1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 CHARLES B. FAULTRY, ) Case No.: 1:19-cv-01033-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 A. SANCHEZ, et.al., ) ) (ECF No. 28) 15 Defendants. ) ) 16 ) ) 17 )
18 Plaintiff Charles B. Faultry is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Defendants’ exhaustion-related motion for summary judgment, 21 filed on July 7, 2020. 22 I. 23 RELEVANT BACKGROUND 24 This action is proceeding on Defendants A. Sanchez, B. Rodriguez, C. Perez, V. Maldonado, 25 and G. Smith for excessive force in violation of the Eighth Amendment, and against E. Tindle for 26 failure to intervene in violation of the Eighth Amendment. 27 On March 6, 2020, Defendants filed an answer to the complaint. (ECF Nos. 21.) 28 On April 10, 2020, the Court issued the discovery and scheduling order on . (ECF No. 25.) 1 As previously stated, on July 7, 2020, Defendants filed the instant exhaustion-related motion 2 for summary judgment. Plaintiff filed an opposition on August 31, 2020, and Defendants filed a reply 3 on September 4, 2020. (ECF Nos. 31, 32.) Accordingly, Defendants’ motion for summary judgment 4 is deemed submitted for review without oral argument. Local Rule 230(l). 5 II. 6 LEGAL STANDARD 7 A. Statutory Exhaustion Requirement 8 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o 9 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 10 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 11 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is 12 mandatory unless unavailable. Exhaustion is required regardless of the relief sought by the prisoner 13 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and 14 the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 15 U.S. 516, 532 (2002). 16 Section 1997e(a) also requires “proper exhaustion of administrative remedies, which ‘means 17 using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues 18 on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citation omitted). “Proper exhaustion 19 demands compliance with an agency’s deadlines and other critical procedural rules because no 20 adjudicative system can function effective without imposing some orderly structure on the course of 21 its proceedings.” Id. at 90-91. “[I]t is the prison’s requirements, and not the PLRA, that define the 22 boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The obligation to 23 exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no 24 longer the case, then there are no ‘remedies … available,’ and the prisoner need not further pursue the 25 grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth 26 v. Churner, 532 U.S. 731, 739 (2001)). 27 The failure to exhaust is an affirmative defense, and the defendant or defendants bear the 28 burden of raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. at 216; Albino v. 1 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear on the 2 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 3 1166. Otherwise, the defendant or defendants must produce evidence proving the failure to exhaust, 4 and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in 5 the light most favorable to the plaintiff, shows the plaintiff failed to exhaust. Id. 6 B. Summary Judgment Standard 7 Any party may move for summary judgment, and the Court shall grant summary judgment if 8 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 9 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 10 c1166; Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 11 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of 12 materials in the record, including but not limited to depositions, documents, declarations, or discovery; 13 or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or 14 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 15 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to 16 by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified 17 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 18 1011, 1017 (9th Cir. 2010). “The evidence must be viewed in the light most favorable to the 19 nonmoving party.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2014). 20 Initially, “the defendant’s burden is to prove that there was an available administrative remedy, 21 and that the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the 22 defendant meets that burden, the burden of production then shifts to the plaintiff to “come forward 23 with evidence showing that there is something in his particular case that made the existing and 24 generally available administrative remedies effectively unavailable to him.” Id. However, the 25 ultimate burden of proof on the issue of administrative exhaustion remains with the defendant. Id. “If 26 undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a 27 defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts 28 1 are disputed, summary judgment should be denied, and the district judge rather than a jury should 2 determine the facts.” Id. 3 III. 4 DISCUSSION 5 A. Summary of CDCR’s Administrative Appeal Process1 6 A prisoner in the custody of the California Department of Corrections and Rehabilitation 7 (“CDCR”) satisfies the administrative exhaustion requirement for a non-medical appeal or grievance 8 by following the procedures set forth in California Code of Regulations, title 15, §§ 3084-3084.9.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 CHARLES B. FAULTRY, ) Case No.: 1:19-cv-01033-DAD-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 A. SANCHEZ, et.al., ) ) (ECF No. 28) 15 Defendants. ) ) 16 ) ) 17 )
18 Plaintiff Charles B. Faultry is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Defendants’ exhaustion-related motion for summary judgment, 21 filed on July 7, 2020. 22 I. 23 RELEVANT BACKGROUND 24 This action is proceeding on Defendants A. Sanchez, B. Rodriguez, C. Perez, V. Maldonado, 25 and G. Smith for excessive force in violation of the Eighth Amendment, and against E. Tindle for 26 failure to intervene in violation of the Eighth Amendment. 27 On March 6, 2020, Defendants filed an answer to the complaint. (ECF Nos. 21.) 28 On April 10, 2020, the Court issued the discovery and scheduling order on . (ECF No. 25.) 1 As previously stated, on July 7, 2020, Defendants filed the instant exhaustion-related motion 2 for summary judgment. Plaintiff filed an opposition on August 31, 2020, and Defendants filed a reply 3 on September 4, 2020. (ECF Nos. 31, 32.) Accordingly, Defendants’ motion for summary judgment 4 is deemed submitted for review without oral argument. Local Rule 230(l). 5 II. 6 LEGAL STANDARD 7 A. Statutory Exhaustion Requirement 8 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o 9 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 10 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 11 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is 12 mandatory unless unavailable. Exhaustion is required regardless of the relief sought by the prisoner 13 and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and 14 the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 15 U.S. 516, 532 (2002). 16 Section 1997e(a) also requires “proper exhaustion of administrative remedies, which ‘means 17 using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues 18 on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citation omitted). “Proper exhaustion 19 demands compliance with an agency’s deadlines and other critical procedural rules because no 20 adjudicative system can function effective without imposing some orderly structure on the course of 21 its proceedings.” Id. at 90-91. “[I]t is the prison’s requirements, and not the PLRA, that define the 22 boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). “The obligation to 23 exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no 24 longer the case, then there are no ‘remedies … available,’ and the prisoner need not further pursue the 25 grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth 26 v. Churner, 532 U.S. 731, 739 (2001)). 27 The failure to exhaust is an affirmative defense, and the defendant or defendants bear the 28 burden of raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. at 216; Albino v. 1 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear on the 2 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 3 1166. Otherwise, the defendant or defendants must produce evidence proving the failure to exhaust, 4 and they are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in 5 the light most favorable to the plaintiff, shows the plaintiff failed to exhaust. Id. 6 B. Summary Judgment Standard 7 Any party may move for summary judgment, and the Court shall grant summary judgment if 8 the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 9 judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at 10 c1166; Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, 11 whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of 12 materials in the record, including but not limited to depositions, documents, declarations, or discovery; 13 or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or 14 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 15 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to 16 by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified 17 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 18 1011, 1017 (9th Cir. 2010). “The evidence must be viewed in the light most favorable to the 19 nonmoving party.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2014). 20 Initially, “the defendant’s burden is to prove that there was an available administrative remedy, 21 and that the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the 22 defendant meets that burden, the burden of production then shifts to the plaintiff to “come forward 23 with evidence showing that there is something in his particular case that made the existing and 24 generally available administrative remedies effectively unavailable to him.” Id. However, the 25 ultimate burden of proof on the issue of administrative exhaustion remains with the defendant. Id. “If 26 undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a 27 defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts 28 1 are disputed, summary judgment should be denied, and the district judge rather than a jury should 2 determine the facts.” Id. 3 III. 4 DISCUSSION 5 A. Summary of CDCR’s Administrative Appeal Process1 6 A prisoner in the custody of the California Department of Corrections and Rehabilitation 7 (“CDCR”) satisfies the administrative exhaustion requirement for a non-medical appeal or grievance 8 by following the procedures set forth in California Code of Regulations, title 15, §§ 3084-3084.9. 9 California Code of Regulations, title 15, § 3084.1(a) provides that “[a]ny inmate … under 10 [CDCR’s] jurisdiction may appeal any policy, decision, action, condition, or omission by the 11 department or its staff that the inmate … can demonstrate as having a material adverse effect upon his 12 or her health, safety, or welfare.” An inmate is required to use a CDCR Form 602 to “describe the 13 specific issue under appeal and the relief requested.” Cal. Code Regs. tit. 15, § 3084.2(a). An inmate 14 is limited to one issue, or related set of issues, per each CDCR Form 602 and the inmate “shall state all 15 facts known and available to [them] regarding the issue being appealed at the time of submitting” the 16 CDCR Form 602. Cal. Code Regs. tit. 15, § 3084.2(a)(1) & (a)(4). Further, the inmate “shall list all 17 staff member(s) involved and … describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 18 3084.2(a)(3). If known, the inmate must include the staff member’s last name, first initial, title or 19 position, and the dates of the staff member’s involvement in the issue being appealed. Id. If the 20 inmate does not know the staff member’s identifying information, the inmate is required to “provide 21 any other available information that would assist the appeals coordinator in making a reasonable 22 attempt to identify the staff member(s) in question.” Id. 23 Unless the inmate grievance falls within one of the exceptions stated in California Code of 24 Regulations, title 15, §§ 3084.7(b)(1)-(2) and 3084.9, all inmate grievances are subject to a three-step 25 administrative review process: (1) the first level of review; (2) the second level appeal to the Warden 26
27 1 On March 25, 2020, the grievance procedure outlined in § 3084.1, et seq., was repealed effective June 1, 2020, as an emergency by the CDCR pursuant to Penal Code § 5058.3. See CCR, tit. 15, § 3084.1, ¶ 13 (June 26, 2020). However, the 28 1 of the prison or their designee; and (3) the third level appeal to the Secretary of CDCR, which is 2 conducted by the Secretary’s designated representative under the supervision of the third level 3 Appeals Chief. Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.7(a)-(d). Unless the inmate grievance 4 deals with allegations of sexual violence or staff sexual misconduct, an inmate must submit the CDCR 5 Form 602 and all supporting documentation to each the three levels of review within 30 calendar days 6 of the occurrence of the event or decision being appealed, of the inmate first discovering the action or 7 decision being appealed, or of the inmate receiving an unsatisfactory departmental response to a 8 submitted administrative appeal. Cal. Code Regs. tit. 15, §§ 3084.2(b)-(e), 3084.3, 3084.6(a)(2), 9 3084.8(b). When an inmate submits an administrative appeal at any of the three levels of review, the 10 reviewer is required to reject the appeal, cancel the appeal, or issue a decision on the merits of the 11 appeal within the applicable time limits. Cal. Code Regs. tit. 15, §§ 3084.6(a)-(c), 3084.8(c)-(e). If an 12 inmate’s administrative appeal is rejected, the inmate is to be provided clear instructions about how to 13 cure the appeal’s defects. Cal. Code Regs. tit. 15, §§ 3084.5(b)(3), 3084.6(a)(1). If an inmate’s 14 administrative appeal is cancelled, the inmate can separately appeal the cancellation decision. Cal. 15 Code Regs. tit. 15, § 3084.6(a)(3) & (e). 16 B. Summary of Relevant Factual Allegations of Plaintiff’s Complaint 17 The incidents alleged in the complaint occurred when Plaintiff was housed at Kern Valley State 18 Prison (“KVSP”). (Compl. 1, ECF No. 1.) 19 On May 3, 2018, Plaintiff was returning to his cell after morning med call. As he was walking 20 through the rotunda, Correctional Officer A. Sanchez, unprovoked, swung open the staff bathroom door 21 toward Plaintiff hitting Plaintiff in the face. Plaintiff’s head was jerked backwards from the powerful 22 blow and he grabbed his face with both his hands. (Id. at 3.) Sanchez began throwing punches toward 23 Plaintiff’s face and head while yelling at Plaintiff not to ever spit on him. (Id. at 3, 7.) Sanchez was 24 referring to an incident that occurred on September 13, 2016. 25 Plaintiff backed away from Sanchez and Correctional Officers B. Rodriguez, C. Perez, and V. 26 Maldonado joined in and started hitting Plaintiff in the head and face. Rodriguez grabbed Plaintiff by 27 the collar and threw him to the wall between the entrance door and the medical station, while continuing 28 to punch Plaintiff in the face and head. Officers Sanchez, and Perez continued to hit Plaintiff in the face 1 and head. Maldonado also kicked Plaintiff in the crotch, causing Plaintiff to fall and cover himself by 2 curling up into a fetal position. Maldonado kicked and stomped on Plaintiff’s stomach and right side. 3 (Id. at 7.) During the beating, Plaintiff lost consciousness twice. (Id. at 9.) 4 When Plaintiff came to he was in handcuffs and leg irons. He heard someone say that he was 5 awake again and to hold his legs down. Correctional Officer E. Tindle was holding Plaintiff’s legs down 6 with great force and pressure. As Tindle held his legs down, the other officers started kicking and 7 punching him in the head, face, chest, and stomach. Plaintiff noticed that Correctional Officer G. Smith 8 had responded and he heard Smith tell the other officers to hold Plaintiff down. Smith then grabbed 9 Plaintiff’s head with both hands and began to ram his knee into Plaintiff’s face while yelling at Plaintiff 10 to stop resisting. 11 C. Statement of Undisputed Material Facts2 12 1. The California Department of Corrections and Rehabilitation (CDCR) uses a program 13 called the Inmate Appeals Tracking System (IATS) to electronically log and track inmate 14 administrative appeals through all levels of review. (Leyva Decl. at ¶ 4; Moseley Decl. at ¶ 3.) 15 2. At all relevant times, CDCR and the KVSP Appeals Office had an administrative 16 process available for inmates to submit appeals. (Leyva Decl. at ¶¶2-4; Moseley Decl. at ¶ 1.) 17 3. The KVSP Appeals Office receives, reviews, and tracks all non-medical inmate appeals 18 submitted for first and second-level review concerning events there. Accepted first and second-level 19 appeals are assigned a log number in the institutions’ IATS system. (Leyva Decl. at ¶¶ 2, 5.) 20 4. CDCR’s Office of Appeals (OOA) receives, reviews, and maintains inmates’ non- 21 medical appeals accepted at the third and final level of administrative review. When OOA receives an 22 appeal, it is assigned a third level tracking number and entered into OOA’s computer tracking system. 23 (Moseley Decl. ¶¶ 2, 3.) 24 5. The events that are subject of this lawsuit occurred at KVSP on May 3, 2018. (Compl., 25 ECF No. 1 at 3.) 26 6. Plaintiff filed the complaint on July 24, 2019. (Compl., ECF No. 1.) 27
28 2 1 7. Plaintiff’s appeal log no. KVSP-O-18-01140 was received by the KVSP Appeals Office 2 on May 9, 2018. The appeal alleged excessive use of force by Defendants Sanchez, Rodriguez, Perez, 3 Maldonado, Smith and Tindle occurring on May 3, 2018. It requested Defendants be investigated and 4 fired, and also requested monetary compensation. (Leyva Decl. ¶ 7, Ex. B.) 5 8. Appeal log no. KVSP-O-18-01140 was referred for determination as a staff complaint, 6 which bypassed the first level of review. In a decision at the second level of review dated June 24, 7 2018, the appeal was partially granted, in that an Appeal Inquiry Investigation was conducted and 8 determined that staff did not violate CDCR policy. (Leyva Decl. ¶ 7, Ex. B.) 9 9. The decision in appeal log no. KVSP-O-18-01140 notified Plaintiff that if he wished to 10 exhaust administrative remedies he must appeal to the third level of review, and that once a decision 11 was rendered at the third level his remedies would be exhausted. (Leyva Decl. ¶ 7, Ex. B.) 12 10. Plaintiff’s appeal log no KVSP-18-01364 was received by the KVSP Appeals Office on 13 May 30, 2018. The appeal alleged excessive use of force by Officer Mello, occurring on May 25, 14 2019. (Leyva Decl. ¶ 8, Ex. C.) 15 11. In a decision at the second level of review on appeal log no. KVSP-18-01364, the 16 appeal was partially granted, in that an Appeal Inquiry investigation was conducted and determined 17 that staff did not violate CDCR policy. (Leyva Decl. ¶ 8, Ex. C.) 18 12. The decision in appeal log no. KVSP-18-01364 advised Plaintiff that if he wished to 19 exhaust administrative remedies he must appeal to the third level, and that once a decision was 20 rendered at the third level his remedies would be exhausted. (Leyva Decl. ¶ 8, Ex. C.) 21 13. Plaintiff submitted appeal log no. KVSP-18-01364 for third level review, and it was 22 denied in a third level decision. (Moseley Decl. ¶ 9.) 23 14. Appeal log no. KVSP-O-18-01365 was received by the KVSP Appeals Office on May 24 30, 2018. In this appeal Faultry alleged that his shoes had been and not returned. He requested that 25 the shoes be returned or he be compensated for their loss. (Leyva Decl. at ¶ 9, Ex. D.) 26 15. Appeal log no. KVSP-O-18-01365 was screened out and cancelled on July 18, 2018, 27 because it had not been timely submitted. (Leyva Decl. at ¶ 9, Ex. D.) 28 1 16. From May 3, 2018 to July 24, 2019, no other appeals by Plaintiff with allegations 2 involving Defendants were received at the KVSP Appeals Office or OOA. (Leyva Decl. at ¶ 10, Ex. 3 A; Moseley Decl. at ¶ 11.) 4 D. Analysis of Defendants’ Motion 5 Defendants argue that although Plaintiff submitted an appeal about the events at issue in this 6 action, he did not submit and/or receive a decision at the third and final level of review. Therefore, 7 Plaintiff failed to exhaust the administrative remedies, and the action should be dismissed, without 8 prejudice. 9 As an initial matter, it is undisputed that at all relevant times, CDCR and the KVSP Appeals 10 Office had an administrative process available for inmates to submit appeals. (UMF 2.) Thus, the 11 issue to determine is whether Plaintiff utilized the process available to him. 12 It is undisputed that the events at issue in this action took place on May 3, 2018. (UMF 5.) 13 Plaintiff’s appeal log no. KVSP-O-18-01140 was received by the KVSP Appeals Office on May 9, 14 2018. The appeal alleged excessive use of force by Defendants Sanchez, Rodriguez, Perez, 15 Maldonado, Smith and Tindle occurring on May 3, 2018. It requested Defendants be investigated and 16 fired, and also requested monetary compensation. (UMF 7.) Appeal log no. KVSP-O-18-01140 was 17 referred for determination as a staff complaint, which bypassed the first level of review. In a decision 18 at the second level of review dated June 24, 2018, the appeal was partially granted, in that an Appeal 19 Inquiry Investigation was conducted and determined that staff did not violate CDCR policy. (UMF 8.) 20 The decision in appeal log no. KVSP-O-18-01140 notified Plaintiff that if he wished to exhaust 21 administrative remedies he must appeal to the third level of review, and that once a decision was 22 rendered at the third level his remedies would be exhausted. (UMF 9.) 23 Thus, appeal log no. KVSP-18-01140 is his appeal of the events that are the subject of this 24 lawsuit. (UMF 7.) However, Defendants submit the declaration of Howard E. Moseley, Associate 25 Director of the OOA, who declares that appeal log no. KVSP-18-01140 was never received at the third 26 and final level of review. (Moseley Decl. ¶ 10.) Defendants have meet their burden of proof for 27 summary judgment, and the burden shifts to the plaintiff to “come forward with evidence showing that 28 1 there is something in his particular case that made the existing and generally available administrative 2 remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d at 1172. 3 In his opposition, Plaintiff contends he presented three CDCR Form 22 inmate request forms, 4 in which he requests a third level response to the appeal. (Opp’n at 1.) Thus, it is undisputed that 5 Plaintiff did not submit appeal log no. KVSP-18-01140 to the third and final level of review. 6 Plaintiff’s contention that he submitted CDCR Form 22 inmate request forms does not demonstrate 7 exhaustion because he was required to file a CDCR Form 602 Inmate/Parole Appeal.3 See Cal. Code 8 Regs. tit. 15, § 3084.2(a) (repealed June 2020) (requirement that inmates use the Form 602 in 9 submitted an appeal); Woodford v Ngo, 548 U.S. at 90-91 (proper exhaustion demands compliance 10 with an agency’s critical procedural rules.) The CDCR Form 22 is not part of the administrative 11 appeal process. See Cal. Code Regs. tit. 15, § 3086(i) (repealed June 2020); see also Jones v. Lowder, 12 No. 1:16-cv-01911-AWI-SAB (PC), 2018 WL 1870457, at *5-6; Packnett v. Alvarez, No. 15-cv- 13 01229-YGR (PR), 2017 WL 4176436, at *18 (N.D. Cal. Sept. 21, 2017); Johnson v. Sweeney, No. 14 1:14-cv-01526-LJO-SAB (PC), 2015 WL 6082061, *6 (E.D. Cal. Oct. 13, 2015); Pelayo v. 15 Hernandez, No. C 13-3618-RMW (PR), 2015 WL 4747831, *6-7 (N.D. Cal. Aug. 11, 2015); Coreno 16 v. Armstrong, No. 09-cv-2504-LAB (POR), 2011 WL 4571756, *9 (S.D. Cal. July 29, 2011). 17 Furthermore, Plaintiff does not indicate that he actually mailed the Form 22’s anywhere. 18 Rather, he mentions having no control over the U.S. mail delivery, but he does not state that he mailed 19 the forms. In addition, each Form 22 has boxes to check as either sent through the mail (with blanks 20 to be filled in for the addressee and date mailed) or delivered to staff (with the staff recipient name to 21 be listed). However, none of the forms have any of the boxes checked. (Opp’n, at pp. 5-7, Ex. 1.) 22 This lack of evidence supports the finding that Plaintiff did not actually submit the forms. (Id.) 23 Nonetheless, even if Plaintiff mailed each Form 22, the mere lack of a response to them does 24 not render the administrative remedies effectively foreclosed or unavailable as Plaintiff was not 25 following the proper procedure. Indeed, it is undisputed that the second level appeal response 26
27 3 In his opposition, Plaintiff does not admit or deny whether he received the second level decision for this appeal. However, in each of the Form 22 requests, he requests a third level response to the appeal. Thus, in order to request a third 28 1 specifically stated, “If you wish to appeal the decision and/or exhaust administrative remedies, you 2 must submit your staff complaint appeal through all levels of appeal review up to, and including, the 3 Secretary’s/Third Level of Review. Once a decision has been rendered at the Third Level, 4 administrative remedies will be considered exhausted.” (Leyva Decl. Ex. B.) In addition, in each 5 Form 22, Plaintiff writes in the box to forward it to the KVSP Appeals Coordinator. However, a 6 request to receive a response from the third level of review for his appeal would properly be made to 7 CDCR’s Office of Appeals, not the KVSP Appeals Office. Further, Plaintiff’s appeal record supports 8 the finding that he was aware of the requirement to submit his appeal to the third and final level. 9 Plaintiff submitted appeal log no. KVSP-18-01364 (which raised an unrelated excessive force claim) 10 to the first level of review on May 30, 2018. (UMF 10.) After receiving a second level decision, 11 Plaintiff appealed to the third and final level of review on or about July 25, 2018. (ECF No. 28-4 at p. 12 6.) 13 Based on the foregoing, the Court finds that Plaintiff neither exhausted nor demonstrated that 14 the remedy process was rendered effectively unavailable, entitling Defendants’ motion for summary 15 judgment should be granted. Williams v. Paramo, 775 F.3d at 1191; Albino v. Baca, 747 F.3d at 1171- 16 72. 17 IV. 18 RECOMMENDATIONS 19 Accordingly, it is HEREBY RECOMMENDED that: 20 1. Defendants’ motion for summary judgment be granted; and 21 2. The instant action be dismissed, without prejudice, for failure to exhaust the 22 administrative remedies. 23 These Findings and Recommendations will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after 25 being served with these Findings and Recommendations, the parties may file written objections with 26 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 27 Recommendations.” The parties are advised that failure to file objections within the specified time 28 wOoOe 4:40 VV SAD MVOC OO OPO ee AY tt OV st
1 || may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 || IT IS SO ORDERED. A (Fe _ 6 ated: _ October 6, 2020 OF 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11