Warner v. Friedman

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA [3] EARL WARNER, 4 Case No. 16-cv-04345-YGR (PR) Plaintiff, 5 ORDER GRANTING DEFENDANTS’ v. MOTION FOR SUMMARY 6 JUDGMENT FOR FAILURE TO A. SOLIS, et al., EXHAUST ADMINISTRATIVE 7 REMEDIES; AND DENYING AS Defendants. MOOT THEIR MOTION FOR 8 JUDGMENT ON THE PLEADINGS FOR FAILURE TO STATE A CLAIM [9] I. INTRODUCTION [10] On August 2, 2016, Plaintiff, who is a member of the Jewish religion and currently in [11] custody at Richard J. Donovan Correctional Facility (“RJD”), filed his original pro se complaint [12] under 42 U.S.C. § 1983 , in which he sought enforcement of a settlement agreement reached in his [13] earlier case, Case No. C 11-5039 YGR (PR) (N.D. Cal. filed October 13, 2011) (“Warner I”). In [14] his original complaint, Plaintiff named the following Defendants at Salinas Valley State Prison [15] (“SVSP”): Jewish Chaplain Rabbi Y. Friedman; Chief Deputy Warden A. Solis; Correctional [16] Administrator L. Trexler; and Appeals Examiner K. Kostecky. Plaintiff also named the following [17] Defendants from the California Department of Corrections and Rehabilitation (“CDCR”):Chief of [18] the Inmate Appeals Branch R. Manuel; and Food Administrator L. Maurino. Lastly, Plaintiff [19] named the following Defendants from the California Health Care Facility (“CHCF”): Assistant [20] Director of Dietetic A. Rivera; Jewish Chaplain Rabbi Shleffar; Program Assistant of the Acute [21] Treatment Program J. A. Soliz; and Chief of the Office of Administrative Appeals J. A. Zamora. [22] He sought injunctive relief and monetary damages. [23] Plaintiff claimed that a settlement was reached in Warner I on May 23, 2013, which [24] “included the provision of a Kosher Religious Diet.” Dkt. 1 at 5. Plaintiff claimed that on June [25] 24, 2013, he began receiving a Kosher Religious Diet. Id. at 6 . However, Plaintiff stated as [26] follows: 27 [ ] The Kosher Religious Diet of which the defendant’s [sic] caused contract with an alternate Kosher Food Products Manufacturer, 1 established on/or about April 8, 2-13. 2 [ ] Plaintiff had not been advised of any proposed changes to the standard quality of the Kosher Food Products during the settlement 3 conferences leading to the agreement on May 23, 2013. [4] Id. 5 On June 28, 2013, counsel for Defendants in Warner I filed a Stipulation for Voluntary 6 Dismissal with Prejudice, that action was voluntarily dismissed on July 15, 2013, and judgment 7 was issued. Dkts. 54, 55 in Case No. C 11-5039 YGR (PR). 8 As mentioned above, on August 2, 2016, Plaintiff filed the instant action, in which he 9 alleged in his original complaint that the Warner I settlement agreement needed to be enforced 10 because he was “subjugated to degrading changes in the Kosher Religious Diet he was being 11 provided . . . .” Dkt. 1 at 8. On January 11, 2017, the Court dismissed this action as duplicative 12 of Warner I and issued judgment. Dkts. 4, 5. Plaintiff appealed the dismissal and judgment to the 13 Ninth Circuit Court of Appeals. Dkt. 6. 14 On October 26, 2017, the Ninth Circuit vacated this Court’s judgment and remanded for 15 further proceedings. Dkt. 14. The Ninth Circuit stated as follows: 16 . . . Warner’s religious diet claims are based on events that occurred after Warner I, the claim based on the alleged failure to provide 17 Warner with hot meals did not arise out of the same transactional nucleus of facts, and defendants Rivera, Shleffar, Soliz, Zamora, and 18 Maurino were not parties to the prior action. See Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684 , 688-89 (9th Cir. 2007) (setting forth 19 standard of review and explaining that in determining whether a laterfiled action is duplicative, this court examines “whether the causes of 20 action and relief sought, as well as the parties or privies to the action, are the same”), abrogated on other grounds by Taylor v. Sturgell, 553 21 U.S. 880 (2008). Without reviewing the settlement agreement in Warner I, which is not in the record, we cannot determine whether the 22 present action can properly be understood as an action to enforce the settlement agreement in Warner I. We vacate the district court’s 23 judgment and remand for further proceedings. [24] Id. at 2 . Thereafter, the Ninth Circuit issued its mandate. Dkt. 15. 25 The instant matter was then reopened. 26 On April 26, 2018, the Court screened Plaintiff’s original complaint and found that, when 27 liberally construed, Plaintiff stated cognizable claims under the First Amendment and under the 1 substantial burden on the religious exercise of a person residing in or confined to an institution 2 against Defendants Friedman, Trexler, Solis, Kostecky, Manuel and Maurino. Dkt. 18 at 4. The 3 Court dismissed all other claims and Defendants, including Defendants Rivera, Shleffar, Soliz, 4 and Zamora as not filed in the proper venue because they related to his incarceration at the CHCF, 5 which is located in the Eastern District of California. Id. at 3 . Thereafter, all of the 6 aforementioned Defendants except Defendants Friedman and Maurino were successfully served. 7 The Court received information that Defendants Friedman and Maurino were no longer employed 8 at SVSP or at the CDCR, respectively. See Dkts. 24, 32. 9 On July 12, 2018, the remaining served Defendants—Defendants Trexler, Solis, Kostecky, 10 and Manuel—moved to dismiss Plaintiff’s original complaint on the grounds that this Court did 11 not retain jurisdiction to enforce the settlement agreement and Plaintiff failed to allege any acts by 12 Defendants unrelated to Warner I that could serve as a basis for liability in this separate action. 13 Dkt. 28. 14 Instead of filing an opposition to the motion to dismiss, Plaintiff moved for leave to file an 15 amended complaint and submitted his amended complaint, in which he still seeks injunctive relief 16 and monetary damages. Dkt. 37-1. Defendants then filed a request to screen Plaintiff’s amended 17 complaint. Dkt. 38. Defendants noted that Plaintiff’s amended complaint “add[ed] completely 18 new allegations against Defendants that were not previously reviewed or screened by the Court,” 19 stating as follows: 20 Specifically, Plaintiff alleges that that Defendants, all staffers at [SVSP], processed administrative appeal log no. SVSP-15-1749 and 21 provided him with a copy of a letter from a rabbi based in Brooklyn, New York that confirmed that ABC Ventures’ food is kosher. (ECF 22 No. 37-1 ¶¶ 5-8; 46-48.) Plaintiff also alleges that Defendants did not use a California based certification agency. (Id. at ¶¶ 51 & 55.) 23 Plaintiff did not allege these facts in the original complaint. Further, Plaintiff also names CDCR’s former Secretary S. Kernan as a 24 defendant for the first time in his amended complaint, but does not appear to allege any facts that show that Kernan was personally 25 involved in any alleged deprivation of right. This Court should screen Plaintiff’s first amended complaint to determine whether Defendants 26 actions in transmitting a letter from a rabbi certifying that food provided by an outside vendor is kosher and failing to use a California 27 based certification agency states a cognizable claim. The Court 1 Dkt. 38 at 4. 2 In an Order dated February 6, 2019, the Court granted Plaintiff’s motion to amend his 3 complaint, and thus, the operative complaint in this action is the amended complaint. Dkt. 41 at 4. 4 The Court then denied as moot Defendants’ motion to dismiss the original complaint. Id. at 9 . 5 The Court noted in addition to Defendant Kernan, Plaintiff had also named “almost the same 6 Defendants (except for Defendant Friedman) in his amended complaint, including Defendants 7 Trexler, Solis, Kostecky, Manuel and Maurino.” Id. at 5 (quoting Dkt. 37-1 at 1). Thus, the Court 8 noted that because Plaintiff had not named Defendant Friedman in the amended complaint, then 9 all claims against Defendant Friedman were dismissed. Id. Upon reviewing Plaintiff’s allegations 10 in his amended complaint, the Court determined that it stated a cognizable First Amendment claim 11 against Defendants Trexler, Solis, Kostecky, Manuel and Maurino. Id. at 5-9 . The Court also 12 found that Plaintiff’s allegations stated a cognizable claim under the RLUIPA for substantial 13 burden on the religious exercise of a person residing in or confined to an institution against 14 Defendants Trexler, Solis, Kostecky, Manuel and Maurino. Id. Finally, the Court dismissed 15 without prejudice Plaintiff’s supervisory liability claim against Defendant Kernan. The Court then 16 ordered the remaining Defendants to answer the amended complaint and issued a briefing 17 schedule to govern dispositive motions in this action. Id. at 11-14 . 18 On February 22, 2019, the served Defendants filed an answer to the amended complaint. 19 Dkt. 43. 20 On February 25, 2019, the Court noted that it had been informed that the CDCR’s Office 21 of Legal Affairs was authorized to accept service on behalf of Defendant Maurino. Dkt. 45 at 1. 22 Thus, the Clerk of the Court was directed to reissue service on Defendant Maurino at the Office of 23 Legal Affairs. Id. Defendant Maurino has since been served and has filed an answer to the 24 amended complaint. Dkt. 52. 25 The parties are now presently before the Court on the dispositive motion filed by the 26 served Defendants—Defendants Trexler, Solis, Kostecky, Manuel and Maurino (hereinafter 27 “Defendants”). Dkt. 53. Defendants move for summary judgment on Plaintiff’s First Amendment 1 remedies against Defendants, as required by the Prison Litigation Reform Act (“PLRA”); and 2 (2) Defendants are entitled to qualified immunity. Id. at 17-27 . In the alternative, Defendants 3 move for judgment on the pleadings to dismiss Plaintiff’s First Amendment and RLUIPA claims 4 that Defendants improperly denied him a Kosher Religious Diet. Id. at 27-28 . Despite being 5 given an extension of time to do so, see Dkt. 55, Plaintiff failed to file an opposition to 6 Defendants’ dispositive motion. 7 Having read and considered the papers submitted in connection with this matter, the Court 8 hereby GRANTS Defendants’ motion for summary judgment for failure to exhaust administrative 9 remedies, and DENIES as moot their motion for judgment on the pleadings for failure to state a 10 claim. 11 II. DISCUSSION 12 One of the issues presented in Defendants’ summary judgment motion is whether Plaintiff 13 properly exhausted his administrative remedies against Defendants. Before turning to the facts of 14 this case, the Court briefly reviews the requirements of the PLRA and administrative review 15 process applicable to California prisoners. 16 A. Legal Framework for Exhaustion of Available Administrative Remedies 17 The PLRA requires a prisoner to exhaust all available administrative remedies before 18 bringing an action with respect to prison conditions. 42 U.S.C. § 1997e(a). “[T]he PLRA’s 19 exhaustion requirement applies to all inmate suits about prison life, whether they involve general 20 circumstances or particular episodes, and whether they allege excessive force or some other 21 wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 22 Exhaustion of all “available” remedies is mandatory; those remedies neither need to meet 23 federal standards, nor must they be “plain, speedy, and effective.” Booth v. Churner, 532 U.S. 24 731, 739-40 (2001). The PLRA requires proper exhaustion of administrative remedies. Woodford 25 v. Ngo, 548 U.S. 81, 83 (2006). “Proper exhaustion demands compliance with an agency’s 26 deadlines and other critical procedural rules because no adjudicative system can function 27 effectively without imposing some orderly structure on the course of its proceedings.” Id. at 901 properly. Id. 2 The CDCR provides its inmates and parolees the right to appeal administratively “any 3 departmental decision, action, condition, or policy which they can demonstrate as having an 4 adverse effect upon their welfare.” Cal. Code Regs. tit. 15, § 3084.1 (a). It also provides its 5 inmates the right to file administrative appeals alleging misconduct by correctional officers. Cal. 6 Code Regs. tit. 15, § 3084.1(e). 7 On January 28, 2011, certain revisions to the California prison regulations governing 8 inmate grievances became operative. See History, Note 11, Cal. Code Regs. tit. 15, § 3084.2 . In 9 order to exhaust all available administrative remedies within this system, a prisoner must submit 10 his complaint on CDCR Form 602 (“602 appeal”) and proceed through three levels of appeal: 11 (1) first formal level appeal filed with one of the institution’s appeal coordinators, (2) second 12 formal level appeal filed with the institution head or designee, and (3) third formal level appeal 13 filed with the CDCR director or designee (i.e., “Director’s level”). Cal. Code Regs. tit. 15, 14 §§ 3084.1(b), 3084.7. Under specific circumstances, the first level review may be bypassed. Id. 15 The third level of review constitutes the decision of the Secretary of the CDCR and exhausts a 16 prisoner’s administrative remedies. Id. § 3084.7(d)(3). A California prisoner is required to submit 17 an inmate appeal at the appropriate level and proceed to the highest level of review available to 18 him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096 , 1098 19 (9th Cir. 2002). 20 The level of detail in an administrative grievance necessary to exhaust a claim properly is 21 determined by the prison’s applicable grievance procedures. Jones v. Bock, 549 U.S. 199 , 218 22 (2007). The level of specificity required in the appeal is described in the California Code of 23 Regulations as follows: 24 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification 25 of staff members, the inmate or parolee shall include the staff member’s last name, first initial, title or position, if known, and the 26 dates of the staff member’s involvement in the issue under appeal. [27] Cal. Code Regs. tit. 15, § 3084.2 (a)(3) (emphasis added). B. Factual Background1 [1] 1. The Parties [2] At the time of the events set forth in his amended complaint, Plaintiff was a state prisoner [3] “in the custody of the [CDCR].” See Dkt. 42 at 2. [4] Plaintiff contends that Defendants Trexler, Solis, and Kostecky worked as administrators at [5] SVSP during the alleged time period who reviewed 602 appeals concerning matters occurring at [6] SVSP and acted as the final decision makers within the administrative process. Id. at 2-3 . [7] Plaintiff contends that Defendant Manuel served as the “Chief decision-maker of the [CDCR]’s [8] administrative remedy process” during the time period alleged in his amended complaint. Id. at 3 . [9] Plaintiff sued Defendant Maurino, alleging that she was “responsible for the planning and [10] implementation of all [CDCR] menus,” including the approval of the menus as well as the [11] procurement and distribution of all food products during the alleged time period. Id. at 3 . [12] 2. Plaintiff’s 602 Appeals [13] As mentioned above, the State of California provides its inmates and parolees the right to [14] appeal administratively “any departmental decision, action, condition or policy perceived by those [15] individuals as adversely affecting their welfare.” See Cal. Code Regs. tit. 15, § 3084.1 (a). The [16] Office of Appeals (“OOA”) receives, reviews, and maintains non-medical inmate grievances [17] accepted for a third level review, which is the final review in CDCR’s inmate grievance process. [18] Spaich Decl. ¶ 3. [21] 1 This Order contains many acronyms and abbreviations. Here, in one place, they are: 22 602 Appeal CDCR Form 602 CHCF California Health Care Facility 23 CDCR California Department of Corrections and Rehabilitation CMC California Men’s Colony [24] Director’s/Third Level Third Formal Level Appeal Filed with CDCR Director or designee 25 IATS Inmate Appeals Tracking System OOA Office of Appeals 26 PLRA Prison Litigation Reform Act RJD Richard J. Donovan Correctional Facility 27 RLUIPA Religious Land Use and Institutionalized Persons Act 1 Upon receipt by the OOA, non-healthcare inmate grievances concerning the actions of 2 custody staff are logged into a computer database known as the Inmate Appeals Tracking System 3 (“IATS”). Id. ¶ 4 . The IATS tracks inmate appeals that have been accepted by the OOA and 4 adjudicated at the third level of review, as well as all appeals that were received and screened out, 5 and the reasons the appeals were screened out. Id. 6 Again, as explained above, in order to exhaust available administrative remedies within 7 this system, a prisoner must proceed through three levels of appeal. See Cal. Code Regs. tit. 15, 8 § 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). If an inmate pursues his 9 claims through the third-level review, the inmate has satisfied the administrative remedies 10 exhaustion requirement under § 1997e(a). See id. at 1237-38. 11 Here, OOA Acting Chief J. Spaich claims that he searched Plaintiff’s appeal file for any 12 third level inmate appeals properly submitted by Plaintiff between October 2013 and February 4, 13 2019. Spaich Decl. ¶¶ 5-6. The aforementioned review revealed that during the relevant time 14 frame Plaintiff submitted twenty-two inmate appeals. Id. ¶¶ 6-28, Exs. A-W. And of these inmate 15 appeals, only two appeals addressed Plaintiff’s complaints about a Kosher Religious Diet: Appeal 16 Log Nos. CHCF 13-00097 and RJD 16-02054. Id. ¶¶ 6, 8, 20, Ex. A-C. 17 The Court elaborates on the two aforementioned relevant appeals below by including the 18 following summary provided by Defendants, as follows: 19 [a. Appeal Log No. CHCF 13-00097] 20 In inmate appeal CHCF 13-00097, Warner alleged that he had not received food that complied with his religious-kosher-diet 21 requirements while housed at the Stockton Acute Treatment Program at [CHCF], Stockton, California. (Decl. Spaich ¶¶ 6, 7, Ex. B.) 22 Warner’s inmate appeal, dated August 2, 2013, complained that he settled a civil lawsuit on May 23, 2013, but had not yet received a 23 kosher diet. (Decl. Spaich Ex. B.) Warner alleged that he had received food products with no manufacturer’s label, table of 24 contents, ingredients, universal seals, or expiration dates. (Id.) Warner further complained that he had only received one hot meal. 25 (Id.) In his inmate appeal, Warner did not identify Defendants or describe any alleged wrongdoing by them. (Id.) Defendants did not 26 review or decide this inmate appeal on behalf of the OOA or CDCR. (Spaich Decl. ¶ 7 Ex. B.) This inmate appeal was reviewed and 27 processed by Appeals Examiner C. Zuniga at the third level of review, [b. Appeal Log No. CHCF 13-00097] [1] In inmate appeal RJD 16-02054, Warner alleged that he had been 2 inappropriately denied Kosher meals while housed at [RJD,] San Diego, California. (Decl. Spaich ¶¶ 6, 8, Ex. C.) Warner submitted 3 an inmate appeal dated May 12, 2016 that stated he had been transferred from the California Men’s Colony [(“CMC”)] to [RJD] on 4 April 26, 2016, but had not yet received his religious kosher meal diet. (Id.) In his inmate appeal, Warner did not identify Defendants or 5 describe any alleged wrongdoing by them. (Id.) Defendants did not review or decide this inmate appeal on behalf of the OOA or CDCR. 6 (Spaich Decl. ¶ 8 Ex. C.) This inmate appeal was reviewed and processed by Appeals Examine J. Vila at the third level of review, 7 who is not a defendant in this lawsuit. (Id.) 8 Dkt. 53 at 13-14 (citing Spaich Decl. ¶¶ 6-8, Exs. B, C) (brackets added). 9 Finally, the Court also elaborates on remaining appeals accepted and reviewed at the third 10 level of review from 2013 through 2018,2 by including the following summary provided by 11 Defendants, as follows: 12 [c. Remaining Inmate Appeals Accepted and Reviewed by the Third Level of Review from 2013 to 2018] [13] Inmate appeal RJD 13-02248 appealed a disciplinary report, CDCR 14 Form 115, Rules Violation Report that Warner received on April 29, 2013. (Spaich Decl. ¶ 9, Ex. D.) Inmate appeal RJD 13-03812 15 concerned the cancellation of another inmate appeal, RJD 13-03734, that concerned Warner’s contention that his behavioral credits had 16 been miscalculated. (Spaich Decl. ¶ 10, Ex. E.) Inmate appeal CHCF 13-00029 concerned Warner’s contention that while he was housed at 17 Stockton Acute Treatment Program at [CHCF], Stockton, California, he had been improperly denied access to the law library. (Spaich 18 Decl. ¶ 11, Ex. F.) Inmate appeal RJD 13-03277 concerned Warner’s contention that there was a misallocation of his trust funds and 19 accounting irregularities due to the collection of court filing fees. (Spaich Decl. ¶ 12, Ex. G.) [20] Inmate appeal RJD 14-02156 concerned Warner’s allegation that his 21 property had been lost or damaged through the negligence of staff during his transfer from [RJD] to the Corcoran State Prison, Corcoran, 22 California. (Spaich Decl. ¶ 13, Ex. H.) Inmate appeal CMC 1502442 concerned the cancellation of another inmate appeal, CMC E23 15-02415, concerning personal property and arose out of events that occurred at [CMC], San Luis Obispo, California. (Spaich Decl. ¶ 14, 24 Ex. I.) Inmate appeal SVSP 15- 05220 concerned the cancellation of another inmate appeal, SVSP L-15-03197, an appeal that arose out of [26] 2 In 2019, Plaintiff only had one 602 appeal accepted at the third level of review—appeal log no. VSP-18-01918, which was filed on January 31, 2019. Spaich Decl., Ex. A (Dkt. 53-2 at [27] 7). However, that appeal was screened out on March 28, 2019 because the “time constraints events that occurred at [SVSP], Soledad, California. (Spaich Decl. 1 ¶ 15, Ex. J.) In inmate appeal SVSP L-15-03197, Warner alleged that prison staff obstructed his access to the courts by denying him paper, 2 ink-pen fillers, legal documents, and access to other stored personal property. (Id.) [3] Inmate appeal CMC 16-00116 concerned Warner’s allegations that 4 Officer Malik subjected him to cruel and unusual punishment by forcing him to endure wet and cold conditions under threat of a 5 disciplinary action. (Spaich Decl. ¶ 16, Ex. K.) Inmate appeal CMC 16-00823 concerned Warner’s allegations that the staff were not 6 appropriately honoring his medical lay-in. (Spaich Decl. ¶ 17, Ex. L.) Inmate appeal RJD 16-02606 concerned Warner’s allegations that 7 staff had been deliberately indifferent to his Integrated Housing Code. (Spaich Decl. ¶ 18, Ex. M.) Inmate appeal RJD 16-03809 concerned 8 Warner’s allegations that Officers Gillis and Henson had retaliated against him on August 23, 2016 for filing an inmate appeal on July 9 19, 2016 against him. (Spaich Decl. ¶ 19, Ex. N.) 10 Inmate appeal RJD 17-00237 concerned Warner’s allegations that he was improperly retained in Administrative [Segregation] Unit on 11 October 16, 2016 at [RJD,] San Diego, California. (Spaich Decl. ¶ 20, Ex. O.) Inmate appeal RJD 17- 01579 concerned Warner’s allegation 12 that his property was mishandled by staff at [RJD,] San Diego, California, during his transfer to Valley State Prison, Chowchilla, 13 California. (Spaich Decl. ¶ 21, Ex. P.) Inmate appeal VSP 17-02292 concerned Warner’s allegation that he was improperly housed. 14 (Spaich Decl. ¶ 22, Ex. Q.) 15 Inmate appeal VSP 18-00741 concerned Warner’s allegation that he was improperly denied incoming mail [at Valley State Prison 16 (“VSP”)]. (Spaich Decl. ¶ 23, Ex. R.) Inmate appeal VSP 18-00649 concerned Warner’s allegation that he was improperly prevented from 17 disbursing funds from his trust account. (Spaich Decl. ¶ 24, Ex. S.) Inmate appeal VSP 18-01113 concerned Warner’s allegation [relating 18 to a denial of photos sent to him by mail]. (Spaich Decl. ¶ 25, Ex. T.) Inmate appeal VSP 18-01197 concerned Warner’s allegation that 19 inmate appeal VSP 18-01008 [which also related to a denial of photos sent to him by mail], was improperly cancelled. (Spaich Decl. ¶ 26, 20 Ex. U.) Inmate appeal VSP 18-01665 concerned Warner’s allegation that Officer Whitfield conducted a punitive search of his cell. (Spaich 21 Decl. ¶ 27, Ex. V.) Inmate appeal VSP 18-01575 concerned Warner’s allegation that he had improperly been issued a Rules Violation 22 Report for threatening staff at [VSP], Chowchilla, California. (Spaich Decl. ¶ 28, Ex. W.) [23] Dkt. 53 at 14-16 (citing Spaich Decl. ¶¶ 9-28, Exs. D-W) (brackets added). [24] C. Legal Standard for Summary Judgment [25] Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment [26] on some or all of the claims or defenses presented in an action. Fed. R. Civ. P. 56(a)(1). “The [27] court shall grant summary judgment if the movant shows that there is no genuine dispute as to any 1 material fact and the movant is entitled to judgment as a matter of law.” Id.; see Anderson v. 2 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of 3 establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 4 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts of materials in 5 the record”). The court is only concerned with disputes over material facts and “[f]actual disputes 6 that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248 . It is not the 7 task of the court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, [8] 91 F.3d 1275, 1279 (9th Cir. 1996). If the moving party meets this initial burden, the burden then 9 shifts to the non-moving party to present specific facts showing that there is a genuine issue for 10 trial. See Celotex, 477 U.S. at 324 ; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 11 U.S. 574, 586-87 (1986). If the nonmoving party fails to make this showing, “the moving party is 12 entitled to a judgment as a matter of law.” Celotex, 477 U.S. at 323 . 13 The failure to exhaust administrative remedies is an affirmative defense that must be raised 14 in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en 15 banc). The defendants have the initial burden to prove “that there was an available administrative 16 remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172 . If the 17 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 18 showing that there is something in his particular case that made the existing and generally 19 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 20 proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 21 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 1166 . 22 A district court may consider only admissible evidence in ruling on a motion for summary 23 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 24 In support of their motion for summary judgment, Defendants have submitted a declaration 25 from OOA Acting Chief Spaich along with supporting exhibits, which are mostly copies of 26 Plaintiff’s inmate appeals. Dkts. 53-1, 53-2. Acting Chief Spaich states that he conducted a 27 review of the OOA system files to locate any third level inmate appeals between October 2013 and 1 accurate copy of the IATS Printout for Plaintiff. Spaich Decl. ¶¶ 4-5, Ex. A. Also attached to his 2 declaration are true and correct copy of the responses at all three levels of appeal to Plaintiff’s 3 twenty-two appeals. Id. ¶¶ 6-28, Exs. A-W. Because the aforementioned documents have been 4 properly authenticated pursuant to Federal Rule of Evidence 803(6), the Court will consider these 5 documents in connection with Defendants’ motion for summary judgment. 6 As mentioned, Plaintiff did not file an opposition to Defendants’ dispositive motion. 7 However, Plaintiff has filed a verified amended complaint, which he has signed under penalty of 8 perjury. Dkt. 42 at 15. The Court may treat the allegations in the verified amended complaint as 9 an opposing affidavit to the extent such allegations are based on Plaintiff’s personal knowledge 10 and set forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454 , 460 11 & nn.10-11 (9th Cir. 1995) (treating a plaintiff’s verified complaint as opposing affidavit where, 12 even though verification not in conformity with 28 U.S.C. § 1746 , he stated under penalty of 13 perjury that contents were true and correct, and allegations were not based purely on his belief but 14 on his personal knowledge). 15 D. Plaintiff’s Claims 16 The following background relating to Plaintiff’s claims is taken from the Court’s February 17 6, 2019 Order screening the amended complaint: 18 Here, as mentioned above, Plaintiff no longer alleges that Defendants have violated the terms of the settlement agreement in Warner I. 19 Instead, he now presents new facts in his amended complaint alleging that he is still being denied a Kosher diet, which is required by his 20 religious beliefs as a member of the Jewish religion. Plaintiff claims as follows in his amended complaint: On or about June 24, 2013, the 21 CDCR “began providing [him] food products labeled as ‘kosher’ as a result of [the CDCR’s] acknowledgement of the fact that Plaintiff’s 22 religious belief[s] established a requirement of a Kosher Religious Diet.” Dkt. 37-1 at 3. However, Plaintiff was served “substandard, 23 degrade food product[] manufacture by Element’s Food Group, Inc. in container[s] which bore mere sticker tape sticker seal[s] reflecting 24 “earthKosher” logo, intended to represent kosher certification.” Id. at 4 . In addition, he “suffered constipation due to consuming a regular 25 diet of Element’s Fo[o]d Group, Inc.’s food products.” Id. at 5 . On May 24, 2014, Plaintiff was “compelled to withdraw from the 26 religious diet program altogether and revert to accepting regular nonkosher designated food[] as a regular diet . . . after rec[ei]ving another 27 spoiled rotten meal manufactured by Element’s Food Group, Inc. Sacramento California, at the Bateman Facility as part of the Kosher 1 Religious Diet approved by Defendant Maurino. Id. at 8 . Plaintiff claims that the “food product[] manufactured by ABC Ventures 2 [were] also served in non-factory sealed, misbranded, and mislabeled container[s] which contain[ed] individual unit[s] of food product[] 3 baring no brand identification[], list of ingredient[s] or nutritional value information.” Id. Plaintiff then submitted a grievance, 602 4 appeal log number SVSP-15-1749, in which he complained about the aforementioned alleged Kosher Religious Diet. Id. at 9 . In response, 5 Defendants reviewed his appeal and responded by providing Plaintiff with “evidence that the food product[s] manufactured by ABC 6 Ventures, and provided to him as a Kosher Religious Diet, were actually certified by [a] Brooklyn, New York organization.” Id. at 8 . 7 Plaintiff claims that “neither earthKosher, located in Boulder, Colorado, or the Triangle K., Inc. certification agency located in 8 Brooklyn, New York, operated in the certification processes at these facility[ies] on a daily basis to ensure compliance with all Kosher 9 laws at all times of production. Id. at 9 . Plaintiff also claims that “not a single kosher Certification Agency located in the State of California 10 would agree to the certification of the food product[s] manufactured by earthKosher or ABC Ventures as being in compliance with 11 Orthodoxed [sic] Jewish laws. Id. As such, by denying SVSP-151749, Plaintiff claims that “Defendant[s] and their agent[s] have 12 systematically deprived [him] of a reliable, one-hundred percent Orthodoxed [sic] Jewish religious diet for approximately either (8) 13 years although [he] is entitled to such a diet while under their authority within the CDCR.” Id. at 11 . [14] Dkt. 41 at 6-7. [15] E. Analysis [16] Defendants claim that the prison has no record of either his First Amendment or RLUIPA [17] claims against Defendants showing that either claim has been exhausted at the final level of [18] review. Dkt. 51 at 18. Defendants argue that Plaintiff’s claims remain unexhausted because he [19] never submitted them to, nor received a substantive decision by the final level of review as [20] required by prison regulations. Id. at 18-22 . Therefore, Defendants argue that they are entitled to [21] summary judgment based on Plaintiff’s failure to exhaust his administrative remedies. Id. at 22 . [22] In support of Defendants’ argument that Plaintiff’s claims are unexhausted, Defendants [23] submit evidence that the non-medical appeals submitted by Plaintiff do not grieve either the First [24] Amendment or RLUIPA claims against Defendants. Specifically, during the time frame at issue, [25] Plaintiff submitted twenty-two non-healthcare appeal to the OOA that was accepted by and [26] received a decision from the OOA. Spaich Decl. ¶¶ 6-28, Exs. A-W. But Defendants argue that [27] none of these appeals concerned allegations relating to Plaintiff’s claims against Defendants. See 1 Dkt. 52 at 18-22; see also Spaich Decl. ¶¶ 6-28, Exs. A-W. Finally, Defendants point out that 2 while two of his appeals, log nos. CHCF 13-00097 and RJD 16-02054, concerned the alleged 3 denial of a Kosher Religious Diet, neither of the two appeals exhausted Plaintiff’s claims against 4 Defendants. Dkt. 52 at 19-22 (citing Spaich Decl. ¶¶ 6-8, Exs. A-C). 5 The Court has reviewed Plaintiff’s aforementioned twenty-two appeals, including the 6 appeals relating to a denial of a Kosher Religious Diet—CHCF 13-00097 and RJD 16-02054, and 7 agrees with Defendants’ assessment that Plaintiff failed to mention anything about his First 8 Amendment and RLUIPA claims against the specific Defendants named in the amended 9 complaint. See Spaich Decl. ¶¶ 6-28, Exs. A-W. Specifically, nowhere in either of two 10 aforementioned relevant appeals (CHCF 13-00097 and RJD 16-02054) does the Director’s level 11 reviewer handle Plaintiff’s First Amendment and RLUIPA claims against Defendants. See Spaich 12 Decl. ¶¶ 6-8, Exs. A-C. A grievant must utilize all steps of the grievance process made available 13 by the prison so that it can reach the merits of the complaint. Woodford, 548 U.S. at 90 . Here, the 14 record shows that Plaintiff failed to exhaust his administrative remedies as to his First Amendment 15 and RLUIPA claims against Defendants. See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 16 2009) (no exhaustion where grievance complaining of upper bunk assignment failed to allege, as 17 the complaint had, that nurse had ordered lower bunk but officials disregarded that order). 18 Furthermore, the regulations specifically require that the appeal name “all staff member(s) 19 involved” and “describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 3084.2 (a)(3). 20 Because Plaintiff did not name Defendants or describe their involvement when he filed either 21 CHCF 13-00097 or RJD 16-02054, he failed to satisfy these requirements with respect to his First 22 Amendment and RLUIPA claims against Defendants in this action. 23 In sum, Defendants met their initial burden as the moving party by setting forth evidence 24 to demonstrate Plaintiff’s non-exhaustion, specifically by conducting a search of the CDCR’s 25 records and finding no grievances submitted to the Director’s level by Plaintiff concerning his 26 First Amendment and RLUIPA claims. See Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 27 2015). Defendants, relying on declarations of OOA Acting Chief Spaich, argue that none of the 1 First Amendment and RLUIPA claims against Defendants. See Spaich Decl. ¶¶ 6-8. Lastly, the 2 two appeals relating to the denial of a Kosher Religious Diet—CHCF 13-00097 and RJD 163 02054—did not mention Defendants or describe their involvement, and thus Plaintiff failed to 4 meet the exhaustion requirement to name “all staff member(s) involved” and “describe their 5 involvement in the issue.” See Cal. Code Regs. tit. 15, § 3084.2 (a)(3). Under Albino, Defendants 6 have therefore proven that there was an available administrative remedy and that Plaintiff did not 7 exhaust that available remedy. See Paramo, 775 F.3d at 1191 . 8 Upon the burden shifting to Plaintiff, in regards to his First Amendment and RLUIPA 9 claims, the Court finds that Plaintiff has not presented any evidence disputing Defendants’ 10 evidentiary assertions that he failed to exhaust his claims. Plaintiff has failed to show that “there 11 is something particular in his case that made the existing and generally available administrative 12 remedies effectively unavailable to him by ‘showing that the local remedies were ineffective, 13 unobtainable, unduly prolonged, inadequate, or obviously futile.’” Id. As mentioned above, 14 Plaintiff did not file an opposition to Defendants’ motion, and this he has failed to put forth proof 15 of exhaustion. Thus, Plaintiff has failed to bring forth evidence to defeat Defendants’ motion for 16 summary judgment as to his First Amendment and RLUIPA claims. The Court further notes that 17 Plaintiff did not mention anything about his efforts to exhaust in the amended complaint. See Dkt. 18 42.3 Meanwhile, the evidence produced by the Defendants is sufficient to carry their ultimate [19] 3 While Plaintiff mentioned in his amended complaint that he filed one 602 appeal—log [20] no. SVSP-15-1749, in which he complained about the Kosher Religious Diet. Dkt. 42 at 9. However, he did not allege that he exhausted the issues in his amended complaint in that appeal. [21] See Dkt. 42. Instead, Plaintiff claims that by denying SVSP-15-1749, “Defendant[s] and their agent[s] have systematically deprived [him] of a reliable, one-hundred percent Orthodoxed [sic] [22] Jewish religious diet for approximately either (8) years although [he] is entitled to such a diet while under their authority within the CDCR.” Id. at 11. The Court notes Plaintiff did not submit [23] proof the he filed SVSP-15-1749 in the form of an exhibit in support of his amended complaint, nor did he submit it in opposition to the motion for summary judgment (as he did not file an [24] opposition). Even if Plaintiff had submitted proof that he filed SVSP-15-1749, such proof would be irrelevant because SVSP-15-1749 is not an appeal that relates to the issue of how Defendants’ [25] denial of that appeal violated his constitutional rights. Specifically, Plaintiff alleges that Defendants were the ones responsible for denying SVSP-15-1749, and thus their alleged [26] unconstitutional actions were not among the issues raised in SVSP-15-1749. Therefore, Plaintiff would not have met his burden in order to defeat Defendants’ motion for summary judgment [27] because SVSP-15-1749 is irrelevant to the issue of whether he exhausted his available remedies as 1 burden of proof in light of Plaintiff's verified factual allegations. 2 The record in this case demonstrates that Plaintiff had the opportunity and ability to 3 || properly exhaust the aforementioned retaliation claim but failed to do so. Therefore, Defendants 4 || are entitled to summary judgment under Rule 56 based on Plaintiff's failure to exhaust 5 administrative remedies. See Albino, 747 F.3d at 1166 . Accordingly, the Court GRANTS 6 || Defendants’ motion for summary judgment as to his First Amendment and RLUIPA claims 7 against Defendants, which are subject to dismissal without prejudice.t See McKinney v. Carey, [8] 311 F.3d 1198, 1200-01 (9th Cir. 2002) (proper course in claims dismissed due to failure to 9 || exhaust administrative remedies is dismissal without prejudice to refiling). 10 || I. CONCLUSION 11 For the reasons outlined above, the Court orders as follows: 12 1. Defendants’ motion for summary judgment is GRANTED as to all claims, and 5 13 || judgment will be entered in their favor. Dkt. 53. Specifically, Defendants’ motion for summary 14 || judgment is GRANTED based on Plaintiff's failure to exhaust administrative remedies as to his 3 15 First Amendment and RLUIPA claims against Defendants. Thus, his First Amendment and a 16 || RLUIPA claims are DISMISSED without prejudice to refiling after exhausting California’s prison 3 17 administrative process. See McKinney, 311 F.3d at 1200-01 . 18 2. Defendants’ Motion for Judgment on the Pleadings is DENIED as moot. Dkt. 53. 19 3. The Clerk shall close the file and terminate as moot any remaining pending 20 || motions. 21 4. This Order terminates Docket No. 53. 22 IT IS SO ORDERED. 23 || Dated: March 9, 2020 Loypont Hgptfflees— YVONNE GONZALEZ ROGERS 24 United States District Judge [26] 7 * The Court’s decision to grant Defendants’ motion for summary judgment as to the First Amendment and RLUIPA claims against Defendants based on Plaintiff's failure to exhaust 28 administrative remedies obviates the need to consider any of their alternative arguments as to these