1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, Case No. 1:21-cv-01602-JLT-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR 13 v. SUMMARY JUDGMENT FOR PLAINTIFF’S FAILURE TO EXHAUST 14 D. LAWHORN, et al., ADMINISTRATIVE REMEDIES
15 Defendants. (Doc. 37)
17 18 Plaintiff Ricardo Martinez is a state prisoner proceeding pro se in this civil rights action 19 brought pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 On May 31, 2023, the Court issued its Discovery and Scheduling Order. (Doc. 33.) 22 Relevant here, the order set a September 30, 2023 deadline for the filing by Defendants of any 23 motion for summary judgment on the grounds of failure to exhaust administrative remedies. (Id.) 24 On September 29, 2023, Defendants filed their motion for summary judgment based on 25 Plaintiff’s failure to exhaust administrative remedies. (Doc. 37.) 26 On November 6, 2023, the Court issued its Order to Show Cause (“OSC”) in Writing 27 Why Action Should Not Be Dismissed for Failure to Obey Court Orders. (Doc. 40.) Specifically, 28 Plaintiff was directed to show cause in writing within 14 days why he failed to timely file an 1 opposition or statement of non-opposition to Defendants’ motion for summary judgment, as 2 required by the Local Rules, or, alternatively, to file his opposition or statement of non- 3 opposition. (Id. at 2.) 4 On November 8, 2023, the Court issued its Order Granting Stay of Merits-Based 5 Discovery, pending resolution of the exhaustion-based summary judgment motion. (Doc. 42.) 6 On November 17, 2023, Plaintiff filed a written response to the OSC. (Doc. 44.) 7 In its Order discharging the OSC, on November 20, 2023, the Court construed Plaintiff’s 8 response to the OSC to be an opposition to Defendants’ motion for summary judgment and 9 directed Defendants to file any reply within 14 days. (Doc. 46.) 10 On December 1, 2023, Defendants filed a reply to Plaintiff’s opposition. (Doc. 47.) 11 II. SUMMARY OF FACTS 12 A. The Allegations in Plaintiff’s Complaint 13 Plaintiff contends that on March 22, 2020, he sent a letter to Warden Pfeiffer advising the 14 warden that Correctional Officer Lawhorn was harassing him. (Doc. 1 at 5.) Defendant Pfeiffer 15 did not act upon the information. (Id.) Plaintiff asserts that on April 25, 2020, Defendant Lawhorn 16 searched his cell, telling Plaintiff he was doing so because Plaintiff wanted “to write up the 17 warden” and stating he knew “what [Plaintiff is] in here for.” (Id. at 4.) When Lawhorn 18 completed his search, Lawhorn told Plaintiff he was “lucky” that he did not find anything. (Id.) 19 Plaintiff replied that he intended to write up Lawhorn. (Id.) Plaintiff contends that “without any 20 provocation” from him, Lawhorn began hitting Plaintiff. (Id.) As a result of Lawhorn’s assault, 21 Plaintiff received a one inch cut above his right eye and bruising to his ribs and stomach. (Id.) 22 Further, Plaintiff contends Defendant Mariscal observed Lawhorn’s actions that date, but stood 23 by and did nothing to stop it. (Id. at 4, 6.) 24 This action proceeds on Plaintiff’s Eighth Amendment excessive force claims against 25 Defendants Lawhorn and Pfeiffer, and Eighth Amendment failure to protect claim against 26 Defendant Mariscal. (See Doc. 18.) 27 // 28 // 1 B. Defendants’ Statement of Undisputed Facts 2 Defendants submit the following separate statement of undisputed material facts: 3 1. Martinez submitted a grievance to the Kern Valley State Prison (KVSP) appeals office 4 on April 25, 2020 that was issued log number KVSP-0-20-01551. 5 2. Martinez specifically pled that KVSP-0-20-01551 exhausted the basis of this lawsuit. 6 3. In the grievance, Plaintiff claimed in one sentence that he was the subject of 7 intentional force by Defendant Lawhorn. The grievance did not mention Defendants 8 Mariscal or Pfeiffer. 9 4. The grievance bypassed the first level of review and received a second level review. 10 5. The grievance was reviewed and cancelled because Plaintiff failed to meet for an 11 interview regarding his matter, and such a failure violated Cal. Code Regs. tit. 15, § 12 3084.6(c)(8). 13 6. Martinez received notice of the cancellation and the letter he received informed him he 14 could appeal the cancellation. 15 7. Plaintiff has not appealed the cancellation as of September 27, 2023. 16 (Doc. 37-3 [hereafter “UDF”].) 17 III. LEGAL STANDARDS 18 A. Summary Judgment 19 Summary judgment is appropriate when the moving party “shows that there is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 21 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 22 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 23 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by 24 “citing to particular parts of materials in the record, including depositions, documents, 25 electronically stored information, affidavits or declarations, stipulations …, admissions, 26 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 27 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 28 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 1 the burden of proof at trial, “the moving party need only prove that there is an absence of 2 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 3 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 4 Summary judgment should be entered against a party who fails to make a showing 5 sufficient to establish the existence of an element essential to that party’s case, and on which that 6 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 7 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 8 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 9 “so long as whatever is before the district court demonstrates that the standard for the entry of 10 summary judgment … is satisfied.” Id. at 323. 11 B. Exhaustion of Administrative Remedies 12 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 13 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 14 confined in any jail, prison, or other correctional facility until such administrative remedies as are 15 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is 16 mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 17 211 (2007). Inmates are required to “complete the administrative review process in accordance 18 with the applicable procedural rules, including deadlines, as a precondition to bringing suit in 19 federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies 20 to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of 21 the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 22 U.S. 731, 741 (2001). 23 The failure to exhaust administrative remedies is an affirmative defense, which the 24 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of 25 producing evidence that proves a failure to exhaust. Summary judgment is appropriate only if the 26 undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff failed 27 to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 28 On a motion for summary judgment, the defendant must prove (1) the existence of an 1 available administrative remedy and (2) that the plaintiff failed to exhaust that remedy. Id. at 1172 2 (citation omitted). If the defendant meets this burden, the plaintiff then “has the burden of 3 production. That is, the burden shifts to the prisoner to come forward with evidence showing that 4 there is something in his particular case that made the existing and generally available 5 administrative remedies effectively unavailable to him.” Id. (citation omitted). “However, … the 6 ultimate burden of proof remains with the defendant.” Id. 7 An inmate “need not exhaust unavailable [remedies].” Ross v. Blake, 578 U.S. 632, 642 8 (2016). An administrative remedy is unavailable “when (despite what regulations or guidance 9 materials may promise) it operates as a simple dead end with officers unable or consistently 10 unwilling to provide any relief to aggrieved inmates”; or when “an administrative scheme [is] so 11 opaque that it becomes, practically speaking, incapable of use, [i.e.,] some mechanism exists to 12 provide relief, but no ordinary prisoner can discern or navigate [the mechanism]”; or “when 13 prison administrators thwart inmates from taking advantage of a grievance process through 14 machination, misrepresentation, or intimidation.” Id. at 643-44. 15 When the district court concludes that the prisoner has not exhausted administrative 16 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 17 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 18 Albino, 747 F.3d at 1168-69. “If a motion for summary judgment is denied, disputed factual 19 questions relevant to exhaustion should be decided by the judge.” Albino, 747 F.3d at 1170. If the 20 court finds that remedies were not available, the prisoner exhausted available remedies, or the 21 failure to exhaust available remedies should be excused, the case proceeds to the merits. Id. at 22 1171. 23 C. CDCR Grievance Process 24 The California Department of Corrections and Rehabilitation (“CDCR”) has an 25 administrative grievance system for prisoners to appeal a policy, decision, action, condition, or 26 omission by the department or staff if it has an adverse effect on prisoner health, safety, or 27 welfare. Cal. Code Regs. tit. 15, §§ 3084.1(a) (2018), 3999.226(a). Compliance with 42 U.S.C. § 28 1997e(a) requires California-state prisoners to pursue CDCR’s grievance process to exhaust their 1 claims prior to filing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010); see 2 also Woodford, 548 U.S. at 85-86. Administrative appeals are generally subject to two to three 3 levels of review before the remedy is deemed exhausted. Cal. Code Regs. tit. 15, §§ 3084.1(b) 4 (2018), 3084.7(d)(3) (2018), 3999.226(g), 3999.230(h); Sapp, 623 F.3d at 818. 5 IV. EVIDENTIARY MATTERS 6 Plaintiff has failed to properly respond to Defendants’ Statement of Undisputed Facts in 7 support of the motion for summary judgment. Plaintiff was served with a Rand warning that 8 included the following language: “For each of the facts listed in the defendant’s Statement of 9 Undisputed Facts, you must admit the facts that are undisputed, and deny the facts that are 10 disputed. If you deny a fact, you must cite to the proof that you rely on to support your denial. See 11 L.R. 260(b).” (Doc. 37-4 at 2:17-20.) 12 Plaintiff neither reproduced Defendants’ itemized facts, nor admitted or denied those 13 facts. (See Doc. 44.) Because Plaintiff has not complied with Rule 260(b), the Court deems 14 Plaintiff to have admitted those facts. See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by 15 failing specifically to challenge the facts identified in the defendant’s statement of undisputed 16 facts, [plaintiff] is deemed to have admitted the validity of the facts contained in the [defendant’s] 17 statement.”); Brito v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. 18 July 15, 2020) (deeming defendant’s undisputed facts as admitted after plaintiff failed to comply 19 with Local Rule 260(b)). Nevertheless, where Plaintiff’s verified complaint or evidence 20 submitted in support of his opposition to Defendants’ motion for summary judgment bring 21 Defendants’ proffered facts into dispute, the Court considered the complaint and any evidence. 22 Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (the court considers as evidence those parts of 23 the verified complaint based on plaintiff’s personal knowledge). 24 V. DISCUSSION 25 The question before the Court is whether Plaintiff exhausted his administrative remedies 26 concerning his Eighth Amendment claims against Defendants Lawhorn, Mariscal and Pfeiffer. 27 The undersigned finds Defendants have met their initial burden of showing there is no 28 genuine issue of material of fact because there exists an available administrative remedy and 1 Plaintiff failed to exhaust his administrative remedies. (See Doc. 37 at 3, 5-8; Doc. 37-1, ¶¶ 7-8; 2 Doc. 37-2 at 2-5.) See In re Oracle Corp. Sec. Litig., 627 F.3d at 387; Albino, 747 F.3d at 1172. 3 Specifically, Defendants have shown that grievance KVSP-0-20-01551 references only 4 Defendant Lawhorn and makes no reference to Defendants Mariscal or Pfeiffer, that the 5 grievance was cancelled at the second level for Plaintiff’s failure to meet with the investigating 6 lieutenant, and that Plaintiff did not appeal the cancellation of the grievance. (UDF ¶¶ 1, 3-7.) 7 Therefore, the burden shifts to Plaintiff “to come forward with evidence showing that 8 there is something in his particular case that made the existing and generally available 9 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. 10 In his opposition, Plaintiff states he submitted a declaration on October 19, 2023, “in 11 which on exhibit set two, it is a true handwriting copy of a CDCR 602 grievance dated 4/29/2020, 12 with a log #KVSP-0-20-01551 also on this exhibit including copies of both administrative 13 remedies, which means using all steps that the agency holds out, and doing so properly.” (Doc. 44 14 at 1.) Plaintiff states he also “attached a copy of a letter mailed to Defendant C. Pfeiffer, on this 15 letter I request for an amend modification of a numerous grievances including grievance log 16 #KVSP-0-20-1551.” (Id. at 2.) Plaintiff asserts defense counsel “failed to fully produce of 17 documents” on July 24, 2023, and September 18, 2023. (Id.) Plaintiff states he “is attaching 18 copies of” his third request for production of documents “in which these documents also 19 necessary to show to the court for a consider of Plaintiff request for denied of Defendants 20 summary judgment.”1 (Id.) 21 In their reply to Plaintiff’s opposition, Defendants state Plaintiff testified under oath that 22 the sole grievance related to this litigation is the grievance bearing log number KVSP-0-20-1551. 23 (Doc. 47 at 1.) Further, Defendants contend Plaintiff has failed to refute their documentary and 24 testimonial evidence establishing that Plaintiff failed to exhaust administrative remedies because 25 he failed to participate, that the grievance was cancelled, and that Plaintiff failed to appeal the 26 1 Plaintiff was subsequently advised by the Court that “there were no attachments to Plaintiff’s response to 27 the Order to Show Cause (“OSC”). If Plaintiff intended to submit additional documentation or exhibits, he did not do so. The written response to the OSC is two pages in total and did not include copies of 28 Plaintiff’s ‘Third Request for Production of Documents.’” (See Doc. 46 at 2.) 1 cancellation. (Id. at 2.) 2 Here, Plaintiff fails to meet his burden of coming “forward with evidence showing that 3 there is something in his particular case that made the existing and generally available 4 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. Other than the 5 statements made in his opposition, Plaintiff fails to offer any evidence – “particular parts of 6 materials in the record, including depositions, documents, electronically stored information, 7 affidavits or declarations, stipulations …, admissions, interrogatory answers, or other materials” 8 see Fed. R. Civ. P. 56(c)(1)(A) – to support his claim that he exhausted his administrative 9 remedies. 10 On this record, it is undisputed that the only grievance Plaintiff submitted refers only to 11 Defendant Lawhorn; it makes no mention whatsoever of Defendant Mariscal or Defendant 12 Pfeiffer. (UDF ¶ 3; Doc. 37-2 at 3 [“April 25, 2020, approx. 10:50 AM Officer D. Lawhorn did 13 an intentional force by a sirious of an assault”].) See Hackworth v. Arevalos, No. 1:19-cv-01362- 14 ADA-CDB (PC), 2022 WL 18027835, at *3 (E.D. Cal. Dec. 30, 2022) (“The Court concludes 15 that, because the grievance did not identify Defendants Brainard or Stohl, the claims against them 16 were not exhausted at the administrative level and must be dismissed”), findings and 17 recommendations adopted, 2023 WL 2751532 (E.D. Cal. Mar. 31, 2023). 18 Further, it is undisputed that Plaintiff’s only grievance was cancelled at the second level 19 on May 20, 2020, because Plaintiff refused to participate in an interview with Lieutenant L. 20 Moore on May 18, 2020. (See UDF ¶¶ 4, 5; Doc. 37-2 at 2, 5.) 21 Finally, it is undisputed that Plaintiff failed to appeal the cancellation of his only 22 grievance. (UDF ¶ 7; Doc. 37-1 at 3, ¶ 8.) 23 Plaintiff was expressly advised as follows: 24 Be advised that you cannot appeal a rejected appeal, but should take the corrective action necessary and resubmit the appeal within the 25 timeframes specified in CCR 3084.6(a) and CCR 3084.8(b). Pursuant to CCR 3084.6(e), once an appeal has been cancelled, the 26 appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation decision. The original appeal may only be 27 resubmitted if the appeal on the cancellation is granted. 28 (Doc. 37-2 at 2.) Plaintiff did not file a separate appeal challenging the cancellation decision. Nor 1 has Plaintiff offered any evidence to indicate he did so. As long as some relief was still available 2 to Plaintiff through the administrative process, he was required to continue his exhaustion efforts 3 even if the exhaustion process would ultimately prove futile. See Brown v. Valoff, 422 F.3d 926, 4 940-45 (9th Cir. 2005). Hence, Plaintiff failed to exhaust his administrative remedies concerning 5 his claims against Defendants here. 6 To the extent Plaintiff argues a letter directed to Warden Pfeiffer served to exhaust his 7 claims against Defendant Pfeiffer, he is mistaken. California prison system’s grievance 8 regulations “define the boundaries of proper exhaustion.” Marella v. Terhune, 568 F.3d 1024, 9 1027 (9th Cir. 2009). And in Wilson v. Wann, another judge of this Court held that letters to the 10 warden and internal affairs do not exhaust administrative remedies under analogous regulations. 11 No. CIV S-06-1629 GEB KJM P, 2008 WL 4166886, *2 (E.D. Cal. Sept. 8, 2008), findings and 12 recommendations adopted, 2008 WL 4809849 (E.D. Cal. Nov. 3, 2008), aff’d, 369 Fed. Appx. 13 841 (9th Cir. 2010). See also Cato v. Darst, No. 2:14-cv-0959 TLN KJN P, 2016 WL 1734759, at 14 *14 (“While [a letter to the CDCR Director] caused a use of force investigation to be initiated, a 15 use of force investigation does not satisfy the administrative exhaustion requirement of the 16 PLRA”). 17 Finally, to the extent Plaintiff’s opposition can be understood to assert he fully complied 18 with the administrative procedures in place and that grievance log number KVSP-0-20-1551 was 19 properly exhausted, again, he has offered no evidence to support his assertion.2 Rule 56(e)(3)
20 2 Out of an abundance of caution, the Court considered Plaintiff’s motion to compel filed October 13, 2023. (Doc. 38.) However, nothing in Plaintiff’s motion to compel changes the outcome here. Plaintiff 21 provided only his own handwritten, re-created versions of forms, documents or correspondence he 22 purportedly sent as a part of the grievance process. (See, e.g., Doc. 38 at 4-10, 13-18.) Plaintiff did not provide a photocopy of any actual form or document he purportedly sent during the grievance process. The 23 Court is not required to accept Plaintiff’s handwritten, re-created versions of forms, documents or correspondence. See Fed. R. Civ. P. 56(e)(3). Notably too, the grievance dated and signed by Plaintiff on 24 September 9, 2020 (see Doc. 38 at 19-20) does not include any log number or any other indication that the appeal—prepared nearly five months after the incident giving rise to Plaintiff’s claims here—was ever 25 submitted. As noted in the Order Denying Plaintiff’s Motion to Compel, although the motion was denied on other bases, the Court had “concerns about the authenticity and admissibility of his offerings.” (Doc. 48 26 at 4.) See, e.g., Thomas v. Heberling, No. 1:12-cv-01248-AWI-SAB (PC), 2015 WL 5553715, at *7 (E.D. Cal. Sept. 18, 2015) (plaintiff’s “hand copy,” not photocopy, of an appeal not properly authenticated, 27 citing Fed. R. Evid. 901 and relevant authority; recommending summary judgment for a failure to exhaust administrative remedies be granted), findings and recommendations adopted October 19, 2015 (Doc. 130); 28 Bishop v. Harrington, No. 1:11-cv-00094-LJO-SAB (PC), 2016 WL 3448078, at *8-10 (E.D. Cal. June 22, 1 provides that where “a party fails to properly support an assertion of fact or fails to properly 2 address another party’s assertion of fact …, the court may: … (3) grant summary judgment if the 3 motion and supporting materials – including the facts considered undisputed – show that the 4 movant is entitled to it.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“mere 5 existence of a scintilla of evidence in support of the [nonmovant’s] position” is insufficient; there 6 must be evidence on which a jury could “reasonably find” for the nonmovant); Matsushita Elec. 7 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (to defeat summary judgment, 8 nonmoving parties “must do more than simply show that there is some metaphysical doubt as to 9 the material facts”). 10 Plaintiff’s opposition, although signed under penalty of perjury, offers nothing to 11 overcome the evidence submitted by Defendants. First, although Plaintiff asserts he used “all the 12 steps that the agency holds out,” he has provided no documentation to refute that offered by 13 Defendants. Plaintiff states he submitted “a declaration with lettered exhibits, set one, set two, 14 and set three” on October 19, 2023, and that exhibit set two, “is a true handwriting copy of a 15 CDCR grievance dated 4/29/2020, with a Log #KVSP-0-20-01551.” (Doc. 44 at 1.) None of the 16 materials referenced however have been provided to the Court for consideration. Plaintiff’s 17 opposition is comprised of two pages and does not include any attachments or exhibits. Second, 18 Plaintiff contends that on July 24, 2023 and September 18, 2023, “attorney for Defendants did, 19 failed to fully produce documents.” (Doc. 44 at 2.) Plaintiff does not explain how Defendants’ 20 purported failure to produce unspecified documents is relevant to this motion. Next, Plaintiff 21 states he “is attaching copies of Plaintiff third request for production of documents in which these 22 documents also necessary to show to the court for a consider of Plaintiff request for denied of 23 Defendants summary judgment.” (Doc. 44 at 2.) Yet no documents were attached to this filing; 24 thus, there is nothing for this Court to consider. See Taylor v. List, 880 F.2d 1040, 1045 (9th 25 Cir.1989) (conclusory allegations, unsupported by evidence are insufficient to defeat a motion for 26 summary judgment). Lastly, Plaintiff’s opposition states he has limited knowledge of the law and 27
28 2016) (same), findings and recommendations adopted December 9, 2016. 1 these issues are complex. (Id.) The majority of pro se litigants have limited knowledge of the law 2 and find the issues involved to be complex. However, neither circumstance creates a genuine 3 material dispute of fact sufficient to defeat summary judgment. 4 To the extent Plaintiff’s opposition, liberally construed, asserts administrative remedies 5 were effectively unavailable, the assertion fails. A remedy is available if it “capable of use for the 6 accomplishment of a purpose” or “is accessible or may be obtained.” Eaton v. Blewett, 50 F.4th 7 1240, 1245 (9th Cir. 2022) (quoting Ross, 578 U.S. at 642). The Supreme Court has recognized 8 three circumstances in which administrative remedies are effectively unavailable: (1) when the 9 grievance system “operates as a simple dead end – with officers unable or consistently unwilling 10 to provide any relief to aggrieved inmates”; (2) when the system is “so opaque that it becomes, 11 practically speaking, incapable of use”; and (3) “when prison administrators thwart inmates from 12 taking advantage of a grievance process through machination, misrepresentation, or intimidation.” 13 Id. (quoting Ross, 578 U.S. at 643–44). The Ninth Circuit has found administrative remedies 14 effectively unavailable in several other circumstances. Id. (citing Fordley v. Lizarraga, 18 F.4th 15 344, 358 (9th Cir. 2021)) (holding that a prison's failure to respond to an emergency grievance for 16 several months in contravention of its own deadlines rendered administrative remedies 17 unavailable); Sapp, 623 F.3d at 823 (holding that a prison’s improper screening of a grievance 18 renders administrative remedies effectively unavailable); Nunez v. Duncan, 591 F.3d 1217, 1226 19 (9th Cir. 2010) (holding that an inmate was excused from the exhaustion requirement where the 20 inmate was unable to access a policy necessary to bring a timely administrative appeal); Albino, 21 747 F.3d at 1177 (holding that an inmate is excused from failure to exhaust where he was unable 22 to access information about the administrative grievance process); Marella v. Terhune, 568 F.3d 23 1024, 1026 (9th Cir. 2009) (holding that an inmate is excused from non-exhaustion of 24 administrative remedies where he is unable to obtain the form necessary to submit a grievance). 25 Here, Plaintiff’s opposition does not establish unavailability on any basis. There is nothing 26 to indicate the grievance system “operates as a simple dead end – with officers unable or 27 consistently unwilling to provide any relief to aggrieved inmates,” that it is “so opaque that it 28 becomes, practically speaking, incapable of use,” or that prison officials “thwart inmates from 1 taking advantage of a grievance process through machination, misrepresentation, or intimidation.” 2 Eaton, 50 F.4th at 1245. Nor is there any indication of any other circumstance indicating an 3 administrative remedy was unavailable to Plaintiff. Id. (citing to Fordley, Sapp, Nunez, Albino, 4 Marella). And, where an appeal is cancelled due to a procedural error on the part of the inmate, 5 administrative remedies remain available to the inmate – namely, appealing the cancellation 6 decision. See Cortinas v. Portillo, 754 F. App'x 525, 527 (9th Cir. 2018) (“Because [plaintiff] 7 could have appealed his cancellation decision ... the improper cancellation of his appeal did not 8 render administrative remedies effectively unavailable to him”). It is undisputed that Plaintiff did 9 not appeal the cancellation of his grievance. (UDF ¶¶ 6, 7.) Plaintiff's failure to follow 10 instructions to appeal a cancelled grievance does not render the administrative remedies 11 unavailable. See, e.g., Martinez v. Davey, No. 1:16-cv-01658-JLT (PC), 2021 WL 3772004, at *4 12 (E.D. Cal. Aug. 25, 2021) (“Plaintiff does not argue [unavailability] occurred, and the evidence 13 demonstrates that Plaintiff frequently utilized the administrative remedies available to him during 14 this time. Consequently, because he did not utilize and exhaust the administrative remedies as to 15 his claims against Lewis and Davey prior to filing this action, summary judgment in their favor is 16 appropriate”), findings and recommendations adopted, 2021 WL 4480498 (E.D. Cal. Sept. 30, 17 2021). 18 In sum, Plaintiff fails to meet his burden as the non-moving party. Albino, 747 F.3d at 19 1172. There are no genuine issues of material fact in dispute. Celotex, 477 U.S. at 322. The Court 20 will recommend Defendants’ motion for summary judgment be granted. 21 V. CONCLUSION AND RECOMMENDATIONS 22 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 23 1. Defendants’ motion for summary judgment for a failure to exhaust administrative 24 remedies (Doc. 37) be GRANTED; 25 2. Judgment be entered in favor of Defendants Lawhorn, Mariscal and Pfeiffer; 26 3. Plaintiff’s complaint be dismissed without prejudice; and 27 4. The Clerk of the Court be directed to close this case. 28 These Findings and Recommendations will be submitted to the United States District 1 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 2 | of the date of service of these Findings and Recommendations, the parties may file written 3 | objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 4 | Findings and Recommendations.” Failure to file objections within the specified time may result in 5 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 6 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 | IT IS ORDERED. ° Dated: _ February 26, 2024 | Word bo 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13