1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CARLOS A. HAWTHORNE, Case No. 17-cv-04960-HSG

8 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY 9 v. JUDGMENT

10 A YANEZ, et al., Re: Dkt. No. 95 11 Defendants.

12 13 Plaintiff, an inmate housed at California State Prison – Los Angeles County, has filed a pro 14 se complaint under

against prison officials at San Quentin State Prison 15 (“SQSP”), where he was previously housed. Now pending before the Court is Defendants’ motion 16 for summary judgment. Dkt. No. 95. Plaintiff has filed an opposition, Dkt. No. 105, and 17 Defendants have filed a reply, Dkt. No. 105. For the reasons set forth below, the Court GRANTS 18 Defendants’ motion for summary judgment. 19 DISCUSSION 20 I. Procedural Background 21 Plaintiff filed the original complaint in this action on or about August 25, 2017. Dkt. No. 22 1. On April 4, 2018, Plaintiff filed an amended complaint, which is the operative complaint, 23 adding S. Swensen as a defendant. Dkt. No. 21. 24 On November 24, 2020, the Court screened the operative complaint (Dkt. No. 21), and 25 found that it stated cognizable claims against defendants Fonesca and Yanez for retaliation for 26 protected conduct in violation of the First Amendment; against defendants Czajkowski, Davis, 27 Deal, Hagens, Swensen, and Thomas for retaliation for protected conduct in violation of the First 1 defendants Czajkowski, Davis, Deal, Hagens, Swensen, and Thomas for denial of Plaintiff’s First 2 Amendment right to free exercise of religion; against defendants Czajkowski, Davis, Deal, 3 Hagens, Swensen, and Thomas for denial of Plaintiff’s First Amendment right to free exercise of 4 speech; and against defendant Czajkowski for excessive use of force in violation of the Eighth 5 Amendment and for denial of Plaintiff’s First Amendment right to freedom of speech. Dkt. No. 6 30. 7 On October 5, 2021, the Court dismissed defendant Deal from this action pursuant to the 8 parties’ joint stipulation. Dkt. No. 63. 9 Defendant Swensen moved to dismiss the amended complaint, arguing that the claims 10 against her were untimely, that Plaintiff had not adequately alleged her personal involvement, that 11 she was entitled to qualified immunity, and that any property confiscation was reasonably related 12 to a legitimate penological interest. Dkt. No. 66. Defendants Czajkowski, Davis, Fonesca, 13 Hagens, Thomas, and Yanez moved for summary judgment for failure to exhaust administrative 14 remedies with respect to the claims against defendants Fonesca, Davis, Hagens, and Czajkowski; 15 and with respect to the free exercise of religion and free speech claims against defendant Thomas. 16 Dkt. No. 67. 17 On March 7, 2022, the Court denied defendant Swensen’s motion to dismiss, granted 18 summary judgment in favor of defendants Fonesca, Davis, Hagens, and Czajkowski on all claims, 19 and granted summary judgment in favor of defendant Thomas on the First Amendment free 20 exercise and free speech claims. The Court dismissed defendants Fonesca, Davis, Hagens, and 21 Czajkowski from this action. See generally Dkt. No. 81. 22 The claims currently remaining in this action are as follows: (1) defendant Yanez 23 discovered and read Plaintiff’s draft federal civil rights complaint and, in retaliation for this 24 protected conduct, confiscated the complaint and reported it to Plaintiff’s mental health team, in 25 violation of the First Amendment; (2) defendants Swensen and Thomas directed custodial staff to 26 confiscate Plaintiff’s property, including his legal documents and the drafted federal complaint, in 27 retaliation for Plaintiff’s protected conduct, in violation of Plaintiff’s First Amendment right to 1 Swensen confiscated Plaintiff’s religious books and items, in violation of Plaintiff’s First 2 Amendment right to free exercise of religion; and (4) defendant Swensen confiscated Plaintiff’s 3 books and magazines, in violation of Plaintiff’s First Amendment right to free exercise of speech. 4 See generally Dkt. Nos. 81, 89. 5 II. Factual Background 6 A. SQSP Psychiatric Inpatient Program (“PIP”) 7 During the relevant time period, the SQSP PIP provided inpatient mental health treatment 8 services for condemned inmate-patients who required 24-hour inpatient care and treatment for 9 mental health disorders. Dkt. No. 95-10 (“Thomas Decl.”) at ¶ 3. Inmates housed in the PIP 10 received either “Non-Acute” level of care (“LOC”) services or “Acute” level of care services. 11 Thomas Decl. ¶ 5. Non-Acute LOC was provided through the PIP’s Intermediate Treatment 12 Program (“ITP”). Thomas Decl. ¶ 6. “Acute” LOC services were provided through the PIP’s 13 Acute Treatment Program (“ATP”) and constituted a higher level of care than the ITP. Thomas 14 Decl. ¶ 5. The interdisciplinary treatment team (“IDTT”) determined an inmate’s LOC. Thomas 15 Decl. ¶ 7. The IDTT is composed of medical, clinical, and correctional staff, and the inmate- 16 patient. Thomas Decl. ¶ 8. The medical and clinical component of the IDTT is comprised of 17 psychologists, psychiatrists, nurse practitioners, social workers, recreation therapists, and 18 psychiatric technicians. Thomas Decl. ¶ 8. The IDTT’s purposes are to identify symptoms that 19 need to be addressed in treatment, identify treatment goals, establish treatment plans, evaluate the 20 effectiveness of treatment plans, identify barriers to meeting treatment goals, review and modify 21 treatment plans and services as needed, and determine the appropriate level of care. Thomas Decl. 22 ¶ 8. The IDTT met weekly with inmates. Sometimes the IDTT would hold an additional meeting, 23 referred to as a “MEGA” session, to discuss variations in care or emergent issues experienced by 24 the inmate-patient. Thomas Decl. ¶ 9. An inmate’s ability to possess personal property in the PIP, 25 both the amount of property and the type of property, was determined by his LOC, his IDTT 26 decision/individualized treatment plan, and custody policy. Thomas Decl. ¶ 13. 27 Correctional officials were required to have direct and unobstructed line of sight view of 1 actively suicidal and in immediate danger of self-harm, the inmate-patient was placed on Suicide 2 Watch status, which required correctional officials to maintain a continuous direct and 3 unobstructed line of sight views of the inmate-patient. This was referred to as “One-to-One (1:1) 4 Observation.” Thomas Decl. ¶ 10. Inmate-patients not on Suicide Watch status needed to be 5 observed every fifteen minutes. Thomas Decl. ¶ 11. 6 The parties disagree as to the PIP policy regarding covering cell windows. Plaintiff 7 alleges that PIP policy only prohibited inmates on suicide watch from covering their windows. 8 Dkt. No. 21 (“FAC”) at 1 and 7; Dkt. No. 102 at 10, 22. Defendants allege that the PIP prohibited 9 all inmates from obstructing the view into their cells by placing materials over any portion of their 10 cell window because coverings prevented staff from looking into an inmate-patient’s cell to 11 observe any dangerous situations (self-harm attempts, erratic behavior) and from continually 12 assessing the inmate-patient’s condition. Thomas Decl. ¶ 12. 13 B. Plaintiff’s Mental Health History 14 Plaintiff is a condemned inmate. Plaintiff reports having attempted suicide over 30 times, 15 including an attempted overdose while housed in Los Angeles County Jail and an attempted 16 hanging in or about 2009. Trenbeath Decl., Ex. B, AGO 010 (Dkt. No. 95-13 at 14). In 17 November 2015, after he was discharged from SQSP PIP, Plaintiff cut both wrists to ensure his 18 return to the PIP. Trenbeath Decl., Ex. B at AGO 001, 010, 014 (Dkt. No. 95-14 at 5, 14, 18). On 19 November 25, 2015, Plaintiff was admitted to the PIP at the intermediate level of care (ITP). 20 Trenbeath Decl., Ex. B at AGO 001, 010 (Dkt. No. 95-14 at 5, 14). 21 During this stay in the PIP, Plaintiff engaged in self-harm at least two times. 22 The first incident took place on April 10, 2016, when Plaintiff attempted suicide by cutting 23 two main arteries. Plaintiff was sent to Marin General Hospital and his cuts were sutured. 24 Trenbeath Decl., ¶ 3 and Ex. B at AGO 002-004 (Dkt. No. 95-13 at 6-8). Upon his return to the 25 PIP, Plaintiff’s doctors increased his LOC to “acute,” placed him on 1:1 observation (suicide 26 watch), and required him to wear a safety smock. Trenbeath Decl., Ex. B at AGO 005 (Dkt. No. 27 95-13 at 9). 1 attempted suicide, this time by cutting his left arm. The physician on duty placed Plaintiff on 1:1 2 suicide watch with a no tear blanket, no tear mattress and no tear smock, and increased Plaintiff’s 3 level of care from Stage 3 to Acute LOC. Trenbeath Decl., Ex. B at AGO 001, 009-015 (Dkt. No. 4 95-13 at 5, 13-19, 71); Dkt. No. 950-13 at 59-76 (“Hawthorne Depo.”) at 77:7-80:19. 5 C. Plaintiff’s 2015-2016 PIP Stay 6 Sometime prior to August 25, 2016, Plaintiff filed a grievance alleging that mental health 7 services personnel and other prison officials were discriminating against him. Plaintiff was 8 unsuccessful in obtaining relief through the administrative grievance process, so he drafted a 9 federal civil rights complaint regarding these issues. Plaintiff alleges that his draft complaint was 10 a rough draft of the complaint for this action, and that he wrote two copies of this draft complaint. 11 FAC at 1-2; Hawthorne Depo. 47:3-25; 71:2-73:11 (Dkt. No. 95-13 at 66-69); Dkt. No. 102 at 10, 12 13-14. 13 While housed in the PIP, Plaintiff frequently covered his cell windows with papers or 14 paper bags. Thomas Decl. ¶ 16; Yanez Decl. ¶ 5. From August 12, 2016 through September 8, 15 2106, PIP staff documented twelve occasions when Plaintiff covered his cell windows with 16 articles of paper, limiting their visibility into his cell. Trenbeath Decl., Ex. B at AGO 036 – AGO 17 047 (Dkt. No. 95-13 at 40-51) (noting that Plaintiff covered his windows on 8/12, 8/23-8/25, 8/30, 18 9/1-9/4, 9/6-9/8). According to Plaintiff, he only covered ten percent of his windows, and solely 19 for the purpose of providing himself privacy when he was bathing or using the toilet. Plaintiff was 20 never a threat to himself. Plaintiff was not on suicide watch during the relevant time period. If he 21 had been on placed on suicide watch during the relevant time period, it was a retaliatory measure 22 taken by correctional officials and his treatment team to punish him for filing the grievance 23 alleging discrimination by his treatment team. Dkt. No. 102 at 13-14, 29. 24 On several occasions, defendant Thomas and Plaintiff’s IDTT team reminded Plaintiff that 25 PIP policy prohibited covering windows and informed Plaintiff that he needed to remove the 26 papers from his cell windows. Thomas Decl. ¶¶ 17, 19 and Ex. A; Trenbeath Decl. ¶ 3 and Ex. B 27 at AGO 036-047 (Dkt. No. 93-13 at 40-51). 1 object. Healthcare staff discovered the self-harm around 10:13 p.m. that night. Trenbeath Decl., 2 Ex. B at AGO 001, 009-015 (Dkt. No. 95-13 at 5, 13-19, 71); Hawthorne Depo. 77:7-80:19. The 3 physician on duty that night was notified on or about 10:44 p.m., and the physician placed Plaintiff 4 on 1:1 suicide watch. Trenbeath Decl., Ex. B at AGO 009, 013 (Dkt. No. 95-13 at 13, 17). 5 Healthcare staff determined that Plaintiff had made the cuts with a piece of plastic cup and 6 removed property from his cell on or about August 26, 2016 at 12:20 a.m. Trenbeath Decl., Ex. B 7 at AGO 009 (Dkt. No. 95-13 at 13). 8 The parties disagree as to whether Defendant Yanez participated in the August 26, 2016 9 property removal. Plaintiff alleges that, on or about August 26, 2016, during a cell search, 10 defendants Fonesca and Yanez discovered his draft complaint and confiscated it, also confiscating 11 Plaintiff’s attorney-client communications and other legal documents. FAC at 4. It is unclear if 12 the alleged cell search is the same incident as the property removal on August 26, 2016 at 12:20 13 a.m., or if Plaintiff is referring to a different event that happened later that day. Plaintiff also 14 alleges that he believes that correctional officer Maneja informed defendants Yanez, Thomas and 15 Swensen about his intent to sue correctional officers, as evidenced by his draft complaint. Dkt. 16 No. 102 at 16. Defendant Yanez does not recall participating in this removal of property from 17 Plaintiff’s cell. Yanez Decl., ¶ 6. Although correctional officers are required to document 18 property removed from an inmate’s cell on a property receipt, there is no property receipt in the 19 record for the August 26, 2016 property removal. Yanez Decl. ¶ 6. 20 On the morning of August 26, 2016, Plaintiff’s treatment team met to address the prior 21 day’s self-harm incident and to initiate a stage change from an intermediate level of care (ITP 22 LOC) to an acute level of care (Acute LOC). Trenbeath Decl., Ex. B at AGO 014-020 (Dkt. No. 23 95-13 at 18-24). The treatment team placed Plaintiff on property restrictions, limiting him to the 24 following personal property in his cell: mattress, blanket, smock, and eating utensils made from 25 cardboard or paper. Trenbeath Decl., Ex. B at AGO 014, 021 (Dkt. No. 95-13 at 18, 25). 26 Defendant allege that the property restriction was for Plaintiff’s safety.

Plaintiff alleges that 27 the property restriction was because defendants Sanchez, Thomas and Yanez had learned that 1 On August 31, 2016, another IDTT meeting was held. At this meeting, the treatment team 2 directed staff to remove all the papers that Plaintiff had used to partially block his windows, and to 3 not allow Plaintiff to possess paper towels, paper lunch bags, and other papers in his cell because 4 he had previously used these types of papers to cover his windows. Trenbeath Decl., Ex. B at 5 AGO 023, 030 (Dkt. No. 95-13 at 27, 34). 6 On September 8 or 9, 2016,1 defendant Thomas and Plaintiff’s treatment team directed 7 custody staff to remove all loose papers from Plaintiff’s cell that day. Plaintiff was allowed to 8 have 50 minutes, twice a day, in the therapeutic module to access his legal materials and to use 9 loose paper and pen, with the support of a Psych Tech. Trenbeath Decl., Ex. B at AGO 032 (Dkt. 10 No. 95-13 at 36); Thomas Decl. ¶ 17 and Ex. A. In response to Plaintiff’s privacy concerns, 11 Plaintiff was informed that he could request a screen from the nurse to use when using the 12 restroom. Trenbeath Decl., Ex. B at AGO 033 (Dkt. No. 95-13 at 37). 13 The parties disagree as to why the loose papers were removed from Plaintiff’s cell. 14 Defendants allege that they removed the loose papers because Plaintiff continued to cover his 15 windows with paper despite being instructed to stop and because staff was unable to view him 16 when the windows were covered. Trenbeath Decl., Ex. B at AGO 032 (Dkt. No. 95-13 at 36); 17 Thomas Decl. ¶ 17 and Ex. A. Plaintiff alleges that the property restriction was because defendant 18 Bensimon falsely reported that he was covering all of his windows and because Defendants were 19 retaliating against him for filing a grievance against defendants Swensen, Thomas, and Yanez. 20 Plaintiff alleges that the property restriction and the false reports were part of a conspiracy against 21 him. Dkt. No. 102 at 23, 32, 34. 22 That same day, defendant Thomas observed custody staff remove a large cache of paper 23

24 1 The record is unclear as to when the MEGA meeting took place and when the property was removed pursuant to the treatment team’s decision at the MEGA meeting. In the summary 25 judgment motion, Defendants state that MEGA meeting took place on September 8, 2016, and loose papers were removed from Plaintiff’s cell that same day. Dkt. No. 95 at 17. The allowable 26 items chrono is also dated September 8, 2016, and the related progress notes that the meeting and property removal took place on September 8, 2016. Dkt. No. 95-11 at 2; Dkt. No. 95-13 at 36. 27 However, Plaintiff alleges that the treatment team meeting and property removal took place on 1 bags and loose papers from Plaintiff’s cell, which included Plaintiff’s legal documents, draft 2 complaint, religious books and items, and books and magazines. Thomas Decl. ¶¶ 18-19 and Ex. 3 A; FAC at 5-6. Defendant Thomas denies being aware of the content of the loose papers and 4 denies being aware that the loose papers included a draft federal civil rights complaint. Thomas 5 Decl. ¶ 18 and Ex. A. 6 D. CDCR Grievance Process 7 During the relevant time period, the California Department of Corrections and 8 Rehabilitation (“CDCR”) provided inmates with the administrative grievance process set forth in 9 the version of 15 Cal. Code §§ 3084-3086 in effect at that time.2 The CDCR provided its inmates 10 the right to appeal administratively “any policy, decision, action, condition, or omission by the 11 department or its staff that the inmate or parolee can demonstrate as having a material adverse 12 effect upon his or her health, safety, or welfare.” 15 Cal. Code Regs. § 3084.1(a) (2016). 13 Prior to September 1, 2017, the same grievance process applied to both custody issues and 14 healthcare issues. The grievance process required a prisoner to use a CDCR Form 602 “to 15 describe the specific issue under appeal and the relief requested” by stating all facts known and 16 available regarding the issue and by listing all staff member(s) involved and describing their 17 involvement in the issue. 15 Cal. Code Regs. § 3084.2(a) (2016). A grievance was reviewed at 18 three different levels: (1) a first formal level filed with one of the institution’s appeal coordinators, 19 (2) a second formal level filed with the institution head or designee, and (3) a third formal level. 20 15 Cal. Code Regs. §§ 3084.7, 3084.8 (2016). The CDCR’s Office of Appeals (“OOA”) received, 21 reviewed, and maintained all final-level appeals for non-healthcare issues, while the Health Care 22 2 Starting September 1, 2017, 15 Cal. Code Regs. § 3087 was amended to create a separate system 23 for addressing healthcare grievances. 15 Cal. Code Regs. § 3087.1 et seq. (2017). Pursuant to this system, healthcare grievances were grieved using the CDCR Form 602 HC and were only subject 24 to two levels of review: an institutional level of review and a headquarters level of review, with the headquarters level of review exhausting administrative remedies. 15 Cal. Code Regs. 25 § 3087.1(a)(1), (g). In 2020, there was a significant overall restructuring of the entire grievance process. On 26 March 25, 2020, and effective June 1, 2020, 15 Cal. Code Regs. §§ 3084–3084.9 were repealed and replaced with renumbered and amended provisions at sections 3480 through 3487. The 27 primary change was a reduction of the levels of review for non-healthcare appeals from three 1 Correspondence and Appeals Branch (“HCCAB”) received, reviewed, and maintained all final- 2 level appeals for healthcare issues (medical, dental, and mental health). Dkt. No. 95-5 (“Moseley 3 Decl.”), at ¶ 2. Pursuing a grievance through the third and final level satisfied the exhaustion 4 requirement set forth in 42 U.S.C. § 1997e(a). 15 Cal. Code Regs. § 3084.1(b) (2016). A 5 grievance could be cancelled for any of the following reasons: (1) the action or decision being 6 appealed is not within the jurisdiction of the department; (2) the grievance duplicates a prior 7 grievance upon which a decision has been rendered or is pending; or (3) the inmate continues to 8 submit a rejected grievance while disregarding grievance staff’s previous instructions to correct 9 the grievance. 15 Cal. Code Regs. §§ 3084.6(c)(1)-(11) (2016). A cancellation or rejection 10 decision does not exhaust administrative remedies. 15 Cal. Code Regs. § 3084.1(b) (2016). 11 E. Plaintiff’s Relevant Grievance History 12 Between August 26, 2016, when the alleged retaliation happened, and April 4, 2018, the 13 date the operative complaint was docketed, Plaintiff submitted twenty-eight non-healthcare related 14 grievances.3 Tafoya Decl., ¶ 8 and Exs. A-AA. The Court only considers grievances that were 15 pursued to the third and final level, because California inmates must receive a third level decision 16 on their grievances to satisfy the Prison Litigation Reform Act (“PLRA”)’s exhaustion 17 requirement. 15 Cal. Code Regs. § 3084.1(b) (2016). Of the twenty-eight non-healthcare related 18 grievances filed during the relevant time period, only fourteen received a final decision at the third 19 level.4 Tafoya Decl., ¶ 8 and Ex. A; Mosely Decl., ¶ 8 and Exs. A-O. 20 None of these fourteen grievances reference defendant Swensen. Mosely Decl., ¶ 8 and 21 Exs. B-O. 22 3 Of these twenty-eight grievances, two of them, Grievance No. SQ-C-17-00715 and Grievance 23 NO. SQ-D-18-01101, have not been located. Plaintiff has not alleged that these two grievances exhausted his administrative remedies for this action. The categorization of these two grievances 24 indicates that they likely concerned issues other than the alleged retaliation. Prison records indicate that Grievance No. SQ-C-17-00715 was categorized as an ADA issue and Grievance NO. 25 SQ-D-18-01101 was categorized as a “program” issue. A “program” issue usually pertains to: Athletic or Recreational Program, In Cell Study Program, Inmate Council and Other Inmate 26 Group, Inmate Publication, Movie and Video, Reentry Program, Substance Abuse Program, Vocational Issues (involving job or pay issues), or other activities to inmates at the institution. 27 Tafoya Decl. ¶¶ 5, 9. 1 Of these fourteen grievances, six of these grievances reference defendant Yanez: 2 Grievance Nos. SQ-I-16-02339, SQ-J-16-02691, SQ-C-17-00862, SQ-D-17-01079, SQ-S-17- 3 03056, and SQ-S-17-03138. None of these grievances allege that defendant Yanez confiscated 4 Plaintiff’s legal documents on or about August 26, 2016. 5 In Grievance No. SQ-I-16-02339, Plaintiff alleges that on August 25, 2016, he attempted 6 to commit suicide by cutting his main artery because defendant Yanez conducted a strip search of 7 his person, stared at Plaintiff’s genitals, and then had the nerve to laugh and say, “thank you.” 8 Tafoya Decl., Ex. B. (Dkt. No. 95-8 at 28-41); Moseley Decl., Ex. B. 9 In Grievance No. SQ-J-16-02691, Plaintiff alleges that, after his property was confiscated 10 by defendant Yanez under the direction of Dr. Thomas, defendant Yanez removed Plaintiff’s legal 11 materials and would not return them; correctional officers Edwards, Pitts, Gomez, and Walls 12 maintained the chain of custody of these legal materials and were also refusing to return them; and 13 that he feared retaliation from these officers for his exercise of his First Amendment rights. 14 Tafoya Decl., Ex. C (Dkt. No. 95-8 at 49-66); Moseley Decl., Ex. C. 15 The remaining four grievances do not exhaust the claims in this action. These four 16 grievances grieve actions taken by defendant Yanez months after the relevant events.5 17 None of these fourteen grievances grieve property confiscation on August 26, 2016 or 18 September 9, 2016. Although Grievance No. SQ-J-16-02691 concerns Plaintiff’s property, the 19 allegation in this grievance is that after Plaintiff’s property was removed from his cell, defendant 20 Yanez removed Plaintiff’s legal documents from Plaintiff’s property and refuses to return these 21

22 5 In Grievance No. SQ-C-17-00862, Plaintiff stated that he was going to commit suicide because defendant Yanez continued to harass him in retaliation for Plaintiff filing Grievance No. SQ-16- 23 02339, by confiscating his property without allowing him to mail the property home or donate it. Tafoya Decl., Ex. G; Moseley Decl., Ex. F. In Grievance No. SQ-D-17-01079, Plaintiff alleged 24 that on March 31, 2017, defendant Yanez and correctional officer Vasquez confiscated his package after he skipped three meals even though he informed them that he was not on a hunger 25 strike. Tafoya Decl., Ex. K; Moseley Decl., Ex. G. In Grievance No. SQ-S-17-03056, Plaintiff alleged that on October 20, 2017, defendant Yanez yelled at him to shut up, that defendant Yanez 26 had been harassing by searching his cell and issuing false rules violation reports against him, and that defendant Yanez was trying to determine whether Plaintiff is suing him. Tafoya Decl., Ex. R; 27 Moseley Decl., Ex. J. In Grievance No. SQ-S-17-03138, Plaintiff alleged that defendant Yanez 1 documents to Plaintiff. Tafoya Decl., Ex. C (Dkt. No. 95-8 at 49-66); Moseley Decl., Ex. C. 2 F. Defendant Yanez 3 In August and September of 2016, defendant Yanez was assigned as a third watch (2:00 4 p.m. to 10:00 p.m.) infirmary officer at the SQSP PIP in San Quentin. Yanez Decl. ¶ 2. At times, 5 defendant Yanez would cover another correctional officer’s shift during second watch (6:00 a.m. 6 to 2:00 p.m.). Yanez Decl. ¶ 2. Defendant Yanez was not on duty from 10:00 p.m. on August 25, 7 2016 through 6:00 a.m. on August 26, 2016. Cervantes Decl. ¶¶ 4, 6, Ex. A; Yanez Decl. ¶ 6. 8 III. Summary Judgment Motion 9 Defendants argue that defendant Swensen is entitled to summary judgment because 10 Plaintiff has not exhausted his claims against her. Defendants argues that defendant Yanez is 11 entitled to summary judgment because defendant Yanez was not on duty the day the complaint 12 was allegedly confiscated; if he had confiscated the complaint, it was in response to a clinician’s 13 orders; and the alleged confiscation did not have a chilling effect. Defendants argue that 14 defendant Thomas is entitled to summary judgment on the retaliation claims because there is no 15 evidence that defendant Thomas was aware of a draft civil rights complaint among Plaintiff’s 16 papers, the directive to remove the loose papers advanced a legitimate penological goal, and there 17 was no chilling effect of harm. Defendants argue that defendant Thomas is entitled to summary 18 judgment on Plaintiff’s access-to-the-courts claim because there was no actual injury. In the 19 alternative, Defendants argue that they are entitled to qualified immunity. See generally Dkt. Nos. 20 95, 105. 21 In his opposition, Plaintiff argues the following. Plaintiff argues that he has pled sufficient 22 factual content to allow the Court to draw the reasonable inference that defendant Swensen 23 violated the First Amendment; that Defendants removed his property on September 9, 2016, in 24 retaliation for filing a grievance against defendants Yanez, Thomas, and Swensen alleging 25 discriminatory treatment; that the property control deprived him of his right to access the courts, 26 his right to free exercise of religion, and his right to free speech. Plaintiff further argues that the 27 property removal had no valid, rational connection to prison discipline and security because, 1 that the property removal was done with the intent to deprive him of his First Amendment right to 2 exercise his religion and receive publications, and was motivated solely by a spiteful effort to 3 retaliate against him for exercising protected conduct. Plaintiff argues that in implementing the 4 property removal, defendants Yanez, Thomas and Swensen failed to exercise the requisite care to 5 ensure that Plaintiff’s rights were not violated, subjected him to an atypical and significant 6 hardship, and violated the Equal Protection Clause. See generally Dkt. No. 102. 7 A. Summary Judgment Legal Standard 8 Summary judgment is proper where the pleadings, discovery and affidavits show there is 9 “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 10 law.” See Fed. R. Civ. P. 56(a) (2014). Material facts are those that may affect the outcome of the 11 case. See Anderson v. Liberty Lobby, Inc.,

(1986). A disputed fact is 12 “material” where the resolution of that fact “might affect the outcome of the suit under the 13 governing law,” and the dispute is “genuine” where “the evidence is such that a reasonable jury 14 could return a verdict for the nonmoving party.”

. The burden of establishing the 15 absence of a genuine issue of material fact lies with the moving party, and the moving party may 16 meet this burden with arguments or evidence or both. See Celotex Corp. v. Catrett,

, 17 323 (1986). Once the moving party satisfies its burden, the burden then shifts to the nonmoving 18 party to “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to 19 interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine 20 issue for trial.’” See

at 324 (citing Fed. R. Civ. P. 56(e)). The non-moving party must show 21 that there are “genuine factual issues that properly can be resolved only by a finder of fact because 22 they may reasonably be resolved in favor of either party.” Anderson,

. The 23 nonmoving party cannot simply rest on the pleadings or argue that any disagreement or 24 “metaphysical doubt” about a material issue of fact precludes summary judgment. Matsushita 25 Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

(1986). The nonmoving party 26 must provide more than a “scintilla” of contradictory evidence to avoid summary judgment. 27 Anderson, 477 U.S. at 251–52; Addisu v. Fred Meyer, Inc.,

(9th Cir. 2000). 1 by (1) citing to particular parts of materials in the record; or (2) showing that the materials cited do 2 not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce 3 admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1). If a party fails to properly 4 support an assertion of fact or fails to properly address another party’s assertion of fact as required 5 by Rule 56(c), the court may, inter alia, (1) consider the fact undisputed for purposes of the 6 motion; or (2) grant summary judgment if the motion and supporting materials--including the facts 7 considered undisputed--show that the movant is entitled to it. Fed. R. Civ. P. 56(e). 8 A court shall grant summary judgment “against a party who fails to make a showing 9 sufficient to establish the existence of an element essential to that party’s case, and on which that 10 party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an 11 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 12 See Celotex Corp., 477 U.S. at 322–23. 13 The court’s function on a summary judgment motion is not to make credibility 14 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 15 Elec. Serv. v. Pac. Elec. Contractors Ass’n,

, 630 (9th Cir. 1987). The evidence must 16 be viewed in the light most favorable to the nonmoving party, and inferences to be drawn from the 17 facts must be viewed in a light most favorable to the nonmoving party. See id. at 631. If the 18 evidence produced by the moving party conflicts with evidence produced by the nonmoving party, 19 the court must assume the truth of the evidence submitted by the nonmoving party. See Leslie v. 20 Grupo ICA,

(9th Cir. 1999). 21 B. Claim Against Defendant Swensen 22 1. PLRA Exhaustion Requirement 23 The PLRA sets forth the following exhaustion requirement: “No action shall be brought 24 with respect to prison conditions under [

], or any other Federal law, by a prisoner 25 confined in any jail, prison, or other correctional facility until such administrative remedies as are 26 available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is 27 mandatory. Jones v. Bock,

(2007). The administrative remedies need not be 1 of providing the form of relief sought. Ross v. Blake,

, (2016) (citing to 2 Porter v. Nussle,

(2002) and Booth v. Churner,

(2001)). 3 The PLRA requires “proper exhaustion” of available administrative remedies. Woodford 4 v. Ngo,

(2006). Proper exhaustion requires using all steps of an administrative 5 process and “demands compliance with an agency’s deadlines and other critical procedural rules 6 because no adjudicative system can function effectively without imposing some orderly structure 7 on the course of its proceedings.”

at 90–91. Compliance with prison grievance procedures is 8 all that is required by the PLRA to “properly exhaust.” Jones, 549 U.S. at 217–18. The level of 9 detail necessary in a grievance to comply with the grievance procedures will vary from system to 10 system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the 11 boundaries of proper exhaustion.

. 12 Failure to exhaust under the PLRA is an affirmative defense that the defendant must plead 13 and prove. Jones,

. The defendant’s burden is to prove that there was an 14 available administrative remedy and that the prisoner did not exhaust that available administrative 15 remedy. Albino v. Baca,

(9th Cir. 2014). Once the defendant has carried that 16 burden, the burden shifts to the prisoner to come forward with evidence showing that there is 17 something in his particular case that made the existing and generally available administrative 18 remedies effectively unavailable to him.

. If undisputed evidence viewed in the light 19 most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary 20 judgment under Rule 56. Albino,

. But if material facts are disputed, summary 21 judgment should be denied, and the district judge rather than a jury should determine the facts in a 22 preliminary proceeding.

A prisoner must provide evidence, not just make conclusory 23 allegations, to meet his burden to show that existing and generally available administrative 24 remedies were effectively unavailable. See Draper v. Rosario,

(9th Cir. 25 2016). But as required by Jones, the ultimate burden of proof remains with the defendant. Albino, 26

. 27 2. Analysis 1 including his legal documents and the drafted federal complaint, in retaliation for his protected 2 conduct, in violation of his First Amendment right to access the courts and right to engage in 3 protected conduct without suffering retaliation; and that the property confiscation deprived him of 4 his religious books, religious items, books, and magazines, in violation of his First Amendment 5 right to free exercise of religion and his First Amendment right to free exercise of speech. See 6 generally Dkt. Nos. 81, 89. Defendants argue that defendant Swensen is entitled to summary 7 judgment for failure to exhaust administrative remedies because Plaintiff has not filed any 8 grievance against defendant Swensen. See Dkt. No. 95 at 22-24. Plaintiff has not addressed this 9 argument.6 10 The undisputed evidence shows that Plaintiff has failed to exhaust his administrative 11 remedies against defendant Swensen. None of the grievances filed by Plaintiff during the relevant 12 time period (August 25, 2016, when the alleged retaliation happened, and April 4, 2018, the date 13 the operative complaint was docketed) name defendant Swensen or grieve property confiscation 14 on September 8 or 9, 2016. The Court therefore GRANTS summary judgment in favor of 15 defendant Swensen for failure to exhaust administrative remedies. The claims against defendant 16 Swensen are DISMISSED without prejudice to bringing a new action after Plaintiff has exhausted 17 his administrative remedies. 18 C. Claims Against Defendants Yanez and Thomas 19 1. Retaliation Claims Against Defendants Yanez and Thomas 20 a. Legal Standard 21 Within the prison context, a viable claim of First Amendment retaliation entails five basic 22 elements: (1) An assertion that a state actor took some adverse action against an inmate 23 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 24

25 6 Plaintiff’s opposition focuses on whether he adequately pled his claims against defendant Swensen and the legal standard for reviewing a motion to dismiss, arguing that he has adequately 26 alleged defendant Swensen’s personal participation in the constitutional violations. Dkt. No. 102 at 1-4, 15-16. The relevant issue raised in Defendants’ summary judgment motion is not whether 27 the claims against defendant Swensen are adequately pled, but whether Plaintiff has exhausted his 1 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 2 correctional goal. Rhodes v. Robinson,

(9th Cir. 2005) (footnote omitted). 3 With respect to the fifth factor, the prisoner bears the burden of pleading and proving absence of 4 legitimate correctional goals for the conduct of which he complains. Pratt v. Rowland,

802, 806 (9th Cir. 1995) (prisoner suing prison officials under Section 1983 for retaliation must 6 allege that he was retaliated against for exercising his constitutional rights and that retaliatory 7 action did not advance legitimate penological goals, such as preserving institutional order and 8 discipline). At that point, the burden shifts to the prison official to show, by a preponderance of 9 the evidence, that the retaliatory action was narrowly tailored to serve a legitimate penological 10 purpose. See Schroeder v. McDonald,

(9th Cir. 1995) (defendants had 11 qualified immunity for decision to transfer prisoner to preserve internal order and discipline and 12 maintain institutional security). Striving to protect prisoners from harm is a legitimate penological 13 interest. Shepard v. Quillen,

(9th Cir. 2016). 14 The court should apply the four-factor test from Turner v. Safley,

(1978), to 15 determine whether the proffered legitimate penological interest is reasonably related to a 16 regulation which infringes on a prisoner’s constitutional rights even in a retaliation analysis. See 17 Brodheim v. Cry,

(9th Cir. 2009). In Turner, the Supreme Court laid out a 18 four-factor test to determine whether a prison regulation is reasonably related to legitimate 19 penological interests: (1) whether the regulation is rationally related to a legitimate and neutral 20 governmental objective, (2) whether there are alternative avenues that remain open to the inmates 21 to exercise the right, (3) the impact that accommodating the asserted right will have on other 22 guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of 23 easy and obvious alternatives indicates that the regulation is an exaggerated response by prison 24 officials. Prison Legal News v. Lehman,

(9th Cir. 2005) (internal quotation 25 marks and citations omitted). Prison officials cannot simply articulate a general justification for 26 their actions: they must show why their particular action was reasonably related to the legitimate 27 interest. Shephard,

(defendants must show that they placed plaintiff in 1 improperly influenced; not enough to simply assert that administrative segregation generally helps 2 keep prisoners safe and investigations untainted). Courts must also consider whether there were 3 ready alternatives to the allegedly retaliatory action for achieving the governmental objectives. 4 Brodheim,

. 5 b. Analysis 6 The remaining First Amendment retaliation claims against defendants Yanez and Thomas 7 are that they retaliated against Plaintiff for preparing a draft federal civil rights complaint as 8 follows. On or about August 26, 2016, defendant Yanez confiscated the draft complaint and 9 reported it to Plaintiff’s mental health team. On or about September 8 or 9, 2016, defendant 10 Thomas directed custodial staff to confiscate Plaintiff’s property, including his legal documents 11 and the draft complaint. 12 Viewing the record in the light most favorable to Plaintiff, the Court finds that Plaintiff has 13 not demonstrated a triable issue of material fact as to whether defendants Yanez and Thomas 14 engaged in First Amendment retaliation. 15 With respect to defendant Yanez, the record indicates that the August 26, 2016 property 16 removal happened during first watch, at 12:20 a.m., when defendant Yanez was not on duty. 17 Plaintiff does not dispute that defendant Yanez was not working at the time of the property 18 removal, and he has not alleged that there was a second property removal later that day. There is 19 no evidence in the record that defendant Yanez was present when property was removed from 20 Plaintiff’s cell on August 26, 2016. Nor is there evidence in the record that creates a genuine 21 factual dispute as to whether defendant Yanez knew of the draft complaint. Plaintiff now alleges 22 that he believes that correctional officer Maneja informed defendants Yanez, Thomas and 23 Swensen of his litigation activity. Plaintiff provides no details supporting this allegation. He does 24 not identify when or how correctional officer Maneja allegedly learned of his litigation activity, 25 and when officer Maneja informed defendants Yanez, Thomas and Swensen of his litigation 26 activity. Plaintiff’s “uncorroborated and self-serving” testimony cannot create a genuine issue of 27 material fact as to whether defendant Yanez knew of Plaintiff’s protected conduct. Villiarimo v. 1 support for his assertion that defendant Yanez knew of his protected conduct. Accordingly, the 2 Court GRANTS summary judgment in favor of defendant Yanez on the retaliation claim. 3 With respect to defendant Thomas, the Court finds that Plaintiff has not demonstrated a 4 triable issue of material fact as to either the second or the fifth factor of a First Amendment 5 retaliation claim. 6 Plaintiff has identified his protected conduct as preparing the draft civil rights complaint. 7 However, the record does not support a finding that defendant Thomas knew of the draft civil 8 rights complaint. Plaintiff has alleged that his medical team, which presumably includes 9 defendant Thomas, learned of his protected conduct when defendant Yanez discovered the draft 10 complaint on August 26, 2016, and informed the medical team. But according to the record before 11 the Court, defendant Yanez was not involved in the August 26, 2016 property removal because he 12 was not working when the property was removed, and, as discussed above, Plaintiff has not 13 provided any evidentiary support for his claim that correctional officer Maneja informed 14 defendants Yanez, Thomas and Swensen of his litigation activity. 15 Plaintiff also has not demonstrated a triable issue of material fact as to whether the 16 property confiscation reasonably advanced the legitimate correctional goal of ensuring Plaintiff’s 17 safety. Even viewing the record in the light most favorable to Plaintiff, it is clear that Plaintiff was 18 at risk of self-harm during the relevant time period. Plaintiff’s claim that during the relevant time 19 period he was never at risk of self-harm is directly contradicted by both his deposition testimony 20 and health records which show that he attempted suicide on August 25, 2016. Plaintiff’s claim 21 that he was not violating PIP policy also fails to create a triable issue of material fact as to whether 22 he should have been allowed to cover his windows. It is undisputed that Plaintiff’s window 23 coverings made it difficult for healthcare staff to see him. See, e.g., Trenbeath Decl., Ex. B at 24 AGO 040 (Dkt. No. 95-13 at 44) (notation on 8/30/16: “Hawthorne spent all of 1W shift with 25 partial coverage of his windows making it difficult to see him at night”);

at AGO 041 (Dkt. No. 26 95-13 at 45) (notation on 9/1/16: “This staff asked I/P to take down brown paper off window. I/P 27 refused . . . Brown paper on window impairs visibility while doing Q12-15 minute safety 1 pasting brown paper and other types of cover to obstruct at least 50% of vision.”). 2 Applying the four Turner factors, the Court finds that the September 9, 2016 property 3 confiscation was reasonably related to the prison’s legitimate penological goal of ensuring 4 Plaintiff’s safety. See Shephard,

(“unharmed prisoners” is legitimate correctional 5 goal). It is undisputed that, in the two weeks prior to his August 25, 2016 suicide attempt and in 6 the two weeks after his suicide attempt, Plaintiff repeatedly refused to stop covering his windows; 7 that Plaintiff had a recent history of self-harm and repeatedly threatened to kill himself; that 8 Plaintiff was provided an alternative means of shielding himself from view when bathing or using 9 the toilet, and that, after the property removal, Plaintiff’s treatment team allowed him access to his 10 legal documents in a controlled setting outside of his cell. The directive to remove all loose papers 11 was rationally related to ensuring Plaintiff’s safety since Plaintiff had a recent history of self-harm 12 and the window coverings limited healthcare officials’ ability to monitor Plaintiff and determine if 13 he had harmed himself. The treatment team provided Plaintiff an alternative avenue to exercise 14 his right to access the courts, allowing him at least 50 minutes daily with his legal materials in a 15 controlled setting. The treatment team also provided Plaintiff with an alternative avenue to ensure 16 his privacy, allowing him to request a screen for when he used the bathroom. Allowing Plaintiff 17 to keep his legal materials would limit the ability of correctional officials to ensure his safety 18 because the legal materials could be used to cover the windows. There were no easy and obvious 19 alternatives to confiscating Plaintiff’s loose papers, given that Plaintiff had been allowed to keep 20 his loose papers for the month prior and had repeatedly covered his windows with papers despite 21 being reminded of the PIP policy and instructed to remove the coverings. 22 Viewing the record in the light most favorable to Plaintiff, the Court finds that no 23 reasonable jury could find that defendant Thomas ordered the September 8 or 9, 2016 property 24 confiscation because of Plaintiff’s protected conduct, or that the September 8 or 9, 2016 property 25 confiscation did not advance the legitimate penological interest of ensuring Plaintiff’s safety. The 26 Court GRANTS summary judgment in favor of defendant Thomas on the First Amendment 27 retaliation claim. 1 2. Access to Court Claim Against Defendant Thomas 2 a. Legal Standard 3 The Ninth Circuit has held that inmates have a right, protected by the First Amendment 4 right to petition and the Fourteenth Amendment right to substantive due process, “to pursue legal 5 redress for claims that have a reasonable basis in law or fact.” Silva v. Di Vittorio,

, 6 1103 (9th Cir. 2011), overruled on other grounds as stated by Richey v. Dahne,

, 7 1209 n.6 (9th Cir. 2015). This right forbids states from erecting barriers that impede the right of 8 access of incarcerated persons.

With respect to a claim regarding active interference by prison 9 officials, a prisoner alleges an actual injury if, as a result of the defendants’ alleged actions, his 10 pending suit was dismissed. See Silva,

. Actual injury is a jurisdictional 11 requirement that flows from the standing doctrine and may not be waived. Nev. Dep’t. of 12 Corrections v. Greene,

(9th Cir. 2011). It is “actual prejudice with respect to 13 contemplated or existing litigation, such as the inability to meet a filing deadline or to present a 14 claim.” See Lewis v. Casey,

(1996). 15 b. Analysis 16 Viewing the record in the light most favorable to Plaintiff, the Court finds that Plaintiff’s 17 access to the courts claim fails on the merits. Plaintiff has not shown that he suffered actual 18 prejudice from defendant Thomas’ confiscation of his claim. Plaintiff was able to file this action 19 on or about August 25, 2017. The delay in filing the complaint with the Court cannot be attributed 20 to the September 9, 2016 confiscation of Plaintiff’s legal property. The complaint filed includes 21 claims that occurred after September 9, 2016 and indicates that Plaintiff was still pursuing 22 administrative remedies for some of these claims in early 2017. See, e.g., Dkt. No. 1 at 22-25 23 (alleging that correctional officers failed to return his property in response to his October 2016 24 requests); id. at 56 (third level denial of grievance dated April 4, 2017). The Court therefore 25 GRANTS summary judgment in favor of defendant Thomas on the access-to-the-courts claim. 26 3. Qualified Immunity 27 Qualified immunity is an entitlement, provided to government officials in the exercise of 1 200 (2001). The doctrine of qualified immunity attempts to balance two important and sometimes 2 competing interests — “the need to hold public officials accountable when they exercise power 3 irresponsibly and the need to shield officials from harassment, distraction, and liability when they 4 perform their duties reasonably.” Pearson v. Callahan,

(2009) (internal 5 quotation marks and citation omitted). The doctrine thus intends to take into account the real- 6 world demands on officials in order to allow them to act “‘swiftly and firmly’” in situations where 7 the rules governing their actions are often “‘voluminous, ambiguous, and contradictory.’” Mueller 8 v. Auker,

(9th Cir. 2009) (citing Davis v. Scherer,

(1984)). 9 “The purpose of this doctrine is to recognize that holding officials liable for reasonable mistakes 10 might unnecessarily paralyze their ability to make difficult decisions in challenging situations, 11 thus disrupting the effective performance of their public duties.”

To determine whether an 12 officer is entitled to qualified immunity, the Court must consider whether (1) the officer’s conduct 13 violated a constitutional right, and (2) that right was clearly established at the time of the incident. 14 Pearson,

. Courts are not required to address the two qualified immunity issues in 15 any particular order, and instead may “exercise their sound discretion in deciding which of the two 16 prongs of the qualified immunity analysis should be addressed first in light of the circumstances in 17 the particular case at hand.”

. Courts may “exercise their sound discretion in deciding 18 which of the two prongs of the qualified immunity analysis should be addressed first in light of the 19 circumstances in the particular case at hand.”

. Because there was no violation of 20 Plaintiff’s constitutional rights, as explained above, there is no need for further inquiry concerning 21 qualified immunity. Saucier, 533 U.S. at 201.

22 // 23 // 24 // 25 // 26

27 // 1 CONCLUSION 2 The Court GRANTS Defendants’ motion for summary judgment. Dkt. No. 95. The 3 || claims against defendant Swensen are DISMISSED for failure to exhaust administrative remedies. 4 || This dismissal is without prejudice to bringing a new action raising the claims against defendant 5 Swensen after Plaintiff has exhausted his administrative remedies. The Clerk shall enter judgment 6 in favor of Defendants and against Plaintiff, and close the case. 7 This order terminates Dkt. No. 95. 8 IT IS SO ORDERED. 9 || Dated: 3/7/2023 Absurd & Ml. HAYWOOD S. GILLIAM, JR. I United States District Judge a 12

13

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