1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT C. HOHMANN, No. 2:24-cv-3467 CSK P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ROB ST.ANDRE, et al., 15 Defendants. 16 17 I. INTRODUCTION 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to

. For the following reasons, this Court recommends dismissal of this action 20 based on failure to exhaust administrative remedies. 21 II. SCREENING STANDARDS 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams,

(1989); Franklin v. Murphy,

(9th 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3

. The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona,

(9th 5 Cir. 1989), superseded by statute as stated in Lopez v. Smith,

(9th Cir. 6 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 7 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin,

1227. 9 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 10 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 12 Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)). 13 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 14 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 15 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

. 16 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 17 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 18 Pardus,

(2007) (quoting Bell Atlantic,

, citations and internal 19 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 20 true the allegations of the complaint in question, Erickson,

, and construe the 21 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes,

, 236 22 (1974), overruled on other grounds, Davis v. Scherer,

(1984). 23 III. BACKGROUND 24 Plaintiff filed his complaint on December 5, 2024 in the United States District Court for 25 the Northern District of California. (ECF No. 1.) On December 11, 2024, the United States 26 District Court for the Northern District of California transferred this action to this court. (ECF 27 No. 5.) 28 Named as defendants are High Desert State Prison (“HDSP”) Warden Rob St. Andre and 1 the HDSP Trust Account Office. (ECF No. 1 at 2.) Plaintiff alleges that he is a disabled veteran 2 of the United States Coast Guard. (Id.) The Department of Veteran’s Affairs recently awarded 3 plaintiff compensation for his service. (Id. at 2-3.) The Department of Treasury sent four checks 4 to HDSP in plaintiff’s name. (Id. at 3.) Defendant HDSP Trust Office is refusing to cash the 5 checks sent to plaintiff by the Department of Treasury. (Id.) The first check arrived in August 6 2024 and plaintiff has received three more checks since that time. (Id.) Plaintiff’s fiancé, who 7 has power of attorney over plaintiff’s affairs, contacted the prison to have the checks turned over 8 to her. (Id.) The prison denied this request by plaintiff’s fiancé. (Id.) Plaintiff contacted the 9 Department of Veteran’s Affairs to change the address where plaintiff’s checks are sent, but 10 plaintiff has received no response to this request. (Id.) As relief, plaintiff requests that all checks 11 addressed to him from the Department of Treasury be cashed into plaintiff’s trust account or the 12 checks be released to plaintiff’s fiancé. (Id.) 13 In his complaint, plaintiff states that there is a grievance procedure at HDSP but that 14 plaintiff did not present the facts raised in his complaint for review through the grievance 15 procedure. (Id. at 1.) Plaintiff states that he did not present his claim for review through the 16 grievance procedure because his claim “is time sensitive at this point in time. The Treasury 17 checks being withheld by the trust account office at the prison need to be cashed within 180 days 18 of being drafted.” (Id. at 2.) 19 IV. LEGAL STANDARDS REGARDING ADMINISTRATIVE EXHAUSTION 20 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 21 “[n]o action shall be brought with respect to prison conditions under [

], or any 22 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 23 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 24 Prisoners are required to exhaust the available administrative remedies prior to filing suit. See 25 Jones v. Bock,

(2007). The exhaustion requirement applies to all prisoner suits 26 relating to prison life. See Porter v. Nussle,

(2002). Exhaustion is required 27 regardless of the relief sought by the prisoner and regardless of the relief offered by the process, 28 unless “the relevant administrative procedure lacks authority to provide any relief or to take any 1 action whatsoever in response to a complaint.” Booth v. Churner,

(2001); see 2 also Ross v. Blake,

(2016). 3 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong for 4 which redress is sought. The grievance need not include legal terminology or legal theories, 5 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 6 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 7 prison officials to a problem, not to provide personal notice to a particular official that he may be 8 sued.” Reyes v. Smith,

(9th Cir. 2016) (citations and internal quotation marks 9 omitted). 10 As discussed in Ross, there are no “special circumstances” exceptions to the exhaustion 11 requirement.

. The one significant qualifier is that “the remedies must indeed be 12 ‘available’ to the prisoner.”

The Ross Court described this qualification as follows: 13 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a 14 simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See

.... 15 Next, an administrative scheme might be so opaque that it becomes, 16 practically speaking, incapable of use.... 17 And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through 18 machination, misrepresentation, or intimidation.... As all those courts have recognized, such interference with an inmate’s pursuit of relief 19 renders the administrative process unavailable. [Footnote omitted.] And then, once again, § 1997e(a) poses no bar. 20 21 Id. at 643-44. 22 When it is clear on the face of the complaint that a plaintiff failed to exhaust 23 administrative remedies, dismissal is proper. Albino v. Baca,

(9th Cir. 24 2014). 25 V. ANALYSIS 26 On December 19, 2024, this Court issued an order finding that it was clear from the face 27 of the complaint that plaintiff did not exhaust available administrative remedies prior to filing this 28 action. (ECF No. 8.) This Court ordered plaintiff to show cause within thirty days why this 1 action should not be dismissed for failure to exhaust administrative remedies. (Id.) 2 On January 13, 2025, plaintiff filed a response to the order filed December 19, 2024. 3 (ECF No. 12.) Plaintiff states that he submitted multiple GA-22 forms beginning in October 4 2024 but did not receive any of these forms back. (Id. at 1.) Attached to plaintiff’s pleading are 5 two GA-22 Inmate Request for Interview forms dated November 25, 2024 and November 26, 6 2024. (Id. at 12-15.) The form dated November 25, 2024 is addressed to the Trust Account 7 Office and requests that plaintiff’s checks from the Department of Treasury be sent to plaintiff’s 8 fiancé. (Id. at 12-13.) The form dated November 26, 2024 is also addressed to the Trust Account 9 Office and requests that the funds sent to plaintiff from the Department of Treasury be released. 10 (Id. at 14-15.) Neither of the GA-22 Request for Interview forms contains a response from prison 11 officials. (Id. at 12-15.) GA-22 Inmate Request for Interview forms do not exhaust 12 administrative remedies. In California, administrative grievances must be prepared on CDCR 13 602 forms. See

(c). 14 In the January 13, 2025, response, plaintiff alleges that he is 100% mentally disabled and 15 does not have the mental capacity to deal with the 602 appeal process and the subsequent 16 retaliation that comes from CDCR staff while trying to exhaust administrative remedies. (ECF 17 No. 12 at 1.) Plaintiff alleges that he is afraid of further retaliation. (Id.) Plaintiff alleges that he 18 has been retaliated against in the past for using the 602 grievance process. (Id. at 1-2.) Plaintiff 19 alleges that in the past, he lost privileges in retaliation for using the 602 grievance process. (Id.) 20 Plaintiff alleges that he did not include copies of his previous 602s because the correctional 21 officers go over everything that plaintiff puts in the envelope. (Id.) Plaintiff alleges that he is 22 worried to write his response to the December 19, 2024 order because of what might happen. 23 (Id.) Plaintiff states that he is referencing grievance nos. 463221 and 531308. (Id.) Plaintiff 24 states that if the Court will not allow this action to move forward, plaintiff will pay the $350 filing 25 fee. (Id.) 26 This Court finds that plaintiff’s claims of past retaliation for filing 602 grievances 27 undermines plaintiff’s claim that he does not have the mental capacity to deal with the 602 appeal 28 process. Turning to plaintiff’s fear of retaliation were he to file an administrative grievance, “a 1 prisoner is excused from the exhaustion requirement in circumstances where administrative 2 remedies are effectively unavailable, including circumstances in which a prisoner has reason to 3 fear retaliation for reporting an incident.” Rodriguez v. Cty. of Los Angeles,

, 792 4 (9th Cir. 2018) (citing McBride v. Lopez,

(9th Cir. 2015)). “In order for a fear 5 of retaliation to excuse the PLRA’s exhaustion requirement, the prisoner must show that (1) ‘he 6 actually believed prison officials would retaliate against him if he filed a grievance’; and (2) ‘a 7 reasonable prisoner of ordinary firmness would have believed that the prison official’s action 8 communicated a threat not to use the prison’s grievance procedure and that the threatened 9 retaliation was of sufficient severity to deter a reasonable prisoner from filing a grievance.’”

10 (quoting McBride,

). 11 Assuming that plaintiff demonstrated that he actually believes prison officials will 12 retaliate against him if he files a grievance, this Court finds that plaintiff fails to demonstrate that 13 his fear of retaliation is objectively reasonable. While plaintiff alleges that he lost privileges for 14 filing a grievance, plaintiff does not allege when this occurred or describe any of the 15 circumstances surrounding the alleged retaliation. While plaintiff identifies two grievances by 16 number for which he was allegedly retaliated against for filing, plaintiff does not describe these 17 grievances, when they were filed, or the retaliation he allegedly suffered for filing these 18 grievances. Plaintiff’s conclusory assertions of retaliation are insufficient to demonstrate that 19 prison officials rendered administrative remedies unavailable to plaintiff. See Rodriguez, 891 20 F.3d at 794 (“If the appellees in this case had alleged only general and unsubstantiated fears about 21 possible retaliation, as appellants claim, we would hold that they had not exhausted their 22 administrative remedies.”). In making this finding, this Court observes that in the complaint, 23 plaintiff excused his failure to exhaust administrative remedies on the grounds that his claim was 24 time sensitive. (ECF No. 1 at 2.) Plaintiff did not claim that fear of retaliation prevented him 25 from exhausting administrative remedies. 26 For the reasons discussed above, this Court recommends that this action be dismissed 27 because plaintiff’s failure to exhaust administrative remedies is clear from the face of plaintiff’s 28 complaint. Plaintiff is informed that even were he to pay the filing fee, this action would still be 1 || dismissed based on his failure to exhaust administrative remedies. 2 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district 3 || judge to this action; and 4 IT IS HEREBY RECOMMENDED that this action be dismissed based on plaintiff's 5 || failure to exhaust administrative remedies. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, plaintiff may file written objections 9 || with the court and serve a copy on all parties. Such a document should be captioned 10 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 11 | failure to file objections within the specified time may waive the right to appeal the District 12 || Court’s order. Martinez v. YIst,

(th Cir. 1991). 13 14 Dated: January 22, 2025 7 2 Chan Spo 15 CHI SOO KIM 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 Hohm3467.dis/2 20 21 22 23 24 25 26 27 28