(PC) Henderson v. Castillo

• Court: District Court, E.D. California
• Decided: February 27, 2023
• Docket: 1:20-cv-01199
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS LEE HENDERSON, SR., Case No. 1:20-cv-01199-AWI-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR 13 v. SUMMARY JUDGMENT FOR A FAILURE TO EXHAUST ADMINISTRATIVE 14 S. CASTILLO, et al., REMEDIES

15 Defendants. (Doc. 53)

16 14-DAY OBJECTION PERIOD 17 18 Plaintiff Curtis Lee Henderson, Sr., is proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983. 20 I. PROCEDURAL BACKGROUND 21 Plaintiff initiated this action on August 25, 2020. (Doc. 1.) On September 8, 2020, 22 Plaintiff filed a motion for temporary restraining order. (Doc. 4.) Plaintiff sought an order 23 directing he be placed on single cell status due to his disabilities. (Id. at 3-4.) 24 On October 14, 2020, the Court issued its Order Directing Special Appearance on Behalf 25 of Defendants and Response to Plaintiff’s Motion for Temporary Restraining Order. (Doc. 10.) 26 On October 28, 2020, Defendants filed a response to Plaintiff’s Request for Temporary 27 Restraining Order was filed with the Court (Doc. 11), and on November 12, 2020, Plaintiff filed a 28 reply (Doc. 13). On November 19, 2020, Plaintiff filed “Plaintiff’s Supplemental 1 Motion/Declaration in Support of TRO.” (Doc. 14.) 2 On November 24, 2020, the undersigned issued Findings and Recommendations to Deny 3 Plaintiff’s Motion for Temporary Restraining Order. (Doc. 16.) As the Court noted, Plaintiff’s 4 request for single cell status was moot in light of his having been placed on provisional single-cell 5 status as of October 21, 2020. (Id. at 2.) The Court rejected Plaintiff’s contention that the request 6 was not moot “because the rules violation report at issue in this lawsuit ‘has not been expunged 7 and plaintiff is still in a cell that is not ADA compliant,’” noting that “the Court does not reach 8 the merits of Plaintiff’s claims in this action.” (Id. at 2-3.) The Court found that “the 9 ‘extraordinary remedy’ of a preliminary injunction is not necessary to preserve the relative 10 positions of the parties, since Plaintiff’s request for single-cell status has already been granted for 11 a minimum of six months,” and that the Court “need not reach the merits of Plaintiff’s retaliation, 12 deliberate indifference, or other claims raised in his complaint.” (Id. at 3.) 13 On December 3, 2020, Plaintiff filed a motion to amend the complaint. (Doc. 17.) On 14 December 29, 2020, Plaintiff filed objections to the November 2020 findings and 15 recommendations and requested the Court take judicial notice of his “supplemental information.” 16 (Doc. 18.) Judge Anthony W. Ishii issued an Order Adopting Findings and Recommendations 17 and Denying Plaintiff’s Motion for a Temporary Restraining Order on January 6, 2021. (Doc. 19.) 18 On March 15, 2021, the Court issued its Order Directing Plaintiff to File a First Amended 19 Complaint or Notify the Court of His Desire to Proceed Only on Claims Found Cognizable. (Doc. 20 20.) Plaintiff was given 21 days within which to do so. (Id. at 10-11.) On April 15, 2021, 21 Plaintiff filed his notice to proceed on the cognizable claims. (Doc. 23.) 22 On April 19, 2021, the Court issued its order Finding Service Appropriate and Directing 23 Service. (Doc. 24.) The Court ordered the case to proceed on Plaintiff’s original complaint for 24 Plaintiff’s claims of deliberate indifference to health and safety and for claims under the Bane 25 Act, against Defendants Castillo and Tyler. (Id. at 1-2.) 26 On April 20, 2021, the undersigned issued Findings and Recommendations, 27 recommending Defendant Flores be dismissed, and that Plaintiff’s complaint be dismissed except 28 for the deliberate indifference claims under section 1983 and the claim under the Bane Act 1 against Defendants Castillo and Tyler in their individual capacities. (Doc. 26.) 2 On May 20, 2021, Judge Ishii issued an Order Adopting those findings in full. (Doc. 29.) 3 Defendant Flores was dismissed, and Plaintiff’s claim were dismissed except for the claims 4 against Defendants Castillo and Tyler in their individual capacities for deliberate indifference to 5 health or safety under 42 U.S.C. § 1983 and violations of the Bane Act. (Id. at 2.) 6 Following service of Plaintiff’s complaint, on August 26, 2021, Defendants Castillo and 7 Tyler filed a Motion to Partially Dismiss the Complaint, contending Plaintiff’s Bane Act claim 8 was barred under California’s Government Claims Act. (Doc. 34.) On September 3, 2021, 9 Plaintiff filed a Motion for Default Judgment (Doc. 35), which was opposed by Defendants. (Doc. 10 36). 11 On September 9, 2021, Plaintiff filed a “Cross Motion for Summary Judgment and 12 Opposition to Defendants Motion for Partial Dismissle [sic] of the Complaint.” (Doc. 37.) 13 Defendants filed a reply to Plaintiff’s opposition to dismiss the Bane Act claim on September 20, 14 2021 (Doc. 38) and on September 30, 2021, Defendants filed their opposition (Doc. 39). On 15 October 18, 2021, Plaintiff filed his “Objection to Defendants Opposition to Plaintiff’s Motion for 16 Summary Judgment.” (Doc. 40.) During the pendency of the motions, Plaintiff filed “Plaintiff’s 17 Notice of Pending Issue(s)” on December 8, 2021 (Doc. 41) and “Plaintiff’s Notice of Pending 18 Issues” on February 24, 2022 (Doc. 42). 19 On March 10, 2022, Judge Ishii issued his Order Granting Defendants’ Partial Motion to 20 Dismiss, Order Denying Plaintiff’s Motion for Default Judgment, Order Denying Plaintiff’s 21 “Cross-Motion for Summary Judgment,” and Order Finding Plaintiff’s “Notice of Pending 22 Issues” Moot. (See Doc. 43.) 23 On March 21, 2022, Defendants Castillo and Tyler filed their answer to the complaint. 24 (Doc. 44.) 25 On March 21, 2022, Plaintiff filed a “Notice of Appeal in Good Faith,” challenging the 26 dismissal of his Bane Act claim. (Doc. 46.) On April 21, 2022, in its Case No. 22-15427, the 27 Ninth Circuit Court of Appeals dismissed Plaintiff’s appeal for a lack of jurisdiction. (Doc. 50; 28 see also Doc. 52 [Mandate].) On April 25, 2022, the Court issued its Discovery and Scheduling 1 Order. (Doc. 51.) 2 On June 17, 2022, Defendants filed the instant Motion for Summary Judgment for Failure 3 to Exhaust Administrative Remedies. (Doc. 54.) Plaintiff filed an opposition on July 8, 2022 4 (Doc. 55), and Defendants filed a reply on July 21, 2022 (Doc. 55). On August 4, 2022, Plaintiff 5 filed “Plaintiff’s Opposition to Defendants Reply in Support of Motion for Summary Judgment.” 6 (Doc. 57.) 7 II. SUMMARY OF FACTS 8 Plaintiff’s Allegations 9 Plaintiff’s claims stem from incidents at Substance Abuse Treatment Facility and State 10 Prison, Corcoran (SATF). (Doc. 1 at 1.) Plaintiff contends he has “severe disabilities,” and uses a 11 “walker and wheelchair for mobility.” (Id. at 3.) In addition, Plaintiff asserts he wears a patch 12 over one eye due to diplopia, and he wears adult diapers due to incontinence. (Id.) Plaintiff states 13 that he has been the “victim of sexual abuse … and physical violence by a cell partner.” (Id.) As a 14 result, Plaintiff has been housed in single-person cell for two years. (Id.) Plaintiff’s doctor has 15 recommended continuation of his single-cell status. (Id. at 4.) 16 Plaintiff contends that on July 26, 2020, Defendant Castillo told Plaintiff that he would 17 need to “double cell[]” or be issued a rules violation report (RVR). (Doc. 1 at 3.) Plaintiff told the 18 officer about his disabilities, though Castillo “already had prior knowledge” of his disabilities and 19 related accommodations. (Id.) Plaintiff contends he also provided Castillo with “the memorandum 20 … by the director … clarifying the obligation of staff to consider the vulnerability of inmates 21 with medical conditions who need single-cell status.” (Id.) Plaintiff was nonetheless issued and 22 convicted of an RVR. (Id.) At the hearing on the RVR, Plaintiff asserts he “explained … 23 everything” to the hearing officer, Defendant Tyler, to no avail. (Id. at 4.) Tyler told Plaintiff that 24 he would “be written up again if” he refused to take a cellmate. 25 Plaintiff contends that the “rules violation was retaliation for … protected conduct.” (Doc. 26 1 at 4.) He alleges that, as a result of the RVR conviction, he lost 61 days of good-time credits 27 and 30 days of yard privileges “to chill or silence” him. (Id.) Plaintiff further alleges that the 28 defendants retaliated “to disrupt litigation in a pending case.” (Id.) 1 A. Defendants’ Undisputed Facts 2 Defendants submitted the following as undisputed facts: 3 1. Plaintiff is a prisoner in the custody of the California Department of Corrections and 4 Rehabilitation (CDCR). 5 2. Plaintiff is housed at the Substance Abuse Treatment Facility and State Prison, 6 Corcoran. 7 3. On July 26, 2020, Plaintiff received a Rules Violation Report for refusing a housing 8 assignment. 9 4. On August 10, 2020, Plaintiff filed the pending Complaint regarding the July 26, 2020 10 Rules Violation Report. 11 5. An administrative grievance process is and was available to Plaintiff at all times 12 during his incarceration. 13 6. The administrative grievance process begins when a claimant submits a written 14 grievance on CDCR Form 601-1 to the Institutional Office of Grievances at the prison 15 where they are housed. The Institutional Office of Grievances thereafter provides the 16 claimant with a written decision regarding the claim, generally within 60 days. 17 7. If the Institutional Office of Grievances submits a decision of “identified as staff 18 misconduct,” “pending legal matter,” or “time expired,” then the claimant has 19 exhausted all available administrative remedies within CDCR. 20 8. If the Institutional Office of Grievances submits a decision of “denied,” “granted,” “no 21 jurisdiction,” “redirected,” “reassigned,” or “rejected” [] then the matter must be 22 appealed to CDCR’s Office of Appeals before it is deemed exhausted. 23 9. Plaintiff did not file any grievances between July 26, 2020 and August 25, 2020. 24 (Doc. 54-3 at 2-3.) 25 III. LEGAL STANDARDS 26 A. Summary Judgment 27 Summary judgment is appropriate when the moving party “shows that there is no genuine 28 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 1 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 2 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by 4 “citing to particular parts of materials in the record, including depositions, documents, 5 electronically stored information, affidavits or declarations, stipulations …, admissions, 6 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 7 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 8 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 9 the burden of proof at trial, “the moving party need only prove that there is an absence of 10 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 11 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 12 Summary judgment should be entered against a party who fails to make a showing 13 sufficient to establish the existence of an element essential to that party’s case, and on which that 14 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 15 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 16 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 17 “so long as whatever is before the district court demonstrates that the standard for the entry of 18 summary judgment … is satisfied.” Id. at 323. 19 B. Exhaustion of Administrative Remedies 20 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 21 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 22 confined in any jail, prison, or other correctional facility until such administrative remedies as are 23 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is 24 mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 25 211 (2007). Inmates are required to “complete the administrative review process in accordance 26 with the applicable procedural rules, including deadlines, as a precondition to bringing suit in 27 federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies 28 to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of 1 the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 2 U.S. 731, 741 (2001). 3 The failure to exhaust administrative remedies is an affirmative defense, which the 4 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of 5 producing evidence that proves a failure to exhaust; summary judgment is appropriate only if the 6 undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff failed 7 to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 8 On a motion for summary judgment, the defendant must prove (1) the existence of an 9 available administrative remedy and (2) that the plaintiff failed to exhaust that remedy. Albino, 10 747 F.3d at 1172 (citation omitted). If the defendant meets this burden, the plaintiff then “has the 11 burden of production. That is, the burden shifts to the prisoner to come forward with evidence 12 showing that there is something in his particular case that made the existing and generally 13 available administrative remedies effectively unavailable to him.” Id. (citation omitted). 14 “However, … the ultimate burden of proof remains with the defendant.” Id. “If a motion for 15 summary judgment is denied, disputed factual questions relevant to exhaustion should be decided 16 by the judge.” Id. at 1170. 17 An inmate “need not exhaust unavailable [remedies].” Ross v. Blake, 578 U.S. 632, 642 18 (2016). An administrative remedy is unavailable “when (despite what regulations or guidance 19 materials may promise) it operates as a simple dead end with officers unable or consistently 20 unwilling to provide any relief to aggrieved inmates”; or when “an administrative scheme [is] so 21 opaque that it becomes, practically speaking, incapable of use, [i.e.,] some mechanism exists to 22 provide relief, but no ordinary prisoner can discern or navigate [the mechanism]”; or “when 23 prison administrators thwart inmates from taking advantage of a grievance process through 24 machination, misrepresentation, or intimidation.” Id. at 643-44. 25 When the district court concludes that the prisoner has not exhausted administrative 26 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 27 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 28 Albino, 747 F.3d at 1168-69. “If a motion for summary judgment is denied, disputed factual 1 questions relevant to exhaustion should be decided by the judge.” Albino, 747 F.3d at 1170. If the 2 court finds that remedies were not available, the prisoner exhausted available remedies, or the 3 failure to exhaust available remedies should be excused, the case proceeds to the merits. Id. at 4 1171. 5 C. CDCR Grievance Process 6 California prisoners may “submit a written grievance to the department containing one or 7 more claims ... to dispute a policy, decision, action, condition, or omission by the department or 8 departmental staff.” Cal. Code Regs. tit. 15, § 3481(a). During the time period relevant to this 9 action,1 the grievance process consisted of two levels of review. Inmates are required to submit a 10 grievance in writing to the Institutional Office of Grievances at the institution where they are 11 housed within sixty days. Cal. Code Regs. tit. 15, § 3482(b)(1). The Office of Grievances is 12 required to issue a written grievance decision within sixty days. Cal. Code Regs. tit. 15, § 13 3483(g). If the inmate is dissatisfied, they may submit an appeal to the Office of Appeals within 14 sixty days of receiving the Office of Grievance decision. Cal. Code Regs. tit. 15, § 3484(b). In 15 general, an appeal is exhausted when the Office of Appeals issues a final decision. Cal. Code 16 Regs. tit. 15, § 3485(l). 17 IV. EVIDENTIARY MATTERS 18 Plaintiff has failed to properly respond to Defendants’ Statement of Undisputed Facts in 19 support of the motion for summary judgment. Plaintiff was served with a Rand2 warning that 20 included the following language: 21 In accordance with Local Rule 260(a), Defendant has filed a Statement of Undisputed Facts that contains discrete, specific 22 material facts to support their entitlement to summary judgment. In response to this Statement, Local Rule 260(b) requires you to 23 “reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are 24 disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory 25

26 1 In 2020, California changed the grievance system from a three-tier system to a two-tier system. The change became effective on June 1, 2020. See Cal. Code Regs. tit. 15, § 3480. The events giving rise to the 27 claim at issue occurred in late July 2020, after the change became effective. Any citations to the California Code of Regulations refers to the current version of the law. 28 1 answer, admission, or other document relied upon in support of that denial.” You may also “file a concise Statement of Disputed Facts, 2 and the source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment 3 or adjudication.” Id. You are responsible for filing all evidentiary documents cited in the opposing papers. Id. 4 5 (Doc. 54-4 at 2.) 6 Plaintiff neither reproduced Defendants’ itemized facts, nor admitted or denied those 7 facts. (See Doc. 55.) Because Plaintiff has not complied with Rule 260(b),3 the Court deems 8 Plaintiff to have admitted those facts.4 See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by 9 failing specifically to challenge the facts identified in the defendant's statement of undisputed 10 facts, [plaintiff] is deemed to have admitted the validity of the facts contained in the [defendant's] 11 statement.”); Brito v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. 12 July 15, 2020) (deeming defendant's undisputed facts as admitted after plaintiff failed to comply 13 with Local Rule 260(b)); see also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 14 Next, this Court’s Local Rules provide for a motion, an opposition and a reply. See Local 15 Rule 230(l). Nothing in the Local Rules or the Federal Rules that provides for the filing of a sur- 16 reply. The court generally views motions for leave to file a sur-reply with disfavor. Hill v. 17 England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citation 18 omitted). However, district courts have the discretion to either permit or preclude a sur-reply. See 19 JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not 20 abuse discretion in denying leave to file a sur-reply where it did not consider new evidence in 21 reply). 22 Plaintiff’s August 4, 2022 filing (see Doc. 57 [“Plaintiff’s Opposition to Defendants Reply 23 in Support of Motion for Summary Judgment”]) is a sur-reply. Plaintiff does not have the right to 24 3 The Court further observes that Plaintiff failed to reproduce Defendants’ statement of undisputed facts, 25 or to admit or deny those facts, in his sur-reply or filing dated August 4, 2022. (See Doc. 57.) 26 4 In the First Informational Order in Prisoner/Civil Detainee Civil Rights Case, issued September 11, 2020, Plaintiff was advised: “In litigating this action, the parties must comply with this Order, the Federal 27 Rules 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 28 grounds for imposition of sanctions which may include dismissal of the case. Local Rule 110; Fed. R. Civ. 1 file a sur-reply, and he did not file a motion seeking leave to file a sur-reply. However, 2 Defendants have not filed an objection to Plaintiff’s filing. The Court further notes that 3 Defendants’ reply to Plaintiff’s opposition of July 8, 2022, noted an administrative error resulting 4 in the inadvertent exclusion of Exhibit A to the Moseley Declaration filed in support of the 5 motion. (See Doc. 56 at 3, n.1.) Defendants “resubmitted” Exhibit A with their reply to Plaintiff’s 6 opposition and indicated they had no objection to the Court granting Plaintiff “leave to address 7 Exhibit A, should the Court deem it necessary.” (Id.) The Court will therefore permit and 8 consider Plaintiff's August 4, 2022 filing, or sur-reply. 9 V. DISCUSSION 10 The question before the Court is whether Plaintiff exhausted his administrative remedies 11 regarding his claims of deliberate indifference to health or safety against Defendants Castillo and 12 Tyler. 13 The undersigned finds Defendants have met their initial burden of showing there is no 14 genuine issue of material of fact because there exists an available administrative remedy and 15 Plaintiff failed to exhaust his administrative remedies. (Doc. 54-3 at 2, ¶¶ 5-9 & Doc. 56-1 at 2-3, 16 ¶¶ 5-9.) See In re Oracle Corp. Sec. Litig., 627 F.3d at 387; Albino, 747 F.3d at 1172. The 17 burden therefore shifts to Plaintiff “to come forward with evidence showing that there is 18 something in his particular case that made the existing and generally available administrative 19 remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. 20 Plaintiff first contends that an undated Third Level Appeal Decision, attached as Exhibit 21 A to his opposition, serves to exhaust his administrative remedies. (See Doc. 55 at 2.)5 However, 22 that decision followed grievance “Local Log No.: SATF-19-01379.” (Id. at 7.) The Moseley 23 Declaration reveals that “SATF-19-01379” was denied on July 22, 2019. (Doc. 56-1 at 5.)6 A 24 grievance or appeal that was denied in July 2019 cannot serve to exhaust a claim that arose on 25

26 5 Plaintiff’s opposition largely addresses the merits of his claim, rather than the issue before the Court— whether Plaintiff exhausted his administrative remedies. Therefore, the Court does not address Plaintiff’s 27 contentions concerning the merits of his claim. 28 6 The Court agrees with Defendants the third level response “makes no mention of Defendants or the RVR 1 July 26, 2020. In other words, Plaintiff’s claim against Defendants Castillo and Tyler pertains to 2 events that began on July 26, 2020—the date Castillo advised Plaintiff he would be double-celled 3 or receive a rules violation report and a subsequent hearing involving Tyler following the 4 issuance of a rules violation report—and although the 2019 grievance (SATF-19-01379) 5 pertained to an earlier request by Plaintiff for single-cell status, that earlier 2019 grievance does 6 not operate to exhaust a later 2020 claim. See, e.g., Cunningham v. Martinez, No. 1:19-cv-01508- 7 AWI-EPG (PC), 2021 WL 5054301, *11 (E.D. Cal. Nov. 1, 2021) (“Here, Plaintiff withdrew the 8 grievance voluntarily without getting a formal resolution of his appeal. Plaintiff’s own withdrawal 9 of his appeal does not constitute exhaustion of administrative remedies”); Walker v. Cate, No. 10 2:10-cv-1093 GEB KJN P, 2011 WL 2963486, *5 (E.D. Cal. July 20, 2011) (“Nor is there any 11 merit to plaintiff’s theory that his two grievances should be read together, or that his second 12 grievance should be construed as a ‘continuation’ of his first grievance. The two matters are 13 unrelated, distinct in time and impact”). 14 Plaintiff next contends his administrative remedies were unavailable because the 15 “defendants were informed by Dr. Anthony Hales, Dr. Tariq Rafiq, that [Plaintiff] should be 16 single cell status because his inability to defend himself …” (Doc. 57 at 2.) Plaintiff alleges “no 17 remedy other than this court was available,” and he faced retaliation from Defendants and 18 physical sexual assault from other inmates. (Id. at 2-3.) Plaintiff states “the CDCR had already 19 informed [him] that he exhausted those remedies.” (Id. at 3.) He contends “a reasonable person of 20 ordinary firmness would have believed that these prison officials actions communicated a threat 21 not to complain.” (Id.) 22 Plaintiff has offered no evidence to support his claim of unavailability based on 23 intimidation or retaliation. Albino, 747 F.3d at 1172 (plaintiff must come forward with evidence 24 showing there is something in his particular case that made existing and generally available 25 administrative remedies effectively unavailable to him). Plaintiff’s assertions that administrative 26 remedies were unavailable to him are mere speculation, and he does not claim he made any effort 27 to file a grievance after the July 2020 incident. See McClain v. Schoo, No. 1:19-cv-00900-AWI- 28 BAM (PC), 2021 WL 843463, *5 (E.D. Cal. Mar. 5, 2021) (“Plaintiff may also not rely on pure 1 speculation to demonstrate that his administrative remedies were unavailable”); see also Stewart 2 v. Korsen, No. CV 10-1144-PHX-JWS (ECV), 2011 WL 13190180, *3 (D. Ariz. Jan. 26, 2011) 3 (“Plaintiff’s speculation regarding unavailable remedies or alleged past difficulties with the 4 grievance process are irrelevant when Plaintiff does not even assert that he attempted in any way 5 to grieve the issue … before filing this lawsuit”); Webster v. Russell, Case No. 7:16-cv-00487, 6 2018 WL 4515888, at *2 (W.D. Va. Sept. 20, 2018) (“A conclusory allegation of retaliation [to 7 establish unavailability] is not persuasive”); Battle v. South Carolina Department of Corrections, 8 No. 9:19-cv-1739-TMC, 2021 WL 4167509, *7 (D. S.C. Sept. 14, 2021) (“The court agrees with 9 the magistrate judge’s analysis and is unable to conclude without undue speculation that the 10 remedies of the SCDC grievance process were unavailable to Battle”). Instead, Plaintiff offers 11 excuses7 for not attempting to file a grievance following the events in July of 2020. 12 In sum, Plaintiff has not shown the grievance process “operates as a simple dead end,” or 13 that the process is “so opaque” that is “incapable of use” or unnavigable, or that prison authorities 14 have thwarted its use through “machination, misrepresentation, or intimidation.” Ross v. Blake, 15 578 U.S. at 642-644. On this record, it is clear the administrative remedies were available to 16 Plaintiff, that Plaintiff regularly used the grievance and appeals process, and he was not thwarted 17 in his efforts to do so. 18 Prisoners are required to exhaust the available administrative remedies prior to filing suit. 19 Jones v. Bock, 549 U.S. at 211; McKinney v. Carey, 311 F.3d at 1199-1201. Plaintiff did not do 20 so. No grievance or appeal submitted by Plaintiff served to exhaust his claim that Defendants 21 Castillo and Tyler were deliberately indifferent to Plaintiff’s health or safety in July 2020. Even 22 viewed in the light most favorable to Plaintiff, the record establishes Plaintiff did not exhaust his 23 administrative remedies as required prior to filing suit. Albino v. Baca, 747 F.3d at 1166. 24 Therefore, Defendants are entitled to summary judgment. See Celotex, 477 U.S. at 322-323. 25 VI. CONCLUSION AND RECOMMENDATIONS 26

27 7 One excuse offered by Plaintiff for his failure to exhaust his administrative remedies prior to filing suit occurred after Plaintiff filed his complaint. (See Doc. 57 at 2 [referring to the motion 28 for temporary restraining order filed 9/8/20. Further, that motion was denied as moot; no finding 1 Based on the foregoing, the Court recommends that Defendants’ motion for summary 2 judgment for a failure to exhaust administrative remedies (Doc.54) be GRANTED and that 3 judgment be entered in favor of Defendants Castillo and Tyler. Plaintiff’s complaint should be 4 dismissed without prejudice. 5 These Findings and Recommendations will be submitted to the United States District 6 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 7 of the date of service of these Findings and Recommendations, the parties may file written 8 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 9 Findings and Recommendations.” Failure to file objections within the specified time may result in 10 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 11 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13

14 Dated: February 24, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 15

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