Goodlow, Jr. v. Camacho

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN GOODLOW, Case No.: 3:18-cv-0709-CAB-MDD CDCR #AX-3970, 12 ORDER: (1) GRANTING Plaintiff, 13 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR 14 FAILURE TO EXHAUST

15 PURSUANT TO 42 U.S.C. § 1997e(a) vs. [ECF No. 69]; 16

17 (2) DENYING PLAINTIFF’S MOTION FOR SUMMARY 18 JUDGMENT AS MOOT [ECF No. CAMACHO, et al., 19 73]; AND Defendants. 20 (3) DISMISSING UNSERVED 21 DEFENDANTS PURSUANT TO FED. R. CIV. P. 4(m) 22 23 24 On April 9, 2018, Plaintiff Ivan Francis Goodlow, Jr. (“Plaintiff” or “Goodlow”), 25 currently incarcerated at Kern Valley State Prison and proceeding pro se, filed a civil 26 action pursuant to 42 U.S.C. § 1983. On October 10, 2018, the Court granted Plaintiff’s 27 application to proceed in forma pauperis, screened his Complaint pursuant to 28 U.S.C. 28 / / / 1 § (e)(2) and § 1915A, and directed U.S. Marshal service pursuant to 28 U.S.C. § 1915(d) 2 and Fed. R. Civ. P. 4(c)(3) as to the named defendants. See ECF No. 8.1 3 On May 4, 2020, Defendants Camacho, Marin, Salas and Sigala (“Defendants”)2 4 filed a Motion for Summary Judgment. (ECF No. 69). On May 6, 2020, the Court 5 notified Plaintiff of the requirements for opposing summary judgment pursuant to Rand 6 v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), and Albino v. Baca, 747 F.3d 1162 7 (9th Cir. 2014) (en banc). (ECF No. 71). On May 18, 2020, Goodlow filed an Opposition 8 to Defendants’ Motion (ECF No. 72) and a “Continuance of Opposition” on May 18, 9 2018. (ECF No. 77.) Defendants filed a Reply on June 22, 2020. (ECF No. 85.) 10 Meanwhile, on May 19, 2020, Goodlow filed his own Motion for Summary Judgment 11 (ECF No. 73) and Defendants filed an Opposition to Plaintiff’s Motion on June 11, 2020. 12 (ECF No. 82.) 13 I. PROCEDURAL BACKGROUND 14 On April 9, 2018, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983, 15 alleging eleven individuals,3 including correctional officers and other staff at R.J. 16 Donovan Correctional Facility (RJD), violated his civil rights by: (1) using excessive 17 force against him, in violation of his Eight Amendment rights, (2) retaliating against him, 18 19 20 1 Page numbers for all documents filed in the Court’s Case Management/Electronic Case 21 File (“CM/ECF”) will refer to the pagination generated by CM/ECF as indicated on the top right-hand corner of each chronologically-numbered docket entry. 22

23 2 In this Order, “Defendants” refers collectively to the four defendants who are the subjects of the instant Motion for Summary Judgment—Camacho, Salas, Sigala and 24 Marin—and not other unserved or previously dismissed defendants, unless otherwise 25 noted.

26 3 In his Complaint, Goodlow named the following eleven defendants: Camacho, Salas, 27 Sagalas, Gonzalez, Kelly, Marin, Keener, Goyal, Hernandez, Self, and Smith. (See Compl., ECF No. 1 at 2–4.) Ultimately, Plaintiff was only able to serve Camacho, Salas, 28 1 in violation of his First Amendment rights, (3) depriving him of a meal in violation his 2 Eighth Amendment rights and (4) filing a false disciplinary report, in violation of his 3 rights under the Eighth, Ninth and Fourteenth Amendment. (See Compl., ECF No. 1 at 5– 4 13.) 5 On February 14, 2019, Defendants Camacho, Keener, Marin, Salas, Self, Sigala4 6 and Smith (the seven defendants who had been served) filed a Motion to Dismiss the 7 Complaint. (See Defs.’ Mot. to Dismiss, ECF No. 37.) In the motion, those seven 8 defendants moved to dismiss (1) all claims against the seven served defendants in their 9 official capacity, (2) all claims against Defendant Keener, and (3) all claims against 10 Defendants Self and Smith. (See Defs.’ Mem. P. & A. in Supp. of Mot. to Dismiss, ECF 11 No. 37-1.) Goodlow filed an Opposition to the motion on March 11, 2019. (See Pla.’s 12 Opp’n, ECF No. 39.) On April 22, 2019, Magistrate Judge Dembin issued a Report and 13 Recommendation (R&R), recommending the Defendants’ Motion be granted in part and 14 denied in part. (R&R, ECF No. 40 at 14–15.) 15 On May 23, 2019, this Court adopted Magistrate Judge Dembin’s Report and 16 Recommendation. (Order, ECF No. 45.) The Court dismissed, without leave to amend: 17 (1) all Goodlow’s claims against defendants acting in their official capacity, (2) all claims 18 against Defendants Smith and Self, and (3) Goodlow’s Eighth Amendment claim as to 19 Keener. (Id. at 3.) Goodlow’s Fourteenth Amendment claim as to Defendant Keener was 20 dismissed without prejudice and with leave to amend the Complaint. (See id.) Further, the 21 Court notified Goodlow that in order to proceed as to the remaining unserved defendants, 22 he must serve them by June 28, 2019. (Id. at 4.) Finally, the Court informed Plaintiff that 23 24 25 26 4 The Court notes that in his original Complaint, Goodlow named “Sagalas.” In his 27 “Waiver of Service,” pursuant to Federal Rules of Civil Procedure 4(d), counsel for Defendants noted the correct spelling is “Sigala.” (See USM-285 Executions of Service, 28 1 if he failed to file an Amended Complaint by June 21, 2019, the case would proceed 2 without the unserved defendants. (Id.) 3 On June 21, 2019, Goodlow filed a Motion to Amend his Fourteenth Amendment 4 claim as to Keener. (See Pla.’s Mot. to Am., ECF No. 49.) On June 24, 2019, the Court 5 denied Plaintiff’s Motion and gave him a final opportunity to file a First Amended 6 Complaint that was complete in itself, no later than July 19, 2019. (Order, ECF No. 50 at 7 2.) Defendants were ordered to Answer the original complaint by August 2, 2019. (Id.) 8 On June 24, 2019, Goodlow filed another Motion to Amend his Fourteenth Amendment 9 claim against Keener and the Court denied the motion on July 26, 2019.5 The Court 10 further ordered the case to proceed with the “original complaint, as amended by the Order 11 Adopting R&R.” (Order, ECF No. 54 at 2.) In addition, the Court ordered Defendants 12 Camacho, Sigala, Salas and Marin to answer the complaint by August 9, 2019 and gave 13 Plaintiff until August 9, 2019 to serve the remaining (unserved) defendants. Finally, the 14 Court notified Goodlow that if he failed to do so, the unserved defendants would be 15 dismissed without prejudice.6 (Id.) 16 On July 30, 2019, the Defendants Camacho, Marin, Salas and Sigala filed an 17 Answer the Complaint. (Defs.’Answer, ECF No. 55.) Discovery proceeded and on May 18 4, 2020, Defendants filed the Motion for Summary Judgment (Defs.’ Summ. J. Mot., 19 ECF No. 69.) As discussed above, Goodlow filed an Opposition (Pla.’s Opp., ECF No. 20 72) and a Supplemental Opposition (Pla.’s Supp. Opp., ECF No. 77). Goodlow filed his 21 own Motion for Summary Judgment on May 19, 2019 (Pla.’s Summ. J. Mot., ECF No. 22 73) and Defendants filed an Opposition to Plaintiff’s Motion. (Defs.’ Opp., ECF No. 82.) 23

24 25 5 The motion was denied because Plaintiff had again failed to submit an Amended Complaint that was complete in itself. (See ECF No. 54 at 1–2.) 26

27 6 Goodlow ultimately failed to serve the remaining four defendants, Gonzalez, Goyal, Hernandez and Kelly. 28 1 II. FACTUAL BACKGROUND 2 On January 26, 2018, Goodlow was incarcerated at RJD. (See Compl. at 12; see 3 also Goodlow Dep., ECF No. 69-4 at 4:10–12.) Goodlow had arrived at RJD 4 approximately four months earlier, after being transferred there from another California 5 Department of Corrections and Rehabilitation (CDCR) facility in the fall of 2017. 6 (Goodlow Dep., ECF No. 69-4 at 4:14.) At the time of the January 26, 2018 incident, 7 Goodlow was assigned to RJD’s “Housing Unit 15,” on “Facility C,” which is designed 8 for inmates diagnosed with certain psychiatric illness(es) and disabilities and referred to 9 as the Enhanced Outpatient Program (EOP). (See id. at 4:25, 5:1–6.) 10 On January 26, 2018, Goodlow attended an EOP mental health group therapy 11 session. (Id. at 7:17-23.) Goodlow admits he was “having a bad day” because he was 12 “irritated” and “said a few cuss words” during group. (Id.) As a result, the group leader 13 asked Goodlow to leave the session. (Id.) Goodlow was then escorted from the mental 14 health building back to the door of Plaintiff’s housing unit. The escort left Goodlow at the 15 door to the housing unit while Goodlow waited for it to open. (Id. at 8:21–23.) Plaintiff 16 states he saw Camacho inside at the podium, talking with a female correctional officer. 17 (Id. at 9:1.) Goodlow states that after waiting for some time for one of the officers to 18 open the door, he had began kicking the door to get their attention. (Id. at 9:1–6.) 19 Shortly thereafter, Camacho heard Goodlow kicking the door. (See id.; Camacho 20 Decl., ECF No. 69-9 at ¶ 2.) Camacho states he asked Marin, the control booth operator, 21 to open the housing unit door and Camacho walked to the door to speak to Goodlow. (See 22 id.; see also Marin Decl., ECF No. 69-10 at ¶¶ 2–3.) When the door opened and Goodlow 23 entered the housing unit, Camacho asked Goodlow why he was kicking the door. 24 (Camacho Decl., ECF 69-9 at ¶ 3; see also Goodlow Dep., ECF No. 69-4 at 9:7–8, 25 10:13–15.) 26 27 28 7 1 At some point, the discussion got heated and Goodlow said he was “tired of you 2 racist COs.” (See Goodlow Dep., ECF No. 69-9 at 10:17–19; 11:1–2; see also Camacho 3 Decl., ECF No. 69-10 at ¶ 3.) Shortly thereafter, Camacho put Goodlow in handcuffs and 4 escorted him inside the housing unit.8 (Goodlow Dep., ECF No. 69-4 at 11:6–9; Camacho 5 Decl., ECF No. 69-9 at ¶ 4, Marin Decl., ECF No. 69-10 at ¶ 5.) Once inside the unit, 6 Camacho escorted Goodlow toward the shower area, which, according to Camacho, was 7 to allow Goodlow to “calm down.” (Camacho Decl., ECF No. 69-9 at ¶ 5.) At some 8 point, Goodlow again stated that he was “tired of you fucking racist COs.” (Goodlow 9 Dep., ECF No. 69-4 at 13:6–7; see also Camacho Decl., ECF No. 69-9 at ¶ 3.) 10 As to what happened next, the accounts of the parties diverge but it is not disputed 11 that a physical altercation erupted. According to Goodlow, as Camacho was attempting to 12 force him into the shower, Camacho “slammed m[e], bam, slammed me on my face.” 13 (Goodlow Dep., ECF No. 69-4 at 14:10–12.) Camacho states that Goodlow attempted to 14 pull away from him and tried to “head butt” a female correctional officer, Sergeant 15 Gonzalez, who had approached to try speak to Goodlow. (Camacho Decl., ECF No. 69-9 16 at ¶ 6.) Camacho asserts he then pulled Goodlow to the ground. (Id., see also Goodlow 17 Dep., ECF No. 69-4 at 13:14–15.) 18 Shortly thereafter, additional correctional officers, including Defendants Marin, 19 Sigala and Salas, arrived at the scene. (See Marin Decl., ECF No. 69-10 at ¶ 7; Salas 20 Decl., 69-11 at ¶ 2, Sigala Decl., ECF No. 69-12 at ¶ 2; see also Goodlow Dep., ECF No. 21 69-4 at 15:9–12.) The parties dispute the events that followed but according to Goodlow, 22 all four defendants physically slammed him to the ground, punched him, and choked him 23 even after he was handcuffed and subdued. (See Goodlow Dep., ECF No. 60-4 at 24 16:6-25.) Goodlow alleges one officer put a “spit mask” on him, telling him “[t]his is a 25 fucking noose.” (Id. at 16:6-9.) For their part, Defendants contend Goodlow was 26

27 8 The parties dispute some of the details surrounding the moments leading up to Camacho 28 1 disruptive and noncompliant and they used only the amount of force necessary to get 2 Goodlow restrained for his own safety as well as the safety of the correctional officers 3 and other inmates. (See Camacho Decl., ECF No. 69-6 at ¶¶ 6–7, Marin Decl., ECF No. 4 69-10 at ¶ 9, Sigala Decl., ECF No. 69-12 at ¶¶ 2–3, Salas Decl., ECF No. 69-11 at ¶¶ 2– 5 3.) 6 III. Defendants’ Motion for Summary Judgment 7 Defendants have moved for summary judgment on the ground that Goodlow failed 8 to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a) prior to filing his 9 42 U.S.C. § 1983 complaint in this Court on April 9, 2018. (See Defs.’ P & A in Supp. of 10 Summ. J. Mot., ECF No. 69 at 1.) In addition, Defendants argue that Goodlow’s 11 retaliation claims should be “dismissed with prejudice” because “Plaintiff cannot state a 12 claims for retaliation.”9 (Id. at 21.) In the alternative, Defendants argue summary 13 judgment should be granted as to the retaliation claim because Defendants are entitled to 14 qualified immunity.10 (Id. at 23–25.) In support of the motion, Defendants submit 15 evidence including declarations from Defendants and other CDCR officials, portions of 16 Goodlow’s deposition and documents related to Goodlow’s administrative appeals 17 concerning the January 26, 2018 incident. (See ECF Nos. 69-2–69-12.) 18 / / / 19 / / / 20 21 22 9 The Court notes that Defendants did not previously move to dismiss Goodlow’s 23 retaliation claim(s) for failure to state a claim. (See generally, ECF No. 37.)

24 10 Defendants request this Court to take judicial notice of Goodlow’s Complaint. (See 25 Defs.’ Req. Jud. Not., ECF. No. 69-2 at 1.) While a court may take judicial notice of matters of public record, (see Fed. R. Evid. 201) this Court need not take judicial notice 26 Plaintiff’s Complaint––the operative pleading in this case. See Nanavati v. Adecco, 99 F. 27 Supp. 3d 1072, 1075 (N.D. Cal. 2015) (“The Court need not take judicial notice of Exhibit A, which is the operative pleading in this action.”). The Court therefore DENIES 28 1 A. Legal Standards for Summary Judgment 2 Summary judgment is generally proper if the movant shows there is no genuine 3 dispute as to any material fact and he or she is entitled to judgment as a matter of law. 4 Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 1166; Washington 5 Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 6 whether a fact is disputed or undisputed, must be supported by: (1) citing to particular 7 parts of materials in the record, including but not limited to depositions, documents, 8 declarations, or discovery; or (2) showing that the materials cited do not establish the 9 presence or absence of a genuine dispute or that the opposing party cannot produce 10 admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks 11 omitted). The Court may consider other materials in the record not cited to by the parties, 12 although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco 13 Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo 14 Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 15 When Defendants seek summary judgment based on the Plaintiff’s failure to 16 exhaust specifically, they must first prove that there was an available administrative 17 remedy and that Plaintiff did not exhaust that available remedy. Williams v. Paramo, 775 18 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino, 747 F.3d at 1172) (quotation marks 19 omitted). If they do, the burden of production then shifts to the Plaintiff “to show that 20 there is something in his particular case that made the existing and generally available 21 administrative remedies effectively unavailable to him.” Williams, 775 F.3d at 1191. 22 Only “[i]f the undisputed evidence viewed in the light most favorable to the prisoner 23 shows a failure to exhaust, [is] a defendant is entitled to summary judgment under Rule 24 56.” Albino, 747 F.3d at 1166. 25 Finally, “[a] [p]laintiff’s verified complaint may be considered as an affidavit in 26 opposition to summary judgment if it is based on personal knowledge and sets forth 27 specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 28 2000) (en banc). District courts must also “construe liberally motion papers and pleadings 1 filed by pro se inmates and … avoid applying summary judgment rules strictly.” Thomas 2 v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). 3 B. Exhaustion 4 Defendants first argue summary judgment must be granted because Goodlow 5 failed to exhaust his administrative remedies before filing his Complaint. 6 1. Legal Standards for Exhausting Administrative Remedies 7 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate 8 exhaust ‘such administrative remedies as are available’ before bringing suit to challenge 9 prison conditions.” Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016) (quoting 42 U.S.C. 10 § 1997e(a)). “There is no question that exhaustion is mandatory under the PLRA[.]” 11 Jones v. Bock, 549 U.S. 199, 211 (2007) (citation omitted). The PLRA also requires that 12 prisoners, when grieving their appeal, adhere to CDCR’s “critical procedural rules.” 13 Woodford v. Ngo, 548 U.S. 81, 91 (2006). “[I]t is the prison’s requirements, and not the 14 PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. 15 The exhaustion requirement is based on the important policy concern that prison 16 officials should have “an opportunity to resolve disputes concerning the exercise of their 17 responsibilities before being hauled into court.” Id. at 204. The “exhaustion requirement 18 does not allow a prisoner to file a complaint addressing non-exhausted claims.” Rhodes v. 19 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). 20 Therefore, regardless of the relief sought, a prisoner must pursue an appeal through 21 all levels of a prison’s grievance process as long as that process remains available to him. 22 “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains 23 ‘available.’ Once that is no longer the case, then there are no ‘remedies ... available,’ and 24 the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 25 (9th Cir. 2005) (original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). 26 “The only limit to § 1997e(a)’s mandate is the one baked into its text: An inmate need 27 exhaust only such administrative remedies as are ‘available.’” Ross, 136 S. Ct. at 1862; 28 see also Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (stating that the PLRA 1 does not require exhaustion when circumstances render administrative remedies 2 “effectively unavailable.”). 3 Grievance procedures are available if they are “‘capable of use’ to obtain ‘some 4 relief for the action complained of.’” Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 5 738); see also Williams, 775 F.3d at 1191 (“To be available, a remedy must be available 6 ‘as a practical matter’; it must be ‘capable of use; at hand.’”) (quoting Albino, 747 F.3d at 7 1171). In Ross, the Supreme Court noted “three kinds of circumstances in which an 8 administrative remedy, although officially on the books, is not capable of use to obtain 9 relief.” 136 S. Ct. at 1859 (emphasis added). These circumstances arise when: (1) the 10 “administrative procedure . . . operates as a simple dead end—with officers unable or 11 consistently unwilling to provide any relief to aggrieved inmates;” (2) the “administrative 12 scheme . . . [is] so opaque that it becomes, practically speaking, incapable of use . . . so 13 that no ordinary prisoner can make sense of what it demands;” and (3) “prison 14 administrators thwart inmates from taking advantage of a grievance process through 15 machination, misrepresentation, or intimidation.” Id. at 1859-60 (citations omitted). 16 Applying these principles, the Ninth Circuit has specifically found that “[w]hen 17 prison officials fail to respond to a prisoner’s grievance within a reasonable time, the 18 prisoner is deemed to have exhausted available administrative remedies within the 19 meaning of the PLRA.” See Andres v. Marshall, 854 F.3d 1103, 1105 (9th Cir. 2017) (per 20 curiam) (finding RJD’s 6-month failure to respond to an inmate grievance rendered 21 prisoner’s administrative remedies unavailable); accord Dole v. Chandler, 438 F.3d 804, 22 809, 811 (7th Cir. 2006) (officials’ failure to respond to a “timely complaint that was 23 never received” rendered prisoner’s administrative remedies unavailable). The Ninth 24 Circuit has further found administrative remedies “plainly unavailable” where prison 25 officials “screen out an inmate’s appeals for improper reasons,” Sapp v. Kimbrell, 623 26 F.3d 813, 823 (9th Cir. 2010), and “effectively unavailable” where they provide the 27 inmate mistaken instructions as to the means of correcting a claimed deficiency, but upon 28 re-submission, reject it as untimely after compliance proved impossible. See Nunez v. 1 Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). Administrative remedies may also prove 2 unavailable if the prisoner shows an “objectively reasonable” basis for his belief that 3 “officials would retaliate against him if he filed a grievance.” McBride v. Lopez, 807 F.3d 4 982, 987 (9th Cir. 2015). 5 Because the failure to exhaust is an affirmative defense, Defendants bear the 6 burden of raising it and proving its absence. Jones, 549 U.S. at 216; Albino, 747 F.3d at 7 1169 (noting that Defendants must “present probative evidence—in the words of Jones, 8 to ‘plead and prove’–that the prisoner has failed to exhaust available administrative 9 remedies under § 1997e(a)”). Otherwise, Defendants must produce evidence proving the 10 Plaintiff’s failure to exhaust, and they are entitled to summary judgment under Rule 56 11 only if the undisputed evidence, viewed in the light most favorable Plaintiff, shows he 12 failed to exhaust. Albino, 747 F.3d at 1169 13 2. CDCR’s Exhaustion Requirements 14 With respect to their initial burden on summary judgment, the Court finds 15 Defendants have offered sufficient evidence, which Goodlow does not contradict, to 16 prove that the California Department of Corrections and Rehabilitation (CDCR) has 17 established an “administrative remedy” for prisoners, like Plaintiff, to pursue before 18 filing suit under § 1983. See Williams, 775 F.3d at 1191 (citing Albino, 747 F.3d at 1172) 19 (quotation marks omitted). 20 Specifically, Defendants submit declarations from E. Frijas, the Appeals 21 Coordinator for RJD (Frijas Decl., ECF No. 69-7) and Howard Moseley, Associate 22 Director of the Office of Appeals for CDCR (Moseley Decl., ECF No. 69-5), both 23 accompanied by exhibits. As Frijas and Moseley attest, under Title 15 of the California 24 Code of Regulations, a CDCR prisoner may appeal “any policy, decision, action, 25 condition, or omission by the department or its staff that [he] can demonstrate as having a 26 material adverse effect upon his . . . health, safety, or welfare.” Cal. Regs. Code. tit. 15, 27 § 3084.1(a). Since January 28, 2011, and during the times alleged in Goodlow’s 28 Complaint, there have been three levels of appeal review. (Frijas Decl., ECF No. 69-7 at 1 ¶ 2; see also Cal. Code Regs. tit. 15, § 3084.8(b)(1).) In order to properly exhaust, a 2 California prisoner must, “submit a CDCR form 602, inmate appeal, within thirty (30) 3 calendar days of the action or decision being appealed.” (Frijas Decl., ECF No. 69-7 at 4 ¶ 2, see also Cal. Code Regs. tit. 15, § 3084.8(b)(1).) The inmate must “describe the 5 adverse action he or she is appealing, in addition to the specific relief he or she requests.” 6 (Frijas Decl., ECF No. 69-7 at ¶ 2.) The CDCR Form 602 “shall be submitted to the 7 appeals coordinator at the institution.” Id. § 3084.2(c), § 3084.7(a). 8 As Frijas states in his declaration, inmate appeals are “initially filed and screened” 9 at the “first level” unless the first level is otherwise waived. (Frijas Decl, ECF No. 69-7 at 10 ¶ 2.) Frijas notes that an appeals coordinator may bypass the first level for “various 11 reasons outlined under Cal. Code Regs. tit. 15, § 3084.7.” (Id.) Although Frijas does not 12 go into detail in his declaration, under Title 15, appeals alleging staff misconduct 13 constitute an exception to the regular appeal process. Cal. Code Regs. tit. 15, § 3084.9(i). 14 If an appeal is accepted as a staff complaint, the first level of review is bypassed. Id. § 15 3084.7(a)(3) (“The appeals coordinator may bypass the first level for appeal of . . . [a]n 16 issue that cannot be resolved at the division head level such as Associate Warden, 17 Associate Regional Parole Administrator, CALPIA manager or equivalent.”); see also id. 18 § 3084.9(i)(1) (“Only after the appeal has been reviewed and categorized as a staff 19 complaint by the hiring authority or designee at a level not below Chief Deputy Warden, 20 Deputy Regional Parole Administrator, or equivalent level shall it be processed as a staff 21 complaint.”). Further, if an internal affairs investigation is initiated, the inmate must be 22 informed of the investigation and, eventually, its outcome. Id. § 3084.9(i)(4)(A). And if 23 the inquiry is deemed confidential, the inmate must be informed of the inquiry and, 24 eventually, whether the findings determined that staff did or did not violate policy. Id. § 25 3084.9(i)(4)(B). 26 Assuming the grievance is processed at the first level, the complaint is addressed 27 by a “First Level Reviewer.” (Frijas Decl., ECF No. 69-7 at ¶ 2.) If the first level by 28 filing a CDCR Form 602 appeal is “denied or not otherwise resolved to the appellant’s 1 satisfaction at the first level,” Cal. Regs. tit. 15, § 3084.7(b), the prisoner must “within 30 2 calendar days . . . upon receiving [the] unsatisfactory departmental response,” id. 3 § 3084.8(b)(3), seek a second level of administrative review, which is “conducted by the 4 hiring authority or designee at a level no lower than Chief Deputy Warden, Deputy 5 Regional Parole Administrator, or the equivalent.” Id. § 3084.7(b), (d)(2)); see also Frijas 6 Decl., ECF No. 69-7 at ¶ 2.) If the inmate is not satisfied with the second level response, 7 he can “submit it to the Office of Appeals for third level review” in Sacramento. (Cal. 8 Regs. Code tit. 15, § 3084.7(c); Frijas Decl., ECF No. 69-7 at ¶ 2.) 9 “The third level is for review of appeals not resolved at the second level.” Id. 10 § 3084.7(c). “The third level review constitutes the decision of the Secretary of the 11 CDCR on an appeal, and shall be conducted by a designated representative under the 12 supervision of the third level Appeals Chief or equivalent. The third level of review 13 exhausts administrative remedies,” id. § 3084.7(d)(3), “unless otherwise stated.” Id. 14 § 3084.1(b); see also CDCR Operation’s Manual § 541100.13 (“Because the appeal 15 process provides for a systematic review of inmate and parolee grievances and is 16 intended to afford a remedy at each level of review, administrative remedies shall not be 17 considered exhausted until each required level of review has been completed.”). 18 Generally, an inmate’s appeal can be “cancelled and returned” to the inmate if it is 19 not submitted within the required time limits. Inmates must submit their appeal within 20 thirty days of the event giving rise to the issue raised in the appeal. Cal. Code Regs. tit. 21 15, § 3084.8(b)(1). Once an appeal is submitted it is given a tracking number and entered 22 into a computed tracking system for inmate grievances. (Frijas Decl., ECF No. 69-7 at 23 ¶ 5.) 24 California regulations require CDCR staff to respond to first level responses within 25 “30 working days from the date of receipt by the appeals coordinator.” Cal. Code Regs. 26 tit. 15, § 3084.8(c)(1). Likewise, second level appeal responses must be completed in 27 thirty working days. Id. § 3084.8(c)(2). Third level responses are required to be 28 completed in “60 working days” from date of receipt. Id. § 3084.8(c)(3). These time 1 limits may be extended if one of the following exceptions applies: (1) unavailability of 2 the inmate, staff or witnesses, (2) the complexity of the matter requires additional 3 research, (3) the investigation requires the involvement of other agencies or jurisdictions 4 and/or (4) a “state of emergency pursuant to § 3383(c) requires postponement.” Cal. 5 Code Regs. tit. 15, § 3084.8(d). Once the inmate receives the response from the third 6 level of review, he is deemed to have “exhausted the administrative remedies within the 7 CDCR.” Id. at § 3084.7(d)(3), see also Frijas Decl., ECF No. 69-7 at ¶ 3. 8 3. Goodlow’s Administrative Appeal History 9 As discussed above, Goodlow alleges in his Complaint that Defendants used 10 excessive force and retaliated against him during an incident at RJD which took place on 11 January 26, 2018. (Compl., ECF No. 1 at 5–11.) Defendants contend that summary 12 judgment must be granted because there is no genuine dispute that Plaintiff failed to 13 properly complete exhaustion of his administrative remedies through the third level prior 14 to filing his federal complaint in this Court on April 9, 2018. (Defs.’ P. & A. Supp. of 15 Summ. J. Mot., ECF No. 69 at 15–21.) 16 Frijas states in his declaration that, as Appeals Coordinator at the RJD Inmate 17 Appeals Office, he receives “all inmate grievances (also known as appeals or CDCR 18 Form 602s submitted by inmates at the institutional level,” which include reviews of first 19 and second level appeals. (Frijas Decl., ECF No. 69-7 at ¶ 1.) At the Attorney General’s 20 request, Frijas conducted a search to determine whether Goodlow had “submitted an 21 appeal in 2018 while housed at [RJD]” which included allegations that “Defendants F. 22 Camacho, J. Marin, F. Salas, and M. Sigala used excessive force against him. (Id. at ¶ 7.) 23 Similarly, as CDCR’s Associate Director of the Office of the Appeals (OOA), Moseley 24 conducted a search at the request of the Attorney General’s Office for “all non-healthcare 25 related appeals received by OOA while Goodlow was housed at RJD. (Moseley Decl., 26 ECF No. 69-5 at ¶ 7.) Along with their declarations, Frijas and Moseley attached exhibits 27 which include copies of Goodlow’s grievances and appeals, as well as responses from 28 RJD and CDCR officials. 1 Defendants contend that summary judgment is required here because Goodlow 2 failed to complete exhaustion of his administrative remedies before filing his federal 3 complaint. Defendants point to two grievances, discussed below. 4 a. CDCR 602 Log. No. RJD-18-0459 5 On January 27, 2018, the day after the incident, Goodlow submitted an inmate 6 grievance by submitting a CDCR 602 form. In it, Goodlow alleged “excessive force” on 7 the part of Camacho and other correctional officers at RJD. In the 602, Plaintiff further 8 alleged that Camacho had “harassed me when I initially arrived [at RJD a few months 9 prior] and I wrote him up,” appearing to suggest resentment regarding Goodlow’s prior 10 staff complaint may have been a partial motivator for the January 26, 2018 incident. 11 (ECF No. 69-8, Ex. B at 11.) In addition to the excessive force and retaliation allegations, 12 Goodlow also complained that correctional officers, including Camacho and others 13 involved in the incident, were disrespectful to African American inmates in particular, 14 and alleged the altercation was, at least in part, motivated by racial animus. (See ECF No. 15 69-8, Ex. B at 11.) 16 According to the CDCR Inmate Appeal Tracking System, Goodlow’s grievance 17 was assigned the Log No. RJD-18-00459 and was “received” by CDCR on January 31, 18 2018.11 (See Inmate/Parolee Appeals Tracking System Level I & II, ECF No. 69-8, Ex. F 19 at 54.) On the same day, January 31, 2018, an Inmate Appeal Route Slip indicates the 20 Inmate Appeals Office categorized Goodlow’s 602 as a “Staff Complaint” and directed 21 the appeal be assigned to “appropriate staff for SECOND level response.” (ECF No. 69- 22 6, Ex. B at 18.) The router slip indicates that the “due date” for a response was March 3, 23 2018. (See Inmate Appeal Route Slip, ECF No. 69-6, Ex. B at 18.) 24 / / / 25

26 27 11 The 602 form is stamped “received” on January 27, 2018. (See ECF No. 69-6, Ex. B at 8.) 28 1 On March 6, 2018, the RJD Appeal Coordinator informed Goodlow in writing that 2 there was an “exceptional delay in review of [the] appeal due to the ‘necessary 3 involvement of other agencies or jurisdictions’” and as a result, the “estimated 4 completion date” had been extended to April 4, 2018.12 (See ECF No. 69-8, Ex. A at 3.) 5 Plaintiff was interviewed on May 30, 2018 was part of the investigation into the 6 allegations raised in his appeal. (See ECF No. 69-8, Ex. B at 5.) On June 20, 2018, 7 Goodlow’s appeal was “partially granted,” concluding that the “inquiry has been 8 reviewed and all issues adequately addressed” but that “staff did not violate CDCR 9 policy” as to the issues raised. (ECF No. 69-8, Ex. B at 6.) 10 Plaintiff appealed to the third level. According the CDCR Inmate Tracking System 11 for Level III Appeals, Goodlow initially attempted to submit a third level appeal on 12 September 7, 2018, challenging the second-level finding of no staff misconduct. (Decl. 13 Moseley ECF No. 69-6 at ¶ 9(a); see also Appeal History Log, ECF No. 69-6, Ex. A at 14 3.) On December 6, 2018, Goodlow’s third level appeal was “screened out” because he 15 purportedly failed to include the necessary “supporting documents.” (Decl. Moseley ECF 16 No. 69-6 at ¶ 9(a); see also Letter, ECF No. 69-6, Ex. B at 20.) Goodlow resubmitted his 17 third level appeal with the appropriate documentation and it was accepted by CDCR on 18 December 24, 2018. (Decl. Moseley ECF No. 69-6 at ¶ 9(a); see also Appeal History 19 Log, ECF No. 69-6, Ex. A at 3.) On February 21, 2019, Goodlow’s third level appeal was 20 21 22 12 In his declaration, Frijas states that “the facility captain conducting the second level of 23 appeal requested and received extensions of time to complete the appeal on February 28, 2018, March 26, 2018, April 19, 2018 and May 18, 2018.” (Frijas Decl., ECF No. 69-7 at 24 ¶ 8(a).) Attached as an exhibit is one such letter to Goodlow, dated March 6, 2018, 25 informing him of “exceptional delay” in reviewing his appeal due to “necessary involvement of other agencies and jurisdictions” including the IERC which appears to be 26 a reference to the “Institutional Executive Review Committee.” A handwritten notation 27 on the notification states the response was now “[d]ue 4/5/18.” (CDCR Memorandum, ECF No. 69-8, Ex. A at 3.) Defendants do not include memoranda related to the other 28 1 denied. (See Third Level Decision, ECF No. 69-6, Ex. B at 6–7.) In its written decision, 2 the CDCR noted Goodlow’s “allegation was appropriately reviewed and evaluated by 3 administrative staff” and the reviewer “concurs with the [second level review] 4 determination. (Id. at 6.) 5 b. CDCR 602 Log. No. RJD-18-1710 6 Goodlow filed a second grievance/appeal related to the January 26, 2018 incident. 7 On March 16, 2018, the RJD Office of Appeals received an appeal from Goodlow 8 contending that the Senior Hearing Officer had improperly found him guilty of a Rules 9 Violation, specifically for assaulting the correctional officers during the January 26, 2018 10 incident.13 (Frijas Decl, ECF No. 69-7 at ¶ 8(b); Moseley Decl, ECF No. 69-5 at ¶ 9(b).) 11 On July 18, 2018, Goodlow submitted an appeal, later given the tracking number 12 RJD-18-1710, alleging that the rule violation hearing officer failed to properly review all 13 the evidence before finding him guilty.14 (Frijas Decl, ECF No. 69-7 at ¶ 8(b), ECF No. 14 69-8 Ex. E at 54–57.) On May 15, 2018, Goodlow’s second level appeal was denied. 15 (ECF No. 69-8, Ex. B at 18; see also Frijas Decl, ECF No. 69-7 at ¶ 8(b). On July 2, 16 2018, Goodlow submitted a third level appeal from Goodlow on July 2, 2018, again 17 alleging the RJD Senior Hearing Officer improperly found him guilty of assault. The 18 Office of Appeals denied Goodlow’s third level appeal on October 25, 2018. (Moseley 19 Decl., ECF No. 69-5 at ¶ 8(b); see also ECF No. 69-6, Ex. A at 3.) 20

21 13 On February 22, 2018, a result of the Rules Violation Report and subsequent 22 disciplinary hearing, Goodlow was guilty of assault on a peace officer by means not 23 likely to cause great bodily injury and assessed sanctions, including loss of good-time credits, phone privileges and visitation. (Disciplinary Hearing Results, ECF No 69-8, Ex. 24 C at 23–28.) 25 14 Goodlow alleged, among other things, that the hearing officer failed to properly 26 consider evidence that the RJD mental health clinician who conducted a “Mental Health 27 Assessment” of Goodlow after the incident improperly determined that Goodlow’s mental health disorder did not contribute to his behavior during the incident. 28 1 4. Analysis 2 Defendants do not dispute that Goodlow timely submitted grievances related to, 3 among other things, the January 26, 2018 incident, and included claims of excessive force 4 and retaliation. (See Defs.’ P. & A. Supp. of Summ. J. Mot., ECF No. 69 at 11.) Nor do 5 Defendants contend Plaintiff failed to ultimately exhaust his administrative remedies in 6 compliance with CDCR regulations. (Id.) Defendants argue, however, that summary 7 judgment must be granted because there is no genuine dispute that Goodlow failed to 8 complete that process until well after he filed the instant Complaint. (See id. at 17–21.) 9 The PLRA “requires that a prisoner challenging prison conditions exhaust 10 available administrative remedies before filing suit.” Albino, 747 F.3d at 1165 (emphasis 11 added) (citing 42 U.S.C. § 1997e(a)); see 42 U.S.C. § 1997e(a) (“No action shall be 12 brought with respect to prison conditions under section 1983 of this title, or any other 13 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 14 such administrative remedies as are available are exhausted.”). As discussed above, under 15 CDCR regulations, exhaustion requires the completion of the third level of administrative 16 review. Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010); see Cal. Code Regs. tit. 15, 17 § 3084.1(b). 18 Based on the record here, the Court finds Defendants have shown that 19 administrative remedies were available to Goodlow prior to filing his federal lawsuit. 20 First, as described above, CDCR has a detailed process for seeking administrative review 21 of grievances. See Cal. Code. Regs. tit. 15, § 3084 et. seq; see also Frijas Decl., ECF No. 22 69-7 at ¶¶ 2–4; Moseley Decl., ECF No. 69-5 at ¶¶ 3–5.) Further, not only were such 23 remedies available to Goodlow, evidence in the record makes clear that Goodlow availed 24 himself of that process and was, in fact, ultimately able to exhaust his administrative 25 remedies in accordance with CDCR regulations. (Frijas Decl., ECF No 69-7 at ¶ 8; 26 Moseley Decl., ECF No. 69-6 at ¶ 8.) 27 Finally, the evidence shows that Goodlow elected to file his federal lawsuit while 28 that process was still ongoing, and well before it was complete. Specifically, Goodlow 1 filed his Complaint in this Court on April 9, 2018, more than ten months before his 2 CDCDR 602 Log No. RJD-18-0459 was exhausted at the third level of review. (See 3 Compl., ECF No. 1 at 1; see also ECF No. 69-6, Ex. B.) As such, this Court finds 4 Defendants have presented evidence which shows a lack of genuine dispute regarding 5 Goodlow’s failure to complete exhaustion prior to filing his federal lawsuit, Defendants 6 have satisfied their initial burden on summary judgment. See Albino, 747 F.3d at 1172. 7 5. Goodlow’s Burden 8 The burden now shifts to Goodlow. See Matsushita Elec. v. Zenith Radio Corp, 9 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, Goodlow must 10 present evidence in the form of affidavits and/or admissible discovery material to show 11 there is something in his particular case that made the existing and generally available 12 administrave remedies effectively unavailable to him” at the time he filed suit on April 9, 13 2018. Albino, 747 F.3d at 1172 (emphasis added) (citing Hilao v. Estate of Marcos, 103 14 F.3d 767, 778 n.5) (“[The burden shifts to the plaintiff to rebut by showing that the local 15 remedies were ineffective, unobtainable, undue prolonged, inadequate or obviously 16 futile.”)). 17 In his Opposition, Goodlow acknowledges that, while he “did exhaust his 18 administrative remedies,” he filed his federal complaint before completion of the process. 19 (Pl.’s Opp., ECF No. 72 at 2.) Goodlow argues, however, that his failure to await 20 resolution of his administrative appeals should be excused because at the time he filed his 21 federal complaint, those remedies were effectively “unavailable” to him for two reasons. 22 First, he contends he was “frightened” as a result of the alleged assault by correctional 23 officers and feared he could face retaliation while he awaited completion of the appeal 24 process. (Id.) Goodlow states in this Opposition that his fear of retaliation “should be 25 some type of justification behind plaintiff filing [his federal civil complaint] as soon as he 26 can.” (Pla.’s Opp., ECF No. 72 at 2.) Second, and somewhat relatedly, Goodlow appears 27 to suggest he filed suit before exhaustion process was completed because the CDCR 28 / / / 1 failed to timely process his appeal(s) and he was concerned about waiting any longer due, 2 in part, to his fear of retaliation. (See id.) 3 a. Fear of Retaliation 4 The Ninth Circuit has held that “fear of retaliation may be sufficient to render the 5 inmate grievance procedure unavailable.” McBride, 807 F.3d at 984. To render the 6 grievance procedure unavailable by “a threat of retaliatory action by a prison guard,” a 7 plaintiff must show both an objective and subjective basis for a fear of retaliation. Id. 8 Goodlow fails on both counts. 9 In order to satisfy the objective prong, “there must be some basis in the record for 10 the district court to conclude that a reasonable prisoner of ordinary firmness would have 11 believed that the prison official’s action communicated a threat not to use the prison’s 12 grievance procedure and that the threatened retaliation was of sufficient severity to deter 13 a reasonable prisoner from filing a grievance.” Id. at 987. Here, evidence in the record 14 shows Goodlow submitted his initial 602 grievance (later assigned Log No. RJD-18- 15 0459) on January 27, 2018, the day after incident. (See ECF No. 69-6, Ex. B at 8.) 16 Goodlow does not dispute that while his grievance in RJD-18-0459 was being processed, 17 the CDCR informed him in writing that, because the complexity of the claims and 18 involvement of multiple agencies, the resolution of his second level appeal would be 19 would take longer than 30 days, in accordance with CDCR regulations under Title 15, 20 section 3084.8(e).15 Goodlow also does not dispute that CDCR issued extensions of time 21

22 23 15 Section 3084.8(e) states:

24 Except for the third level, if an exceptional delay prevents completion of the 25 review within the specified time limits, the appellant, within the time limits provided in subsection 3084.9(c), shall be provided an explanation of the 26 reasons for the delay and the estimated completion date.” Cal. Regs. Code. 27 § 3084.8(e). The exceptions enumerated in section 3084.8(c) included “complexity of the decision,” and “necessary involvement of other agencies 28 1 to resolve the second-level review pursuant to § 3084.8(e) on February 28, 2018, March 2 26, 2018, April 19, 2018 and May 18, 2018. (See Frijas Decl., ECF No. 69-7 ¶ 8(a). Nor 3 does Plaintiff dispute that he was informed in writing of the delay, and the reasons for it. 4 (See Mem., ECF No. 69-8, Ex. A at 3) (stating the reason for delay was “necessary 5 involvement of other agencies or jurisdictions). 6 Instead, Goodlow stresses that he felt compelled to file his federal complaint 7 before resolution of his administrative appeal because, after his January 26, 2018 8 purported assault, he was “frightened” and that “should be justification for filing as soon 9 as he can.” (Pl.’s Opp., ECF No. 72 at 2.) But, as of April 9, 2018, the day Goodlow filed 10 his federal complaint, his fear of retaliation was no longer immediate. (See Compl., ECF 11 No. 1 at 1.) In fact, as Goodlow concedes, by the time he filed his complaint, he had 12 already been transferred to another prison in Los Angeles County (LAC) and his 13 administrative appeals related to the January 26, 2018 incident at RJD remained pending. 14 (Goodlow’s Dep., ECF No. 69-4 at 36:10–12.) Goodlow presents no evidence suggesting 15 that, after arriving at LAC, a reasonable prisoner would have reason to fear retaliation if 16 he awaited the resolution of an appeal related to an incident occurring at another 17 institution. And he points to no evidence in the record to show how or why a prisoner 18 who had already been transferred from the offending institution (RJD) could reasonably 19 believe that CDCR officials at the new institution (LAC) would retaliate against him 20 should he proceed. See McBride, 807 F.3d at 987; see also Rodriguez v. County of Los 21 Angeles, 891 F.3d 776, 792 (9th Cir. 2018). Thus, the Court concludes Goodlow has not 22 shown the existence of a factual dispute that he had an objective fear of retaliation if he 23 pursued his grievances. See Albino, 747 F.3d at 1172 24 Even assuming Goodlow could satisfy the objective prong, his argument still fails 25 because he has also failed present evidence that to show a subjective fear of retaliation 26

28 1 rendered his “existing and generally available administrative remedies effectively 2 unavailable to him.” Albino, 747 F.3d at 1172. Under the subjective prong, a prisoner 3 must “provide a basis for the court to find that he actually believed prison officials would 4 retaliate against him if he filed a grievance” and that he was actually deterred from filing 5 a grievance. Id.at 987–88. Here, Goodlow provides no evidence of any specific threats 6 from Defendants or other CDCR personnel which would support a subjective basis for 7 his purported fear that he would be retaliated if continued to pursue his administrative 8 appeals, which were already submitted and for which an investigation was ongoing as of 9 April 9, 2018 when he filed his Complaint. 10 First, Goodlow admits that he has filed numerous grievances during his time as a 11 CDCR inmate, both before and after the January 26, 2018 incident. (Goodlow Dep., ECF 12 No. 69-5, 31:3-10.) Indeed, Goodlow concedes he continued to file grievances while he 13 was incarcerated at RJD, even after his initial 602 in Log. No. RJD-18-0459 was 14 submitted, up until the time he was transferred to LAC sometime before April 9, 2018. 15 (See Pl.’s Supp. Opp., ECF No. 77, Ex. P at 12; see also Goodlow Dep., ECF No. 69-4, 16 36:10–12.) Significantly, Goodlow continued to participate in the investigations related to 17 his grievance in RJD-18-0459, even after his transfer from RJD. On May 30, 2018, over a 18 month after filing his federal complaint, Goodlow was interviewed by a CDCR 19 investigator about the circumstances of the January 26, 2018 incident and the allegations 20 contained in Goodlow’s appeal, Log. No. RJD-18-0459. By that time, Goodlow had been 21 transferred yet again, from LAC, where he had been confined at the time he filed his 22 lawsuit, to Kern Valley State Prison (KVSP). (See Appeal Response, ECF No. 69-6, Ex. 23 B at 12.) 24 Moreover, Goodlow failed to produce evidence of specific threats from Defendants 25 or other CDCR personnel to support his contention that he had a subjective fear of 26 retaliation if he proceeded with his grievance. Goodlow simply contends that he feared he 27 might be retaliated against while his appeal was pending, despite having been transferred 28 to a new facility shortly after the incident. Plaintiff’s conclusory contentions in this 1 regard are insufficient to meet his burden of production on summary judgment to show he 2 had a subjective fear of retaliation at the time he filed his lawsuit sufficient to render 3 administrative remedies unavailable to him. See Porter v. Nussle, 534 U.S. 516 (2002) 4 (rejecting a categorical exception to the exhaustion requirement for excessive force 5 complaints where the inmate alleged that prison officials subjected him to “a prolonged 6 and sustained pattern of harassment and intimidation”); Boyd v. Corr. Corp. of Am., 380 7 F.3d 989, 997–98 (6th Cir. 2004) (holding that nonspecific allegations of fear do not 8 excuse the failure to exhaust administrative remedies); see Wood v. McCormick, No. 9 2017-cv-0983 JAM CKD, 2020 WL 406774, at *4 (E.D. Cal. Jan. 24, 2020). 10 Finally, Goodlow has not presented evidence that he was thwarted from filing his 11 grievance or hindered from filing subsequent grievances after his initial excessive force 12 and retaliation 602 in RJD-18-0459 was submitted. To the contrary, he received a 13 decision on his second level appeal in RJD-18-0459 on June 20, 2018. (ECF No. 69-8, 14 Ex. B at 5–6.) Following that, Goodlow appealed the decision to the third level, 15 submitting his initial third level appeal on September 7, 2018 (See Log, ECF No. 69-6, 16 Ex. A at 3.) Goodlow was notified that his initial third level appeal submission was 17 “screened out” on December 6, 2018 for failure provide the CDCR with the necessary 18 documentation. (See id.) Goodlow re-filed his third level appeal on December 24, 2018 19 with the required documents and it was accepted by the CDCR OOA. (Id.) Goodlow’s 20 third level appeal was ultimately denied on February 21, 2019. (Id.; see also id., Ex. B at 21 6–7.) In sum, Plaintiff was willing and able to complete the administrative appeal process 22 all the way through the third level. Goodlow has provided no evidence to support his 23 assertion he had a subjective belief that “local remedies were ineffective, unobtainable, 24 undue prolonged, inadequate or obviously futile.” Hilao, 103 F.3d at 778 n.5; see also 25 Albino, 747 F.3d at 1172. 26 Thus, the Court finds Goodlow has failed to demonstrate a genuine dispute as to 27 whether he had an objective and subjective fear of retaliation for pursuing his 28 administrative remedies related to his excessive force and retaliation claims See McBride, 1 807 F.3d at 988 (emphasizing that “[h]ostile interaction, even when it includes a threat of 2 violence, does not necessarily render the grievance system ‘unavailable.’”). Accordingly, 3 the Court finds Plaintiff has failed to meet his burden of demonstrating that the CDCR’s 4 grievance procedure was effectively unavailable to him as a result of a purported threat of 5 retaliation. See Albino, 747 F.3d at 1166. 6 b. Delay in Processing Grievances 7 Goodlow appears to further argue that the administrative process was unavailable 8 to him because the responses to his grievances were delayed. (See Pl.’s Opp., ECF No. 72 9 at 2.) The Ninth Circuit has stated that when prison officials improperly fail to timely 10 process a prisoner’s grievance, the prisoner may be deemed to have exhausted available 11 administrative remedies. Andres, 867 F.3d at 1079 (finding RJD’s 6-month failure to 12 respond to an inmate grievance rendered prisoner’s administrative remedies unavailable). 13 But Andres makes clear that even when a response is delayed, the prisoner must still 14 establish that the delay rendered “administrative remedies . . . effectively unavailable.” 15 Id. at 1076; see also Brown, 422 F.3d at 943 (citing Jernigan v. Stuchell, 304 F.3d 1030, 16 1032 (10th Cir. 2002) (“[F]ailure to respond to a grievance within the time limits 17 contained in the grievance policy renders an administrative remedy unavailable. . . .”); 18 Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (affirming district court decision not 19 to dismiss for failure to exhaust when a Department of Corrections’ failure to respond to 20 a preliminary grievance precluded the plaintiff from pursuing a formal grievance). 21 In Brown, the Ninth Circuit held that the plaintiff’s administrative remedies were 22 available because nothing in the record suggested the plaintiff was “prejudiced by the 23 long time it took to conclude the investigation into his staff complaint.” Id. The other 24 circuit court cases cited in Brown shed some light on the meaning of “prejudice” in these 25 cases. For example, in Foulk, the Eighth Circuit concluded that a prison’s failure to 26 respond to prisoner’s informal request, which precluded him from filing an administrative 27 appeal, rendered administrative remedies unavailable. Foulk, 262 F.3d at 698 (8th Cir. 28 2001); see also Jernigan, 304 F.3d at 1032 (citing cases for the proposition that the 1 “failure to respond to a grievance within the time limits contained in the grievance policy 2 renders an administrative remedy unavailable”). 3 In light of Brown, district courts have concluded that administrative remedies may 4 be deemed “effectively unavailable if (1) prison officials have failed to timely respond to 5 a grievance, (2) the inmate has received no notice of or justification for the delay, and (3) 6 the inmate has no other available avenues to seek administrative relief.” Rupe v. Beard, 7 No. 08-CV-2454-EFS-PC, 2013 WL 2458398, at *15 (E.D. Cal. June 6, 2013); see also 8 Ellis v. Cambra, No. 1:02-CV-5646-AWI-SMS-P, 2005 WL 2105039 (E.D. Cal. Aug. 30, 9 2005). In such instances, the prisoner has “no redress for grievances except by way of a 10 lawsuit, and the inmate’s failure to exhaust under those circumstances must be excused.” 11 Rupe, 2013 WL 2458398, at *15. In Andres, for example, administrative remedies were 12 deemed unavailable because, in that case, the prison had failed entirely to process the 13 California prisoner’s 602 grievance. Andres, 854 F.3d at 1078. That is not the case here. 14 Goodlow submitted his initial grievance in RJD-18-0459 on January 27, 2018, the 15 day after the incident, and did not receive final decision at the third level administrative 16 review until over a year later, on February 21, 2019. (See ECF No. 69-6, Ex. A at 3.) 17 However, Goodlow filed his federal complaint on April 9, 2018, less than 90 days after 18 filing his initial grievance and well before he had even completed his second level appeal. 19 (See Compl., ECF No. 1 at 1.) As discussed above, RJD officials conducting the review 20 had sought and received extensions of time to complete Goodlow’s second level appeal 21 on February 28, 2018, March 26, 2018, April 19, 2018 and May 18, 2018. (See Frijas 22 Decl., ECF No. 69-7 at ¶ 8(a). Defendants submitted one such notification of 23 “exceptional delay,” which was sent to Goodlow on March 6, 2018 and stated that review 24 of his appeal would be delayed an additional thirty days, due to “[n]ecessary involvement 25 of other agencies or jurisdictions.” (Mem., ECF No. 69-8, Ex. A at 3.) Goodlow does not 26 deny he received the memo notifying him that the decision due date had been extended to 27 April 5, 2018. (ECF No. 69-8, Ex. A at 3.) Nor does he deny that RJD officials received 28 two subsequent extensions and that he was notified as such, in accordance with CDCR 1 regulations. (See Frijas Decl., ECF No. 69-7 at ¶ 8(a) (citing Cal. Regs. Code tit. 15, § 2 3084.8(e).) 3 Goodlow also knew his grievance was being investigated (and not ignored) by RJD 4 officials because he was interviewed via telephone on May 30, 2018 by a CDCR 5 investigator. During the interview, Goodlow was given an opportunity to relay his 6 concerns regarding the January 26, 2018 incident and the grievance proceedings. (See 7 CDCR Memorandum, ECF No. 69-8, Ex. B at –6.) As such, to the extent the resolution 8 of Goodlow’s initial second level grievance was delayed, it did not render his 9 administrative remedies unavailable. Here, the first level of the appeal process was 10 bypassed because Goodlow’s grievance, which contained allegations of excessive force 11 and retaliation, was deemed a “Staff Complaint.” (ECF No. 689-8, Ex. F, see also Frijas 12 Decl., ECF No. 69-7 at ¶ 8(a).) As discussed above, the Appeals Office must ordinarily 13 complete the second level review “within 30 working days of receipt by the appeals 14 coordinator,” barring an exception. Cal. Code. Regs. tit. 15, § 3084.8(c)(1). One such 15 exception permits an extension of the time limits based on “[t]he complexity of the 16 decision, action, or policy requiring additional research.” Id. § 3084.8(d)(2). In this case, 17 the RJD Appeals Office used that precise language the letter notifying Goodlow of its 18 processing delays. (See ECF No. 69-8, Ex. A at 3.) Thus, Goodlow’s claim that CDCR 19 officials “improperly fail[ed] to process [his] grievance” is undermined by evidence 20 showing CDCR was indeed processing the grievance and notified Goodlow of the status 21 of his appeal. 22 When prison administrators fail to respond to grievances in a “timely fashion,” a 23 prisoner must wait “a reasonable amount of time for a response to [his] grievance,” 24 before the prison officials’ failure to respond renders “relief at the administrative level 25 unavailable” for purposes of exhaustion. Goolsby v. Cty. of San Diego, No. 3:18-CV- 26 0564-WQH-NLS, 2020 WL 1673036, at *6 (S.D. Cal. Apr. 6, 2020) (citing Rupe, 2013 27 WL 2458398, at *16 (E.D. Cal. June 6, 2013) (“An inmate who files suit a mere one or 28 two days after an appeal-response deadline has passed has probably not demonstrated that 1 administrative remedies are effectively unavailable, as the Ninth Circuit requires. . . . But, 2 on the other hand, after the inmate has waited a reasonable period of time and has 3 received no response or notice of delay, the failure by prison officials to abide by inmate- 4 grievance regulations must excuse the inmate’s failure to exhaust; otherwise, prison 5 officials could indefinitely delay inmates from pursuing legal remedies simply by 6 ignoring all inmate appeals.”) Here, Goodlow has not presented evidence sufficient to 7 show administrative remedies were “effectively unavailable” because he continued to 8 pursue his administrative appeals after filing the Complaint and he ultimately completed 9 the process. 10 In sum, the CDCR appeals process in this case did not “operate as a simple dead 11 end.” Ross, 136 S. Ct. at 1859. To the contrary, Goodlow’s appeals were processed in 12 compliance with CDCR regulations and, to the extent there was some delay, Goodlow 13 was properly notified. Finally, even assuming the delay caused Goodlow some 14 frustration, unlike the plaintiffs in Andres and Foulk, Goodow was not in fact prevented 15 from pursuing his administrative remedies. It was Goodlow who elected not to await the 16 decision on his second level appeal, despite having been notified by CDCR officials of 17 the reasons for the delay. See Andres, 854 F.3d at 1078. 18 6. Conclusion 19 Based on the foregoing, the Court concludes Defendants are entitled to summary 20 judgment under Rule 56 because the “undisputed evidence viewed in the light most 21 favorable to the prisoner shows a failure to exhaust” administrative remedies and 22 Goodlow has failed to satisfy his burden to show administrative remedies were 23 “unavailable” to him. See Fed. R. Civ. P. 56; see also Albino, 747 F.3d at 1166. Thet 24 Court GRANTS Defendants’ motion for summary judgment based on a failure to 25 exhaust. 26 C. Retaliation Claim 27 In their Motion for Summary Judgment, Defendants argue in the alternative that, 28 even assuming Goodlow’s claims were properly exhausted, Defendants are entitled to 1 summary judgment on Goodlow’s retaliation claim because he “fails to state a claim.” 2 (Defs.’ P. & A. Supp. of Summ. J. Mot., ECF No. 69 at 21–22,) Further, Defendants 3 contend that, even assuming Goodlow states a retaliation claim, Defendants are entitled 4 to qualified immunity. (Id. at 23–24.) Because the Court concludes summary judgment is 5 appropriate as to all claims for failure to exhaust, the Court need address the merits of 6 Goodlow’s retaliation claim, or whether Defendants are entitled to qualified immunity as 7 to that claim. 8 IV. Plaintiff’s Motion for Summary Judgment 9 As noted above, Goodlow has also moved for summary judgment. (See Pla.’s 10 Summ. J. Mot., ECF No. 73) While Goodlow captions the document as a “Motion for 11 Summary Judgment,” the contents of the motion are effectively arguments in opposition 12 to Defendants’ motion. For instance, Goodlow argues, as he did in his Opposition to 13 Defendants’ Motion, that he did adequately exhaust his administrative remedies because 14 he feared retaliation if he waited until exhaustion was completed. (See id. at 5). 15 To the extent Plaintiff argues in his motion that summary judgment should be 16 granted against Defendants, Goodlow’s arguments go to the weight of the evidence in 17 dispute. Goodlow does not contend there is “no genuine dispute of material fact,” as 18 required under Rule 56. Instead, Goodlow argues “the court should grant my motion 19 because there is a genuine issue of material fact and clear indication of [triable issues].” 20 (Id. at 2–7 (emphasis added).) As such, the Court liberally construes Goodlow’s Motion 21 for Summary Judgment as his opposition to Defendants’ Motion and addresses those 22 arguments above. 23 To the extent Plaintiff attempts to argue summary judgment must be granted in his 24 favor because there is no genuine issue of material fact as to the merits of his excessive 25 force and retaliation claims, the motion is DENIED as MOOT in light of his failure to 26 exhaustion administrative remedies prior to filing this action. 27 / / / 28 / / / 1 V. Unserved Defendants 2 Under Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within 3 90 days after the complaint is filed, the court—on motion or on its own after notice to the 4 plaintiff—must dismiss the action without prejudice against that defendant or order that 5 service be made within a specified time.” See Crowley v. Bannister, 734 F.3d 967, 976 6 (9th Cir. 2013). As discussed above, in this Court’s July 26, 2019 Order denying 7 Goodlow’s Motion to Amend his Fourteenth Amendment claims, Goodlow was notified 8 that if he did not properly serve Defendants Gonzalez, Goyal, Kelly and Hernandez by 9 August 19, 2019, the action against those defendants would be dismissed. (Order, ECF 10 No. 54 at 2.) No proof of service as to Gonzaelz, Goyal, Kelly or Hernandez was ever 11 filed, and Goodlow did not request an extension of time to serve them by the prescribed 12 deadline. See Fed. R. Civ. P. 4(m). Thus, because Defendants Gonzalez, Goyal, Kelly and 13 Hernandez have not been timely served, Plaintiff’s claims against them are DISMISSED. 14 See Fed. R. Civ. P. 4(m); see Mozzer v. Prison Health Svc., 250 Fed. Appx. 786, 787 (9th 15 Cir. 2007) (concluding that the district court did not abuse its discretion in dismissing 16 case against defendants because the prisoner plaintiff “did not timely identify or serve 17 those defendants even after he was given an extension of time to do so”); see also Hason 18 v. Med. Bd. of Cal., 279 F.3d 1167, 1174 (9th Cir. 2002) (concluding that district court 19 did not abuse its discretion in dismissing case against unserved defendants on its own 20 motion). 21 VI. Conclusion and Order 22 Accordingly, the Court: 23 1) GRANTS Defendants’ Camacho, Marin, Salas and Sigalas Motion for 24 Summary Judgment based on Plaintiff’s failure to exhaust his administrate remedies prior 25 / / / 26 / / / 27 / / / 28 / / / 1 || to filing suit, pursuant to 42 U.S.C. § 1997e(a) and DISMISSES Plaintiffs First and 2 || Eighth Amendment claims against them WITHOUT PREJUDICE."° 3 2) DENIES Plaintiff's Motion for Summary Judgment as MOOT (ECF No. 4 || 73); 5 3) | DISMISSES Defendants Kelly, Goyal, and Hernandez based on Goodlow’s 6 || failure to timely serve them pursuant to Fed. R. Civ. P. 4(m); and 7 4) DIRECTS the Clerk to enter a final judgment of DISMISSAL and close the 8 || file. 9 IT IS SO ORDERED. 10 || Dated: September 24, 2020 € 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 || —————____—__- 18 His “Failure to exhaust administrative remedies is properly treated as a curable defect and 19 should generally result in a dismissal without prejudice.” City of Oakland, Cal. v. 0 Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009) (citing O’Guinn v. Lovelock Corr. Center, 502 F.3d 1056, 1063 (9th Cir. 2007); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 21 || (9th Cir. 2003). Plaintiff may bring these now exhausted claims in a new and separate civil action so long as he does so within the applicable statute of limitations. Section 1983 claims are governed by the forum state’s statute of limitations for personal injury actions. 23 || Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009). The applicable statute of limitations under California law is two years. Cal. Civ. Proc. Code section 335.1; see Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). Additionally, California law tolls the 25 || statute of limitations for up to two years for inmates serving less than life terms. Cal. Civ. 6 Proc. Code section 352.1; Jones, 393 F.3d at 927. The effective statute of limitations for an action by a prisoner under 42 U.S.C. section 1983 is therefore up to four years 27 || notwithstanding the fact that “[t]he applicable statute of limitations is tolled when a 28 prisoner completes the mandatory exhaustion process.” Brown, 422 F.3d at 943.

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