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Anderson v. Cox

United States District Court, D. Nevada

August 17, 2017

JOSEPH M. ANDERSON, Plaintiff,
v.
JAMES “GREG” COX, Defendant.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Robert C. Jones, Senior United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.

         Before the court is Defendants' Motion for Summary Judgment. (ECF No. 27, exhibits at ECF Nos. 27-1 to 27-18.) Plaintiff filed a response. (ECF No. 33; exhibits at ECF Nos. 34-1 to 33-10, erratum at ECF No. 37[1]; authenticating declaration at ECF No. 35). Defendants filed a reply. (ECF No. 39, exhibits at ECF Nos. 39-1, 39-2.) The court granted Plaintiff leave to conduct certain discovery and afforded the parties a chance to supplement their briefing. (Minutes at ECF No. 46.) Plaintiff filed objections to the court's rulings, which were overruled. (ECF Nos. 47, 48, 59.) The parties filed their supplemental briefing. (Pl.'s Suppl. at ECF No. 51; Defs.' Suppl. at ECF No. 55, exhibits at ECF Nos. 55-1, 55-2.) The undersigned recently issued an order denying Plaintiff's request under Federal Rule of Civil Procedure 56(d) to delay consideration of the dispositive motion so that he could conduct discovery. The undersigned has also issued a report and recommendation that Plaintiff's motion for leave to amend to add new claims against new defendants be denied.

         After a thorough review, the court recommends that Defendants' motion be granted, except as to the retaliation claim against Defendant Parks.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Pl.'s Am. Compl., ECF No. 7.) The events giving rise to this action took place while Plaintiff was housed at Lovelock Correctional Center (LCC). (Id.) Defendants are Jonathan Ball, Quentin Byrne, Tara Carpenter, James “Greg” Cox, Ray East, Sheryl Foster, Kara Krause-LeGrand[2], Robert LeGrand, E.K. McDaniel, Valaree Olivas, Jethro Parks, and James Stogner. (Screening Order, ECF No. 8.)

         Plaintiff filed his original Complaint, which the court screened and allowed some claims to proceed, and granted Plaintiff leave to amend with respect to others. (ECF Nos. 5, 6.) He subsequently filed his Amended Complaint (ECF No. 7.) The court screened the Amended Complaint and allowed the following claims to proceed: (1) claims under the First Amendment Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a), in Count I against Cox, McDaniel, Foster, Stogner, Krause-LeGrand, Olivas, East and Ball, based on allegations that: (a) Cox, McDaniel, Foster, Stogner and Krause-LeGrand changed Administrative Regulation (AR) 810 to deny Wiccans (Plaintiff's faith) access to incense, herbs and teas while other faiths have the ability to purchase these items, (b) Olivas interfered with the religious grounds by destroying the sacred ritual area where Wiccans and other pagans practice their faith, and (c) East and Ball deprived him of his religious property; (2) a First Amendment retaliation claim in Count I against Parks based on the allegation that Parks subjected Plaintiff to oppressive cell searches because of his religion, and the searches were intended to chill his right to practice his religion without advancing any legitimate correctional goal; (3) an Equal Protection Clause claim in Count II against Cox, McDaniel, Foster, Krause-LeGrand, Stogner and LeGrand, based on allegations that they excluded Wiccans from access to the previously permitted religious materials while allowing mainstream religious faith groups access to those items; and (4) conspiracy claims under 42 U.S.C. § 1985(3) against Cox, McDaniel, Foster, LeGrand, Carpenter, Byrne, and Olivas, based on allegations that they fostered a policy of harassing cell searches directed at Wiccans and impeded Plaintiff's efforts to seek changes to the alleged discriminatory policy. (ECF No. 8.)

         Defendants have filed a motion for summary judgment arguing: (1) Plaintiff failed to properly exhaust his administrative remedies regarding his First Amendment Free Exercise Clause and RLUIPA claims against Cox, McDaniel, Foster, Stogner, and Krause-LeGrand; (2) Plaintiff failed to properly exhaust his administrative remedies regarding his Free Exercise Clause and RLUIPA claims against Olivas; (3) Plaintiff failed to exhaust his administrative remedies with respect to his Equal Protection Clause claim against Cox, McDaniel, Foster, Krause-LeGrand, Stogner and LeGrand; (4) Plaintiff failed to exhaust his administrative remedies as to the conspiracy claims against Cox, McDaniel, Foster, LeGrand, Carpenter, Byrne, and Olivas; (5) the First Amendment Free Exercise Clause and RLUIPA claims against East and Ball are barred by the statute of limitations; and (6) Parks did not retaliate against Plaintiff. (ECF No. 27.)

         II. LEGAL STANDARD

         "The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). In considering a motion for summary judgment, all reasonable inferences are drawn in favor of the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). "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). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See Anderson, 477 U.S. at 250.

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1)(A), (B).

         If a party relies on an affidavit or declaration to support or oppose a motion, it "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4).

         In evaluating whether or not summary judgment is appropriate, three steps are necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine dispute as to a material fact; and (3) considering the evidence in light of the appropriate standard of proof. See Anderson, 477 U.S. at 248-250. As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment; factual disputes which are irrelevant or unnecessary will not be considered. Id. at 248.

         In deciding a motion for summary judgment, the court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, 'it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.'...In such a case, the moving party has the initial burden of establishing the absence of a genuine [dispute] of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp. v. Cartrett, 477 U.S. 317, 323-25 (1986).

         If the moving party satisfies its initial burden, the burden shifts to the opposing party to establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a genuine dispute of material fact, the opposing party need not establish a genuine dispute of material 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., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotation marks and citation omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Id. Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324.

[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order.

Fed. R. Civ. P. 56(e).

         At summary judgment, the court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine dispute of material fact for trial. See Anderson, 477 U.S. at 249. While the evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in its favor, " if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50 (citations omitted).

         III. DISCUSSION

         A. Exhaustion

         1. Exhaustion Standard

         The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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). An inmate must exhaust his administrative remedies irrespective of the forms of relief sought and offered through administrative avenues. Booth v. Churner, 532 U.S. 731, 741 (2001).

         The failure to exhaust administrative remedies is "'an affirmative defense the defendant must plead and prove.'" Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (quoting Jones v. Bock, 549 U.S. 199, 204, 216 (2007)), cert. denied, 135 S.Ct. 403 (Oct. 20, 2014). Unless the failure to exhaust is clear from the face of the complaint, the defense must be raised in a motion for summary judgment. See id. (overruling in part Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) which stated that failure to exhaust should be raised in an "unenumerated Rule 12(b) motion").

         As such: "If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts [in a preliminary proceeding]." Id., 1168, 1170-71 (citations omitted). "Exhaustion should be decided, if feasible, before reaching the merits of a prisoner's claim. If discovery is appropriate, the district court may in its discretion limit discovery to evidence concerning exhaustion, leaving until later-if it becomes necessary-discovery related to the merits of the suit." Id. at 1170 (citing Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)). If there are disputed factual questions, they "should be decided at the very beginning of the litigation." Id. at 1171.

         Once a defendant shows that the plaintiff did not exhaust available administrative remedies, the burden shifts to the plaintiff "to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir. 1996)); Draper v. Rosario, 836 F.3d 1072, 1080 (9th Cir. 2016) (inmate plaintiff did not meet his burden when he failed to identify any actions prison staff took that impeded his ability to exhaust his administrative remedies, or otherwise explain why he failed to comply with the administrative remedies process). The ultimate burden of proof, however, remains with the defendant. Id.

         The Supreme Court has clarified that exhaustion cannot be satisfied by filing an untimely or otherwise procedurally infirm grievance, but rather, the PLRA requires “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). “Proper exhaustion” refers to “using all steps the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Id. (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original). Thus, “[s]ection 1997e(a) requires an inmate not only to pursue every available step of the prison grievance process but also to adhere to the ‘critical procedural rules' of that process.” Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)). “[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). That being said, an inmate exhausts available administrative remedies “under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.” Reyes, 810 F.3d at 658.

         To reiterate, an inmate need only exhaust “available” administrative remedies. See Ross v. Blake, 136 S.Ct.1850, 1858 (2016). “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. at 1859 (quoting Booth, 532 U.S. at 738).

         If the court concludes that administrative remedies have not been properly exhausted, the unexhausted claim(s) should be dismissed without prejudice. Wyatt, 315 F.3d at 1120, overruled on other grounds by Albino, 747 F.3d 1162.

         "If the district judge holds that the prisoner has exhausted available administrative remedies, that administrative remedies are not available, or that a prisoner's failure to exhaust available remedies should be excused, the case may proceed to the merits." Albino, 747 F.3d at 1171.

         2. NDOC's Exhaustion Process

         Within NDOC, the exhaustion process is governed by Administrative Regulation (AR) 740. (ECF No. 27-17 (effective June 16, 2014), ECF No. 27-18 (effective February 12, 2010).) An inmate is supposed to attempt to resolve grievable issues through discussion with their caseworker, and then must complete three levels of grievance review-informal, first and second levels- in order to exhaust administrative remedies. (ECF No. 27-17 at 5-9, ECF No. 27-18 at 5-8.) When an inmate is dissatisfied with a response at any level, he may appeal to the next level, within the substantive and procedural requirements set forth in AR 740. (ECF No. 27-17 at 4, ECF No. 27-18 at 4.)

         3. Free Exercise and RLUIPA Claims against Cox, McDaniel, Foster, Stogner and Krause-LeGrand in Count I

         Plaintiff alleges that Cox, McDaniel, Foster, Stogner, and Krause changed AR 810 to deny Wiccans access to incense, herbs and teas used in Wiccan rituals while other faiths still have access to those items. (ECF No. 7 at 8.)

         Defendants argue that Plaintiff failed to fully and properly exhaust his administrative remedies prior to initiating his lawsuit. (ECF No. 27 at 12.) Defendants state that Plaintiff's grievance 20063012337 contained most of the allegations that survived screening, including that Defendants changed AR 810 to deny incense and other religious items to Wiccans. (ECF No. 27 at 13.) They contend that he filed this grievance on November 26, 2015, four days before he filed his original complaint in State court on November 30, 2015; therefore, he could not have fully exhausted his administrative remedies with respect to these claims prior to filing his complaint. (Id.)

         In response, Plaintiff argues: (1) he exhausted these issues in grievance 20062987519; (2) defendants failed to fully respond to grievance 20063012337; and (3) NDOC failed to respond to his requests to the Religious Review Team (RRT). (ECF No. 33 at 4-7.)

         a. Grievance 20063012337

         Plaintiff's informal level grievance for grievance 20063012337 is dated November 26, 2015. (ECF No. 27-4 at 2, 4-22.) In it, he complained he had not been provided responses to the Religious Review Team (RRT) forms submitted in November 2014, when he requested religious items for his Wicca religious practices. (Id.) He noted that the RRT form (DOC 3505) advised him to allow for 120 days for a response and answer. (ECF No. 27-4 at 4.) He claimed that AR 810 was not being followed. (Id.) He went on to state that he needed his incense, resins, herbs/plants, herbal teas and meditation for his Wiccan religious practices. (Id.) He indicated that incense, resins and herbal teas were previously available, but then were removed from AR 810. (Id.) He voiced his belief that the dilatory response to his RRT request was intentional, and was done to impair his ability to follow the “chain of command” at LCC, and hindered his right to address his grievances and exhaust administrative remedies. (ECF No. 27-4 at 4-5.) He went on to assert that LCC authorities were violating his right to exercise his religious beliefs by denying him the use of incense, herbs, herbal teas and resins necessary for his practices. (ECF No. 27-4 at 5.) He attached the kites he sent to LCC's Chaplain Carrasco, and other kites regarding on-going religious issues at LCC, to which he claimed he had received no response. (ECF No. 27-4 at 6, 9-21; ECF No. 27-4 at 9, 10, 11, 12, 13, 17, 18.)

         Plaintiff signed for the response to the informal level grievance on December 9, 2015. (ECF No. 27-4 at 2.)

         i. Did Plaintiff exhaust his administrative remedies with respect to the claims asserted in grievance 20063012337 prior to filing this action?

         Plaintiff asserts that he never received a response to the second level of this grievance, but Defendants do not argue that Plaintiff did not complete the grievance process for this grievance. Instead, they argue he did not do so prior to initiating this action.

         The PLRA requires the exhaustion of administrative remedies prior to the filing of an action under section 1983 or other federal law. 42 U.S.C. § 1997e(a); see also McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam) (exhaustion requirement does not permit prisoner to file complaint addressing non-exhausted claims even if he exhausts while the case is pending). Allowing a plaintiff to proceed with claims without having exhausted prior to filing his complaint would create an end-run around the PLRA, which provides that “[n]o action shall be brought with respect to prison conditions … until such administrative remedies as are available are exhausted.” 28 U.S.C. § 1997e; Vaden v. Summerhill, 449 F.3d 1047, 1050-51 (9th Cir. 2006). In Vaden, the Ninth Circuit held that a prisoner is required to exhaust administrative remedies before he tenders his complaint to the district court, and claims exhausted after the complaint has been tendered to the district court, but before the court grants permission to proceed in forma pauperis and the complaint is formally filed must also be dismissed pursuant to the PLRA. Vaden, 449 F.3d at 1050-51.

         This grievance contained allegations that Defendants changed AR 810 to deny incense and other religious items to Wiccans. He started this grievance process on November 26, 2015, four days before he filed his original Complaint in State court on November 30, 2015. (ECF No. 1-2.) Plaintiff did not get a response to the informal level grievance until December 9, 2015, so there is no way he could have completed exhaustion as to this grievance before he filed his Complaint.

         The court will now address whether this outcome changes when it considers that Plaintiff filed an Amended Complaint.

         In Rhodes v. Robinson, the prisoner “asserted properly exhausted claims in his original complaint and later raised new, properly exhausted, claims in his [Second Amended Complaint].” Rhodes v. Robinson, 621 F.3d 1002, 1006 (9th Cir. 2010). There, both of the complaints were brought under section 1983 against the same defendants. Id. The Ninth Circuit agreed that filing the amended complaint was the “functional equivalent of filing a new complaint … and it was only at that time that it became necessary to have exhausted all of the administrative remedies' prerequisite to bringing the new claims in the amended complaint.” Id. In addition, the court found that the amended complaint was a supplemental complaint under Rule 15(d) because the claims arose after the filing of the original complaint. Id. (citations omitted).

         “‘[A] prisoner does not comply with [the exhaustion] requirement by exhausting available remedies during the course of the litigation.' If, however, a plaintiff files an amended complaint adding new claims based on conduct that occurred after the filing of the initial complaint, the plaintiff need only show that the new claims were exhausted before tendering the amended complaint to the clerk for filing.” Akhtar v. J. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012) (emphasis added) (quoting McKinney, 311 F.3d at 1199 and Rhodes, 621 F.3d at 1007).

         In addition, “claims that arose as a cause of action prior to the filing of the initial complaint may be added to a complaint via an amendment, as long as they are administratively exhausted prior to the amendment.” Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014) (emphasis added).

         Here, Plaintiff filed his original complaint in State court on November 30, 2015. (ECF No. 1-2.) It was removed by Defendants to federal court on February 4, 2016. (ECF No. 1.) The Complaint named, among others, Cox, McDaniel, Foster, Stogner and Krause-LeGrand.[3] (ECF No. 6 at 1-4.) The first count of the original complaint alleged, like count I of the Amended Complaint, that Defendants removed from AR 810 previously approved religious items including incense, teas and herbs. (ECF No. 1-2 at 8, ECF No. 6 at 8.)

         The original Complaint was screened by the court on July 19, 2016. (ECF No. 5.) The court allowed the claims in Count I, which are substantially the same as those asserted in the Amended Complaint, to proceed against Olivas, East and Ball, but dismissed as to the other defendants because Plaintiff did not connect the allegations with the remaining defendants. (ECF No. 5 at 5-6.)

         Plaintiff filed his Amended Complaint nearly a month later, on August 16, 2016. (ECF No. 7.) He essentially inserted the names of Cox, McDaniel, Foster, Stogner and Krause-LeGrand before the allegations that he had included in paragraphs 6, 8, 9, 14, and 15 of Count I of the original Complaint. (Compare ECF No. 6 at 8-10 with ECF No. 7 at 8-10.)

         Unlike Cano, it cannot be said that he added new claims or parties to the Amended Complaint that occurred prior to the filing of the original Complaint. Cano involved a plaintiff who had filed suit alleging an Eighth Amendment violation arising out of deficient mental health care. Cano, 739 F.3d at 1215-16. He later amended to add First and Fourteenth Amendment claims concerning his right to exercise his religion and his access to the courts. Id. at 1216. The First and Fourteenth Amendment claims arose prior to the filing of the suit, but the plaintiff did not include them in the original complaint, and did not include them until they were exhausted, at which time he filed an amended complaint. Id. at 1220. The Ninth Circuit reasoned that dismissing those claims would not serve the purpose of the PLRA which “is to discourage frivolous prisoner lawsuits and reduce resulting costs on society by decreasing the burden on the courts.” Id. (citation omitted). This is because dismissing the claims would force the plaintiff to file a separate lawsuit regarding those claims, since they had been dismissed without prejudice. Id. at 1220-21.

         Here, Plaintiff filed his amended complaint, but he did not assert new claims. He simply asserted the same claims that had been stated in the original complaint against the same defendants named in the original complaint, but was merely more particular about which defendants were implicated with respect to each claim. Therefore, this case is distinguishable from Cano. See Giles v. Felker, No. 2:11-cv-1825-WBS-EFB P, 2016 WL 758729 at n. 1 (E.D. Cal. Feb. 26, 2016) (“Cano did not overrule Vaden or McKinney and, accordingly, district courts have interpreted these cases together to mean that only new claims may be exhausted after suit and then be added to an amended complaint, but that the plaintiff may not exhaust claims raised in the original complaint after filing and then seek to cure the failure to exhaust by filing an amended complaint.”), affirmed in unpublished decision, 2017 WL 1420382 (9th Cir. Apr. 21, 2017) (“exhaustion of administrative remedies before filing an amended complaint alleging the same claims does not constitute proper exhaustion”); see also Gomez v. Borges, Case No. 1:15-cv-00726-LJO-SAB (PC), 2017 WL 1355832, at *3 (E.D. Cal. Mar. 10, 2017) (plaintiff did not bring new claims within the meaning of Rhodes or Cano); Gibbs v. Sanchez, No. CV 15-4954-RGK (PLA), 2016 WL 6127649 (C.D. Cal. Aug. 25, 2016) (plaintiff did not raise any new claims in the amended complaint, but each defendant and all three claims stated in the amended complaint were raised in the original complaint); Vanvalkenburg v. Or. Dep't of Corr., 3:14-cv-00916-BR, 2016 WL 2337892, at * 12 (D. Or. May 2, 2016) (Cano and Rhodes do not apply when a plaintiff does not bring any new claims in an amended complaint, and an action is brought when the plaintiff filed the complaint that first raised the claim); O'Neal v. Peterson, No. 2:13-cv-1054 KJN P, 2015 WL 1183593, at n. 2 (E.D. Cal. Mar. 13, 2015) (finding Cano inapplicable because the plaintiff raised his claims against the defendants in the original complaint, stating “these are not ‘new' claims.”); Ricks v. Doe, No. 1:10-cv-02256-LJO-SKO (PC), 2015 WL 673035 at *5 (E. D. Cal. Feb. 17, 2015) (Eighth Amendment claim was alleged in original complaint).

         In sum, the court finds that Plaintiff failed to exhaust his administrative remedies with respect to the claims asserted in grievance ...


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