1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DRAKE FELDE, Case No. 1:19-cv-00339-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT WILKINS’ MOTION 13 v. TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEMDIES1 14 D. WILKINS, I. OGBUEHI, OBJECTIONS DUE IN THIRTY DAYS 15 Defendants. (Doc. No. 25) 16 17 This matter comes before the court upon initial review of this case that was reassigned to 18 the undersigned. (See Doc. No. 46). Pending review is Defendant Wilkins’ motion for 19 exhaustion-based summary judgment filed April 20, 2020. (Doc. No. 25). Plaintiff filed an 20 opposition to the motion, (Doc. No. 40) and Defendant Wilkins filed a reply. (Doc. No. 49). For 21 the reasons stated below, the court recommends that the motion to dismiss be granted. 22 I. BACKGROUND 23 Plaintiff Drake Felde, a state prisoner, initiated this action on March 14, 2019 by filing a 24 pro se civil rights complaint under 42 U.S.C. § 1983 against defendants D. Wilkins and I. 25 Ogbuehi. (Doc. No. 1). On October 11, 2019, the court screened the complaint under 28 U.S.C. 26 § 1915A and found plaintiff’s complaint plausibly stated two Eighth Amendment violations: (1) 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2019). 1 an excessive use of force claim against defendant Wilkins who shot plaintiff with a Block Gun on 2 March 3, 2016; and (2) a medical deliberate indifference claim against defendant Ogbuehi who 3 failed to listen and treat plaintiff for his injuries. (Doc. No. 7). After defendants filed an answer 4 to the complaint (Doc. No. 11), the court issued a discovery and scheduling order. (Doc. No. 12). 5 On April 20, 2020, Defendant Wilkins moved for exhaustion-based summary judgment. (Doc. 6 No. 25). In his motion to dismiss, Wilkins claims that Felde failed to exhaust his administrative 7 remedies prior to bringing this suit against him, as required by the Prison Litigation Reform Act. 8 (See generally Doc. No. 25-1). 9 a. Allegations in the Complaint 10 The court only addresses the allegations in the complaint pertaining to defendant Wilkins 11 for purposes of this report and recommendation. Felde claims that Wilkins used malicious and 12 unnecessary excessive force against him, thereby violating his Eighth Amendment right to be free 13 from cruel and unusual punishment when Wilkins shot and injured him with a launcher gun in 14 order to subdue plaintiff during a fight with another inmate on March 3, 2016. (Doc. No. 1 at 3). 15 According to complaint, Felde’s injuries include a depressed skull fracture, paralysis of the upper 16 left arm, a bone spur on his wrist, broken thumb, loss of a tooth, tinnitus, hearing loss, and 17 restriction of movement in his fingers. (Id.). 18 b. Administrative Process 19 At the outset, Felde admits that he did not “process any complaint against Wilkins through 20 the third level of review.” (Doc. No. 40 at 33). The record reveals Felde filed two administrative 21 appeals related to excessive force. The first, filed on June 26, 2017, was a request for medical 22 treatment and accommodation that included the words “excessive use of force.” (Doc. No. 25-6 23 at 58-59). This request did not name Wilkins as the individual who used excessive force against 24 him. (Id.). Wasco State Prison (“WSP”) logged this reasonable accommodation request as an 25 inmate appeal because it included a claim of excessive force and gave the appeal the tracking 26 number WSP-B-17-024202. (Doc. No. 25-6 at 2-3; 58-59). On June 27, 2017, WSP sent a letter 27 to Felde informing him that his appeal was cancelled as untimely and that Felde could appeal the 28 cancellation within 30 days. (Doc. No. 25-6 at 3, 57). Felde was interviewed regarding his 1 grievance the next day, June 28, 2017, and Felde stated that he did not believe excessive force 2 was used and only wanted to have his medical needs addressed. (Doc. No. 25-6 at 4). Felde has 3 not submitted any documentation to demonstrate that he appealed this cancellation to the third 4 level of review. 5 On December 31, 2019, after the filing of the instant suit, Felde submitted an inmate 6 grievance form to Pleasant Valley State Prison alleging that Wilkins used excessive force against 7 him at WSP. (Doc. No. 25-4 at 225; Doc. No. 25-6 at 73-76). This appeal was forwarded to 8 WSP and assigned a tracking number of WSP-0-20-00398. (Doc. No. 25-4 at 224; Doc. No. 25-6 9 at 71, 79). This appeal was cancelled as untimely and WSP sent a letter to Felde informing him 10 that he could appeal the cancellation within 30 days. (Doc. No. 25-6 at 4; 71-72). Felde has not 11 submitted any documentation to demonstrate that he appealed this cancellation to the third level 12 of review. 13 Further, Felde filed fourteen inmate grievance and/or requests for reasonable 14 accommodations during the relevant time period of March 3, 2016, the date of the shooting 15 incident, until March 14, 2019, the date Felde filed the instant petition. (Doc. No. 25-4 at 3-4, 7- 16 8, see generally Doc. Nos. 25-4, 25-5, 25-6). These appeals complained of various issues, such as 17 problems with the receipt of legal mail (Doc. No. 25-4 at 29), medical conditions (id. at 50), staff 18 misconduct (id. at 63), and the nutrition levels of the food offered to inmates. (Id. at 10-14). The 19 only appeal that Felde raised to the third level of review was the appeal regarding nutrition. (Id. 20 at 8-9). 21 II. APPLICABLE LAW 22 a. Summary Judgment Standard 23 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 24 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. 25 Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is 26 appropriate when there is “no genuine dispute as to any material fact and the movant is entitled 27 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered 28 “after adequate time for discovery and upon motion, against a party who fails to make a 1 showing sufficient to establish the existence of an element essential to that party’s case, and on 2 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 3 322 (1986). The moving party bears the “initial responsibility” of demonstrating the absence of 4 a genuine issue of material fact. Id. at 323. An issue of material fact is genuine only if there is 5 sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is 6 material if it “might affect the outcome of the suit under the governing law.” Anderson v. 7 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 8 If the moving party meets its initial burden, the burden then shifts to the opposing party 9 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ. 10 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that 11 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DRAKE FELDE, Case No. 1:19-cv-00339-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT WILKINS’ MOTION 13 v. TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEMDIES1 14 D. WILKINS, I. OGBUEHI, OBJECTIONS DUE IN THIRTY DAYS 15 Defendants. (Doc. No. 25) 16 17 This matter comes before the court upon initial review of this case that was reassigned to 18 the undersigned. (See Doc. No. 46). Pending review is Defendant Wilkins’ motion for 19 exhaustion-based summary judgment filed April 20, 2020. (Doc. No. 25). Plaintiff filed an 20 opposition to the motion, (Doc. No. 40) and Defendant Wilkins filed a reply. (Doc. No. 49). For 21 the reasons stated below, the court recommends that the motion to dismiss be granted. 22 I. BACKGROUND 23 Plaintiff Drake Felde, a state prisoner, initiated this action on March 14, 2019 by filing a 24 pro se civil rights complaint under 42 U.S.C. § 1983 against defendants D. Wilkins and I. 25 Ogbuehi. (Doc. No. 1). On October 11, 2019, the court screened the complaint under 28 U.S.C. 26 § 1915A and found plaintiff’s complaint plausibly stated two Eighth Amendment violations: (1) 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2019). 1 an excessive use of force claim against defendant Wilkins who shot plaintiff with a Block Gun on 2 March 3, 2016; and (2) a medical deliberate indifference claim against defendant Ogbuehi who 3 failed to listen and treat plaintiff for his injuries. (Doc. No. 7). After defendants filed an answer 4 to the complaint (Doc. No. 11), the court issued a discovery and scheduling order. (Doc. No. 12). 5 On April 20, 2020, Defendant Wilkins moved for exhaustion-based summary judgment. (Doc. 6 No. 25). In his motion to dismiss, Wilkins claims that Felde failed to exhaust his administrative 7 remedies prior to bringing this suit against him, as required by the Prison Litigation Reform Act. 8 (See generally Doc. No. 25-1). 9 a. Allegations in the Complaint 10 The court only addresses the allegations in the complaint pertaining to defendant Wilkins 11 for purposes of this report and recommendation. Felde claims that Wilkins used malicious and 12 unnecessary excessive force against him, thereby violating his Eighth Amendment right to be free 13 from cruel and unusual punishment when Wilkins shot and injured him with a launcher gun in 14 order to subdue plaintiff during a fight with another inmate on March 3, 2016. (Doc. No. 1 at 3). 15 According to complaint, Felde’s injuries include a depressed skull fracture, paralysis of the upper 16 left arm, a bone spur on his wrist, broken thumb, loss of a tooth, tinnitus, hearing loss, and 17 restriction of movement in his fingers. (Id.). 18 b. Administrative Process 19 At the outset, Felde admits that he did not “process any complaint against Wilkins through 20 the third level of review.” (Doc. No. 40 at 33). The record reveals Felde filed two administrative 21 appeals related to excessive force. The first, filed on June 26, 2017, was a request for medical 22 treatment and accommodation that included the words “excessive use of force.” (Doc. No. 25-6 23 at 58-59). This request did not name Wilkins as the individual who used excessive force against 24 him. (Id.). Wasco State Prison (“WSP”) logged this reasonable accommodation request as an 25 inmate appeal because it included a claim of excessive force and gave the appeal the tracking 26 number WSP-B-17-024202. (Doc. No. 25-6 at 2-3; 58-59). On June 27, 2017, WSP sent a letter 27 to Felde informing him that his appeal was cancelled as untimely and that Felde could appeal the 28 cancellation within 30 days. (Doc. No. 25-6 at 3, 57). Felde was interviewed regarding his 1 grievance the next day, June 28, 2017, and Felde stated that he did not believe excessive force 2 was used and only wanted to have his medical needs addressed. (Doc. No. 25-6 at 4). Felde has 3 not submitted any documentation to demonstrate that he appealed this cancellation to the third 4 level of review. 5 On December 31, 2019, after the filing of the instant suit, Felde submitted an inmate 6 grievance form to Pleasant Valley State Prison alleging that Wilkins used excessive force against 7 him at WSP. (Doc. No. 25-4 at 225; Doc. No. 25-6 at 73-76). This appeal was forwarded to 8 WSP and assigned a tracking number of WSP-0-20-00398. (Doc. No. 25-4 at 224; Doc. No. 25-6 9 at 71, 79). This appeal was cancelled as untimely and WSP sent a letter to Felde informing him 10 that he could appeal the cancellation within 30 days. (Doc. No. 25-6 at 4; 71-72). Felde has not 11 submitted any documentation to demonstrate that he appealed this cancellation to the third level 12 of review. 13 Further, Felde filed fourteen inmate grievance and/or requests for reasonable 14 accommodations during the relevant time period of March 3, 2016, the date of the shooting 15 incident, until March 14, 2019, the date Felde filed the instant petition. (Doc. No. 25-4 at 3-4, 7- 16 8, see generally Doc. Nos. 25-4, 25-5, 25-6). These appeals complained of various issues, such as 17 problems with the receipt of legal mail (Doc. No. 25-4 at 29), medical conditions (id. at 50), staff 18 misconduct (id. at 63), and the nutrition levels of the food offered to inmates. (Id. at 10-14). The 19 only appeal that Felde raised to the third level of review was the appeal regarding nutrition. (Id. 20 at 8-9). 21 II. APPLICABLE LAW 22 a. Summary Judgment Standard 23 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 24 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. 25 Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is 26 appropriate when there is “no genuine dispute as to any material fact and the movant is entitled 27 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered 28 “after adequate time for discovery and upon motion, against a party who fails to make a 1 showing sufficient to establish the existence of an element essential to that party’s case, and on 2 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 3 322 (1986). The moving party bears the “initial responsibility” of demonstrating the absence of 4 a genuine issue of material fact. Id. at 323. An issue of material fact is genuine only if there is 5 sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is 6 material if it “might affect the outcome of the suit under the governing law.” Anderson v. 7 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 8 If the moving party meets its initial burden, the burden then shifts to the opposing party 9 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ. 10 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that 11 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587. The 12 party is required to tender evidence of specific facts in the form of affidavits, and/or admissible 13 discovery material, in support of its contention that a factual dispute exists. Fed. R. Civ. P. 14 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party is not required to establish a 15 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be 16 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 17 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 18 1987). However, “failure of proof concerning an essential element of the nonmoving party’s 19 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. 20 The court must apply standards consistent with Rule 56 to determine whether the 21 moving party demonstrated there to be no genuine issue of material fact and showed judgment 22 to be appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 23 1993). “[A] court ruling on a motion for summary judgment may not engage in credibility 24 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 25 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 26 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving 27 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). 28 In a summary judgment motion for failure to exhaust, the defendant has the initial 1 burden of establishing “that there was an available administrative remedy, and that the prisoner 2 did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If 3 the defendant carries that burden, “the burden shifts to the prisoner to come forward with 4 evidence showing that there is something in his particular case that made the existing and 5 generally available administrative remedies effectively unavailable to him.” Id. The ultimate 6 burden of persuasion remains with defendant, however. Id. 7 b. Exhaustion Requirement 8 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 9 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 10 confined in any jail, prison, or other correctional facility until such administrative remedies as 11 are available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion requirement 12 “applies to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), 13 regardless of the relief sought by the prisoner or the relief offered by the process, Booth v. 14 Churner, 532 U.S. 731, 741 (2001). A plaintiff’s claims must be exhausted prior to the filing of 15 his federal complaint. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (“Congress 16 could have written a statute making exhaustion a precondition to judgment, but it did not. The 17 actual statute makes exhaustion a precondition to suit.” (citation omitted)). Unexhausted claims 18 require dismissal. See Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s own grievance 19 process, not the PLRA, determines how detailed a grievance must be to satisfy the PLRA 20 exhaustion requirement. Id. at 218. 21 The California Department of Corrections and Rehabilitation’s (“CDCR”) administrative 22 remedy process governs this action.2 See Cal. Code Regs. tit. 15, § 3084.1 (2016). To exhaust 23 available remedies, an inmate must proceed through three formal levels of review unless 24 otherwise excused under the regulations. Id. § 3084.5. A prisoner initiates the exhaustion 25 process by submitting a CDCR Form 602 “Inmate/Parolee Appeal” (“grievance”). Id. §§ 26 3084.2(a), 3084.8(b) (quotation marks omitted). The grievance must “describe the specific 27 2 The court cites to the regulations in force at the relevant time period. These regulations were recently 28 amended. See Cal. Code Regs. tit. 15, § 3480-3487 (2021). 1 issue under appeal and the relief requested,” and the inmate “shall list all staff member(s) 2 involved and shall describe their involvement in the issue.” Id. § 3084.2(a). The inmate “shall 3 state all facts known and available to him/her regarding the issue being appealed at the time of 4 submitting the Inmate/Parolee Appeal Form, and if needed, the Inmate Parolee/Appeal Form 5 Attachment.” Id. § 3084.2(a)(4). 6 An inmate must submit an appeal within thirty calendar days of “[t]he occurrence of the 7 event or decision being appealed” or “[u]pon first having knowledge of the action or decision 8 being appealed.” Id. § 3084.6(c)(4). Under certain circumstances, an appeal will be accepted 9 after the deadline. A late appeal may only be canceled where “the inmate or parolee had the 10 opportunity to submit within the prescribed time constraints.” Id. Further, “at the discretion of 11 the appeals coordinator or third level Appeals Chief, a cancelled appeal may later be accepted if 12 a determination is made that cancellation was made in error or new information is received 13 which makes the appeal eligible for further review.” Id. at § 3084.6(a)(3). Further, under 14 exceptional circumstances an appeal may be accepted for review beyond the 30-day deadline, 15 for instance, when an inmate is medically incapacitated and unable to file an appeal. Id. at § 16 3084.6(a)(4). 17 Where an appeal is cancelled due to a procedural error on the part of the inmate, 18 administrative remedies remain available to the inmate—namely appealing the cancellation 19 decision. See Cortinas v. Portillo, 754 F. App’x 525, 527 (9th Cir. 2018) (“Because [plaintiff] 20 could have appealed his cancellation decision . . . the improper cancellation of his appeal did not 21 render administrative remedies effectively unavailable to him.”); Davenport v. Gomez, No. 22 2:16-CV-1739, 2019 WL 636844, at *15 (E.D. Cal. Feb. 14, 2019) (noting that the appeals 23 process is available where the plaintiff can raise the cancellation appeal to the next level). 24 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 25 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 26 1862 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to 27 the prisoner.” Id. at 1856. A defendant has the burden of showing that “some relief remains 28 ‘available.’” Brown v. Valoff, 422 F.3d 926, 936-937 (9th Cir. 2005). “To be available, a 1 remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Albino v. 2 Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (quoting Brown, 422 F.3d at 937). “[A]dministrative 3 procedure is unavailable when (despite what regulations or guidance materials may promise) it 4 operates as a simple dead end—with officers unable or consistently unwilling to provide any 5 relief to aggrieved inmates,” or where an “administrative scheme might be so opaque that it 6 becomes, practically speaking, incapable of use.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). 7 And relief does not remain available if “prison administrators thwart inmates from taking 8 advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. 9 at 1860. Where the court concludes that plaintiff has failed to exhaust available remedies, the 10 proper remedy is dismissal without prejudice of the portions of the complaint barred by § 11 1997e(a). See Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 12 2005). 13 III. ANALYSIS 14 As an initial matter, Wilkins has met his burden to show that an administrative remedy 15 was available to Felde. See Albino, 747 F.3d at 1172. Wilkins submitted copies of the relevant 16 appeal cancellation letters, both which advised Felde he had the opportunity to appeal the 17 cancellations. (Doc. No. 25-6 at 58-59; 73-76). Felde does not dispute that he received these 18 letters, nor does he state that he did not understand how to appeal a cancelation. In fact, Wilkins 19 has submitted proof that Felde appealed a cancelation of a different grievance during the relevant 20 time period. (Doc. No. 2504 at 31-32). Moreover, Wilkins has demonstrated that Felde 21 submitted numerous other appeals during the relevant time period. (See generally Doc. Nos. 25- 22 4, 25-5, 25-6). Felde does not dispute that he submitted these other appeals, nor does he state that 23 he had trouble understanding the procedure for submitting these appeals. 24 The burden now shifts to Felde to show that there was “something in his particular case 25 that made the existing and generally available administrative remedies effectively unavailable to 26 him.” Albino, 747 F.3d at 1166. Felde states he was in the hospital and correctional treatment 27 center for a total of 47 days after the incident and without access to the proper administrative 28 grievance forms, paper, or pens during this time. (Doc. No. 40 at 3-6). Felde claims he requested 1 a grievance form while in the hospital, but staff did not provide it to him. (Id. at 14). Even 2 accepting these claims in the light most favorable to Felde, the court cannot find that Felde took 3 the necessary steps to timely file an initial grievance against Wilkins. See Espinoza v. Asunction, 4 No. 16-cv-01263, 2017 WL 3670780 at *7-8, 11 (N.D. Cal. Aug. 25, 2017) (finding that a 5 plaintiff’s attempts to timely file a grievance were “modest” where plaintiff asked for a grievance 6 form only four times). Here, Felde describes no steps he took to file a grievance against Wilkins 7 after his release from the correctional treatment center. If Felde had taken the opportunity to file 8 a grievance upon his release from the correctional treatment center, it is possible that the late 9 appeal would have been accepted by officials due to his hospitalization. See Cal. Code Regs. tit. 10 15, § 3084.6(a)(4). 11 Instead, Felde first filed a grievance raising a claim of excessive force over a year after the 12 shooting incident. (Doc. No. 25-6 at 58-59). Felde did not identify Wilkins as the actor in this 13 grievance, offering only vague mention that excessive force was used against him without naming 14 any prison official or providing any factual description of the events. (Id. at 59). Despite the 15 grievance being cancelled as untimely, Felde still had the opportunity to appeal the cancelation 16 decision—a step he did not take. Brown, 422 F.3d at 935 (“The obligation to exhaust ‘available’ 17 remedies persists as long as some remedy remains ‘available.’”). Some remedy remained 18 available to Felde because he could have appealed the cancellation decision. See Cal. Code Regs. 19 tit. 15, § 3084(a)(3) and (e) (inmate can appeal cancellation decision separately pursuant to the 20 rules in § 3084.6(c), and if inmate prevails, cancelled appeal can be considered at the discretion of 21 the appeals coordinator). And, even if the appeal of the cancellation decision was denied, Felde 22 would have had the opportunity to appeal that decision to the third level of review, effectively 23 exhausting his administrative remedies. See Wilson v. Zubiate, 718 Fed. Appx. 479, 2017 U.S. 24 App. LEXIS 24302, 2017 WL 5897303, at *1 (9th Cir. 2017) ((quoting Ross, 136 S. Ct. at 1859) 25 (“Because an appeal of the cancellation decision left open the possibility for some relief, the 26 procedure did not operate as a ‘dead end.’”). 27 Further, even though Felde eventually filed a grievance for excessive force naming 28 Wilkins as the actor nine months after he filed the instant federal complaint (some three years 1 after the shooting incident), (Doc. No. 25-6 at 73-76), this grievance was also canceled as 2 | untimely. Again, Felde had the opportunity to appeal the cancellation to the third level of review 3 | but did not do so. Thus, Felde’s second grievance is also unexhausted. 4 The undersigned finds: (1) defendant Wilkins has demonstrated an administrative remedy 5 || was available; (2) Felde did not exhaust his remedies as to this excessive use of force claim 6 | agasint defendant Wilkins; and (3) Felde has failed “to come forward with evidence showing that 7 | there is something in his particular case that made the existing and generally available 8 | administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1166. Based upon 9 | the facts and binding precedent, the undersigned recommends that defendant Wilkins’ motion for 10 | summary judgment be granted and defendant Wilkins be dismissed from this case. 11 Accordingly, it is RECOMMENDED: 12 1. Defendant Wilkins’ motion for summary judgment (Doc. No. 25) be GRANTED. 13 2. Defendant Wilkins be dismissed from this case. 14 NOTICE TO PARTIES 15 These findings and recommendations will be submitted to the United States district judge 16 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 17 || days after being served with these findings and recommendations, a party may file written 18 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 19 | Findings and Recommendations.” Parties are advised that failure to file objections within the 20 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 21 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 73 IT IS SO ORDERED. 24 Dated: _ March 22, 2021 Mihaw. Wh. foareh fackte 25 HELENA M. BARCH-KUCHTA 26 UNITED STATES MAGISTRATE JUDGE
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