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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
11 ERLINDO RODRIGUEZ, JR ., Case No. 1:19-cv-01788-BAK (HBK) (PC)
12 Plaintiff, ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS TO GRANT 13 v. DEFENDANTS’ EXHAUSTION-BASED 14 L. RAYNA, et al., MOTION FOR PARTIAL SUMMARY JUDGMENT 15 Defendants. (Doc. No. 46) 16 ORDER GRANTING DEFENDANTS’ EXHAUSTION-BASED MOTION FOR 17 PARTIAL SUMMARY JUDGMENT 18 (Doc. No. 31) 19
20 21 Plaintiff Erlindo Rodriguez, Jr., a state prisoner proceeding pro se and in forma pauperis, 22 filed this civil rights action under 42 U.S.C. § 1983. (Doc. No. 1). This action proceeds on 23 Plaintiff’s First Amended Complaint alleging violations of the Eight Amendment’s prohibition 24 against cruel and unusual punishment in relation to a prisoner’s conditions of confinement. 25 (Doc. No. 11). On June 3, 2021, Defendants filed a motion for partial summary judgment based 26 on a failure to exhaust administrative remedies, with a statement of undisputed facts and exhibits 27 in support of the motion. (Doc. Nos. 31–33). Plaintiff filed a response in opposition, to which 28 Defendants filed a reply. (Doc. Nos. 37, 38). 2 Defendants’ Motion for Partial Summary Judgment Based on Plaintiff’s NonExhaustion of 3 Administrative Remedies. (Doc. No. 46). On April 19, 2022, District Judge Jennifer L. Thurston 4 issued an Order Re-Reassigning Matter in Light of the Consent of All Parties, finding 5 administrative error concerning the March 2022 reassignment of the action to District Judge 6 Thurston. (Doc. No. 47). As a result, this matter was re-reassigned to the undersigned “for all 7 further proceedings including trial and entry of judgment.” (Id.). Due to the administrative error, 8 the undersigned withdraws her previously issued Findings and Recommendations (Doc. No. 46). 9 Additionally, for the reasons set forth below, the undersigned grants summary judgment in favor 10 of Defendants Urbano and Podsakoff and grants partial summary judgment in favor of Defendant 11 Rayna concerning Plaintiff’s claim related to deprivation of food on December 14, 2018. 12 I. FACTS 13 A. Allegations in First Amended Complaint 14 Plaintiff is currently housed at Kern Valley State Prison. The events giving rise to the 15 FAC occurred when Plaintiff was incarcerated at California State Prison, Corcoran. Defendants 16 Rayna, Carranza, Podsakoff, and Urbano are correctional officers at California State Prison, 17 Corcoran. On November 8, 2018, Plaintiff was moved to administrative segregation. On 18 November 30, 2018, around dinnertime, Plaintiff offended Defendant Rayna by sliding his plate 19 through the bottom of his cell door after he finished eating. Defendant Rayna swore that he 20 would not feed Plaintiff. (Doc. No. 11 at 3). 21 Plaintiff claims on the following dates he was denied food by the named defendants: 22 1. December 3, 2018, by Defendants Rayna and Carraza; 23 2. December 4, 2018, by Defendant Rayna; 24 3. December 13, 2018, by Defendants Urbano and Podsakoff; and 25 4. December 14, 2018, by Defendant Rayna and Podsakoff. 26 (Doc. No. 11 at 3-4). 27 Plaintiff alleges Defendants refused to feed him, refused to accept responsibility, and 28 failed to follow proper procedures, thereby causing Plaintiff to fall ill. Because of this treatment, 2 received a rule violation report for “behavior that could lead to violence.” (Id.). Plaintiff avers 3 he suffered injury to his “personal dignity, . . . physical discomfort, and emotional trauma, 4 resulting [in] nervousness, grief, anxiety, worry, mortification, and [weakened] condition.” (Id.). 5 Plaintiff asserts that Defendants acted oppressively and maliciously and subjected Plaintiff to 6 cruel and unusual punishment. (Id.). 7 B. Undisputed Facts Concerning Exhaustion 8 Plaintiff filed his initial complaint on May 14, 2020. (See Doc. No. 1). After screening 9 and with leave of court, Plaintiff filed his operative First Amended Complaint. (Doc. No. 11, 10 FAC). Upon screening, the Court found the FAC stated cognizable claims of inadequate 11 conditions of confinement in violation of the Eighth Amendment related to the deprivation of 12 food. (Doc. No. 12). 13 The record establishes Plaintiff filed an inmate appeal, Log No. COR-18-06932, on 14 December 6, 2018. (Doc. No. 32-2 at 4–6). Appeal 18-06932 complained that Defendants Rayna 15 and Carranza refused to give Plaintiff his dinner on December 3, 2018, and Defendant Rayna 16 refused to give Plaintiff his dinner on December 4, 2018. (Id.). Plaintiff requested to be fed at 17 every meal. (Id.). The appeal was bypassed at the first level of review, and it was accepted and 18 granted in part at the second level to the extent that an inquiry was completed. (Id. at 2, 5). 19 Plaintiff appealed to the third level of review, which was denied in a decision dated April 29, 20 2019. (Id. at 2–3). The appeals examiner concurred with the second-level determination and 21 concluded that no relief was warranted. (Id. at 2). This decision exhausted the administrative 22 remedies available to Plaintiff through the California Department of Corrections and 23 Rehabilitation (“CDCR”) appeals process. (Id. at 3). The 18-06932 appeal filed on December 6, 24 2018, due to its date, did not include any factual allegations concerning the December 13 and 14, 25 2018 incidents. On December 24, 2018, Plaintiff submitted appeal Log No. COR-19-00042 26 requesting it be added to appeal 18-06932 “due to [it] being the same matter.” (Doc. No. 32-3 at 27 3–4). In appeal 19-00042, Plaintiff complained that on December 13, 2018, Defendants Urbano 28 and Podsakoff passed him by without feeding him dinner. Plaintiff also complained that 2 indicated he was “supper starving,” which caused him to feel homicidal toward the correctional 3 officers. (Id.). 4 Appeal 19-00042 was screened at the first level and was “cancelled” on January 3, 2019, 5 because “[t]he appeal duplicates a previous appeal upon which a decision has been rendered or is 6 pending.” (Id. at 9, citing Cal. Code Reg., Title 15 § (CCR) 3084.6(c)(2)). In response, Plaintiff 7 asked for clarification if he could add his claim concerning December 13 and 14, 2018 to his 8 earlier appeal because his first 602 was “the reason for [his second] 602. On this 602, W. 9 Urbano, Podsakoff and also L. Rayna [sic] are involve[d] and a witness.” (Id.). On January 23, 10 2019, the appeals office returned the documents related to appeal 19-00042 to Plaintiff and 11 stated: 12 You were advised this appeal was cancelled as it duplicates a previously filed appeal. You state you [wish] to add to the previous appeal; if you wish to add to 13 the prior appeal you must do so during the interview process. You cannot continue to resubmit previously canceled appeals as this is considered abuse of the appeals 14 process . . . . 15 (Doc. No. 32-3 at 7). The form itself further informs: 16 Pursuant to CCR 3084.6(e), once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation 17 decision. The original appeal may only be resubmitted if the appeal on the cancellation is granted. 18 19 (Id.) (emphasis added). In response, Plaintiff stated: “Today 1-31-2019 . . . I spoke to J. Cerda 20 ASU Sergeant[.] He told me to re-submit everything together to the second level, next level 21 third.” (Id.). Despite the written instructions from CDCR, Plaintiff did not file a separate appeal 22 on the cancellation and exhaust the appeal to the third level. 23 II. LEGAL STANDARDS 24 A. Summary Judgment 25 Summary judgment is appropriate when the moving party “shows that there is no genuine 26 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 27 Civ. P. 56(a).
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
11 ERLINDO RODRIGUEZ, JR ., Case No. 1:19-cv-01788-BAK (HBK) (PC)
12 Plaintiff, ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS TO GRANT 13 v. DEFENDANTS’ EXHAUSTION-BASED 14 L. RAYNA, et al., MOTION FOR PARTIAL SUMMARY JUDGMENT 15 Defendants. (Doc. No. 46) 16 ORDER GRANTING DEFENDANTS’ EXHAUSTION-BASED MOTION FOR 17 PARTIAL SUMMARY JUDGMENT 18 (Doc. No. 31) 19
20 21 Plaintiff Erlindo Rodriguez, Jr., a state prisoner proceeding pro se and in forma pauperis, 22 filed this civil rights action under 42 U.S.C. § 1983. (Doc. No. 1). This action proceeds on 23 Plaintiff’s First Amended Complaint alleging violations of the Eight Amendment’s prohibition 24 against cruel and unusual punishment in relation to a prisoner’s conditions of confinement. 25 (Doc. No. 11). On June 3, 2021, Defendants filed a motion for partial summary judgment based 26 on a failure to exhaust administrative remedies, with a statement of undisputed facts and exhibits 27 in support of the motion. (Doc. Nos. 31–33). Plaintiff filed a response in opposition, to which 28 Defendants filed a reply. (Doc. Nos. 37, 38). 2 Defendants’ Motion for Partial Summary Judgment Based on Plaintiff’s NonExhaustion of 3 Administrative Remedies. (Doc. No. 46). On April 19, 2022, District Judge Jennifer L. Thurston 4 issued an Order Re-Reassigning Matter in Light of the Consent of All Parties, finding 5 administrative error concerning the March 2022 reassignment of the action to District Judge 6 Thurston. (Doc. No. 47). As a result, this matter was re-reassigned to the undersigned “for all 7 further proceedings including trial and entry of judgment.” (Id.). Due to the administrative error, 8 the undersigned withdraws her previously issued Findings and Recommendations (Doc. No. 46). 9 Additionally, for the reasons set forth below, the undersigned grants summary judgment in favor 10 of Defendants Urbano and Podsakoff and grants partial summary judgment in favor of Defendant 11 Rayna concerning Plaintiff’s claim related to deprivation of food on December 14, 2018. 12 I. FACTS 13 A. Allegations in First Amended Complaint 14 Plaintiff is currently housed at Kern Valley State Prison. The events giving rise to the 15 FAC occurred when Plaintiff was incarcerated at California State Prison, Corcoran. Defendants 16 Rayna, Carranza, Podsakoff, and Urbano are correctional officers at California State Prison, 17 Corcoran. On November 8, 2018, Plaintiff was moved to administrative segregation. On 18 November 30, 2018, around dinnertime, Plaintiff offended Defendant Rayna by sliding his plate 19 through the bottom of his cell door after he finished eating. Defendant Rayna swore that he 20 would not feed Plaintiff. (Doc. No. 11 at 3). 21 Plaintiff claims on the following dates he was denied food by the named defendants: 22 1. December 3, 2018, by Defendants Rayna and Carraza; 23 2. December 4, 2018, by Defendant Rayna; 24 3. December 13, 2018, by Defendants Urbano and Podsakoff; and 25 4. December 14, 2018, by Defendant Rayna and Podsakoff. 26 (Doc. No. 11 at 3-4). 27 Plaintiff alleges Defendants refused to feed him, refused to accept responsibility, and 28 failed to follow proper procedures, thereby causing Plaintiff to fall ill. Because of this treatment, 2 received a rule violation report for “behavior that could lead to violence.” (Id.). Plaintiff avers 3 he suffered injury to his “personal dignity, . . . physical discomfort, and emotional trauma, 4 resulting [in] nervousness, grief, anxiety, worry, mortification, and [weakened] condition.” (Id.). 5 Plaintiff asserts that Defendants acted oppressively and maliciously and subjected Plaintiff to 6 cruel and unusual punishment. (Id.). 7 B. Undisputed Facts Concerning Exhaustion 8 Plaintiff filed his initial complaint on May 14, 2020. (See Doc. No. 1). After screening 9 and with leave of court, Plaintiff filed his operative First Amended Complaint. (Doc. No. 11, 10 FAC). Upon screening, the Court found the FAC stated cognizable claims of inadequate 11 conditions of confinement in violation of the Eighth Amendment related to the deprivation of 12 food. (Doc. No. 12). 13 The record establishes Plaintiff filed an inmate appeal, Log No. COR-18-06932, on 14 December 6, 2018. (Doc. No. 32-2 at 4–6). Appeal 18-06932 complained that Defendants Rayna 15 and Carranza refused to give Plaintiff his dinner on December 3, 2018, and Defendant Rayna 16 refused to give Plaintiff his dinner on December 4, 2018. (Id.). Plaintiff requested to be fed at 17 every meal. (Id.). The appeal was bypassed at the first level of review, and it was accepted and 18 granted in part at the second level to the extent that an inquiry was completed. (Id. at 2, 5). 19 Plaintiff appealed to the third level of review, which was denied in a decision dated April 29, 20 2019. (Id. at 2–3). The appeals examiner concurred with the second-level determination and 21 concluded that no relief was warranted. (Id. at 2). This decision exhausted the administrative 22 remedies available to Plaintiff through the California Department of Corrections and 23 Rehabilitation (“CDCR”) appeals process. (Id. at 3). The 18-06932 appeal filed on December 6, 24 2018, due to its date, did not include any factual allegations concerning the December 13 and 14, 25 2018 incidents. On December 24, 2018, Plaintiff submitted appeal Log No. COR-19-00042 26 requesting it be added to appeal 18-06932 “due to [it] being the same matter.” (Doc. No. 32-3 at 27 3–4). In appeal 19-00042, Plaintiff complained that on December 13, 2018, Defendants Urbano 28 and Podsakoff passed him by without feeding him dinner. Plaintiff also complained that 2 indicated he was “supper starving,” which caused him to feel homicidal toward the correctional 3 officers. (Id.). 4 Appeal 19-00042 was screened at the first level and was “cancelled” on January 3, 2019, 5 because “[t]he appeal duplicates a previous appeal upon which a decision has been rendered or is 6 pending.” (Id. at 9, citing Cal. Code Reg., Title 15 § (CCR) 3084.6(c)(2)). In response, Plaintiff 7 asked for clarification if he could add his claim concerning December 13 and 14, 2018 to his 8 earlier appeal because his first 602 was “the reason for [his second] 602. On this 602, W. 9 Urbano, Podsakoff and also L. Rayna [sic] are involve[d] and a witness.” (Id.). On January 23, 10 2019, the appeals office returned the documents related to appeal 19-00042 to Plaintiff and 11 stated: 12 You were advised this appeal was cancelled as it duplicates a previously filed appeal. You state you [wish] to add to the previous appeal; if you wish to add to 13 the prior appeal you must do so during the interview process. You cannot continue to resubmit previously canceled appeals as this is considered abuse of the appeals 14 process . . . . 15 (Doc. No. 32-3 at 7). The form itself further informs: 16 Pursuant to CCR 3084.6(e), once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation 17 decision. The original appeal may only be resubmitted if the appeal on the cancellation is granted. 18 19 (Id.) (emphasis added). In response, Plaintiff stated: “Today 1-31-2019 . . . I spoke to J. Cerda 20 ASU Sergeant[.] He told me to re-submit everything together to the second level, next level 21 third.” (Id.). Despite the written instructions from CDCR, Plaintiff did not file a separate appeal 22 on the cancellation and exhaust the appeal to the third level. 23 II. LEGAL STANDARDS 24 A. Summary Judgment 25 Summary judgment is appropriate when the moving party “shows that there is no genuine 26 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 27 Civ. P. 56(a). The moving party bears the initial burden of proving the absence of a genuine 28 issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party 2 party’s case. Id. Alternatively, the movant can demonstrate that the non-moving party cannot 3 produce evidence to support an essential element of his claim that must be proven at trial. Id.; 4 Fed. R. Civ. P. 56(c)(1)(B). “[A] complete failure of proof concerning an essential element of 5 the non-moving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 6 322–23. 7 If the moving party meets this initial showing, the burden shifts to the non-moving party 8 to establish “specific facts showing a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 9 477 U.S. 242, 250 (1986). The non-moving party cannot simply rely on the pleadings and 10 conclusory allegations in an affidavit. Lujan v. Nat’1 Wildlife Fed’n, 497 U.S. 871, 888 (1990); 11 see also Celotex, 477 U.S. at 324. “Where the record taken as a whole could not lead a rational 12 trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita 13 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, when deciding a 14 motion for summary judgment, the court must view any inferences drawn from the underlying 15 facts in a light most favorable to the non-moving party. Id. 16 The Ninth Circuit has “held consistently that courts should construe liberally motion 17 papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules 18 strictly.” Soto v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (quoting Thomas v. Ponder, 611 19 F.3d 1144, 1150 (9th Cir. 2010)). While prisoners are relieved from strict compliance, they still 20 must “identify or submit some competent evidence” to support their claims. Soto, 882 F.3d at 21 872. Plaintiff’s verified complaint may serve as an affidavit in opposition to summary judgment 22 if based on personal knowledge and specific facts admissible in evidence. Lopez v. Smith, 203 23 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). 24 The Court has carefully reviewed and considered all arguments, points and authorities, 25 declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and 26 other papers filed by the parties. The omission to an argument, document, paper, or objection is 27 not to be construed that the undersigned did not consider the argument, document, paper, or 28 objection. Instead, the Court thoroughly reviewed and considered the evidence it deemed 2 for summary judgment. 3 B. Exhaustion of Administrative Remedies 4 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 5 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 6 prisoner confined in any jail, prison, or other correctional facility until such administrative 7 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative 8 remedies is mandatory, and “unexhausted claims cannot be brought in court.” Jones v. Bock, 9 549 U.S. 199, 211 (2007); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). “The level 10 of detail necessary in a grievance to comply with the grievance procedures will vary from system 11 to system . . ., but it is the prison’s requirements, and not the PLRA, that define the boundaries of 12 proper exhaustion.” Id. The exhaustion requirement allows prison officials to have an 13 opportunity to resolve disputes before the filing of a court action against them. Jones, 549 U.S. 14 at 204. The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 15 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 16 administrative process. Booth v. Churner, 532 U.S. 731, 741 (2001). “[A]ll inmates must now 17 exhaust all available remedies: ‘Exhaustion is no longer left to the discretion of the district 18 court.’” Fordley v. Lizarraga, 18 F.4th 344, 367 (9th Cir. 2021) (quoting Woodford v. Ngo, 548 19 U.S. 81, 85 (2006)). 20 The PLRA requires “proper exhaustion,” which means that “the prisoner must complete 21 the administrative review process in accordance with the applicable procedural rules, including 22 deadlines, as a precondition to bringing suit in federal court.” Woodford, 548 U.S. at 88, 93. 23 The rules that must be followed, in other words, “are defined not by the PLRA, but by the prison 24 grievance process itself.” Jones, 549 U.S. at 218. 25 The amount of detail in an administrative grievance necessary to properly exhaust a claim 26 is determined by the prison’s applicable grievance procedures. Id. at 218; Ngo, 548 U.S. at 90. 27 California prisoners are required to lodge their administrative complaint on a CDCR 602 form 28 2 specificity required in the appeal is described by regulation: 3 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, 4 the inmate or parolee shall include the staff member's last name, first initial, title 5 or position, if known, and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying 6 information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable 7 attempt to identify the staff member(s) in question. . . . The inmate or parolee 8 shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if 9 needed, the Inmate/Parolee Appeal Form Attachment. 10 Cal. Code Regs. tit. 15, § 3084.2(a)(3),(4) (emphasis added); see also Sapp, 623 F.3d at 824 11 (“To provide adequate notice, the prisoner need only provide the level of detail required by the 12 prison’s regulations”). 13 The failure to exhaust administrative remedies is an affirmative defense that the 14 defendant must plead and prove. Id. at 204, 216. The defendant bears the burden of producing 15 evidence that proves a failure to exhaust; summary judgment is appropriate only if the 16 undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff failed 17 to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). On a motion for summary 18 judgment, the defendant bears the initial burden of proving (1) the existence of an available 19 administrative remedy, and (2) the plaintiff failed to exhaust that remedy. Id. at 1172. If the 20 defendant makes this showing, the burden shifts to the prisoner to present evidence showing 21 “that there is something in his particular case that made the existing and generally available 22 administrative remedies effectively unavailable to him.” Id. (citation omitted). A prisoner may 23 not file a complaint raising non-exhausted claims. Rhodes v. Robinson, 621 F.3d 1002, 1004 24 (9th Cir. 2010). The ultimate burden of proof, however, remains with the defendant. Albino, 25 747 F.3d at 1172. “If a motion for summary judgment is denied, disputed factual questions 26 relevant to exhaustion should be decided by the judge.” Id. at 1170. If the court finds that 27 remedies were not available, the prisoner exhausted available remedies, or the failure to exhaust 28 available remedies should be excused, the case proceeds to the merits. Id. at 1131. 2 Although not required, Plaintiff affirmatively alleged in his FAC that he exhausted his 3 administrative remedies: “bypass at the first level, granted in part at the second level.” (Doc. No. 4 11). Defendants filed this instant motion for partial summary judgment, arguing that Plaintiff 5 failed to exhaust available administrative remedies on his claims related to the incidents that 6 occurred on December 13 and 14, 2018. (Doc. No. 31). Defendants Podsakoff and Urbano seek 7 judgment in the case and Defendant Rayna seeks judgment on the December 14 claim. (Id.). 8 Plaintiff does not dispute Defendants have met their initial burden to show that an 9 available administrative remedy exists. CDCR has an administrative grievance system for 10 prisoners to appeal a policy, decision, action, condition, or omission by the department or staff 11 having an adverse effect on prisoner health, safety, or welfare. Cal. Code Regs. tit. 15, 12 3084.1(a) (2018).1 Compliance with 42 U.S.C. § 1997e(a) requires California state prisoners to 13 utilize CDCR’s grievance process to exhaust their claims prior to filing a lawsuit in court. See 14 Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010); McKinney v. Carey, 311 F.3d 1198, 1199 15 (9th Cir. 2002) (holding that exhaustion is a precondition to suit). At times relevant to Plaintiff’s 16 complaint, administrative appeals were subject to three levels of review before the remedy was 17 deemed exhausted. Cal. Code Regs. tit. 15, § 3084.1(b) (2018); see also Sapp, 623 F.3d at 818.2 18 Next, Defendants must show that Plaintiff failed to exhaust the administrative remedies. 19 The unrefuted evidence demonstrates that appeal 19-00042 was “cancelled” at the first level of 20 review, and Plaintiff did not appeal the cancellation through the second or third levels of review. 21 Defendants have shown that Plaintiff failed to comply with CDCR’s administrative process fully 22 and properly. Therefore, Plaintiff’s claims against Defendants Urbano and Podsakoff for 23 refusing to feed Plaintiff on December 13, 2018, and against Defendants Rayna and Podsakoff 24 for refusing to feed Plaintiff on December 14, 2018, were not exhausted. 25 1 Effective June 1, 2020, the new rules are set out in Cal. Code Regs. tit. 15, §§ 3480–3486. For purposes 26 of these Findings and Recommendations, all citations refer to the version of the regulations effective at times relevant to Plaintiff’s claims. 27 2 Effective September 1, 2017, the CDCR adopted a two-level review procedure for healthcare 28 grievances. See id. §§ 3084.1(a), 3999.225–.237. A health care grievance would undergo an institutional level of review and an appeal to a headquarters level of review that exhausts the appeal. Id. 2 existing and generally available administrative remedies were effectively unavailable to him by 3 the details of his particular case. See Albino, 747 F.3d at 1172. Plaintiff’s response in opposition 4 to Defendants’ motion states in its entirety: 5 I did not properly exhaust all administrative remedies; due to 1-13-2019 I spoke to J. Cerda A.S.U. Sergeant. He told me to submit everything together to the next 6 level. I believed my administrative remedy decision exhausts available was 7 complete. 8 (Doc. No. 37). Plaintiff’s response does not comply with Local Rule 260, which requires 9 Plaintiff to reproduce the itemized facts in Defendants’ statement of undisputed facts and admit 10 or deny them. L.R. 260(b). Therefore, Defendants’ version of facts is undisputed. 11 More significantly, Plaintiff’s response suggests Sergeant Cerda’s comments led him to 12 believe he exhausted his administrative remedies. When viewed in a light viewed most 13 favorable to Plaintiff, his understanding that “submit[ting] everything together to the next level,” 14 as allegedly advised by Sergeant Cerda, was not reasonable and does not establish that remedies 15 were effectively unavailable to him. Notwithstanding Cerda’s comment, the written decisions 16 clearly instructed Plaintiff how to advance the cancellation of appeal 19-00042. Specifically, 17 Plaintiff was required to file a separate appeal on the cancellation. Where an appeal is cancelled 18 due to a procedural error on the part of the inmate, administrative remedies remain available to 19 the inmate—namely appealing the cancellation decision. See Cortinas v. Portillo, 754 F. App’x 20 525, 527 (9th Cir. 2018) (“Because [plaintiff] could have appealed his cancellation decision . . . 21 the improper cancellation of his appeal did not render administrative remedies effectively 22 unavailable to him.”); Davenport v. Gomez, No. 2:16-CV-1739, 2019 WL 636844, at *15 (E.D. 23 Cal. Feb. 14, 2019) (noting that the appeals process is available where the plaintiff can raise the 24 cancellation appeal to the next level). Plaintiff’s failure to follow these instructions and CDCR 25 regulations does not render the administrative remedies unavailable. 26 Defendants have met their burden to show that Plaintiff failed to exhaust his remedies 27 regarding the December 13, 2018, deprivation of food claim against Defendants Urbano and 28 Podsakoff and December 14, 2018, deprivation of food claim against Defendants Rayna and 1 | Podsakoff before filing this action. Because the facts regarding exhaustion are undisputed and 2 | these Defendants are entitled to judgment as a matter of law under the PLRA as to these claims, 3 | partial summary judgment in Defendants’ favor is appropriate. Plaintiff's claims regarding the 4 | December 3, 2918, deprivation of food against Defendants Rayna and Carraza and December 4, 5 | 2018, deprivation of food against Defendant Rayna were exhausted and remain pending. 6 ACCORDINGLY, it is ORDERED: 7 1. The Court hereby WITHDRAWS the Findings and Recommendations issued March 8 25, 2022 (Doc. 46) due to administrative error; 9 2. The Court GRANTS Defendants’ exhaustion-based motion for partial summary 10 judgment as to the December 13, 2018, denial of food claim against Defendants Urbano 11 and Podsakoff; and December 14, 2021, denial of food claim against Defendants 12 Rayna and Podsakoff. (Doc. No. 31); and 13 3. The Court DIRECTS the Clerk of Court to enter judgment in favor of Defendants Urbano 14 and Podsakoff, and in favor of Defendant Rayna only as to Plaintiff's claim of 15 deprivation of food on December 14, 2018. 16 '7 | Dated: _ April 23,2022 Mihaw. □□ fareh Zacks 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE
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