ruled on Plaintiff’s second motion for extension of time, Plaintiff 9 filed his objections on August 26, 2019. (Doc. No. 80.) Defendant replied to Plaintiff’s 10 objections on September 6, 2019. (Doc. No. 81.) 11 LEGAL STANDARD 12 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 13 judge’s duties in connection with a magistrate judge’s report and recommendation. The 14 district judge must “make a de novo determination of those portions of the report . . . to 15 which objection is made[,]” and “may accept, reject, or modify, in whole or in part, the 16 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); 17 United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of 18 timely objection(s), the court “need only satisfy itself that there is no clear error on the face 19 of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory 20 committee’s note to 1983 amendment; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 21 (9th Cir. 2003). 22 DISCUSSION 23 The R&R recommends that the Court grant Defendant’s motion for summary 24 judgment, and dismiss Plaintiff’s Second Amended Complaint, without prejudice. (Doc. 25 No. 68.) The R&R finds that Plaintiff did not exhaust his administrative remedies before 26 asserting his retaliation claim. (Id. at 8.) First, the R&R states “the record shows Plaintiff 27 did not exhaust his retaliation claim against Defendant before filing suit. While Plaintiff 28 filed numerous grievances regarding the disputed debits to his prisoner trust account, none 1 of these grievances contain allegations Defendant retaliated against him.” (Id. at 8.) 2 Second, the R&R also finds that Plaintiff’s failure to exhaust his administrative remedies 3 should not be excused and that “Plaintiff has not provided any admissible evidence 4 demonstrating his failure to exhaust should be excused.” (Id. at 9.) Specifically, the R&R 5 points out that Plaintiff’s contention that he was threatened to not file a grievance for 6 retaliation is solely in the form of an unsworn statement made in his opposition to the 7 motion for summary judgment. (Id. at 9.) The R&R states that even if the Court considered 8 the unsworn statements, the record shows that the “multiple occasions in which Plaintiff 9 made use of the grievance process undermines any rational conclusion that Plaintiff was 10 deterred from properly submitting and pursuing a specific grievance” (Id. at 11.) 11 Plaintiff objects to the R&R asserting that: (1) the Magistrate Judge should have 12 considered the unsworn declaration; (2) the Magistrate Judge made a factual error, and 13 Plaintiff did not file grievances relating to retaliation; and (3) the Magistrate Judge 14 “misunderstood” Plaintiff, and Plaintiff should be excused from his obligation to exhaust 15 his administrative remedies because he was misled into thinking that his retaliation 16 grievance was going to be heard concurrently with his copy charge grievances. (Doc. No. 17 80 at 3.) The Court concludes that Plaintiff’s objections are without merit. 18 First, Plaintiff protests that his unsworn declaration in his opposition should have 19 been considered as admissible evidence. (Doc. No. 80 at 1.) Plaintiff explains that the 20 signature page containing his declaration that his statements were made “under the penalty 21 of perjury” was on the last page of his opposition and therefore, inadvertently missed by 22 the law library copy machine. (Id.) The Court does not find inadvertence as persuasive to 23 excuse Plaintiff’s noncompliance with rules regarding admissible evidence on a motion for 24 summary judgment. See Harris v. Shelland, 2017 WL 2505287, at *4 (S.D. Cal. June 9, 25 2017) (“[N]either an unverified complaint nor unsworn statements made in the parties’ 26 briefs can be considered as evidence at this [summary judgment] stage.”); S.E.C. v. 3 27 Eagles Research & Dev. LLC, No. 3:12-CV-01289-ST, 2014 WL 1269489, at *6 (D. Or. 28 Mar. 26, 2014) (“However, there is no precedent for excusing pro se plaintiffs for 1 noncompliance with the substantive requirements of FRCP 56.”). Accordingly, Plaintiff’s 2 unsworn declaration should not be considered, and the Court OVERRULES Plaintiff’s 3 objection. 4 Second, Plaintiff objects that the Magistrate Judge committed a factual error. (Doc. 5 No. 80 at 2.) Plaintiff reiterates that he did not file grievances relating to his retaliation 6 claim despite the R&R finding he had filed multiple grievances after claiming he was 7 threatened to not use the grievance process. (Id.) However, Plaintiff misinterprets the R&R. 8 The R&R does not suggest that all the grievances filed by Plaintiff related to his retaliation 9 claim. The R&R simply points out that the multiple instances in which Plaintiff made use 10 of the grievance process is inconsistent with any allegation that Plaintiff was “threatened” 11 or “intimated” from submitting a grievance. (Doc. No. 68 at 11.) As such, Plaintiff’s 12 objection only further demonstrates that there is no genuine dispute as to material fact 13 regarding his failure to exhaust administrative remedies. Thus, even if the Court accepts 14 Plaintiff’s interpretation of the R&R, Plaintiff’s version of the facts only supports the 15 conclusion that administrative remedies were available to Plaintiff, and that he failed to 16 exhaust these remedies. See Nanez v. Daniels, No. C17-5663-RBL-TLF, 2019 WL 885366, 17 at *6 (W.D. Wash. Jan. 28, 2019), report and recommendation adopted, No. C17-5663- 18 RBL-TLF, 2019 WL 859218 (W.D. Wash. Feb. 22, 2019) (finding failure to exhaust 19 administrative remedies when “plaintiff did in fact file numerous Kites as well as several 20 grievances and lawsuits unrelated to the claims in his complaint”). As such, the Court 21 OVERRULES Plaintiff’s second objection. 22 Finally, Plaintiff objects to the Magistrate Judge’s conclusion that Plaintiff did not 23 file a retaliation grievance. (Doc. No. 80 at 3.) Plaintiff repeats that he was misled by 24 Defendant into not filing a retaliation grievance because he believed that if he continued to 25 pursue his copy charge grievances, his retaliation grievance would also be concurrently 26 resolved. (Id. at 3–4.) But Plaintiff also states in his objections that he did file one 27 retaliation grievance, was “punched” for it, and never got a response. (Id. at 3.) The Court 28 finds Plaintiff’s account unsupported by admissible evidence, and plainly contradictory. 1 || The purported retaliation grievance attached to Plaintiff's opposition to the motion for 2 ||summary judgment, (Doc. No. 61, Ex. E), is not marked as received by any prison official, 3 ||and there is no indication that it was in fact filed. Thus, Plaintiffs position that he was 4 || assaulted for filing a grievance while also asserting he never filed a grievance because he 5 || was misled by Defendant cannot be reconciled and is contradictory. Indeed, it is well- 6 ||established that “[a] party opposing summary judgment ‘cannot generate an issue of 7 material fact by providing contradictory statements.’” Gaspard v. Romero, No. CV 16- 8 ||00318-AB (JDE), 2017 WL 7000268, at *5 (C.D. Cal. Dec. 7, 2017), report and 9 ||recommendation adopted, No. CV 16-00318 AB (JDE), 2018 WL 501531 (C.D. Cal. Jan. 10 || 19, 2018) (quoting Oliver v. Keller, 289 F.3d 623, 629 (9th Cir. 2002)). Consequently, 11 || Plaintiffs third objection is OVERRULED. 12 As such, the Court finds that aside from the disputes of fact Plaintiff himself attempts 13 || to create through contradictory statements, no disputes of fact exist that would warrant a 14 || denial of summary judgment. 15 CONCLUSION 16 For the reasons stated above, the Court ADOPTS Magistrate Judge Linda Lopez’s 17 R&R in its entirety, OVERRULES Plaintiff's objections, GRANTS Defendant’s motion 18 summary judgment, DENIES Plaintiff's motion for extension of time as moot, and 19 || DISMISSES Plaintiff's Second Amended Complaint, WITHOUT PREJUDICE. 20 21 ISSO ORDERED. 22 || Dated: September 23, 2019 | ZS iz : Le 23 Hon. Anthony J.Battaglia 24 United States District Judge 25 26 27 28