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, AMENDED1 FINDINGS AND RECOMMENDATIONS TO GRANT 13 v. DEFENDANT WILKINS’ MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO 14 D. WILKINS, I. OGBUEHI, EXHAUST ADMINISTRATIVE REMEMDIES2 15 Defendants. OBJECTIONS DUE IN THIRTY DAYS 16 (Doc. No. 25) 17 18 This matter comes before the court upon initial review of this case that was reassigned to 19 the undersigned. (See Doc. No. 46). Pending review is Defendant Wilkins’ motion for 20 exhaustion-based summary judgment filed April 20, 2020. (Doc. No. 25). Plaintiff filed an 21 opposition to the motion, (Doc. No. 40) and Defendant Wilkins filed a reply. (Doc. No. 49). For 22 the reasons stated below, the court recommends that the motion for summary judgment be 23 granted. 24
25 1 The court enters this Amended Findings and Recommendation for the sole purpose of correcting a scrivener’s error in the title from “Finding and Recommendations to Grant Defendant Wilkins’ Motion to 26 Dismiss For Failure to Exhaust Administrative Remedies” to Findings and Recommendations to Grant Defendant Wilkins’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies.” 27 (emphasis added). 2 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 I. BACKGROUND 2 Plaintiff Drake Felde, a state prisoner, initiated this action on March 14, 2019 by filing a 3 pro se civil rights complaint under 42 U.S.C. § 1983 against defendants D. Wilkins and I. 4 Ogbuehi. (Doc. No. 1). On October 11, 2019, the court screened the complaint under 28 U.S.C. 5 § 1915A and found plaintiff’s complaint plausibly stated two Eighth Amendment violations: (1) 6 an excessive use of force claim against defendant Wilkins who shot plaintiff with a Block Gun on 7 March 3, 2016; and (2) a medical deliberate indifference claim against defendant Ogbuehi who 8 failed to listen and treat plaintiff for his injuries. (Doc. No. 7). After defendants filed an answer 9 to the complaint (Doc. No. 11), the court issued a discovery and scheduling order. (Doc. No. 12). 10 On April 20, 2020, Defendant Wilkins moved for exhaustion-based summary judgment. (Doc. 11 No. 25). In his motion for summary judgment, Wilkins claims that Felde failed to exhaust his 12 administrative remedies prior to bringing this suit against him, as required by the Prison 13 Litigation Reform Act. (See generally Doc. No. 25-1). 14 a. Allegations in the Complaint 15 The court only addresses the allegations in the complaint pertaining to defendant Wilkins 16 for purposes of this report and recommendation. Felde claims that Wilkins used malicious and 17 unnecessary excessive force against him, thereby violating his Eighth Amendment right to be free 18 from cruel and unusual punishment when Wilkins shot and injured him with a launcher gun in 19 order to subdue plaintiff during a fight with another inmate on March 3, 2016. (Doc. No. 1 at 3). 20 According to complaint, Felde’s injuries include a depressed skull fracture, paralysis of the upper 21 left arm, a bone spur on his wrist, broken thumb, loss of a tooth, tinnitus, hearing loss, and 22 restriction of movement in his fingers. (Id.). 23 b. Administrative Process 24 At the outset, Felde admits that he did not “process any complaint against Wilkins through 25 the third level of review.” (Doc. No. 40 at 33). The record reveals Felde filed two administrative 26 appeals related to excessive force. The first, filed on June 26, 2017, was a request for medical 27 treatment and accommodation that included the words “excessive use of force.” (Doc. No. 25-6 28 at 58-59). This request did not name Wilkins as the individual who used excessive force against 1 him. (Id.). Wasco State Prison (“WSP”) logged this reasonable accommodation request as an 2 inmate appeal because it included a claim of excessive force and gave the appeal the tracking 3 number WSP-B-17-024202. (Doc. No. 25-6 at 2-3; 58-59). On June 27, 2017, WSP sent a letter 4 to Felde informing him that his appeal was cancelled as untimely and that Felde could appeal the 5 cancellation within 30 days. (Doc. No. 25-6 at 3, 57). Felde was interviewed regarding his 6 grievance the next day, June 28, 2017, and Felde stated that he did not believe excessive force 7 was used and only wanted to have his medical needs addressed. (Doc. No. 25-6 at 4). Felde has 8 not submitted any documentation to demonstrate that he appealed this cancellation to the third 9 level of review. 10 On December 31, 2019, after the filing of the instant suit, Felde submitted an inmate 11 grievance form to Pleasant Valley State Prison alleging that Wilkins used excessive force against 12 him at WSP. (Doc. No. 25-4 at 225; Doc. No. 25-6 at 73-76). This appeal was forwarded to 13 WSP and assigned a tracking number of WSP-0-20-00398. (Doc. No. 25-4 at 224; Doc. No. 25-6 14 at 71, 79). This appeal was cancelled as untimely and WSP sent a letter to Felde informing him 15 that he could appeal the cancellation within 30 days. (Doc. No. 25-6 at 4; 71-72). Felde has not 16 submitted any documentation to demonstrate that he appealed this cancellation to the third level 17 of review. 18 Further, Felde filed fourteen inmate grievance and/or requests for reasonable 19 accommodations during the relevant time period of March 3, 2016, the date of the shooting 20 incident, until March 14, 2019, the date Felde filed the instant petition. (Doc. No. 25-4 at 3-4, 7- 21 8, see generally Doc. Nos. 25-4, 25-5, 25-6). These appeals complained of various issues, such as 22 problems with the receipt of legal mail (Doc. No. 25-4 at 29), medical conditions (id. at 50), staff 23 misconduct (id. at 63), and the nutrition levels of the food offered to inmates. (Id. at 10-14). The 24 only appeal that Felde raised to the third level of review was the appeal regarding nutrition. (Id. 25 at 8-9). 26 II. APPLICABLE LAW 27 a. Summary Judgment Standard 28 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 1 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. 2 Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is 3 appropriate when there is “no genuine dispute as to any material fact and the movant is entitled 4 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered 5 “after adequate time for discovery and upon motion, against a party who fails to make a 6 showing sufficient to establish the existence of an element essential to that party’s case, and on 7 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 8 322 (1986). The moving party bears the “initial responsibility” of demonstrating the absence of 9 a genuine issue of material fact. Id. at 323. An issue of material fact is genuine only if there is 10 sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is 11 material if it “might affect the outcome of the suit under the governing law.” Anderson v. 12 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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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, AMENDED1 FINDINGS AND RECOMMENDATIONS TO GRANT 13 v. DEFENDANT WILKINS’ MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO 14 D. WILKINS, I. OGBUEHI, EXHAUST ADMINISTRATIVE REMEMDIES2 15 Defendants. OBJECTIONS DUE IN THIRTY DAYS 16 (Doc. No. 25) 17 18 This matter comes before the court upon initial review of this case that was reassigned to 19 the undersigned. (See Doc. No. 46). Pending review is Defendant Wilkins’ motion for 20 exhaustion-based summary judgment filed April 20, 2020. (Doc. No. 25). Plaintiff filed an 21 opposition to the motion, (Doc. No. 40) and Defendant Wilkins filed a reply. (Doc. No. 49). For 22 the reasons stated below, the court recommends that the motion for summary judgment be 23 granted. 24
25 1 The court enters this Amended Findings and Recommendation for the sole purpose of correcting a scrivener’s error in the title from “Finding and Recommendations to Grant Defendant Wilkins’ Motion to 26 Dismiss For Failure to Exhaust Administrative Remedies” to Findings and Recommendations to Grant Defendant Wilkins’ Motion for Summary Judgment for Failure to Exhaust Administrative Remedies.” 27 (emphasis added). 2 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 I. BACKGROUND 2 Plaintiff Drake Felde, a state prisoner, initiated this action on March 14, 2019 by filing a 3 pro se civil rights complaint under 42 U.S.C. § 1983 against defendants D. Wilkins and I. 4 Ogbuehi. (Doc. No. 1). On October 11, 2019, the court screened the complaint under 28 U.S.C. 5 § 1915A and found plaintiff’s complaint plausibly stated two Eighth Amendment violations: (1) 6 an excessive use of force claim against defendant Wilkins who shot plaintiff with a Block Gun on 7 March 3, 2016; and (2) a medical deliberate indifference claim against defendant Ogbuehi who 8 failed to listen and treat plaintiff for his injuries. (Doc. No. 7). After defendants filed an answer 9 to the complaint (Doc. No. 11), the court issued a discovery and scheduling order. (Doc. No. 12). 10 On April 20, 2020, Defendant Wilkins moved for exhaustion-based summary judgment. (Doc. 11 No. 25). In his motion for summary judgment, Wilkins claims that Felde failed to exhaust his 12 administrative remedies prior to bringing this suit against him, as required by the Prison 13 Litigation Reform Act. (See generally Doc. No. 25-1). 14 a. Allegations in the Complaint 15 The court only addresses the allegations in the complaint pertaining to defendant Wilkins 16 for purposes of this report and recommendation. Felde claims that Wilkins used malicious and 17 unnecessary excessive force against him, thereby violating his Eighth Amendment right to be free 18 from cruel and unusual punishment when Wilkins shot and injured him with a launcher gun in 19 order to subdue plaintiff during a fight with another inmate on March 3, 2016. (Doc. No. 1 at 3). 20 According to complaint, Felde’s injuries include a depressed skull fracture, paralysis of the upper 21 left arm, a bone spur on his wrist, broken thumb, loss of a tooth, tinnitus, hearing loss, and 22 restriction of movement in his fingers. (Id.). 23 b. Administrative Process 24 At the outset, Felde admits that he did not “process any complaint against Wilkins through 25 the third level of review.” (Doc. No. 40 at 33). The record reveals Felde filed two administrative 26 appeals related to excessive force. The first, filed on June 26, 2017, was a request for medical 27 treatment and accommodation that included the words “excessive use of force.” (Doc. No. 25-6 28 at 58-59). This request did not name Wilkins as the individual who used excessive force against 1 him. (Id.). Wasco State Prison (“WSP”) logged this reasonable accommodation request as an 2 inmate appeal because it included a claim of excessive force and gave the appeal the tracking 3 number WSP-B-17-024202. (Doc. No. 25-6 at 2-3; 58-59). On June 27, 2017, WSP sent a letter 4 to Felde informing him that his appeal was cancelled as untimely and that Felde could appeal the 5 cancellation within 30 days. (Doc. No. 25-6 at 3, 57). Felde was interviewed regarding his 6 grievance the next day, June 28, 2017, and Felde stated that he did not believe excessive force 7 was used and only wanted to have his medical needs addressed. (Doc. No. 25-6 at 4). Felde has 8 not submitted any documentation to demonstrate that he appealed this cancellation to the third 9 level of review. 10 On December 31, 2019, after the filing of the instant suit, Felde submitted an inmate 11 grievance form to Pleasant Valley State Prison alleging that Wilkins used excessive force against 12 him at WSP. (Doc. No. 25-4 at 225; Doc. No. 25-6 at 73-76). This appeal was forwarded to 13 WSP and assigned a tracking number of WSP-0-20-00398. (Doc. No. 25-4 at 224; Doc. No. 25-6 14 at 71, 79). This appeal was cancelled as untimely and WSP sent a letter to Felde informing him 15 that he could appeal the cancellation within 30 days. (Doc. No. 25-6 at 4; 71-72). Felde has not 16 submitted any documentation to demonstrate that he appealed this cancellation to the third level 17 of review. 18 Further, Felde filed fourteen inmate grievance and/or requests for reasonable 19 accommodations during the relevant time period of March 3, 2016, the date of the shooting 20 incident, until March 14, 2019, the date Felde filed the instant petition. (Doc. No. 25-4 at 3-4, 7- 21 8, see generally Doc. Nos. 25-4, 25-5, 25-6). These appeals complained of various issues, such as 22 problems with the receipt of legal mail (Doc. No. 25-4 at 29), medical conditions (id. at 50), staff 23 misconduct (id. at 63), and the nutrition levels of the food offered to inmates. (Id. at 10-14). The 24 only appeal that Felde raised to the third level of review was the appeal regarding nutrition. (Id. 25 at 8-9). 26 II. APPLICABLE LAW 27 a. Summary Judgment Standard 28 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 1 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. 2 Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is 3 appropriate when there is “no genuine dispute as to any material fact and the movant is entitled 4 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be entered 5 “after adequate time for discovery and upon motion, against a party who fails to make a 6 showing sufficient to establish the existence of an element essential to that party’s case, and on 7 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 8 322 (1986). The moving party bears the “initial responsibility” of demonstrating the absence of 9 a genuine issue of material fact. Id. at 323. An issue of material fact is genuine only if there is 10 sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is 11 material if it “might affect the outcome of the suit under the governing law.” Anderson v. 12 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 13 If the moving party meets its initial burden, the burden then shifts to the opposing party 14 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ. 15 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that 16 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587. The 17 party is required to tender evidence of specific facts in the form of affidavits, and/or admissible 18 discovery material, in support of its contention that a factual dispute exists. Fed. R. Civ. P. 19 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party is not required to establish a 20 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be 21 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” 22 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 23 1987). However, “failure of proof concerning an essential element of the nonmoving party’s 24 case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. 25 The court must apply standards consistent with Rule 56 to determine whether the 26 moving party demonstrated there to be no genuine issue of material fact and showed judgment 27 to be appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 28 1993). “[A] court ruling on a motion for summary judgment may not engage in credibility 1 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 3 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving 4 party. Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). 5 In a summary judgment motion for failure to exhaust, the defendant has the initial 6 burden of establishing “that there was an available administrative remedy, and that the prisoner 7 did not exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If 8 the defendant carries that burden, “the burden shifts to the prisoner to come forward with 9 evidence showing that there is something in his particular case that made the existing and 10 generally available administrative remedies effectively unavailable to him.” Id. The ultimate 11 burden of persuasion remains with defendant, however. Id. 12 b. Exhaustion Requirement 13 Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 14 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 15 confined in any jail, prison, or other correctional facility until such administrative remedies as 16 are available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion requirement 17 “applies to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), 18 regardless of the relief sought by the prisoner or the relief offered by the process, Booth v. 19 Churner, 532 U.S. 731, 741 (2001). A plaintiff’s claims must be exhausted prior to the filing of 20 his federal complaint. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (“Congress 21 could have written a statute making exhaustion a precondition to judgment, but it did not. The 22 actual statute makes exhaustion a precondition to suit.” (citation omitted)). Unexhausted claims 23 require dismissal. See Jones v. Bock, 549 U.S. 199, 211 (2007). A prison’s own grievance 24 process, not the PLRA, determines how detailed a grievance must be to satisfy the PLRA 25 exhaustion requirement. Id. at 218. 26 The California Department of Corrections and Rehabilitation’s (“CDCR”) administrative 27 28 1 remedy process governs this action.3 See Cal. Code Regs. tit. 15, § 3084.1 (2016). To exhaust 2 available remedies, an inmate must proceed through three formal levels of review unless 3 otherwise excused under the regulations. Id. § 3084.5. A prisoner initiates the exhaustion 4 process by submitting a CDCR Form 602 “Inmate/Parolee Appeal” (“grievance”). Id. §§ 5 3084.2(a), 3084.8(b) (quotation marks omitted). The grievance must “describe the specific 6 issue under appeal and the relief requested,” and the inmate “shall list all staff member(s) 7 involved and shall describe their involvement in the issue.” Id. § 3084.2(a). The inmate “shall 8 state all facts known and available to him/her regarding the issue being appealed at the time of 9 submitting the Inmate/Parolee Appeal Form, and if needed, the Inmate Parolee/Appeal Form 10 Attachment.” Id. § 3084.2(a)(4). 11 An inmate must submit an appeal within thirty calendar days of “[t]he occurrence of the 12 event or decision being appealed” or “[u]pon first having knowledge of the action or decision 13 being appealed.” Id. § 3084.6(c)(4). Under certain circumstances, an appeal will be accepted 14 after the deadline. A late appeal may only be canceled where “the inmate or parolee had the 15 opportunity to submit within the prescribed time constraints.” Id. Further, “at the discretion of 16 the appeals coordinator or third level Appeals Chief, a cancelled appeal may later be accepted if 17 a determination is made that cancellation was made in error or new information is received 18 which makes the appeal eligible for further review.” Id. at § 3084.6(a)(3). Further, under 19 exceptional circumstances an appeal may be accepted for review beyond the 30-day deadline, 20 for instance, when an inmate is medically incapacitated and unable to file an appeal. Id. at § 21 3084.6(a)(4). 22 Where an appeal is cancelled due to a procedural error on the part of the inmate, 23 administrative remedies remain available to the inmate—namely appealing the cancellation 24 decision. See Cortinas v. Portillo, 754 F. App’x 525, 527 (9th Cir. 2018) (“Because [plaintiff] 25 could have appealed his cancellation decision . . . the improper cancellation of his appeal did not 26 render administrative remedies effectively unavailable to him.”); Davenport v. Gomez, No. 27 3 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 2:16-CV-1739, 2019 WL 636844, at *15 (E.D. Cal. Feb. 14, 2019) (noting that the appeals 2 process is available where the plaintiff can raise the cancellation appeal to the next level). 3 The PLRA recognizes no exception to the exhaustion requirement, and the court may not 4 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 5 1862 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to 6 the prisoner.” Id. at 1856. A defendant has the burden of showing that “some relief remains 7 ‘available.’” Brown v. Valoff, 422 F.3d 926, 936-937 (9th Cir. 2005). “To be available, a 8 remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Albino v. 9 Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (quoting Brown, 422 F.3d at 937). “[A]dministrative 10 procedure is unavailable when (despite what regulations or guidance materials may promise) it 11 operates as a simple dead end—with officers unable or consistently unwilling to provide any 12 relief to aggrieved inmates,” or where an “administrative scheme might be so opaque that it 13 becomes, practically speaking, incapable of use.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). 14 And relief does not remain available if “prison administrators thwart inmates from taking 15 advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. 16 at 1860. Where the court concludes that plaintiff has failed to exhaust available remedies, the 17 proper remedy is dismissal without prejudice of the portions of the complaint barred by § 18 1997e(a). See Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 19 2005). 20 III. ANALYSIS 21 As an initial matter, Wilkins has met his burden to show that an administrative remedy 22 was available to Felde. See Albino, 747 F.3d at 1172. Wilkins submitted copies of the relevant 23 appeal cancellation letters, both which advised Felde he had the opportunity to appeal the 24 cancellations. (Doc. No. 25-6 at 58-59; 73-76). Felde does not dispute that he received these 25 letters, nor does he state that he did not understand how to appeal a cancelation. In fact, Wilkins 26 has submitted proof that Felde appealed a cancelation of a different grievance during the relevant 27 time period. (Doc. No. 2504 at 31-32). Moreover, Wilkins has demonstrated that Felde 28 submitted numerous other appeals during the relevant time period. (See generally Doc. Nos. 25- 1 4, 25-5, 25-6). Felde does not dispute that he submitted these other appeals, nor does he state that 2 he had trouble understanding the procedure for submitting these appeals. 3 The burden now shifts to Felde to show that there was “something in his particular case 4 that made the existing and generally available administrative remedies effectively unavailable to 5 him.” Albino, 747 F.3d at 1166. Felde states he was in the hospital and correctional treatment 6 center for a total of 47 days after the incident and without access to the proper administrative 7 grievance forms, paper, or pens during this time. (Doc. No. 40 at 3-6). Felde claims he requested 8 a grievance form while in the hospital, but staff did not provide it to him. (Id. at 14). Even 9 accepting these claims in the light most favorable to Felde, the court cannot find that Felde took 10 the necessary steps to timely file an initial grievance against Wilkins. See Espinoza v. Asunction, 11 No. 16-cv-01263, 2017 WL 3670780 at *7-8, 11 (N.D. Cal. Aug. 25, 2017) (finding that a 12 plaintiff’s attempts to timely file a grievance were “modest” where plaintiff asked for a grievance 13 form only four times). Here, Felde describes no steps he took to file a grievance against Wilkins 14 after his release from the correctional treatment center. If Felde had taken the opportunity to file 15 a grievance upon his release from the correctional treatment center, it is possible that the late 16 appeal would have been accepted by officials due to his hospitalization. See Cal. Code Regs. tit. 17 15, § 3084.6(a)(4). 18 Instead, Felde first filed a grievance raising a claim of excessive force over a year after the 19 shooting incident. (Doc. No. 25-6 at 58-59). Felde did not identify Wilkins as the actor in this 20 grievance, offering only vague mention that excessive force was used against him without naming 21 any prison official or providing any factual description of the events. (Id. at 59). Despite the 22 grievance being cancelled as untimely, Felde still had the opportunity to appeal the cancelation 23 decision—a step he did not take. Brown, 422 F.3d at 935 (“The obligation to exhaust ‘available’ 24 remedies persists as long as some remedy remains ‘available.’”). Some remedy remained 25 available to Felde because he could have appealed the cancellation decision. See Cal. Code Regs. 26 tit. 15, § 3084(a)(3) and (e) (inmate can appeal cancellation decision separately pursuant to the 27 rules in § 3084.6(c), and if inmate prevails, cancelled appeal can be considered at the discretion of 28 the appeals coordinator). And, even if the appeal of the cancellation decision was denied, Felde 1 would have had the opportunity to appeal that decision to the third level of review, effectively 2 exhausting his administrative remedies. See Wilson v. Zubiate, 718 Fed. Appx. 479, 2017 U.S. 3 App. LEXIS 24302, 2017 WL 5897303, at *1 (9th Cir. 2017) ((quoting Ross, 136 S. Ct. at 1859) 4 (“Because an appeal of the cancellation decision left open the possibility for some relief, the 5 procedure did not operate as a ‘dead end.’”). 6 Further, even though Felde eventually filed a grievance for excessive force naming 7 Wilkins as the actor nine months after he filed the instant federal complaint (some three years 8 after the shooting incident), (Doc. No. 25-6 at 73-76), this grievance was also canceled as 9 untimely. Again, Felde had the opportunity to appeal the cancellation to the third level of review 10 but did not do so. Thus, Felde’s second grievance is also unexhausted. 11 The undersigned finds: (1) defendant Wilkins has demonstrated an administrative remedy 12 was available; (2) Felde did not exhaust his remedies as to this excessive use of force claim 13 agasint defendant Wilkins; and (3) Felde has failed “to come forward with evidence showing that 14 there is something in his particular case that made the existing and generally available 15 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1166. Based upon 16 the facts and binding precedent, the undersigned recommends that defendant Wilkins’ motion for 17 summary judgment be granted and defendant Wilkins be dismissed from this case. 18 Accordingly, it is RECOMMENDED: 19 1. Defendant Wilkins’ motion for summary judgment (Doc. No. 25) be GRANTED. 20 2. Defendant Wilkins be dismissed from this case. 21 NOTICE TO PARTIES 22 These findings and recommendations will be submitted to the United States district judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 24 days after being served with these findings and recommendations, a party may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” Parties are advised that failure to file objections within the 27 28 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. | Dated: _ March 26, 2021 Mihaw. Th fareh Zack 6 HELENA M. BARCH-KUCHTA 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10