ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Martinez's motion for summary judgment. (ECF No. 80.) Defendant argues that plaintiff failed to exhaust administrative remedies and that she is entitled to summary judgment as to the merits of plaintiff's claims.

For the reasons stated herein, the undersigned recommends that defendant's summary judgment motion be granted as to the merits of plaintiff's claims.

On July 26, 2016, plaintiff filed a motion for an extension of time to file his opposition to defendants' summary judgment motion. (ECF No. 89). On August 1, 2016, plaintiff filed his opposition. (ECF No. 90.) Good cause appearing, plaintiff's motion for an extension of time is granted, and plaintiff's opposition is deemed timely filed.

II. Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c)).

"Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987), overruled in part on other grounds, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1575 (9th Cir. 1990).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).

By contemporaneous notice provided on May 22, 2015 (ECF No. 36), plaintiff was advised of the requirements for opposing a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

III. Plaintiff's Claims

This action is proceeding on the third amended complaint as to defendant Martinez.1 (ECF No. 29.) All relevant events occurred at the California Health Care Facility ("CHCF"). Plaintiff alleges that on May 7, 2014, defendant Martinez, who worked in the mailroom, opened an envelope addressed to plaintiff from his brother. (Id. at 11.) Defendant Martinez discovered a small, plastic baggie containing a white powdery substance. (Id.) Defendant Martinez contacted former defendant Heilbrun. (Id.)

On May 13, 2014, the California Department of Justice mailed a report to former defendant Heilbrun identifying the white powdery substance as methamphetamine. (Id.) On June 30, 2014, plaintiff was charged with a prison disciplinary for introduction of a controlled substance into a prison. (Id.) In August or September 2014, the prison disciplinary charges were dismissed. (Id. at 13.)

In July 2014, the charges were referred to the San Joaquin County District Attorney's Office for prosecution. (Id. at 29.) In August 2014, the San Joaquin County District Attorney's Office declined to prosecute plaintiff. (Id. at 13.)

Plaintiff alleges that defendant Martinez planted the methamphetamine in retaliation for his legal activities. (Id. at 15.) Plaintiff alleges that while housed at CHCF, he has had approximately 100 or more outgoing and incoming pieces of legal mail. (Id. at 16.) In addition, plaintiff has filed numerous administrative grievances. (Id. at 17.)

IV. Failure to Exhaust Administrative Remedies

A. Legal Standard

The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 . . ., or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731, 741 (2001), and "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules[.]" Woodford v. Ngo 548 U.S. 81, 90 (2006). The Supreme Court has also cautioned against reading futility or other exceptions into the statutory exhaustion requirement. See Booth, 532 U.S. at 741 n.6. Moreover, because proper exhaustion is necessary, a prisoner cannot satisfy the PLRA exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal. See Woodford, 548 U.S. at 90-93. "[T]o properly exhaust administrative remedies prisoners `must complete the administrative review process in accordance with the applicable procedural rules,' [] — rules that are defined not by the PLRA, but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) ("The California prison system's requirements `define the boundaries of proper exhaustion.'") (quoting Jones, 549 U.S. at 218).

In California, prisoners may appeal "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a). On January 28, 2011, California prison regulations governing inmate grievances were revised. Cal. Code Regs. tit. 15, § 3084.7. Now inmates in California proceed through three levels of appeal to exhaust the appeal process: (1) formal written appeal on a CDC 602 inmate appeal form, (2) second level appeal to the institution head or designee, and (3) third level appeal to the Director of the California Department of Corrections and Rehabilitation ("CDCR"). Cal. Code Regs. tit. 15, § 3084.7. Under specific circumstances, the first level review may be bypassed. Id. The third level of review constitutes the decision of the Secretary of the CDCR and exhausts a prisoner's administrative remedies. See id. § 3084.7(d)(3). Since 2008, medical appeals have been processed at the third level by the Office of Third Level Appeals for the California Correctional Health Care Services. A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). Moreover, since the 2011 revision, in submitting a grievance, an inmate is required to "list all staff members involved and shall describe their involvement in the issue." Cal. Code Regs. tit. 15, § 3084.2(3). Further, the inmate must "state all facts known and available to him/her regarding the issue being appealed at the time," and he or she must "describe the specific issue under appeal and the relief requested." Cal. Code Regs. tit. 15, §§ 3084.2(a)(4). An inmate now has thirty calendar days to submit his or her appeal from the occurrence of the event or decision being appealed, or "upon first having knowledge of the action or decision being appealed." Cal. Code Regs. tit. 15, § 3084.8(b).

Failure to exhaust is "an affirmative defense the defendant must plead and prove." Bock, 549 U.S. at 204, 216. In Albino, the Ninth Circuit agreed with the underlying panel's decision2 "that the burdens outlined in Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996), should provide the template for the burdens here." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). A defendant need only show "that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Albino, 747 F.3d at 1172. Once the defense meets its burden, the burden shifts to the plaintiff to show that the administrative remedies were unavailable. See Albino, 697 F.3d at 1030-31.

A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively unavailable to him. See Albino, 747 F.3d at 1172-73. When an inmate's administrative grievance is improperly rejected on procedural grounds, exhaustion may be excused as effectively unavailable. Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224-26 (9th Cir. 2010) (warden's mistake rendered prisoner's administrative remedies "effectively unavailable"); Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third level where appeal granted at second level and no further relief was available).

Where a prison system's grievance procedures do not specify the requisite level of detail for inmate appeals, Sapp, 623 F.3d at 824, a grievance satisfies the administrative exhaustion requirement if it "alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). "A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation." Griffin, 557 F.3d at 1120.

B. Analysis

Defendants previously filed a motion to dismiss, pursuant to Federal Rule of Civil

Procedure 12(b)(6), arguing that plaintiff's failure to exhaust administrative remedies was plain from the face of his third amended complaint. (ECF No. 41.) The court granted the motion to dismiss as to defendants Barroga and Heilbrun, but denied the motion to dismiss as to defendant Martinez. (ECF No. 60.) The court's analysis of the motion to dismiss is relevant to the pending motion for summary judgment. Accordingly, the undersigned herein sets forth the background to the court's analysis of the motion to dismiss.

In the third amended complaint, plaintiff alleged that on July 4, 2014, he filed an administrative grievance, i.e., 602, regarding the alleged retaliation. (ECF No. 29 at 8.) Plaintiff alleged that he received no response to this grievance. (Id. at 28-29.) Therefore, plaintiff argued that the failure of prison officials to respond to his grievance excused administrative exhaustion.

The undersigned recommended that the motion to dismiss as to defendants Barroga and Heilbrun be granted because, assuming prison officials failed to process plaintiff's July 4, 2014 grievance, this grievance did not contain information from which prison officials could have reasonably inferred that these defendants were involved in the alleged retaliation. (ECF No. 46 at 9.) The undersigned recommended that the motion to dismiss as to defendant Martinez be denied on grounds that: 1) the failure of prison officials to process the July 4, 2014 grievance may excuse exhaustion; and 2) the July 4, 2014 grievance put prison officials on notice that plaintiff was complaining about defendant Martinez. (Id.) The Honorable John A. Mendez adopted these findings and recommendations. (ECF No. 60.)

In the pending motion for summary judgment, defendant Martinez argues that plaintiff has no evidence that prison officials interfered with his July 4, 2014 grievance. Defendant cites the declaration of the CHCF Appeals Coordinator who states that CHCF has no record of an administrative appeal submitted by plaintiff for processing between June 30, 2014, and March 1, 2016, related to his claim that mailroom staff improperly placed contraband into his incoming mail on May 7, 2014. (ECF No. 80-6 at 3.) Defendant argues that even if plaintiff actually mailed his appeal on July 4, 2014, he has nothing other than bare conclusory allegations that CHCF officials refused to respond to this appeal, or that they received it in the first place. Defendant argues that without some sort of evidence that prison officials actually interfered with his ability to file an appeal, plaintiff cannot show that administrative remedies were unavailable to him.

At his deposition, plaintiff testified regarding his alleged attempts to exhaust administrative remedies.3 Plaintiff testified that he submitted a Form 22, i.e., Request for Interview Form, regarding the alleged retaliation, with his 602 grievance on July 4, 2014. (Plaintiff's Deposition at 27.) He received no response to the Form 22 or the 602 grievance submitted on July 4, 2014. (Id. at 22, 27.) Plaintiff submitted a second Form 22 on September 1, 2014, regarding the alleged retaliation. (Id. at 27.) Plaintiff received no response to his second Form 22. (Id.) Plaintiff then submitted a grievance to the third level of review in November 2014 asking officials at the Director's Level of Review to intervene and direct the CHCF appeals coordinator to respond to his grievance. (Id.)

At his deposition, plaintiff testified regarding the CHCF appeals office:

(Id. at 29.)

The undersigned observes that in his declaration submitted in support of defendant's summary judgment motion, CHCF Appeals Coordinator Infante does not state how long he has held that position. (ECF No. 80-6.) In his opposition, plaintiff alleges that CHCF Appeals Coordinator Infante was not the Appeals Coordinator "during the time in question." (ECF No. 90 at 7.)

Attached as an exhibit to plaintiff's opposition is a copy of the 602 plaintiff alleges he submitted on July 4, 2014. (ECF No. 93 at 70-71.) Also attached are the Form 22s plaintiff claims he submitted on July 4, 2014, and September 1, 2014. (Id. at 68, 69.) Additionally, attached is the letter plaintiff wrote to the Director's Level of Review on November 9, 2014, stating that he filed a grievance in July 2014 that had not been responded to. (Id. at 67.) In this letter, plaintiff requested that the Director's Level Office direct the CHCF Administration to adjudicate his grievance. (Id.)

As observed by defendant, plaintiff's 602 and Form 22s are not date stamped and they do not contain any other indication that they were viewed by the CHCF Appeals Office.

Plaintiff also provided the November 25, 2014 response by the Office of Appeals to his November 9, 2014 letter. (Id. at 66.) The response states,

(Id.)

The undersigned agrees with defendant that conclusory allegations regarding prison officials' failure to process administrative remedies are not sufficient to defeat a summary judgment motion. See, e.g., Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (conclusory allegations, unsupported by evidence are insufficient to defeat a motion for summary judgment); see also Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (no "genuine issue" of fact if only evidence presented is the "uncorroborated and self-serving" testimony of the opposing party).

However, in the instant case, plaintiff's allegations regarding his attempts to exhaust administrative remedies are not conclusory. Plaintiff has provided evidence and testimony regarding his attempts to exhaust administrative remedies. The undersigned has considered the lack of notation on plaintiff's 602 and Form 22s indicating that they were received and/or reviewed by prison officials. However, plaintiff's November 2014 letter to the Appeals Office was clearly sent and received. Plaintiff's testimony regarding ongoing problems with the CHCF Appeals Office, and turnover by CHCF Appeals' Coordinators, lends some credence to his claims, assuming that testimony can be substantiated. Accordingly, the undersigned finds that plaintiff's evidence and testimony are sufficient to create a disputed fact regarding whether prison officials failed to process his grievance and Form 22s.

If plaintiff could demonstrate that prison officials failed to process his grievances, the undersigned would find that plaintiff's administrative exhaustion is excused. An evidentiary hearing possibly would be required to explore this issue further. See Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (court shall hold evidentiary hearing to decide disputed factual questions relevant to administrative exhaustion). However, because the undersigned herein finds that defendant Martinez should be granted summary judgment as to the merits of plaintiff's claims, no evidentiary hearing is required. Accordingly, the issue of administrative exhaustion may remain unresolved.

IV. Merits

A. Legal Standard for Retaliation

Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (prisoner suing prison officials under Section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action did not advance legitimate penological goals, such as preserving institutional order and discipline).

B. Analysis

Defendant does not dispute that methamphetamine was found in an envelope addressed to plaintiff. Defendant also does not appear to dispute that the related disciplinary charges against plaintiff were dismissed and that criminal charges were not pursued. Defendant moves for summary judgment on the grounds that there is no evidence that she planted the drugs in plaintiff's mail. Defendant also argues that there is no evidence that she acted with a retaliatory motive. Defendant also argues that her reporting the discovery of possible contraband promoted the legitimate correctional goal of preventing the introduction of contraband into prisons.

In her declaration submitted in support of the summary judgment motion, defendant Martinez states, in relevant part,

(ECF No. 80-5 at 1-2.)

Defendant also argues that at his deposition, plaintiff admitted that he had no evidence that the drugs were planted in his mail to retaliate against him. Defendant states that plaintiff testified that he did not know if defendant Martinez was the person who put the contraband in the envelope.

The undersigned herein summarizes plaintiff's relevant deposition testimony. At his deposition, plaintiff testified that he did not know if defendant Martinez was the person who put the baggy containing the methamphetamine into the envelope, but that she was named as a defendant because she was the person who discovered it. (Plaintiff's deposition at 48.) As observed by defendant, plaintiff testified that he had never met defendant Martinez. (Id.) Plaintiff testified that he had never filed a grievance against defendant Martinez prior to May 7, 2014, the date the methamphetamine was discovered. (Id.at 49.) Plaintiff also testified that he had never filed a lawsuit against defendant Martinez prior to May 7, 2014. (Id.)

At his deposition, plaintiff was asked why he thought the baggie containing methamphetamine was placed in his mail as a result of retaliation for his legal activities. (Id. at 54-55.) In response, plaintiff testified, "No, it's my belief. It may be other reasons. Only that person can answer that . . . It's just my belief that because of my vexatious and litigious conduct that I was targeted." (Id. at 55.)

The undersigned has reviewed the four, separately filed exhibit appendixes filed by plaintiff in support of his opposition. (ECF Nos. 91-94.) None of plaintiff's exhibits filed in support of the opposition contain any evidence that defendant Martinez planted the methamphetamine in plaintiff's mail.

Plaintiff has presented no evidence that defendant Martinez planted the methamphetamine that was found in the envelope sent to him by his brother. Plaintiff's speculation that defendant Martinez must have planted the methamphetamine, as she was the person who first reported it, is insufficient to create a disputed issue of material fact.

Accordingly, based on the undisputed statements in defendant Martinez's declaration, the undersigned finds that there is no evidence that defendant Martinez planted the methamphetamine found in the envelope. Therefore, defendant Martinez should be granted summary judgment on grounds that she did not take the alleged adverse action against plaintiff.

Plaintiff does not argue that defendant's reporting of the methamphetamine, even if she did not plant it, constituted retaliation. However, in an abundance of caution, the undersigned finds that defendant's reporting of her discovery of the methamphetamine, even if she did not plant it, advanced the legitimate correctional goal of preventing the introduction of contraband into prisons. Therefore, defendant Martinez's reporting of the methamphetamine alone did not constitute retaliation.

Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for an extension of time to file his opposition (ECF No. 89) is granted; and

IT IS HEREBY RECOMMENDED that defendant's summary judgment motion (ECF No. 80) be granted as to the merits of plaintiff's retaliation claim.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).