ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF UNDER FEDERAL RULE OF CIVIL PROCEDURE 59(e) AND MOTION FOR RECONSIDERATION UNDER RULE 60(b) [ECF No. 58]

LAWRENCE J. O'NEILL, District Judge.

On September 9, 2015, Plaintiff's civil rights action filed pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), was dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No. 55.)

I.

INTRODUCTION

Plaintiff argues, by way of notice of supplemental authority filed on September 18, 2015, after the Findings and Recommendation were filed and adopted in full, that he was unable to file his appeal at the appropriate level because he feared for his safety if he did so and was subject to "threats" of retaliation.

On September 24, 2015, Plaintiff also filed a motion under Federal Rule of Civil Procedure 56(e) to alter or amend the judgment. (ECF No. 58.) Defendant filed a response on October 2, 2015. (ECF No. 59.)

II.

LEGAL STANDARD

Federal Rule of Civil Procedure 59(e) provides that a motion to alter or amend a judgment must be filed no later than 28 days after entry of the judgment. Plaintiff's motion is timely under this Rule. Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief. Rule 60(b)(6) is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).

III.

DISCUSSION

In his present motion, Plaintiff contends the "record is clear" that he "was ambushed with retaliation by prison officials immediately upon filing the BP-8 attached to his objections, and at every moment thereafter, including further implied retaliation and threats of retaliation which made the filing of additional administrative remedies, specifically, a second BP-8 impossible." (ECF No. 58, Mot. at ¶ 4.) (emphasis in original). Plaintiff further contends that if this Court finds that Plaintiff failed to exhaustion the administrative remedies with respect to his retaliation claim, "the Court should make a finding as to whether or not that failure was justified based on the retaliation and threats of retaliation by prison officials which made filing a second and successive BP-8 unavailing." (Id. ¶ 5.)

In order to demonstrate that the failure to exhaust the administrative remedies may be excused based on threats by prison officials, plaintiff must show that:

McBride v. Lopez, 791 F.3d 1115, 1120 (9th Cir. 2015) (quoting Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008).

In the first amended complaint, Plaintiff alleged two separate claims, namely, an Eighth Amendment claim against officer Estrella for alleged sexual touching during a pat-down search, and a First Amendment retaliation against Lieutenant Miller, Associate Warden Bell, and Warden Rios who were alleged to have retaliated against Plaintiff for filing a grievance against officer Estrella. (ECF No. 16, Order at pp. 2-3.) The Eighth Amendment claim against officer Estrella was dismissed, and the action was permitted to proceed only on the claim for retaliation under the First Amendment. (Id. at 6.)

As stated in the Findings and Recommendation, at the time Plaintiff filed the instant action, he had utilized the BOP's administrative remedy program only once.1 (ECF No. 51, Findings and Recommendation (F&R) at 5.) The only record of Plaintiff filing an administrative remedy at any level prior to initiating the instant action was a Central Office appeal, on form BP-11, in which Plaintiff alleged "inappropriate contact by staff." The appeal was designated 636907-A1. (Id.) There is no record in SENTRY of any BP-9 or BP-10, on this or any other issue, filed by Plaintiff at any time prior to submission of this BP-11. (Id.)

Plaintiff's BP-11 was received on April 5, 2011, and rejected on April 27, 2011, with rejection codes WRL and INS. (F&R at 5.) The WRL and INS codes denote that Plaintiff was informed that he filed his appeal at the wrong level, and that he must first file a BP-9 at the United States Penitentiary prior to filing an appeal. (Id. at 6; see also 28 C.F.R. § 542.15(2) (providing that inmates cannot appeal issues not raised in lower level filings.) Plaintiff did not file a BP-9 as instructed. (Id.)

Plaintiff has not demonstrated that any alleged threats by prison officials actually deterred him from filing an inmate grievance. Although Plaintiff does not provide specifics details of the alleged threats, such factual circumstances can be found in the first amended complaint in this action. In his first amended complaint, Plaintiff contends that on November 5, 2010, he filed an informal complaint to his counselor relating to the sexual assault claim not present in this action. (ECF No. 14, First Amd. Compl. ¶ 29.) After submitting an informal complaint, Lieutenant Miller threatened Plaintiff to drop the complaint and not file further grievances or he would be buried in the security housing unit indefinitely. (Id. ¶ 32.) Plaintiff declined to obey Defendant Miller's request and was placed in the security housing unit for filing the informal complaint against officer Estrella. (Id. ¶ 33.) Several days later, Plaintiff was threatened by an unidentified officer who denied Plaintiff's release from the security housing unit and threatened Plaintiff to withdraw the grievance or he would remain the segregation for a long period of time. (Id. ¶¶ 34-36.) Defendants Rios and Bell also told Plaintiff that they could do nothing about his placement in the security housing unit unless he dropped the complaint against their fellow officer. (Id. ¶¶ 38-41.) Plaintiff remained in the security housing unit for a month and a half relating to the complaints against officer Estrella. (Id. ¶ 42.)

First, there is not a sufficient basis to find that Plaintiff was actually deterred by prison officials' alleged threats. Plaintiff claims he was threatened with placement and/or retention in the security housing unit, yet he failed to drop the prior grievance despite such threat. Second, the alleged threats were in relation to a complaint filed against an unrelated officer on an unrelated claim of sexual assault (not present in this action). Third, Plaintiff contends he was retained in the security housing unit for one and a half months from November 5, 2010. Yet, Plaintiff did not submit the grievance relating to his claim of retaliation until April 5, 2011-well after his release from the security housing unit and there is no basis to find that Plaintiff was actually deterred by the alleged threats. Based on these circumstances, Plaintiff has failed to meet his burden of demonstrating that the exhaustion of the administrative remedies should be excused, and the evidence demonstrates only that he unilaterally attempted to by-step the proper procedure in submitting a grievance and failed to follow the administrative procedure to re-submit the grievance at the proper level of review.

IV.

ORDER

Based on the foregoing, Plaintiff's motion for reconsideration and/or to alter the judgment is DENIED.

IT IS SO ORDERED.