(PC) Van Gessel v. Moore

Opinion

11 CHRISTOPHER ALLEN VAN GESSEL, 1:18-cv-01478-DAD-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS’ 13 vs. EXHAUSTION MOTION FOR SUMMARY JUDGMENT BE GRANTED 14 THOMAS MOORE, et al., (ECF No. 25.)

15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS 16

24 26 Christopher Allen Van Gessel (“Plaintiff”) is a former federal prisoner proceeding pro se 27 and in forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 28 403 U.S. 388 (1971) and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). This action 1 now proceeds with Plaintiff’s First Amended Complaint, filed on October 7, 2019, on Plaintiff’s 2 medical claims under the Eighth Amendment against defendants Dr. Thomas Moore, Physician’s 3 Assistant Altuire, and Physician’s Assistant Ballesil, and medical malpractice claims under the 4 FTCA against defendant United States.1 (ECF No. 10.) 5 On July 9, 2020, defendants Dr. Thomas Moore, Physician’s Assistant Altuire, and 6 Physician’s Assistant Ballesil (“Defendants”) filed a motion for summary judgment on the 7 ground that Plaintiff failed to exhaust his administrative remedies before filing suit. (ECF No. 8 25.) On July 23, 2020, Plaintiff filed an opposition to the motion. (ECF No. 27.) On July 30, 9 2020, Defendants filed a reply to the opposition. (ECF No. 28.) 10 On October 14, 2020, in light of the fact that Defendants did not provide Plaintiff with a 11 Rand2 Notice and Warning pursuant to the Ninth Circuit’s requirement in Woods v. Carey,3 the 12 court issued an order providing Plaintiff with a Rand Notice and Warning. (ECF No. 31.) The 13 court permitted Plaintiff an opportunity to withdraw his opposition to the motion for summary 14 judgment and file an amended opposition, within thirty days. (Id.) Plaintiff was advised that if 15 he did not file an amended opposition within thirty days his existing opposition filed on July 23, 16 2020, would be considered in resolving the motion for summary judgment. (Id. at 6 ¶2.) The 17 thirty-day time period has passed and Plaintiff has not filed an amended opposition or otherwise 18 responded to the court’s October 14, 2020 order. (Court Record.) Therefore, the court shall 19 consider Plaintiff’s opposition filed on July 23, 2020, in resolving the motion for summary 20 judgment. 21 The motion has been submitted upon the record without oral argument pursuant to Local 22 Rule 230(l), and for the reasons that follow, the court recommends that the motion for summary 23 judgment be granted. 24

25 1 On April 9, 2020, the court issued an order dismissing all other claims and defendants from this 26 action. (ECF No. 18.)

27 2 Rand v. Rowland, 154 F. 3d. 952 (9th Cir. 1998) (en banc).

28 3 Woods v. Carey, 684 F. 3d. 934 (9th Cir. 2012). 1 II. SUMMARY OF PLAINTIFF’S ALLEGATIONS AND CLAIMS4 2 Plaintiff’s claims in the First Amended Complaint arose from events occurring on March 3 12, 2018, at the United States Penitentiary (USP)-Atwater. Plaintiff alleges that on that date he 4 was cleaning his work area known as the Satellite Feeding Room in Food Service with hot water 5 from the steam kettle. He accidently spilled the hot water onto his left work boot and the hot 6 water soaked into his boot and sock, badly burning his foot. The gravamen of Plaintiff’s 7 complaint is that he was not provided with adequate medical care for his injury, including pain 8 medication, by defendants Moore, Altuire, and Ballesil, in violation of the Eighth Amendment. 9 Plaintiff also brings claims for medical malpractice against defendant United States under the 10 FTCA. Plaintiff seeks monetary damages. 12 A. Legal Standards 13 1. Statutory Exhaustion Requirement 14 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that “[n]o 15 action shall be brought with respect to prison conditions under § 1983 of this title, or any other 16 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 17 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are 18 required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 19 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 20 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and 21 regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 22 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, 23 Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002). 24 ///

25 4 Plaintiff’s original Complaint and First Amended Complaint are verified, and his allegations in 26 the complaints constitute evidence in support of Plaintiff’s opposition to the exhaustion motion for summary judgment where they are based on his personal knowledge of facts admissible in evidence. Jones v. Blanas, 393 27 F.3d 918, 922-23 (9th Cir. 2004). The summarization of Plaintiff’s claim in this section should not be viewed by the parties as a ruling that the allegations are admissible. 28 1 “[T]o properly exhaust administrative remedies prisoners ‘must complete the 2 administrative review process in accordance with the applicable procedural rules,’ [ ]—rules that 3 are defined not by the PLRA, but by the prison grievance process itself.” Bock, 549 U.S. at 218 4 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). 5 An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion 6 requirement. Id. at 90. However, the Ninth Circuit has made clear: A grievance need not include 7 legal terminology or legal theories unless they are in some way needed to provide notice of the 8 harm being grieved. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). A grievance also 9 need not contain every fact necessary to prove each element of an eventual legal claim. Id. 10 Moreover, the Ninth Circuit has recognized that a grievance suffices to exhaust a claim 11 if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To 12 provide adequate notice, the prisoner need only provide the level of detail required by the prison’s 13 regulations. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing Bock, 549 U.S. at 218). 14 The level of detail necessary in a grievance to comply with the grievance procedures will vary 15 from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, 16 that define the boundaries of proper exhaustion. Id. In this case, the administrative remedy 17 process used at USP-Atwater where Plaintiff was incarcerated defined the boundaries of proper 18 exhaustion. 19 A prisoner may be excused from complying with the PLRA’s exhaustion requirement if 20 he establishes that the existing administrative remedies were effectively unavailable to him. See 21 Albino v. Baca (“Albino II”), 747 F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate’s 22 administrative grievance is improperly rejected on procedural grounds, exhaustion may be 23 excused as “effectively unavailable.” Sapp, 623 F.3d at 823; see also Nunez v. Duncan, 591 F.3d 24 1217, 1224–26 (9th Cir. 2010) (warden’s mistake rendered prisoner’s administrative remedies 25 “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012) (exhaustion 26 excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required 27 to proceed to third level where appeal granted at second level and no further relief was available); 28 Marella v. Terhune, 568 F.3d 1024 (9th Cir. 2009) (excusing an inmate’s failure to exhaust 1 because he did not have access to the necessary grievance forms to timely file his grievance). In 2 such a case, “the inmate cannot pursue the necessary sequence of appeals.” Sapp, 623 F.3d at 3 823. 4 2. Bureau of Prisons’ Administrative Grievance System 5 The court takes judicial notice of the fact that the federal Bureau of Prisons (“BOP”) has 6 established an administrative remedy procedure through which an inmate can seek redress of a 7 complaint in relation to any aspect of his imprisonment. See 28 C.F.R. § 542.10(a). The inmate 8 must first ordinarily seek to resolve the issue informally with prison staff using a BP-8 form. 28 9 C.F.R. § 542.13(a); Nunez, 591 F.3d at 1219. If the complaint cannot be resolved informally, 10 the inmate must present a formal administrative remedy request at the institution of confinement 11 using a BP-9 form. 28 C.F.R. § 542.14(a); Id. The BP-9 must be submitted within 20 calendar 12 days following the date the grievance occurred, unless the prisoner can provide a valid reason for 13 delay. 28 C.F.R. § 542.15(a); Id.. 14 If the BP-9 request is denied by the warden and the prisoner is not satisfied, he must then 15 file an appeal to the Regional Director using a BP-10 form. 28 C.F.R. § 542.15(a); Id. The BP- 16 10 form must be submitted within 30 calendar days of the date the warden responded to the BP- 17 9 form, unless the prisoner provides a valid reason for the delay. 28 C.F.R. § 542.15(a); Id. at 18 1220. 19 If the prisoner is dissatisfied with the Regional Director’s response, the last step is to 20 submit an appeal to the BOP General Counsel using a BP-11 form. 28 C.F.R. § 542.15(a); Id. at 21 1219-1220. The BP-11 form must be submitted within 30 calendar days of the date of the 22 Regional Director’s response to the BP-10, with the same exception of a valid reason for the 23 delay. 28 C.F.R. § 542.15(a); Id. at 1220. A final decision from the Office of General Counsel 24 completes the BOP’s Administrative Remedy Process. 28 C.F.R. § 542.15(a). 25 3. Motion for Summary Judgment for Failure to Exhaust 26 The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under 27 which defendants have the burden of raising and proving the absence of exhaustion. Bock, 549 28 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the Ninth 1 Circuit issued a decision overruling Wyatt with respect to the proper procedural device for raising 2 the affirmative defense of exhaustion under § 1997e(a). Albino II, 747 F.3d at 1168–69. 3 Following the decision in Albino II, defendants may raise exhaustion deficiencies as an 4 affirmative defense under § 1997e(a) in either (1) a motion to dismiss pursuant to Rule 12(b)(6)5 5 or (2) a motion for summary judgment under Rule 56. Id. If the court concludes that Plaintiff 6 has failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the 7 complaint barred by § 1997e(e). Bock, 549 U.S. at 223–24; Lira v. Herrera, 427 F.3d 1164, 8 1175–76 (9th Cir. 2005). 9 Summary judgment is appropriate when it is demonstrated that there “is no genuine 10 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 11 R. Civ. P. 56(a); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts, 12 summary judgment will not be granted.”) A party asserting that a fact cannot be disputed must 13 support the assertion by “citing to particular parts of materials in the record, including 14 depositions, documents, electronically stored information, affidavits or declarations, stipulations 15 (including those made for purposes of the motion only), admissions, interrogatory answers, or 16 other materials, or showing that the materials cited do not establish the absence or presence of a 17 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 18 Fed. R. Civ. P. 56(c)(1). In judging the evidence at the summary judgment stage, the court “must 19 draw all reasonable inferences in the light most favorable to the nonmoving party.” Comite de 20 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The 21 court must liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder, 22 611 F.3d 1144, 1150 (9th Cir. 2010). 23 In a summary judgment motion for failure to exhaust administrative remedies, the 24 defendants have the initial burden to prove “that there was an available administrative remedy, 25 and that the prisoner did not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the 26 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 27 28 5 Motions to dismiss under Rule 12(b)(6) are only appropriate “[i]n the rare event a failure to exhaust is clear on the face of the complaint.” Albino II, 747 F.3d at 1162. 1 showing that there is something in his particular case that made the existing and generally 2 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 3 proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 4 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 5 1166. 6 In arriving at these findings and recommendations this court carefully reviewed and 7 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 8 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 9 reference to an argument, document, paper, or objection is not to be construed to the effect that 10 this court did not consider the argument, document, paper, or objection. This court thoroughly 11 reviewed and considered the evidence it deemed admissible, material, and appropriate. 13 Unless otherwise noted, the following facts submitted by Defendants are undisputed by 14 the parties or as determined by the court based on a thorough review of the record.6 15 1. The BOP maintains an electronic database which records all formal administrative 16 remedy requests and appeals. See Declaration of Jennifer Vickers (“Vickers Decl.”) ¶ 1. 17 2. As of July 6, 2020, Plaintiff has filed only nine formal administrative remedy requests 18 or appeals for the entirety of his BOP term of incarceration. Vickers Decl. ¶ 7; Vickers Decl. 19 Attach. 2. 20 3. The BOP has no record of a formal administrative remedy request (BP-9) or of an 21 appeal (BP-10 or BP-11) that relates to any of the constitutional claims at issue in this case. 22 Vickers Decl. ¶ 9; Vickers Decl. Attach. 2. 23 /// 24 25 6 Plaintiff failed to properly address Defendants’ statement of undisputed facts, as required by Local Rule 260(b). Accordingly, the court may consider Defendants’ assertions of fact as undisputed for purposes 26 of this motion. Id.; Fed. R. Civ. P. 56(e)(2). However, in light of the Ninth Circuit’s directive that a document filed pro se is “to be liberally construed,” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, and Rule 8(e) of 27 the Federal Rules of Civil Procedure provides that “[p]leadings shall be construed so as to do justice,” see Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007), the court shall strive to 28 resolve this motion for summary judgment on the merits. 1 4. Only one administrative remedy request, Administrative Remedy Request No. 976265, 2 appears to relate to the March 12, 2018 accident. Vickers Decl. ¶ 8; Vickers Decl. Attach. 3. 3 5. The BP-8 for Request No. 976265, which was filed on April 14, 2019, requests inmate 4 accident compensation forms and does not mention, reference, or identify any of the 5 constitutional claims asserted in this action. Vickers Decl. ¶ 8; Vickers Decl. Attach 3. 6 6. Plaintiff has not exhausted his administrative remedies for Request No. 976265. 7 Plaintiff filed a formal BP-9 for Request No. 976265 on May 1, 2019, but filed no subsequent 8 administrative remedy requests. Vickers Decl. Attach. 2. 10 Defendants argue that they should be granted summary judgment under Rule 56 on 11 Plaintiff’s claims against them because Plaintiff failed to exhaust his available administrative 12 remedies for those claims before filing this lawsuit. 13 Defendants’ evidence includes (1) Declaration of Paralegal Specialist Jennifer Vickers. 14 (ECF No. 25-2); (2) Attachment #1 to Vickers’ Declaration -- Public Information Inmate Data 15 forms for Plaintiff, dated July 6, 2020. (ECF No. 25-2 at 5-8); (3) Attachment #2 to Vickers’ 16 Declaration -- Record of Plaintiff’s Administrative Remedy Requests and Appeals as of July 6, 17 2020 (Excerpted Administrative Generalized Retrieval Form) (ECF No. 25-2 at 9-15); (4) 18 Attachment #3 to Vickers’ Declaration -- Packet for Administrative Remedy No. 976265, which 19 includes Plaintiff’s Request for Administrative Remedy No. 976265 dated April 21, 2019; 20 Rejection Notice of Administrative Remedy No. 976265, dated May 1, 2019; and Response to 21 Plaintiff’s Request for Informal Resolution, dated April 29, 2019. (ECF No. 25-2 at 16-20); and 22 (5) Plaintiff’s original Complaint and First Amended Complaint (ECF Nos. 1, 10.) 23 Defendants argue that Plaintiff’s claims against them should be dismissed because he failed 24 to exhaust all of his available administrative remedies as to those claims. They argue that 25 although Plaintiff filed a BP-8 form, he failed to pursue any further step in the BOP’s four-step 26 administrative remedy process. In the Amended Complaint, Plaintiff claims that he filed a BP-8 27 form sometime in March 2018, but that he received no response. (Amended Complaint at 13.) 28 Assuming he properly filed a BP-8 form in March 2018, pursuant to 28 C.F.R. §§ 542.14, 18, the 1 BOP had until approximately April 2018 to respond to Plaintiff’s BP-8 form. Because Plaintiff’s 2 BP-8 form was deemed a denial “at that level” at that time, pursuant to § 542.14, Plaintiff was 3 required to pursue his administrative remedies by filing a BP-9 form with the institution, but he 4 did not do so. (Vickers Decl. ¶¶ 8-9.) 5 Defendants’ Burden 6 The court finds that Defendants have carried their initial burden to prove that there was 7 an available administrative remedy and that Plaintiff failed to exhaust that remedy for the claims 8 against them. Therefore, the burden shifts to Plaintiff to come forward with evidence showing 9 that he did exhaust the available remedies for his Eighth Amendment claims against Defendants, 10 or that there is something in his particular case that made the existing and generally available 11 administrative remedies effectively unavailable to him. 13 Plaintiff submits the following Statement of Facts. 14 1. Sometime in March 2018, Plaintiff filed a BP-8 form with Counselor Reyes. 15 2. Plaintiff filed a claim in support of his FTCA claim with the Western Regional 16 Office, and the claim was denied. 17 3. On March 19, 2019, Plaintiff filed a Medical Idle Form with Safety Officer 18 Marquez. 19 4. On March 27, 2018, Physician’s Assistant Areco told Physician’s Assistant 20 Ballesil to document everything because Plaintiff wrote them up. How did she 21 know this if Plaintiff never started his Administrative Remedy process? 22 5. Exhibit H to the First Amended Complaint shows the forms given to Plaintiff by 23 Safety Officer Marquez when Plaintiff requested the Inmate Accident 24 Compensation form. (ECF No. 10 at 47-51.) 25 6. On April 18, 2019, Plaintiff filed a BP-9 form. On April 28, 2019, Plaintiff’s BP- 26 9 form was rejected. 27 /// 28 /// 2 Plaintiff’s evidence includes (1) Plaintiff’s original Complaint and First Amended 3 Complaint (ECF Nos. 1, 10); (2) Plaintiff’s Injury Report dated March 12, 2018 (Exh. F to 4 Amended Complaint, ECF No. 10 at 40-41); and (3) Plaintiff’s Inmate Accident Compensation 5 forms (Exh. H to Amended Complaint, ECF No. 10 at 47-51). 6 Plaintiff claims that his rights to the administrative remedy process were denied by 7 Counselor Coggin, Unit Manager Tyson, Case Manager Cerrato, and the warden. (Opp’n, ECF 8 No. 27 at 6.) He states that he was told that in order to proceed with these rights he had to get 9 his BP-8 form returned to him by Counselor Reyes in order to file a BP-9 form. (Id.) Plaintiff 10 claims that Counselor Reyes never returned his original BP-8 form. (Id.) Plaintiff also asserts 11 that he was deprived of the Inmate Accident Compensation form, which is why Plaintiff had to 12 file this lawsuit. (Id.) 13 In the original Complaint Plaintiff states that he filed a BP-8 form with Counselor Reyes 14 and never received a response. (ECF No. 1 at 3 ¶5.) He also states that he asked Counselor K. 15 Officer for a BP-9 form and the counselor told Plaintiff he could not get one until he got a 16 response from his BP-8. (Id.) 18 Defendants reply that Plaintiff’s opposition offers no more than conclusory arguments. 19 Plaintiff’s sole argument is that he was not provided a BP-9 form and thus could not continue the 20 administrative remedy process, but Plaintiff has not supported this contention with any factual 21 evidence. 23 The exhaustion requirement applies to all claims relating to prison life that do not 24 implicate the duration of a prisoner’s sentence. See Porter, 534 U.S. at 523, 532) (“[F]ederal 25 prisoners suing under Bivens [ ] must first exhaust inmate grievance procedures just as state 26 prisoners must exhaust administrative processes prior to instituting a § 1983 suit.”). Exhaustion 27 is a prerequisite to bringing a civil rights action that cannot be excused by a district court. See 28 Woodford [v. Ngo], 548 U.S. at 81, 85; Booth, 532 U.S. at 739. However, prisoners are not 1 required to complete the exhaustion process in circumstances where administrative remedies are 2 “effectively unavailable.” Rodriguez v. Cty. of Los Angeles, 891 F.3d 776, 792 (9th Cir. 2018). 3 The test for deciding whether a grievance procedure was unavailable uses an objective 4 standard. Albino v. Baca (“Albino I”), 697 F.3d at 1035. “[A]ffirmative actions by jail staff 5 preventing proper exhaustion, even if done innocently, make administrative remedies effectively 6 unavailable.” Id. at 1034. An inmate may demonstrate the unavailability of remedies by showing 7 “(1) that jail staff affirmatively interfered with his ability to exhaust administrative remedies or 8 (2) that the remedies were unknowable.” Id. at 1033. The inmate must make “a good-faith 9 effort” to determine and comply with a prison’s grievance procedures; “an inmate’s subjective 10 unawareness of an administrative remedy” is not “sufficient to excuse exhaustion.” Id. at 1035. 11 An inmate must “make reasonable, good-faith efforts to discover the appropriate procedure for 12 complaining about prison conditions before unawareness may possibly make a procedure 13 unavailable.” Id. 14 Jennifer Vickers, Paralegal Specialist for the U.S. Department of Justice, Federal Bureau 15 of Prisons, provides evidence that “the federal Bureau of Prisons has established an 16 administrative remedy procedure through which an inmate can seek review of any complaint 17 regarding any aspect of his confinement, including any concerns of deliberate indifference 18 towards his medical needs. See 28 C.F.R. § 542.10 through 542.19.” (Vickers Decl., ECF No. 19 25-2 ¶4.) Plaintiff filed the original Complaint for this action on October 26, 2018, and therefore 20 was required to complete each of the following available steps to exhaust his administrative 21 remedies between March 12, 2018, the date he was injured, and before he filed this lawsuit on 22 October 26, 2018: 23 1) seek an informal resolution at USP-Atwater (BP-8); 28 C.F.R. § 542.14 ; 24 2) file a formal request to the warden (“BP-9”); 28 C.F.R. § 542.14; 25 3) appeal the warden’s denial of remedy to the Regional Director (“BP-10”), within 26 twenty days after receiving the warden’s response; 28 C.F.R. § 542.15; 27 /// 28 /// 1 4) appeal the Regional Director’s denial of remedy to the General Counsel in 2 Washington D.C. (“BP-11”), within thirty days after receiving the Regional 3 Director’s response; 28 C.F.R § 542.15; and 4 5) receive a final decision on the merits from the General Counsel’s office, which 5 would complete the administrative remedy process; 28 C.F.R. § 542.15(a)). 6 This process must be utilized “to address any aspect of a BOP inmate’s own 7 confinement.” 28 C.F.R. § 542.10. 8 There is no evidence that Plaintiff completed all of the required steps of the administrative 9 remedy process for his medical claims against Defendants before he filed the Complaint for this 10 action on October 26, 2018. Jennifer Vickers, Paralegal Specialist, discusses the BOP’s record 11 of Plaintiff’s Requests for Administrative Remedies: 12 As of July 6, 2020, Van Gessel had filed nine Administrative Remedies at 13 all levels for the entirety of his BOP term of incarceration. Of those nine 14 remedies, Van Gessel did not exhaust any remedies at all three levels.7 A true and 15 correct copy of Van Gessel’s excerpted Administrative Remedy Generalized 16 Retrieval form is attached as Attachment 2. 17 Only one administrative remedy, 976265-F1, abstracted, “Safety Refused 18 T {sic} Give Hinm {sic} Forms”. The BOP immediately rejected this remedy for 19 two reasons- MSI & RSR. MSI states, “You must provide more specific 20 information about your request/appeal so that it may be considered.” RSR states, 21 “You may resubmit your appeal in proper form within 10 days of the date of this 22 rejection notice.” 23 None of the other eight remedies on the Administrative Remedy 24 Generalized Retrieval form concern any of the cognizable, constitutional claims 25 before this Court. A true and correct copy of the packet for Administrative 26 Remedy Number 976265 is attached as Attachment 3. 27 (Vickers Decl., ECF No. 25-2 at 3-4 ¶¶ 7-9.)

28 7 The three levels referred to by Vickers are the BP-9, BP-10, and BP-11 levels of review. 1 The court finds that Administrative Remedy Number 976265 could not have exhausted 2 Plaintiff’s remedies for the claims against Defendants in this case, even if he completed all levels 3 of the Administrative Remedy process because Plaintiff initiated the Remedy too late. Plaintiff’s 4 signature on the BP-8 form for Administrative Remedy Number 976265 is dated April 29, 2019, 5 and the BP-8 was rejected on May 1, 2019, more than five months after Plaintiff filed his original 6 Complaint in this case on October 26, 2018. (ECF No. 25-2 at 17, 19.) Plaintiff is required to 7 exhaust his remedies before he files suit. Moreover, Plaintiff’s BP-8 form for Number 976265 8 does not expressly state a complaint about inadequate medical treatment for the injuries Plaintiff 9 sustained at USP-Atwater. (Id.) This Remedy Request would not put the prison on notice of the 10 Plaintiff’s complaint about inadequate medical care by Defendants. Instead, in Remedy Number 11 976265, Plaintiff merely requests forms for Inmate Accident Compensation, and such a request, 12 without more, could not exhaust Plaintiff’s remedies for the medical claims against Defendants. 13 Plaintiff also claims that he filed a BP-8 form in March 2018 complaining that he was 14 being denied a prescription for pain medication. (ECF No. 10 at 13.) However, Plaintiff provides 15 no evidence that he pursued this grievance through all levels of the appeals process, or that his 16 remedies were effectively unavailable. 17 Plaintiff’s statement that his rights to the administrative remedy process were denied by 18 Counselor Coggin, Unit Manager Tyson, Case Manager Cerrato, and the warden is conclusory. 19 Without facts in support such a statement cannot support an argument that prison employees 20 interfered with his efforts to exhaust remedies. Plaintiff’s statement that his request for a BP-9 21 form was denied by a counselor is also conclusory, and without more facts also cannot support 22 an argument that his remedies were unavailable. 23 Based on these facts the court concludes that Plaintiff has not provided evidence that he 24 exhausted his remedies or that administrative remedies were not available to him to exhaust his 25 remedies for his Eighth Amendment medical claims against Defendants. Therefore, Defendants’ 26 motion for summary judgment should be granted. 27 /// 28 /// 2 On the basis of the foregoing, Defendants’ motion for summary judgment, filed on July 3 9, 2020, should be granted as to all of Plaintiff’s claims against them for allegedly inadequate 4 medical care, because those claims are unexhausted, and those claims should be dismissed 5 without prejudice. 6 Accordingly. THE COURT HEREBY RECOMMENDS that: 7 1. The motion for summary judgment filed by defendants Dr. Thomas Moore, 8 Physician’s Assistant Altuire, and Physician’s Assistant Ballesil on July 9, 2020, 9 based on Plaintiff’s failure to exhaust remedies for his medical claims against 10 them be GRANTED; and 11 2. Plaintiff’s Eighth Amendment medical claims against defendants Dr. Thomas 12 Moore, Physician’s Assistant Altuire, and Physician’s Assistant Ballesil, be 13 DISMISSED without prejudice. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 16 (14) days after being served with these findings and recommendations, any party may file written 17 objections with the court. Such a document should be captioned “Objections to Magistrate 18 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 19 within ten (10) days after the objections are filed. The parties are advised that failure to file 20 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 21 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 22 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24

25 Dated: January 22, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26

27 28