Joseph Patrick Roman Simon v. JAMES E. HENNING, Facility Chaplain, individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH PATRICK ROMAN SIMON,
Plaintiff-Appellant,
v.
JAMES E. HENNING, Facility Chaplain,
individual and official capacity; H.
GOMEZ, Facility Commander, individual
and official capacity,
Defendants-Appellees.
No. 15-56789
D.C. No. 5:13-cv-02281-RGK-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
California pretrial detainee Joseph Patrick Roman Simon appeals pro se
from the district court’s summary judgment for failure to exhaust administrative
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-56789
remedies in his § 1983 action relating to his alleged denial of kosher meals and
Passover observance. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). We vacate and
remand.
The district court dismissed Simon’s action for failure to exhaust, finding
that Simon failed to provide evidence that he was unaware of West Valley
Detention Center’s grievance procedures in 2012 and 2013. However, Simon
provided evidence that the resources available to him during this period failed to
explain that he was required to file a second appeal with the facility manager, and
that Simon was not otherwise made aware of a second level of appeal. This
evidence was sufficient to raise a genuine issue of material fact as to whether
administrative remedies were effectively unavailable to Simon. See Ross v. Blake,
136 S. Ct. 1850, 1859 (2016) (“[W]hen a remedy is . . . essentially ‘unknowable’ –
so that no ordinary prisoner can make sense of what it demands – then it is also
unavailable.”). Accordingly, we vacate and remand for further proceedings.
Simon’s motion informing the court of retaliatory conduct of jail officials,
filed on February 19, 2016, is denied.
VACATED and REMANDED.

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