(PC) Cortinas v. Vasquez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, Case No. 1:19-cv-00367-JLT-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DENY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR A 14 VASQUEZ, et al., FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 15 Defendants. (Doc. 61) 16 14-DAY OBJECTION PERIOD 17 18 Plaintiff Larry William Cortinas is proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. § 1983. 20 I. BRIEF PROCEDURAL BACKGROUND 21 Summary Judgment Filings 22 On October 5, 2021, Defendants Fisher, Ramos, Vasquez and Washington filed a motion 23 for summary judgment, contending Plaintiff had failed to exhaust his administrative remedies 24 prior to filing suit. (Doc. 61.) Plaintiff filed an opposition on October 15, 2021. (Doc. 62.) The 25 Court granted Defendants’ request for an extension of time to November 12, 2021, to file a reply. 26 (Doc. 64.) 27 On November 1, 2022, Plaintiff filed a motion for an extension of time (Doc. 66) and a second opposition to the motion for summary judgment (Doc. 67). On November 4, 2022, the 1 Court issued its order denying Plaintiff’s motion for an extension of time as moot, finding 2 Plaintiff had “already filed an opposition to the motion for summary judgment on October 15, 3 2021.” (Doc. 68.) 4 On November 12, 2021, Defendants filed their reply to Plaintiff’s original opposition. 5 (Doc. 71.) 6 On December 2, 2021, Plaintiff filed a document titled “Plaintiff Response to Defendants 7 Motion for Exhaustion Failure.” (Doc. 73.) Plaintiff also filed a document titled “Plaintiff’s 8 Notice of Facts Which Show Defendants Made the Appeal System Unavailable to Him at the 9 Second Level Corcoran State Prison.” (Doc. 74.) 10 On December 6, 2021, Defendants filed a Motion to Strike Plaintiff’s Sur-Replies. (Doc. 11 75.) 12 Evidentiary Hearing & Saddozai Decision 13 The matter was initially set for an evidentiary hearing on the exhaustion of administrative 14 remedies. (See Doc. 72 [“may present testimony and documentary evidence on whether the 15 appeals office at California State Prison, Corcoran, provided Plaintiff with notice(s) of the delay 16 in processing his administrative appeal (Log No. CSPC-7-18-02210) at the second level of 17 review”]; see also Docs. 84 [minute order], 105, 110.) Before the evidentiary hearing was held, 18 the Ninth Circuit Court of Appeals decided Saddozai v. Davis.1 Its applicability to this case 19 resulted in an Order directing the parties to file supplemental briefing, and vacating the 20 evidentiary hearing then set for August 2, 2022. (See Doc. 119.) 21 Following receipt of the parties’ briefs on the applicability of Saddozai (Docs. 122 & 22 123), the Court held a telephonic status conference on August 9, 2022, in which Plaintiff and 23 defense counsel indicated their willingness to participate in a settlement conference. (Doc. 125 24 [minutes].) On August 10, 2022, the Court issued its Order setting the matter for a settlement 25 conference on September 27, 2022. (Doc. 126.) 26 // 27

1 Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022). 1 Following review of the parties’ confidential settlement conference statements, the Court 2 conducted a telephonic status conference with the parties on September 21, 2022. As a result of 3 that proceeding, the Court issued its September 22, 2022 order vacating the settlement 4 conference. (Doc. 133.) The Court ordered that discovery remain stayed pending the issuance of 5 these findings and recommendations and the assigned district judge’s issuance of an order 6 concerning these findings and recommendations. (Id.) 7 II. SUMMARY OF FACTS 8 Plaintiff alleges that, on April 30, 2018, Correctional Sergeant Vasquez instructed him to 9 place his hands through a “tray slot” so that he could be handcuffed. (Doc. 15 at 4.) Plaintiff 10 refused, stating he required a “mental health doctor.” (Id.) Sergeant Vasquez and Correctional 11 Officer Washington then entered Plaintiff’s cell. (Id.) Plaintiff alleges that, after he was 12 handcuffed, Vasquez start[ed] kicking and punching him in the head and neck area, while 13 Correctional Officer Fisher kicked him in the groin area. (Id. at 5.) Plaintiff states that one of the 14 officers then “placed a metal [o]bject into [his] anus,” while Vasquez put a black hood over his 15 head, telling him to stop resisting or he would “shove it all the way in.” (Id.) The metal object 16 was then removed, and Plaintiff was sat in a wheelchair and wheeled to a “[s]tand alone [u]nit,” 17 where Correctional Officer Ramos and Sergeant Vasquez “dump[ed]” him into a cell. (Id.) 18 Plaintiff contends the officers left him in the cell naked, shackled, and hooded. (Id.) He alleges 19 that officers refused to provide him medical attention, and that he suffered two black eyes, a nose 20 fracture, “[r]ectal bleeding,” headaches, and “ears ringing.” (Id.) 21 A. Defendants’ Undisputed Facts 22 1. Plaintiff Larry Cortinas (P-09908) is a prisoner in the custody of the California 23 Department of Corrections and Rehabilitation (CDCR), who at all times relevant to the 24 Complaint, was incarcerated at the California State Prison-Corcoran (“Corcoran”) in 25 Corcoran, California. (ECF No. 1.) 26 2. Plaintiff initiated this action on March 13, 2019. (ECF No. 1.) 27 3. Plaintiff submitted appeal CSPC-7-18-02210, on April 30, 2018, in which he 1 April 30, 2018, at or about 10:30 AM I was assaulted by the unit staff. Sgt Vasquez direct C/O Washington C/O Fisher and several unknown officer to enter 2 my cell. dispite [sic] me being in plain view. Sitting on the bed. Sgt Vasquez punched me twice in the face cause my eyes to turn black. I was denied a use of 3 force report, medical care or examination. They kept my shower shoes Croc 30.00 4 and neck brace soft 20.00. (Mendez Decl. ¶ 5, Ex. A.) 5 In the section of the 602 appeal form where it asks what relief is being requested, 6 Plaintiff requested $1,000,000 and “firing of all staff who assaulted him for a clear 7 violation of Coleman.” (Id.) Appeal CSPC-7-18-02210 bypassed the first level of 8 review, and the prison appeals office processed it as a staff complaint. (Id.) 9 4. A second level response for appeal CSPC-7-18-02210, dated June 1, 2018, provides 10 that the appeal was partially granted in that an appeal inquiry was conducted. The 11 appeal inquiry found that staff did not violate CDCR policy with respect to the issues 12 appealed. Plaintiff was not provided with a copy of the June 1, 2018 second level 13 response at that time because the appeal was still pending the completion of 14 Institutional Executive Review Committee (IERC) review. (Mendez Decl. ¶ 6, Ex. B.) 15 5. While appeal CSPC-7-18-02210 was pending a second level response, the Corcoran 16 Appeals Office provided notices to Plaintiff informing him that there was a delay in 17 the review of his appeal. A total of twelve notices were provided to Plaintiff, and the 18 notices are dated: June 19, 2018; August 2, 2018; September 11, 2018; October 24, 19 2018; December 7, 2018; January 24, 2019; March 8, 2019; April 19, 2019; June 4, 20 2019; July 12, 2019; August 28, 2019; October 10, 2019. Each notice indicated that 21 there was an exceptional delay in the review of the appeal due to the “complexity of 22 the decision, action, or policy.” (Mendez Decl. ¶ 7, Ex. C.) 23 6. An amended second level response for appeal CSPC-7-18-02210, dated October 16, 24 2019, indicates that the Institutional Executive Review Committee (IERC) reviewed 25 the allegations contained within the appeal and determined that staff did not violate 26 policy. Section E of the original 602 form indicates that the amended second level 27 response was mailed/delivered to Plaintiff on October 22, 2019. At this time, a copy of the original second level response, dated June 1, 2018 (which was not previously 1 provided), would have also been mailed/delivered to Plaintiff. (Mendez Decl. ¶ 8, Ex. 2 D.) 3 7. Plaintiff submitted appeal COR-18-2286, on May 1, 2018, in which he alleged that on 4 April 30, 2018, Sergeant Vasquez, Officer Fisher, and Officer Washington entered his 5 cell and assaulted him, that he was denied a use of force report and medical treatment 6 by staff, that Officer Ramos dumped him out of a wheelchair and into his cell, and that 7 his neck brace was not returned. This appeal was screened out as duplicative of a 8 previous appeal. (Mendez Decl. ¶ 9, Ex. E.) 9 8. Plaintiff submitted appeal COR 18-2671, on May 22, 2018, in which he complained 10 that on April 30, 2018, Sergeant Vasquez ordered an unlawful entry and that he was 11 “assaulted, extracted, in violation of Coleman and CDCR policy.” This appeal was 12 screened out as being duplicative of appeal log no. COR-18-2210. (Mendez Decl. ¶ 13 10, Ex. F.) 14 9. The Office of Appeals only has record of Plaintiff submitting one appeal alleging that 15 on April 30, 2018, Plaintiff was the victim of unnecessary and excessive force by 16 Defendants Fisher, Ramos, Vasquez, or Washington at California State Prison, 17 Corcoran (COR), as described in Plaintiff’s lawsuit. (Moseley Decl. ¶ 7.) 18 10. The Office of Appeals received Log No. 1913766 (an appeal of Grievance Log No. 19 COR-18-02210) on November 4, 2019, and denied the appeal on January 27, 2020. 20 (Moseley Decl. ¶ 8.) 21 (Doc. 61-2.) 22 III. LEGAL STANDARDS 23 A. Summary Judgment 24 Summary judgment is appropriate when the moving party “shows that there is no genuine 25 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 26 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 27 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 1 “citing to particular parts of materials in the record, including depositions, documents, 2 electronically stored information, affidavits or declarations, stipulations …, admissions, 3 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 4 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 5 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 6 the burden of proof at trial, “the moving party need only prove that there is an absence of 7 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 8 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 9 Summary judgment should be entered against a party who fails to make a showing 10 sufficient to establish the existence of an element essential to that party’s case, and on which that 11 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 12 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 13 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 14 “so long as whatever is before the district court demonstrates that the standard for the entry of 15 summary judgment … is satisfied.” Id. at 323. 16 B. Exhaustion of Administrative Remedies 17 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 18 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 19 confined in any jail, prison, or other correctional facility until such administrative remedies as are 20 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is 21 mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 22 211 (2007). Inmates are required to “complete the administrative review process in accordance 23 with the applicable procedural rules, including deadlines, as a precondition to bringing suit in 24 federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies 25 to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of 26 the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 27 U.S. 731, 741 (2001). 1 The failure to exhaust administrative remedies is an affirmative defense, which the 2 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of 3 producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if 4 the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff 5 failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 6 On a motion for summary judgment, the defendant must prove (1) the existence of an 7 available administrative remedy, and (2) that the plaintiff failed to exhaust that remedy. Albino, 8 747 F.3d at 1172 (citation omitted). If the defendant meets this burden, the plaintiff then “has the 9 burden of production. That is, the burden shifts to the prisoner to come forward with evidence 10 showing that there is something in his particular case that made the existing and generally 11 available administrative remedies effectively unavailable to him.” Id. (citation omitted). 12 “However, … the ultimate burden of proof remains with the defendant.” Id. “If a motion for 13 summary judgment is denied, disputed factual questions relevant to exhaustion should be decided 14 by the judge.” Id. at 1170. 15 An inmate “need not exhaust unavailable [remedies].” Ross v. Blake, 578 U.S. 632, 642 16 (2016). An administrative remedy is unavailable “when (despite what regulations or guidance 17 materials may promise) it operates as a simple dead end with officers unable or consistently 18 unwilling to provide any relief to aggrieved inmates”; or when “an administrative scheme [is] so 19 opaque that it becomes, practically speaking, incapable of use, [i.e.,] some mechanism exists to 20 provide relief, but no ordinary prisoner can discern or navigate [the mechanism]”; or “when 21 prison administrators thwart inmates from taking advantage of a grievance process through 22 machination, misrepresentation, or intimidation.” Id. at 643-44. 23 Prisoners are required to exhaust the available administrative remedies prior to filing suit. 24 Jones v. Bock, 549 U.S. at 211; McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 25 However, a prisoner who has fully complied with the PLRA's exhaustion requirement need not 26 file an entirely new federal case simply because they had not exhausted when they filed their 27 original federal complaint. Jackson v. Fong, 870 F.3d 928 (9th Cir. 2017); accord Saddozai v. 1 When the district court concludes the prisoner has not exhausted administrative remedies 2 on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. Terhune, 3 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by Albino, 4 747 F.3d at 1168-69. “If a motion for summary judgment is denied, disputed factual questions 5 relevant to exhaustion should be decided by the judge.” Albino, 747 F.3d at 1170. If the court 6 finds that remedies were not available, the prisoner exhausted available remedies, or the failure to 7 exhaust available remedies should be excused, the case proceeds to the merits. Id. at 1171. 8 C. CDCR Grievance Process 9 The CDCR has an administrative grievance system for prisoners to appeal a policy, 10 decision, action, condition, or omission by the department or staff if it has an adverse effect on 11 prisoner health, safety, or welfare. Cal. Code Regs. tit. 15, § 3084.1(a) (2017). Compliance with 12 42 U.S.C. § 1997e(a) requires California state prisoners to utilize CDCR’s grievance process to 13 exhaust their claims prior to bringing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th 14 Cir. 2010); see also Woodford, 548 U.S. at 85-86. In 2018, administrative grievances were subject 15 to three levels of review before the remedy was deemed exhausted. Cal. Code Regs. tit. 15, § 16 3084.1(b) (2017); see also Sapp, 623 F.3d at 818. 17 IV. EVIDENTIARY MATTERS 18 Motion to Strike Sur-Replies 19 As noted above, Defendants have filed a motion to strike Plaintiff’s sur-replies. (Doc. 75.) 20 Specifically, Defendants contend Plaintiff’s second opposition to the motion for summary 21 judgment (Doc. 73) and his “Notice of Facts” (Doc. 74) should be stricken as sur-replies. (Id. at 22 3-4.) 23 The Local Rules for the Eastern District of California provide for a motion, an opposition, 24 and a reply. See E.D. Cal. L.R. 230(l). There is nothing in the Local Rules or the Federal Rules of 25 Civil Procedure that permit the filing of a sur-reply as a matter of right. Indeed, the Court 26 generally views motions for leave to file a sur-reply with disfavor. See Hill v. England, No. 27 CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citation omitted). However, 1 School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in 2 denying leave to file a surreply where it did not consider new evidence in reply); U.S. ex rel. 3 Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court did not abuse 4 discretion in refusing to permit “inequitable surreply”), overruled on other grounds by U.S. ex rel. 5 Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015). 6 The Court is mindful that, in this Circuit, courts are required to afford pro se litigants 7 additional leniency. See, e.g., Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (quoting 8 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)) (holding when plaintiff “is pro se, particularly 9 in civil rights cases, [courts should] construe the pleadings liberally and ... afford the [plaintiff] 10 the benefit of any doubt”). Nonetheless, the leniency afforded pro se inmates need not extend to 11 permitting sur-replies “as a matter of course,” and the Court is not inclined to grant such leave 12 absent a showing of good cause. See Garcia v. Biter, 195 F. Supp. 3d 1131, 1134 (E.D. Cal. 13 2016) (denying motion for leave to file sur-reply due to lack of good cause). 14 Here, Plaintiff did not seek leave to file a sur-reply even though the record reflects that 15 Plaintiff is capable of seeking leave from the Court to file various documents. (See, e.g., Doc. 17 16 [motion to appoint counsel], Doc. 33 [same], Doc. 38 [motion for writ of habeas corpus ad 17 testificandum], Doc. 44 [same].) The Court has also reviewed the sur-replies and finds the 18 arguments raised do not change the Court's analysis of Defendants’ summary judgment motion. 19 Accordingly, Defendants’ motion to strike the sur-replies should be granted and the sur-replies 20 should be stricken. 21 Lack of Response to Defendants’ Statements of Undisputed Fact 22 Plaintiff has failed to properly respond to Defendants’ Statement of Undisputed Facts in 23 support of the motion for summary judgment. (See Doc. 61-2.) Plaintiff was served with a Rand2 24 warning that included the following language: 25 In accordance with Local Rule 260(a), Defendants have filed a Statement of Undisputed Facts that contain discrete, specific material 26 facts to support their entitlement to summary judgment. In response to this Statement, Local Rule 260(b) requires you to “reproduce the 27

2 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). 1 itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including 2 with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other 3 document relied upon in support of that denial.” You may also “file a concise Statement of Disputed Facts, and the source thereof in the 4 record, of all additional material facts as to which there is a genuine issue precluding summary judgment or adjudication.” Id. You are 5 responsible for filing all evidentiary documents cited in the opposing papers. Id. 6 7 (Doc. 61-3 at 2.) 8 Plaintiff neither reproduced Defendants’ itemized facts, nor admitted or denied those 9 facts. Because Plaintiff has not complied with Rule 260(b),3 the Court deems Plaintiff to have 10 admitted those facts.4 See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by failing specifically 11 to challenge the facts identified in the defendant's statement of undisputed facts, [plaintiff] is 12 deemed to have admitted the validity of the facts contained in the [defendant's] statement.”); Brito 13 v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. July 15, 2020) 14 (deeming defendant's undisputed facts as admitted after plaintiff failed to comply with Local Rule 15 260(b)); see also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 16 V. DISCUSSION 17 A. Ninth Circuit’s Decision in Saddozai v. Davis 18 On May 23, 2022, the Ninth Circuit Court of Appeals decided Saddozai v. Davis. On June 19 6, 2022, this Court issued an Order directing Defendants to file supplemental briefing regarding 20 the applicability of Saddozai to their motion for summary judgment. (Doc. 119.) 21 Defendants filed their supplemental brief, acknowledging the Ninth Circuit’s Saddozai 22 opinion requires the Court to consider Plaintiff’s second amended complaint filed on February 12, 23 2020, as the operative complaint for purposes of a PLRA exhaustion analysis. (Doc. 122 at 3-4.)

24 3 The Court further observes that Plaintiff failed to reproduce Defendants’ statement of undisputed facts, or 25 to admit or deny those facts in his sur-replies.

26 4 In the First Informational Order in Prisoner/Civil Detainee Civil Rights Case, issued March 20, 2019, Plaintiff was advised: “In litigating this action, the parties must comply with this Order, the Federal Rules 27 of Civil Procedure (‘Fed. R. Civ. P.’), and the Local Rules of the United States District Court, Eastern District of California (‘Local Rules’), as modified in this Order. Failure to so comply will be grounds for imposition of sanctions which may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” 1 Defendants acknowledged that as Plaintiff’s excessive force claims against certain Defendants 2 had been exhausted via third level review on January 27, 2020, those claims are considered 3 exhausted according to Saddozai. (Id.) Defendants further contended that “Plaintiff’s other 4 claims” remain unexhausted despite Saddozai’s holding. More particularly, as to Plaintiff’s claim 5 that Defendant Ramos was deliberately indifferent to his serious medical needs, Defendants assert 6 Plaintiff’s claim was properly screened out and is thus unexhausted. And, as to Plaintiff’s claim 7 that any Defendant sexually assaulted him, Defendants allege Plaintiff did not submit any appeals 8 about sexual misconduct and the claim is unexhausted. (Id. at 4.)5 9 On July 15, 2022, Plaintiff filed a document titled “Plaintiff Objection and Denial to 10 Defendant’s Supplemental Briefing on the Applicability of Saddozai vs Davis on the Issue of 11 Exhaustion.” (Doc. 123.) Plaintiff agreed that the excessive force claims are exhausted in light of 12 Saddozai. (Id. at 2.) However, Plaintiff contended his deliberate indifference and sexual assault 13 claims were improperly screened out. (Id. at 1.) He further contends that his “sexual assault claim 14 was heard and addressed by California department of corrections on several occasion(s)…while 15 Plaintiff was a[t] california state prison sacramento.” (Id.) As to these screened out appeals, 16 Plaintiff contends “c.d.c.r. denied the availability of the administrative process.” (Id. at 2.) 17 Plaintiff sought the following: (1) an evidentiary hearing “upon the issue of sexual assault and 18 medical care”; and (2) a 60-day discovery period concerning the issue, or, alternatively, a 19 settlement conference to resolve the issue. (Id. at 2.) 20 Applying the holding of Saddozai, this Court finds Plaintiff’s excessive force claims 21 against Defendants Vasquez, Fisher and Washington to be exhausted as those claims were denied 22 at the third level on January 27, 2020, before the filing of the operative complaint on February 12, 23 2020. The Court will recommend Defendants’ motion for summary judgment be denied as to 24 those claims. The undersigned will consider two issues: (1) whether Plaintiff’s deliberate 25 indifference claim against Defendant Ramos is exhausted; and (2) whether Plaintiff’s sexual

26 5 Defendants also indicated to the Court that the previously set evidentiary hearings were to explore 27 whether administrative remedies were available concerning Plaintiff’s excessive force claims and the notices of delay issued concerning CSPC-7-18-02210, and because Saddozai means the excessive force claims are now considered to be unexhausted, an evidentiary hearing is no longer warranted. (Id. at 4, n.2.) 1 assault claim against any Defendant is exhausted.6 2 B. Deliberate Indifference to Serious Medical Needs: Defendant Ramos 3 1. The Parties’ Positions 4 Defendants contend Plaintiff failed to exhaust his administrative remedies concerning his 5 claim that Defendant Ramos was deliberately indifferent to his serious medical needs when 6 Ramos “dumped” Plaintiff from his wheelchair. (Doc. 61 at 16-17.) Defendants further contend 7 “the appeal that Plaintiff exhausted after filing this lawsuit (COR-18-02210) did not mention 8 Officer Ramos specifically.” (Id.) Defendants also contend the appeal that did mention Defendant 9 Ramos—the Deliberate Indifference Grievance—was screened out and therefore unexhausted. 10 (Id. at 17.) 11 Plaintiff does not specifically address Defendants’ argument in his original opposition to 12 the motion for summary judgment. (See Doc. 62.) In his supplemental brief, filed in response to 13 this Court’s order following issuance of the Saddozai decision, Plaintiff contends his deliberate 14 indifference to serious medical needs claim was improperly screened out. (See Doc. 123.) 15 In their reply, Defendants contend it is undisputed “that the appeal Plaintiff exhausted … 16 (COR-18-02210) did not mention Officer Ramos specifically. (DUF 3.) It is also undisputed that 17 the one appeal that mentions Ramos (COR-18-2286) was properly screened out (DUF 9) and was 18 therefore not exhausted.” (Doc. 71 at 9.) 19 2. Defendants’ Declarations 20 Defendants have submitted the Declaration of J. Mendez, Correctional Counselor II, 21 which provides, in relevant part: 22 At the request of the Attorney General’s Office, a search was conducted in IATS of appeals that were submitted by Plaintiff inmate 23

24 6 For ease of reference, unless quoting a party’s pleading, the Court will refer to the grievances or appeals as follows: 25 18-2208 as “UNK #1” 18-2210 as “Excessive Force Grievance” 26 18-2258 as “UNK #2” 18-2286 as “Deliberate Indifference Grievance” 27 18-2671 as “Sex Assault Grievance” 18-2978 as “Appeal re Screen Out” 1 Larry Cortinas CDCR No. P09908 that were received at CSP-COR from April 30, 2018, to March 13, 2019, and alleged: Sergeant 2 Vasquez, Officer Washington, and Officer Fisher entered his cell while he was on suicide watch and assaulted him; an officer placed 3 a metal object into Plaintiff’s anus; Sergeant Vasquez placed a black hood over Plaintiff’s head; Sergeant Vasquez and Officer Ramos 4 dumped Plaintiff into a holding cell and left him there naked and hooded; and staff allegedly refused to provide Plaintiff medical 5 attention. A search using these parameters revealed the following. 6 Inmate Cortinas submitted appeal log no. CSPC-7-18-02210 on April 30, 2018, in which he alleged that on April 30, 2018: Sergeant 7 Vasquez directed Officers Washington, Fisher, and other unknown officers to enter his cell even though he was in plain view sitting on 8 his bed; Sergeant Vasquez punched him twice in the fac[e] causing his eyes to turn black; he was denied a use of force report, medical 9 care, and examination; and that he lost his shower shoes and neck brace. A true and correct copy of the originally submitted appeal 10 SPC-7-18-02210 is attached as Exhibit A. 11 A second level response for appeal CSPC-7-18-02210, dated June 1, 2018, provides that the appeal was partially granted in that an appeal 12 inquiry was conducted. The appeal inquiry found that staff did not violate CDCR policy with respect [to] the issues appealed. Cortinas 13 was not provided with a copy of the June 1, 2018 second level response at that time because the appeal was still pending completion 14 of Institutional Executive Review Committee (IERC) review, which was the procedure at CSP-COR at that time. A true and correct copy 15 of the original second level response to appeal CSPC-7-18-02210 is attached as Exhibit B. 16 While appeal CSPC-7-18-02210 was pending a second level 17 response, notices of delay were provided to Cortinas on the following dates: June 19, 2018, August 2, 2018; September 11, 2018; October 18 24, 2018; December 7, 2018; January 24, 2019; March 8, 2019; April 19, 2019; June 4, 2019; July 17[,] 2019; August 28, 2019; October 19 10, 2019. Each notice indicated that there was an exceptional delay in the review of the appeal due to the “complexity of the decision, 20 action, or policy.” True and correct copies of the notices of the delay as maintained by the Appeals Office are attached as Exhibit C. 21 An amended second level response for appeal CSPC-7-18-02210, 22 dated October 16, 2019, indicates that the Institutional Executive Review Committee (IERC) reviewed the allegations contained 23 within the appeal and determined that policy was not violated. Section E of the original 602 form indicates that the amended second 24 level response was mailed/delivered to Cortinas on October 22, 2019. At this time, a copy of the original second level response, dated June 25 1, 2018 (which was not previously provided to the inmate), would have also been mailed/delivered to Cortinas. A true and correct copy 26 of [the] amended second level response to appeal CSPC-7-18-02210 is attached as Exhibit D. 27 Cortinas submitted appeal COR-18-2286, on May 1, 2018, in which 1 and Officer Washington entered his cell and assaulted him, that he was denied a use of force report and medical treatment by staff, that 2 Officer Ramos dumped him out of a wheelchair and into his cell, and that his neck brace was not returned. This appeal was screened out 3 as duplicative of a previous appeal. A true and correct copy of the originally submitted appeal COR-18-2286 and the screen out notice 4 is attached as Exhibit E. 5 (Doc. 61-4 at -23, ¶¶ 4-9.) Defendants also submitted the Declaration of Howard E. Moseley, 6 Associate Director of the Office of the Appeals (OOA), in support of the motion which provides 7 in pertinent part: 8 I am familiar with the record keeping system at the OOA and have access to Plaintiff’s records. At the request of the Attorney General’s 9 Office, a search of the OOA computer system was conducted on August 31, 2021, under the name of Larry Cortinas, CDCR No. 10 P09908, for all non-health care related appeals received by the OOA. A true and correct copy of the Appeal History Report is attached as 11 Exhibit A. 12 A search was also conducted of the appeals listed in Exhibit A to determine if any contained an allegation by Plaintiff that on April 30, 13 2018, Plaintiff was the victim of unnecessary and excessive force by Defendants Fisher, Ramos, Vasquez, or Washington at California 14 State Prison, Corcoran (COR), as described in Plaintiff’s lawsuit. 15 Appeal Log No. 1913766 (an appeal of Grievance Log No. COR-18- 2210) contained such an allegation. [Fn. Omitted] Appeal Log No. 16 1913766 was received on November 4, 2019, and was denied by the OOA on January 27, 2020. A true and correct copy of Plaintiff’s 17 appeal and the OOA decision are attached as Exhibit B. 18 (Doc. 61-5 at 3, ¶¶ 6-8.) 19 3. Relevant Legal Standards 20 A grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. 21 To provide adequate notice, the prisoner need only provide the level of detail required by the prison’s regulations. 22 23 Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing Jones v. Bock, 549 U.S. at 218); see 24 also Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (“The primary purpose of a grievance 25 is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for 26 litigation”). California regulations require a prisoner to “list all staff members involved” and to 27 “describe their involvement in the issue.” Cal. Code Regs. Tit. 15, § 3084.2(3). For administrative remedies to be exhausted by California prisoners as to defendants who were not identified in the 1 inmate grievance, there must be a “sufficient connection” between the claim in the appeal and the 2 unidentified defendants such that prison officials can be said to have had “notice of the alleged 3 deprivation” and an “opportunity to resolve it.” Reyes v. Smith, 810 F.3d 654, 659 (9th Cir. 2016) 4 (finding that plaintiff had satisfied PLRA exhaustion requirements as to two prison doctors 5 despite not having identified them in his inmate appeals because there was a sufficient connection 6 between plaintiff's appeal based on inadequate pain management, and the doctors, who served on 7 the prison committee that had denied plaintiff medication). 8 In Sapp v. Kimbrell, the Ninth Circuit considered whether improper screening of an 9 inmate’s grievance or appeal excused the inmate’s failure to exhaust his administrative remedies, 10 and, if so, whether those appeals were improperly screened out. Sapp, 623 F.3d at 817. The 11 appellate court held that when prison officials improperly screen out inmate grievances, they 12 render administrative remedies effectively unavailable. Sapp, 623 F.3d at 823. In that instance, 13 “the inmate cannot pursue the necessary sequence of appeals.” Id.; Nunez v. Duncan, 591 F.3d 14 1217, 1226 (9th Cir. 2010) (excusing an inmate’s failure to exhaust because he was precluded 15 from exhausting administrative remedies by warden’s mistaken instruction to him that a particular 16 unavailable document was needed for him to pursue his inmate appeal). 17 4. Analysis 18 The Court first considers whether Defendants have met their initial burden of producing 19 evidence showing “that there was an available administrative remedy, and that the prisoner did 20 not exhaust that available remedy.” See Albino, 747 F.3d at 1172. 21 The Court agrees with Defendants that the Excessive Force Grievance does not contain 22 any allegation that Defendant Ramos was deliberately indifferent to serious medical needs. The 23 Excessive Force Grievance neither mentions Defendant Ramos, nor references any wheelchair. 24 (Doc. 61-5 at 15-18.) See Woodford v. Ngo, 548 U.S. at 90-91; see also Estrada v. California 25 Corr. Inst., No. 1:18-cv-00599-AWI-SAB (PC), 2021 WL 3268555, at *8 (E.D. Cal. July 30, 26 2021) adopted by 2021 WL 4123686 (E.D. Cal. Sept. 9, 2021) (finding the plaintiff failed to 27 properly exhaust his administrative remedies because he did not name the defendant or 1 undersigned therefore finds it is undisputed that the Excessive Force Grievance does not serve to 2 exhaust Plaintiff’s administrative remedies as to his deliberate indifference claim against 3 Defendant Ramos. This finding, however, does not end the Court’s inquiry. 4 The Deliberate Indifference Grievance, signed by Plaintiff on May 1, 2018, reads as 5 follows: 6 4/30/18 at CTC D-1 cris[i]s bed. At or about 11:00 am Sgt Vasquez ordered unlawful entry into a suicide cell, without permission, 7 disregarding Coleman and CDCR policy to assault me. C/O Fisher kill me by kicking or punching testicles. C/O Sgt. Vasquez lied about 8 window being covered. Yet still does not justify entry. C/O Washington pounded me with body shield. Even as I sat arms 9 crossed. Medical and staff denied me care. CTC Lt name unknown refused to speak with me about use of force. Once back by 10 wheelchair, 2nd watch ASU C/O Ramos and others unknown by violence dumped me into my cell. No medical neck brace returned. 11 30 dollar item taken by Sgt. Vasquez. This concludes my account of events. 12 13 (Doc. 61-4 at 31, 33; italics added.)7 14 As noted in Defendants’ motion, the Deliberate Indifference Grievance was screened out 15 at the second level, on May 9, 2018, as duplicative of “a previous appeal upon which a decision 16 has been rendered or is pending,” as it “contained multiple issues and is a duplicative of two 17 separate appeals that are currently pending completion. Log#18-02208 which allegedly occurred 18 at ASU and log#18-02258 which allegedly occurred in CTC.” (See Doc. 61-4 at 30 [Exhibit E].) 19 Plaintiff’s opposition also includes a copy of this document, although there exists a difference 20 between the two versions. In Plaintiff’s version of the document, “18-02258 [UNK #2]” is lined 21 out and beneath the strike-out appears a handwritten entry that reads “18-02210” with what 22 appears to be initials inscribed just below the handwritten entry, as though a correction was made 23 to the document. (See Doc. 62 at 21.) The undersigned has already determined that the Excessive 24 Force Grievance does not include any reference to Defendant Ramos or a wheelchair; therefore, 25 the Deliberate Indifference Grievance cannot be duplicative of the Excessive Force Grievance. 26

27 7 In his declaration, Mendez summarized Plaintiff’s grievance and declares it was “screened out as duplicative of a previous appeal.” (See Doc. 61-4 at 3, ¶ 9.) Mendez used the singular rather than plural when referring to the purported duplicity and did not identify any specific grievance. 1 Because this record does not include UNK #1 or UNK #2, a determination cannot be made 2 concerning their purported duplicity to the Deliberate Indifference Grievance.8 3 Improper screening is a basis for the unavailability of an opportunity to exhaust 4 administrative remedies. Sapp v. Kimbrell, 623 F.3d at 823 [“improper screening of an inmate’s 5 administrative grievance renders administrative remedies ‘effectively unavailable’ such that 6 exhaustion is not required under the PLRA”].) Here, the record concerning Plaintiff’s deliberate 7 indifference to serious medical needs claim against Defendant Ramos is ambiguous. It is unclear 8 what Plaintiff claimed in UNK #1 and UNK #2, and whether the Deliberate Indifference 9 Grievance was duplicative of either UNK #1 or UNK #2. Therefore, Defendants have not met 10 their initial burden of proving there is no issue of genuine material fact as to the exhaustion of 11 Plaintiff’s deliberate indifference claim. See Fed. R. Civ. P. 56(c)(1)(A); In re Oracle Corp. Sec. 12 Litig., 627 F.3d at 387; Albino, 747 F.3d at 1166 (defendant bears burden of producing evidence 13 that proves failure to exhaust; summary judgment appropriate only if undisputed evidence, in 14 light most favorable to plaintiff, shows plaintiff failed to exhaust). Because the record is 15 ambiguous and incomplete concerning the efforts Plaintiff made, or did not make, regarding his 16 claim of deliberate indifference to serious medical needs against Defendant Ramos, that 17 ambiguity weighs in Plaintiff’s favor as the non-moving party. Albino, 747 F.3d at 1166. 18 For the foregoing reasons, Defendants have not carried their initial burden on summary 19 judgment. Therefore, Defendants are not entitled to summary judgment on Plaintiff’s claim 20 against Defendant Ramos and the undersigned will recommend Defendants’ motion for summary 21 judgment be denied. 22 8 The Court notes that Exhibit E to the Mendez Declaration concerns the Deliberate Indifference Grievance 23 dated May 1, 2018. (See Doc. 61-4 at 31-34.) In Plaintiff’s factual recitation of the incident in that document, he concluded with the words “[t]his concludes my account of events.” (Id. at 33.) Yet a 24 comparison of that document to the version of the Deliberate Indifference Grievance provided by Plaintiff in his opposition reveals there is additional language that is absent from Defendants’ version. Plaintiff’s 25 version of the document also includes the handwriting “threaten to kill me if I speak of batton in my ass. 26 At least 20 witnesses.” (See Doc. 62 at 26.) To the extent Plaintiff anticipates using his proffered version of the Deliberate Indifference Grievance as some evidence at any further proceeding in this action, 27 Plaintiff will be required to explain the discrepancy between the version submitted by Defendants under penalty of perjury as a true and correct copy of the Deliberate Indifference Grievance and the version Plaintiff has submitted in the absence of a similar sworn statement. Plaintiff will be required to establish 1 C. Sexual Assault As to Any Defendant 2 1. The Parties’ Positions 3 Defendants contend Plaintiff failed to exhaust his sexual assault claim because he did not 4 submit any appeals complaining of sexual misconduct, “that an officer forced a ‘metal [o]bject’ 5 into his anus against his will.” (Doc. 61-1 at 17-18.) Defendants contend none of the submitted 6 appeals complain of or mention “anyone placing any object into [Plaintiff’s] anus” nor any 7 behavior that could be construed as an allegation of sexual abuse. (Id. at 17.) Defendants recount 8 the facts of one such appeal—the Excessive Force Grievance—and note the “related responses at 9 the second and third levels of review further confirm the absence of any allegation of a sexual 10 nature.” (Id. at 17-18.) Defendants also contend Plaintiff’s “two screened out appeals (COR-18- 11 2286 and COR-18-2671) did not mention or complain about any sexual allegations or anyone 12 placing an object in Plaintiff’s anus.” (Id. at 18.) 13 Plaintiff’s opposition states “CSPC-8-18-02978” addressed the sexual assault and that he 14 has exhausted the claim. (Doc. 62 at 1.) In his supplemental brief filed in response to this Court’s 15 order concerning issuance of the Saddozai decision, Plaintiff contends sexual assault claim was 16 improperly screened out. (See Doc. 123.) In a single paragraph argument concerning this claim 17 in their reply, Defendants assert Plaintiff’s opposition does not address their “argument that he 18 did not submit any appeals that specifically complained about officers allegedly sexually assault 19 him by placing an object into his anus” and, as such, it is undisputed that Plaintiff did not exhaust 20 his sexual assault claim against any Defendant. (Id. at 9.) 21 2. Defendants’ Declarations 22 The Mendez Declaration provides the following pertinent statement: 23 Cortinas submitted appeal COR 18-2671, on May 22, 2018, in which he complained that on April 30, 2018, Sergeant Vasquez ordered an 24 unlawful entry and that he was “assaulted, extracted, in violation of Coleman and CDCR policy. This appeal was screened out as being 25 duplicative of appeal log no. COR-18-2210. A true and correct copy of the originally submitted appeal COR 18-2671 and the screen out 26 notice is attached as Exhibit F. 27 (Doc. 61-4 at 3-4, ¶ 10.) Again, the Moseley Declaration states: 1 access to Plaintiff’s records. At the request of the Attorney General’s Office, a search of the OOA computer system was conducted on 2 August 31, 2021, under the name of Larry Cortinas, CDCR No. P09908, for all non-health care related appeals received by the OOA. 3 A true and correct copy of the Appeal History Report is attached as Exhibit A. 4 A search was also conducted of the appeals listed in Exhibit A to 5 determine if any contained an allegation by Plaintiff that on April 30, 2018, Plaintiff was the victim of unnecessary and excessive force by 6 Defendants Fisher, Ramos, Vasquez, or Washington at California State Prison, Corcoran (COR), as described in Plaintiff’s lawsuit. 7 Appeal Log No. 1913766 (an appeal of Grievance log No. COR-18- 8 2210) contained such an allegation. [Fn. Omitted] Appeal Log No. 1913766 was received on November 4, 2019, and was denied by the 9 OOA on January 27, 2020. A true and correct copy of Plaintiff’s appeal and the OOA decision are attached as Exhibit B. 10

11 (Doc. 61-5 at 3, ¶¶ 6-8.) 12 3. Analysis 13 The question before this Court is whether Plaintiff exhausted his administrative remedies 14 regarding his sexual assault claim. Based on the record before this Court, it is unclear. 15 First, as with the previous claim, the Excessive Force Grievance does not serve to exhaust 16 Plaintiff’s administrative remedies as to his sexual assault claim because the Excessive Force 17 Grievance makes no mention of sexual assault or misconduct. (Doc. 61-5 at 15-18.) Woodford v. 18 Ngo, 548 U.S. at 90-91. This does not end the Court’s inquiry because Plaintiff claims the Appeal 19 re Screen Out addressed his sexual assault claim. 20 The Appeal re Screen Out is attached as an exhibit to Plaintiff’s opposition. It states: 21 “May 9, 2018 My 602 was cancelled impropally [sic]. As it was proported [sic] to contain 22 multiple issues. It does not. I state this all occured [sic] continuously in one event. With no 23 break.” (See Doc. 62 at 22.) In the “Action Requested” section, Plaintiff wrote: “I want this 24 appeal processed.” (Id.) 25 The Second Level Appeal Response document dated July 25, 2018 concerning the Appeal 26 re Screen Out includes the following: 27 “PROBLEM DESCRIPTION: You are submitting this appeal relative to the cancellation of CDCR-602 Appeal Log# CSPC-7-18- 1 challenging the Appeals Coordinators inappropriate and unjustified refusal to accept your appeal.” 2 3 (Doc. 62 at 18.) A January 24, 2019 letter from the Office of Appeals includes the following 4 language: 5 “The Second Level Response will constitute exhaustion of the administrative remedy provided by the CDCR Inmate 602 Appeal 6 process …. For the specific issues described in CDCR Inmate 602 Appeal log number COR-18-02978.” 7 8 (See Doc. 62 at 17.) Thus, the Appeal re Screen Out alleges the Deliberate Indifference Grievance 9 was improperly screened out or cancelled. 10 The Deliberate Indifference Grievance9 was also identified as being duplicative of two 11 other grievances—either UNK #1 and UNK #2 or UNK #1 and the Excessive Force Grievance. 12 However, neither UNK #1 nor UNK #2 are a part of this record and, as noted above, the 13 Excessive Force Grievance makes no mention of sexual assault. Because UNK #1 and UNK #2 14 are not a part of this record, the Court again finds Defendants have not met their initial burden of 15 establishing there is no genuine issue of material fact as to whether Plaintiff’s sexual assault claim 16 is unexhausted.10 17 Because this record is ambiguous and incomplete, Defendants have not carried their initial 18 burden on summary judgment. Therefore, Defendants are not entitled to summary judgment on 19 Plaintiff’s sexual assault claim against any Defendant and the undersigned will recommend 20 Defendants’ motion for summary judgment be denied. 21 The Court also notes that Exhibit F to the Mendez Declaration involves the Sex Assault 22 Grievance dated May 22, 2018. (See Doc. 61-4 at 37-42.) In Plaintiff’s factual recitation of the 23 9 While the Court has identified the grievances or appeals in defined terms rather than number for ease of 24 reference, the Court considered all in reviewing the available documentary evidence concerning Plaintiff’s deliberate indifference to serious medical needs and sexual assault claims. 25

26 10 Plaintiff asserts his sexual assault claim was exhausted by virtue of the Appeal re Screen Out (18-2978). That appeal specifically references the Deliberate Indifference Grievance (18-2286), which was identified 27 as duplicative of at least one grievance that is not a part of this record. The Court cannot determine whether the content of an unknown grievance or grievances serve to exhaust Plaintiff’s sexual assault claim. If either UNK #1 or UNK #2 contain a sexual assault allegation, then it appears the claim would be 1 incident in that document, he concluded with the words “kicked me in the testicles.” (Id. at 39.) A 2 comparison of that document to the version of the Sex Assault Grievance provided by Plaintiff in 3 his opposition reveals there is additional language that is absent from Defendants’ version. 4 Plaintiff’s version of the document also includes the language: “and shoved a batton [sic] into my 5 ass.” (See Doc. 62 at 36.) That additional language is also typed in what appears to be a different 6 font than what appears in Defendants’ version of the document. 7 To the extent Plaintiff anticipates using his proffered version of the Sex Assault Grievance 8 as evidence at any further proceeding in this action, Plaintiff will be required to explain the 9 discrepancy between the version submitted by Defendants under penalty of perjury as a true and 10 correct copy of the Sex Assault Grievance and the version submitted by Plaintiff without a sworn 11 statement. Plaintiff will be required to establish this language was not added to the grievance after 12 it was submitted to prison officials. 13 VI. ALBINO & EXHAUSTION FINDINGS 14 The undersigned has determined the record is ambiguous and incomplete concerning the 15 question of whether Plaintiff has exhausted his administrative remedies pertaining to his 16 deliberate indifference to serious medical needs and sexual assault claims. Defendants’ instant 17 motion was focused on the excessive force claims asserted against Defendants Vasquez, Fisher 18 and Washington and whether those excessive force claims were exhausted. However, following 19 resolution of that question given the holding in Saddozai, the focus has shifted to Plaintiff’s 20 remaining claims. 21 In Albino v. Baca, 747 F.3d 1162, the Ninth Circuit held, in relevant part: 22 Exhaustion should be decided, if feasible, before reaching the merits of a prisoner's claim. If discovery is appropriate, the district court 23 may in its discretion limit discovery to evidence concerning exhaustion, leaving until later—if it becomes necessary—discovery 24 directed to the merits of the suit. See Pavey, 544 F.3d at 742. A summary judgment motion made by either party may be, but need 25 not be, directed solely to the issue of exhaustion. If a motion for summary judgment is denied, disputed factual questions relevant to 26 exhaustion should be decided by the judge, in the same manner a judge rather than a jury decides disputed factual questions relevant 27 to jurisdiction and venue. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 188–90 [] (1936) (subject-matter jurisdiction); 1 Cir.2004) (venue); Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir.1987) (personal jurisdiction). We reiterate that, if feasible, disputed factual 2 questions relevant to exhaustion should be decided at the very beginning of the litigation. 3 4 Id. at 1170-71. The appellate court stated that “[i]f the district judge holds that the prisoner has 5 exhausted available administrative remedies, that administrative remedies are not available, or 6 that a prisoner’s failure to exhaust available remedies should be excused, the case may proceed to 7 the merits.” Albino, 747 F.3d at 1171. 8 In sum, the undersigned is unable to determine, on the present record, whether Plaintiff 9 has exhausted his administrative remedies as to Plaintiff’s deliberate indifference and sexual 10 assault claims. Therefore, the case cannot proceed to the merits. The undersigned will 11 recommend that the parties engage in limited discovery and an evidentiary hearing be held to 12 determine whether Plaintiff has exhausted his administrative remedies concerning the deliberate 13 indifference to serious medical needs and sexual assault claims only. Any such evidentiary 14 hearing would be scheduled after the district judge’s consideration of these findings and 15 recommendations. 16 VII. CONCLUSION AND RECOMMENDATIONS 17 For the reasons stated above, IT IS HEREBY RECOMMENDED that: 18 1. Defendants’ motion to strike the sur-replies be GRANTED; 19 2. Defendants’ motion for summary judgment for a failure to exhaust administrative 20 remedies pertaining to Plaintiff’s claim of excessive force against Defendants 21 Vasquez, Fisher and Washington be DENIED; 22 3. Defendants’ motion for summary judgment for a failure to exhaust administrative 23 remedies pertaining to Plaintiff’s claim of deliberate indifference to serious medical 24 needs against Defendant Ramos be DENIED without prejudice; and 25 4. Defendants’ motion for summary judgment for a failure to exhaust administrative 26 remedies pertaining to Plaintiff’s claim of sexual assault against any Defendant be 27 DENIED without prejudice. These Findings and Recommendations will be submitted to the district judge assigned to 1 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 2 Findings and Recommendations, any party may file written objections with the Court. The 3 document should be captioned, “Objections to Magistrate Judge’s Findings and 4 Recommendations.” Failure to file objections within the specified time may result in waiver of 5 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 6 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 IT IS SO ORDERED. 8

9 Dated: November 7, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 10

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