Moffitt v. Winslow

• Court: District Court, N.D. California
• Decided: March 11, 2024
• Docket: 3:22-cv-04852
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 BRIAN MOFFITT, Case No. 22-cv-04852-AMO (PR)

9 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY 10 v. JUDGMENT; AND DENYING PLAINTIFF’S MOTION FOR LEAVE 11 DR. D. WINSLOW, TO FILE A SECOND AMENDED COMPLAINT Defendant. 12 Re: Dkt. Nos. 24, 25

13 Before the Court is Defendant Dr. D. Winslow’s motion for summary judgment under 14 Federal Rule of Civil Procedure 56 on the grounds that Plaintiff Brian Moffitt failed to properly 15 exhaust available administrative remedies before filing suit, as required by the Prison Litigation 16 Reform Act (“PLRA”). Dkt. 24. The operative complaint is the amended complaint. Dkt. 15. 17 Dr. Winslow is the only remaining defendant in this action. See Dkt. 16 at 3. 18 I. BACKGROUND 19 A. Moffitt’s Eighth Amendment Claim 20 On August 25, 2022, Moffitt, a state prisoner currently incarcerated at the California 21 Substance Abuse Treatment Facility, filed a pro se complaint under 42 U.S.C. § 1983 alleging an 22 Eighth Amendment claim against Dr. Winslow stemming from an incident at San Quentin State 23 Prison (“SQSP”) where Moffitt was previously incarcerated. Dkt. 1. Moffitt initially named the 24 following SQSP defendants: Dr. Winslow; Dr. Lenoir; and Registered Nurse (“RN”) N. Podolsky. 25 In his original complaint, Moffitt alleged that a doctor denied him a lower bunk, and the 26 following summary is taken from the Court’s December 15, 2023 Order dismissing the complaint 27 with leave to amend: Plaintiff’s brief complaint states that he was seen by defendant Dr. 1 Lenoir on approximately October 19, 2020. Plaintiff complained of excruciating lower back pain, and that he was having difficulty 2 climbing up to his assigned top bunk. Dr. Lenoir denied a request for a lower bunk accommodation. Several months later plaintiff was 3 transferred to a different prison and was placed in a lower bunk. He also states that the prison should have installed steps or a ladder to 4 make climbing up to the top bunk easier. 5 Dkt. 12 at 3. The Court dismissed the complaint with leave to amend to provide more 6 information, stating as follows:

7 Plaintiff names additional defendants but provides no information about their involvement. In an amended complaint he should provide 8 more details about how they violated his constitutional rights. Plaintiff should also provide more information regarding how Dr. 9 Lenoir’s denial of a bottom bunk accommodation was deliberately indifferent to his serious medical needs and violated the Eighth 10 Amendment. He should provide more information regarding his pain and how the denial of a bottom bunk exacerbated the pain and how it 11 was difficult to climb to the top bunk. He should also discuss how the lack of stairs, or a ladder violated his constitutional rights. Simply 12 attaching exhibits is insufficient. Plaintiff must describe his claims in the body of the complaint. 13 Id. at 3-4. 14 Thereafter, Moffitt filed his amended complaint, in which he only names Dr. Winslow1 15 and alleges that he received inadequate medical care and was denied a lower bunk. Dkt. 15 at 2, 16 4-5.2 Specifically, Moffitt alleges that Dr. Winslow had been his primary care physician for 17 approximately 16 months, and “[was] aware that [Moffitt] was having severe lower back pain.” 18 Id. at 4. Moffitt further alleges that Dr. Winslow “knew of [Moffitt’s] medical condition and lack 19 of treatment, but took no action to ensure that [Moffitt] received a consultation with an orthopedic 20 [doctor],” and “failed to provide [Moffitt] access to a physician competent to evaluate his lower 21 back pain.” Id. Moffitt claims that Dr. Winslow’s “lack of treatment caused [his] condition to 22 worsen, causing wanton and unnecessary severe pain in his lower back” and “affected his daily 23 activities, which prevented him from climbing to top bunks.” Id. at 5. 24 25 1 In Moffitt’s typewritten document entitled, “First Amended Complaint,” he lists Dr. Winslow as 26 the only named defendant and refers only to “Defendant” throughout the entire document. Dkt. 15 at 4-5. The Court construed “Defendant” to be Dr. Winslow. See Dkt. 16 at 3. 27 1 On March 14, 2023, the Court found that, liberally construed, the complaint alleged a 2 cognizable Eighth Amendment claim against Dr. Winslow, stating as follows:

3 Plaintiff states that he suffers from severe lower back pain and has difficulty climbing to his top bunk. Defendant Dr. Winslow was his 4 primary care physician for sixteen months but denied proper treatment including denying an orthopedic consultation. In addition, 5 defendant denied plaintiff a lower bunk, despite the pain and difficulty in climbing to a top bunk. These allegations are sufficient 6 to proceed against Dr. Winslow. 7 Dkt. 16 at 3. Because Moffitt did not name any of the other defendants in his amended complaint, 8 the Court dismissed the claims against all other defendants named in his original complaint, 9 including Dr. Lenoir. Id. Thereafter, this action was reassigned to the undersigned judge. Dkts. 10 21, 22. 11 B. Moffitt’s Efforts to Exhaust His Administrative Remedies 12 Health Care Correspondence and Appeals Branch Acting Chief K. Martin reviewed 13 Moffitt’s “appeal/grievance history” between November 10, 2020 and January 25, 2023 (the date 14 Moffitt filed his amended complaint), which revealed that SQSP’s Office of Grievances received 15 one health care grievance for review concerning health care Moffitt received at SQSP. Martin 16 Decl. ¶ 8, Exs. A&B (Dkts. 24-2 at 2, 24-3 at 2-5). Specifically, on November 5, 2020, Moffitt 17 submitted grievance log number SQ HC 20001546 to the Office of Grievances at SQSP for the 18 institution level review. Martin Decl. ¶ 8, Ex. B (Dkt. 24-3 at 4-5). Moffitt did not sign the 19 grievance form in the correct place, which was under “Section A,” the portion explaining his 20 health-care complaint at the institutional level. See Dkt. 24-3 at 4. Instead, he left blank the 21 signature and date lines under “Section A,” and he signed the signature line under “Section C” and 22 dated it as signed on November 5, 2020. See id. at 5. Because November 5, 2020 is prior to the 23 November 10, 2020 date his grievance was accepted for review at the institutional level, the Court 24 assumes that Moffitt submitted his grievance on November 5, 2020. Id. at 4-5. 25 In grievance log number SQ HC 20001546, Moffitt complained that on October 19, 2020 26 he had been seen by Dr. Lenoir, who told him that he did not meet the criteria for a lower bunk. 27 Id. at 4. Moffitt claimed that he “told the nurse and doctor that [his] lower back [was] in 1 [was] to[o] short and can bearly [sic] climb to the top bunk.” Id. He further stated that he was 2 “afraid [he would] slip & fall & get hurt & there[’]s no steps or ladders to properly climb & access 3 the top bunk.” Id. Moffitt added that he “pulled [his] knee climbing up & down off the 4 bunk . . . .” Id. Moffitt requested that a lower-bunk chrono3 be issued “for [him] to properly 5 access a bunk to sleep in.” Id. RN Podolsky accepted and marked Moffitt’s grievance as received 6 at the institutional level on November 10, 2020. Id. 7 On May 4, 2021, Dr. Winslow, who at that time held the position of SQSP’s Acting Chief 8 Executive Officer, issued an “Institutional Level Response,” in which he specifically indicated the 9 disposition to be “No intervention.” Id. at 2. As basis for this disposition, Dr. Winslow stated he 10 reviewed Moffitt’s grievance and health record, which indicated as follows:

11 • You have received primary care provider evaluation and monitoring for your history of back and knee pain. 12 • The primary care provider completed assessments, noted review of your history, current symptoms, and laboratory/imaging 13 results, and developed a plan of care, including a repeat x-ray of the lumbar spine, physical therapy, and the medications 14 acetaminophen and ibuprofen. • The primary care provider determined you do not meet the criteria 15 for a lower bunk chrono. • Your most recent primary care provider encounters note focus[es] 16 on concerns unrelated to your health care grievance issues, and on April 22, 2021, the primary care provider noted you had no joint 17 or back pain, you were able to sit and stand up from the chair/examining table without difficulty, and your gait was non- 18 antalgic (no abnormal pattern of walking secondary to pain that ultimately causes a limp). 19 Id. at 2. Dr. Winslow added as follows: 20 Your medical condition will continue to be monitored with care 21 provided as determined medically or clinically indicated by the primary care provider. If you have additional health care needs, you 22 may access health care services by utilizing the approved processes in accordance with California Correctional Health Care Services 23 policy. 24 Id. at 3. Finally, Dr. Winslow included the following instructions for Moffitt:

25 If you are dissatisfied with the Institutional Level Response, follow the instructions on the CDCR 602 HC, Health Care Grievance, and 26 submit the entire health care grievance package for headquarters[] 27 level review. The headquarters[] level review constitutes the final 1 disposition on your health care grievance and exhausts your administrative remedies. 2 Id. 3 Moffitt’s grievance was not submitted to the headquarters level for further review as 4 reflected in the Health Care Appeals and Risk Tracking System (“HCARTS”) appeal/grievance 5 history printout attached to Acting Chief Martin’s declaration. Martin Decl. ¶ 8, Ex. A (Dkt. 24-2 6 at 2). On his grievance form, below the portion labeled, “Section C,” where the inmate may 7 indicate his dissatisfaction with the Institutional Level Grievance Response, Moffitt put an “X” 8 over the entire blank space. Dkt. 24-3 at 5. Moffitt signed “Section C” and dated it “11/5/20,” 9 which is the date he submitted his grievance to the institutional level. Additionally, “Section D,” 10 which normally indicates any disposition at the “Health Care Grievance Appeal Review 11 [Headquarters] Level,” is blank, confirming that Moffitt did not receive a disposition at the 12 headquarters level. Id. 13 Meanwhile, Moffitt claims that he submitted grievance log number SQ HC 20001546 to 14 the headquarters level but, as of January 5, 2023, the date of his amended complaint, he had not 15 received a response, making this appeal “unavailable.” Dkt. 15 at 1, 7. Moffitt does not include a 16 copy of the grievance he submitted to the headquarters level, and instead he supports his 17 exhaustion claim by referring to the grievance forms submitted by Dr. Winslow, stating: “Plaintiff 18 exhausted all available administrative remedies before filing his suit. See Exhibit A & B of 19 Defendant Declaration of K. Martin in Support of Defendant’s Motion for Summary 20 Judgment.” Dkt. 25 at 2 (emphasis in original) (citing Dkts. 24-2 at 2 and 24-3 at 2-5). As 21 mentioned above, the exhibits provided by Dr. Winslow do not show that Moffitt submitted 22 grievance log number SQ HC 20001546 to the headquarters level of review.4 23

24 4 Moffitt did not submit any supporting exhibits with his opposition. See Dkt. 25. As a supporting exhibit to his original complaint, Moffitt attached the documents relating to grievance log number 25 SQ HC 20001546. See Dkt. 1 at 4-6, 8. Within this attached exhibit is a document that seems to be out of place, and it is not included with the exhibits provided by Dr. Winslow. Compare id. at 26 7 with Dkt 24-3 at 2-5. That document is entitled, “Claimant Grievance Receipt Acknowledgement,” from the Office of Grievances at SQSP dated June 16, 2021, which 27 references “Log # 000000128843,” and indicates that the Office of Grievances at SQSP received C. Procedural Background 1 Moffitt filed the instant action, in which he raises allegations similar to those in his 2 grievance involving an Eighth Amendment claim, but naming Dr. Winslow instead of Dr. Lenoir 3 in his amended complaint. Dkt. 15. Moffitt claims in his amended complaint that grievance log 4 number SQ HC 20001546 was “submitted to Headquarters[] Level, and as of the date of [the 5 amended complaint], [he] ha[d] not received a response, making this appeal unavailable.” Id. at 7. 6 Dr. Winslow moves for summary judgment under Federal Rule of Civil Procedure 56 on 7 grounds that Moffitt failed to properly exhaust available administrative remedies before filing suit, 8 as required by the PLRA. Dkt. 24. Moffitt filed an opposition, in which he also requests leave to 9 file a second amended complaint to add Dr. Lenoir as a named defendant. Dkt. 25 at 2. Plaintiff 10 claims that he “had his complaint typed and an error was made in not submitting Dr. Lenoir[’s] 11 name with Dr. D. Winslow’s name as defendant.” Id. at 2. Dr. Winslow filed a reply, which does 12 not acknowledge Moffitt’s request for leave to file a second amended complaint. Dkt. 26. 13 For the reasons outlined below, the Court GRANTS Dr. Winslow’s motion for summary 14 judgment, and it DENIES Moffitt’s motion for leave to file a second amended complaint. 15 II. DISCUSSION 16 A. Dr. Winslow’s Motion for Summary Judgment 17 1. Standard of Review 18 “The PLRA mandates that inmates exhaust all available administrative remedies before 19 filing ‘any suit challenging prison conditions,’ including, but not limited to, suits under § 1983.” 20 Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (citing Woodford v. Ngo, 548 U.S. 21 81, 85 (2006)). To the extent that the evidence in the record permits, the appropriate procedural 22 device for pretrial determination of whether administrative remedies have been exhausted under 23 the PLRA is a motion for summary judgment under Rule 56. Id. at 1168. The burden is on the 24

25 any allegations similar to grievance log number SQ HC 20001546. See id. The document also included the following instructions for Moffitt: “Once you receive a response and if you are 26 dissatisfied with the decision(s), you may file an appeal with the California Department of Corrections and Rehabilitation’s [(CDCR’s)] Office of Appeals.” Id. Thus, it seems that the 27 aforementioned document is another grievance that was filed for review at the institutional level 1 defendant to prove that there was an available administrative remedy that the plaintiff failed to 2 exhaust. Id. at 1172. If the defendant meets that burden, the burden shifts to the prisoner to 3 present evidence showing that there is something in his particular case that made the existing and 4 generally available administrative remedies effectively unavailable to him. Id. The ultimate 5 burden of proof remains with the defendant, however. Id. 6 If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to 7 exhaust, a defendant is entitled to summary judgment under Rule 56. Id. at 1166. But if material 8 facts are disputed, summary judgment should be denied and the district judge rather than a jury 9 should determine the facts in a preliminary proceeding. Id. 10 2. Analysis 11 The PLRA amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with 12 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 13 confined in any jail, prison, or other correctional facility until such administrative remedies as are 14 available are exhausted.” 42 U.S.C. § 1997e(a). Section 1997e(a) requires “proper exhaustion” of 15 available administrative remedies. Ngo, 548 U.S. at 93. A prisoner not only must pursue every 16 available step of the prison appeal process but also must adhere to “deadlines and other critical 17 procedural rules” of that process. Id. at 90. A prisoner must “exhaust his administrative remedies 18 prior to sending his complaint to the district court.” Vaden v. Summerhill, 449 F.3d 1047, 1051 19 (9th Cir. 2006) (emphasis added). The prisoner cannot comply with the PLRA’s exhaustion 20 requirement “by exhausting available remedies during the course of the litigation.” Akhtar v. 21 Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012) (citation omitted). 22 Compliance with prison grievance procedures is all that is required by the PLRA to 23 “properly exhaust.” Jones v. Bock, 549 U.S. 199, 217-18 (2007). The CDCR provides its inmates 24 and parolees the right to administratively grieve and appeal any “policy, decision, action, 25 condition, or omission by the Department or departmental staff that causes some measurable harm 26 to their health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3481(a).5 Under the regulations 27 1 effective June 1, 2020, there are two levels of review for non-health-care appeals by inmates, 2 referred to as a grievance and an appeal. At the first level, the inmate submits a form CDCR 602- 3 1 to the Institutional Office of Grievances at the prison or other facility where he is housed. See 4 id. at § 3482(a), (c) (repealed eff. June 1, 2020). “In response, a claimant shall receive a written 5 decision” from the Institutional Office of Grievances “clearly explaining the reasoning for the 6 Reviewing Authority’s decision as to each claim.” Id. at § 3481(a) (repealed eff. June 1, 2020). 7 At the second level, an inmate dissatisfied with the Institutional Office of Grievances’ decision at 8 first level submits a form CDCR 602-2 to the CDCR’s Office of Appeals in Sacramento. Id. at 9 §§ 3481(a), 3485(a) (repealed eff. June 1, 2020). 10 Prisoners also may file complaints regarding healthcare policies, decision, actions, 11 conditions, or omissions using a form CDCR 602 HC. Cal. Code Regs. tit. 15, § 3999.226(a), 12 3999.227. Such complaints are also subject to two levels of review—an institutional level of 13 review and a headquarters level of review. Id. 14 The level of detail necessary in a grievance to comply with the grievance procedures will 15 vary from system to system and claim to claim, but it is the prison’s requirements, and not the 16 PLRA, that define the boundaries of proper exhaustion. Jones, 549 U.S. at 218. California 17 regulations require the prisoner “ ‘to describe the problem and action requested.’ ” Morton v. 18 Hall, 599 F.3d 942, 946 (9th Cir. 2010) (quoting former Cal. Code Regs. tit. 15 § 3084.2(a)). A 19 grievance should include sufficient information “to allow prison officials to take appropriate 20 responsive measures.” Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009) (citation and 21 internal quotation omitted). To initiate the grievance process, an inmate must submit a CDCR 22 Form 602 within thirty calendar days of the event or decision being appealed. See Cal. Code 23 Regs. tit. 15, § 3482(b)-(d). The PLRA’s exhaustion requirement cannot be satisfied “by filing an 24 untimely or otherwise procedurally defective administrative grievance or appeal.” Ngo, 548 U.S. 25 at 84. 26

27 2020, California Code of Regulations Title 15, sections 3084 through 3084.9 were repealed and 1 There are “three kinds of circumstances in which an administrative remedy, although 2 officially on the books, is not capable of use to obtain relief.” Ross v. Blake, 578 U.S. 632, 643 3 (2016). First, “an administrative procedure is unavailable when (despite what regulations or 4 guidance materials may promise) it operates as a simple dead end—with officers unable or 5 consistently unwilling to provide any relief to aggrieved inmates.” Id. Second, “an administrative 6 scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Third, an 7 administrative remedy is not available “when prison administrators thwart inmates from taking 8 advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 9 644. A prisoner must provide evidence, not just make conclusory allegations, to meet his burden 10 to show that existing and generally available administrative remedies were effectively unavailable. 11 See Draper v. Rosario, 836 F.3d 1072, 1079-80 (9th Cir. 2016). A prisoner’s “unsupported 12 allegations” regarding impediments to exhaustion are insufficient to create a triable issue of fact. 13 Id. 14 Here, the evidence submitted by Dr. Winslow shows that Moffitt did not file an appeal 15 challenging the institutional level disposition of “No Intervention” as to grievance log number SQ 16 HC 20001546, in which Moffitt claimed that his history of back and knee pain required the 17 issuance of a lower bunk chrono. See Martin Decl. ¶ 8. The response to Moffitt’s grievance at the 18 institutional level informed him that he did not meet the criteria for a lower bunk chrono and 19 further explained the steps he needed to take in order to exhaust available administrative remedies 20 by submitting his grievance to the headquarters level of review. Dkt. 24-3 at 5-6. The Court has 21 no record of Moffitt submitting grievance log number SQ HC 20001546 to the headquarters level 22 of review. See id.; see also Dkt. 24-2 at 2. Thus, Dr. Winslow has met the initial burden as the 23 moving party of producing evidence to demonstrate Moffitt’s non-exhaustion, specifically by 24 putting forth evidence that Acting Chief Martin had conducted a search of the Moffitt’s 25 appeal/grievance history and found no record that grievance log number SQ HC 20001546 was 26 received at the headquarters level. See Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). 27 Under Albino, Dr. Winslow has therefore proven that there was an available administrative 1 filing this action. See Albino, 747 F.3d at 1172. 2 The burden then shifts to Moffit to show that “there is something particular in his case that 3 made the existing and generally available administrative remedies effectively unavailable to him 4 by ‘showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, 5 or obviously futile.’” See Paramo, 775 F.3d at 1191. In his opposition, Moffitt seems to argue in 6 a conclusory fashion that he “exhausted all available administrative remedies before filing his 7 suit,” but he fails to provide any documentary support. Dkt. 25 at 2. Instead, he relies on Dr. 8 Winslow’s exhibits of the documents relating to grievance log number SQ HC 20001546, which 9 do not show that it was submitted to the headquarters level. See Dkts. 24-2 at 2, 24-3 at 2-5. 10 Moffitt also earlier stated in a conclusory fashion in his amended complaint that the grievance 11 process was “unavailable” to him because he submitted grievance log number SQ HC 20001546 12 to the headquarters level, but did not receive a response. See Dkt. 15 at 1, 7. Such conclusory 13 statements that the grievance process was unavailable to him are insufficient to create a triable 14 issue of fact. See Draper, 836 F.3d at 1079-80 (holding that plaintiff’s statements that prison 15 officials had “engaged in impeding and unethical conduct of obstructing” his inmate appeals 16 “from being exhausted in a timely manner,” and had “prohibited and impeded” his efforts to 17 exhaust were insufficient to create a triable issue because the prisoner did not explain what kinds 18 of impeding and unethical conduct occurred). 19 On this record, Moffitt has offered no evidence that he exhausted his administrative 20 remedies as to his deliberate indifference claim before bringing this civil rights action, and he 21 offers no reason that the exhaustion requirement should be excused. He has not, then, shown 22 evidence that precludes summary judgment. The evidence produced by Dr. Winslow is sufficient 23 to carry the ultimate burden of proof in light of Moffitt’s verified factual allegations. Accordingly, 24 Dr. Winslow is entitled to summary judgment under Rule 56.6 See Albino, 747 F.3d at 1166. 25 6 Dr. Winslow also argues in the alternative that Moffitt fails to show exhaustion of his 26 administrative remedies because grievance log number SQ HC 20001546 “did not identify Dr. Winslow, nor is there a ‘sufficient connection’ between the allegations in the grievance and Dr. 27 Winslow to give prison officials notice of any deprivation by Dr. Winslow.” Dkt. 27 at 1; see also 1 B. Moffitt’s Motion for Leave to Amend 2 Also before the Court is Moffitt’s motion for leave to file a second amended complaint, in 3 which he seeks to add Dr. Lenoir as a defendant. Dkt. 25 at 2. Dr. Winslow did not file a 4 response to Moffitt’s motion. 5 Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint should 6 be “freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Four factors are commonly 7 used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, 8 prejudice to the opposing party, and futility of amendment.” Ditto v. McCurdy, 510 F.3d 1070, 9 1079 (9th Cir. 2007) (citations and internal quotation marks omitted). The decision to grant or 10 deny a request for leave to amend rests in the discretion of the trial court. See California ex rel. 11 California Dep’t of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 673 (9th Cir. 12 2004). 13 Here, leave to amend is unwarranted because it would be futile. Moffitt seeks leave to 14 amend to add Dr. Lenoir as a defendant. However, the Court would have concluded that Moffitt 15 failed to exhaust his administrative remedies as to his deliberate indifference claim not only as to 16 Dr. Winslow but also as to Dr. Lenoir because no evidence exists showing Moffitt submitted 17 grievance log number SQ HC 20001546 to the headquarters level. Thus, granting Moffit leave to 18 add Dr. Lenoir as a named defendant is futile because Dr. Lenoir would be entitled to summary 19 judgment. See Albino, 747 F.3d at 1166. Accordingly, Moffitt’s motion for leave to file a second 20 amended complaint is DENIED. Dkt. 25. 21 III. CONCLUSION 22 For the foregoing reasons: 23 1. The Court GRANTS Dr. Winslow’s motion for summary judgment on grounds 24 that Moffitt failed to properly exhaust available administrative remedies before filing suit.7 Dkt. 25

7 Because the Court has granted Dr. Winslow’s motion for summary judgment based on Moffitt’s 27 failure to exhaust available administrative remedies because he did not produce sufficient evidence 1 24. Pursuant to the law of the circuit, Moffitt’s Eighth Amendment claim is DISMISSED without 2 || prejudice. 3 2. Moffitt’s motion for leave to file a second amended complaint is DENIED. Dkt. 4 25. 5 3. The Clerk of the Court shall terminate all pending motions and close the file. 6 4. This Order terminates Docket Nos. 24 and 25. 7 IT IS SO ORDERED. 8 Dated: March 11, 2024 9 1. 10 Onscek ARACELI MARTINEZ-OLGUIN I United States District Judge 12

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