United States District Court, D. Nevada
JOSEPH M. ANDERSON, Plaintiff,
JAMES “GREG” COX, Defendant.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
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.
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; 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.
thorough review, the court recommends that Defendants'
motion be granted, except as to the retaliation claim against
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, Robert LeGrand,
E.K. McDaniel, Valaree Olivas, Jethro Parks, and James
Stogner. (Screening Order, ECF No. 8.)
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.)
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.)
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).
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).
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.
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).
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
Fed. R. Civ. P. 56(e).
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).
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).
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)
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.
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.
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.
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).
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
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
NDOC's Exhaustion Process
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.)
Free Exercise and RLUIPA Claims against Cox, McDaniel,
Foster, Stogner and Krause-LeGrand in Count I
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.)
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.)
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
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.)
signed for the response to the informal level grievance on
December 9, 2015. (ECF No. 27-4 at 2.)
Did Plaintiff exhaust his administrative remedies with
respect to the claims asserted in grievance 20063012337
prior to filing this action?
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.
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
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.
court will now address whether this outcome changes when it
considers that Plaintiff filed an Amended Complaint.
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
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).
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).
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. (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.)
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.)
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.)
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.
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).
the court finds that Plaintiff failed to exhaust his
administrative remedies with respect to the claims asserted
in grievance ...