1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, No. 2:18-CV-0740-MCE-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 D. JUST, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court are: (1) defendant Villescaz’s motion for summary 19 judgment (ECF N0. 47); (2) plaintiff’s opposition1 (ECF No. 51); and (3) defendant’s reply (ECF 20 No. 53). 21 22 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 23 This action proceeds on plaintiff’s original complaint. Plaintiff names the 24 following as defendants: (1) officer D. Just; and (2) officer T Villescaz. Plaintiff claims that, 25 while he was an inmate at California State Prison, Solano, he was physically attacked by 26 defendant Just, then denied medical care by defendant Villescaz. 27 1 Plaintiff’s opposition contains multiple, unclear, run-on sentences. The following 28 1 According to plaintiff, on May 24, 2015, he was being escorted from the law 2 library. He was fitted with wrist chain cuffs that would permit him to carry books in his hands. 3 ECF No. 1, pg. 3. At some point, officer Just approached plaintiff and demanded that he be cuffed 4 with his arms behind his back, requiring that plaintiff tuck his materials under his arms. Id. This 5 caused the cuffs to dig into plaintiff wrists and he requested to see a nurse. Id. at 4. Officer Just 6 eventually took plaintiff to see a nurse and “slammed” him into a chair at the nurse’s office. Id. 7 Officer Just then apparently threatened the nurse, prompting her determination that plaintiff did 8 not require medical care. Thereafter Just proceeded to move plaintiff to his cell. Id. In 9 transporting plaintiff, Just grabbed plaintiff by the neck, squeezing “extremely hard,” and dragged 10 plaintiff to his cell. Id. at 5. Once at his cell, officer Just then allegedly pushed plaintiff against 11 the wall and punched him in the back of the head. Id. This event left plaintiff in pain, gave him a 12 migraine, and left him “feeling suicidal.” Id. 13 When officer Villescaz approached his cell for an unrelated matter, plaintiff 14 immediately asked her to call for medical assistance. Villescaz then apparently told plaintiff to 15 stop submitting administrative grievances, that Just did not hit plaintiff that hard, and then she left 16 laughing without calling for medical attention. Plaintiff was eventually taken to a hospital for 17 “neck trauma, blackouts, severe headaches and other injuries.” Id. at 6. 18 On April 3, 2018, plaintiff filed a § 1983 civil rights complaint against defendants 19 Just and Villescaz. ECF No. 1. Plaintiff alleges that defendant Just violated his constitutional 20 rights by physically attacking him. Plaintiff also alleges that defendant Villescaz violated 21 plaintiff’s rights by being deliberately indifferent to his medical needs. 22 On August 26, 2019, defendant Villescaz2 filed this motion for summary judgement. ECF 23 No. 47. On September 16, 2019, plaintiff filed an opposition to Villescaz’s motion for summary 24 judgement. ECF No. 51. On September 23, Villescaz submitted a reply to plaintiff’s opposition. 25 ECF No. 53. The Court now reviews defendant’s motion for summary judgement. 26 /// 27 2 Defendant Just does not join in the motion and has not filed a separate motion for 28 1 2 II. THE PARTIES’ EVIDENCE 3 A. Defendant’s Evidence 4 Defendant’s motion for summary judgement is supported by the following 5 evidence: (1) Statement of Undisputed Material Facts (SUMF)(ECF 47-3); (2) Declaration of A. 6 Petty; (3) Declaration of E. Frijas; (4) Declaration of L. O’Brian; (5) Declaration of J. Spaich; and 7 (6) Declaration of Jeremy Duggan. Defendant’s SUMF claims the following: 8 9 Undisputed Material Facts Supporting Evidence 10 1. In his complaint, Plaintiff Williams alleges 1. Compl. 3-5, ECF No. 1. that on May 24, 2015, Defendant Just, a 11 correctional officer, escorted Plaintiff Williams from the law library to his cell at 12 CSP-Solano. 13 14 2. In his complaint, Plaintiff Williams further 2. Compl. 5, ECF No. 1. alleges that on May 24, 2015, when he and 15 Defendant Just reached the cell, Just punched Williams in the back of the head causing 16 injuries to Williams. 17 3. In his complaint, Plaintiff Williams further 3. Compl. 5, ECF No. 1. alleges that on May 24, 2015, correctional 18 officer Villescaz came to his cell, that Williams requested that she call a nurse or 19 man down for him, and that Villescaz did not do so. 20 21 4. The California Department of Corrections 4. Ramos Decl. ¶ 3; Petty Decl. ¶ 2; and Rehabilitation (CDCR) provides its O’Brian Decl. ¶ 2; Frijas Decl. ¶ 2; 22 inmates with a comprehensive administrative Cal. Code Regs. tit. 15, § 3084.1. grievance process in which inmates may 23 appeal any decision, action, condition, policy or omission, made by the Department or its 24 staff, which the inmate believes has had a material adverse effect on their welfare. 25 26 27 28 1 5. The custody grievance process has three 5. Ramos Decl. ¶ 4; Petty Decl. ¶ 6; 2 levels, and a final decision at the third level O’Brian Decl. ¶ 6; Frijas Decl. ¶ 6; exhausts the appeal. Cal. Code Regs. tit. 15, § 3084.1(b). 3 4 6. Plaintiff Williams sent his complaint in this 6. Compl. 1, 37, ECF No. 1. 5 matter to the Court on March 29, 2018, and the complaint was filed on April 3, 2018. 6 7 7. Plaintiff Williams’s interrogatory responses 7. Plaintiff’s Responses to Defendants’ 8 state that he exhausted his administrative First Set of Interrogatories, Response remedies in this matter as to his claim against to Interrogatory No. 2 (Duggan Decl. 9 Defendant Just through grievance log number Ex. P.) SOL-15-01018. 10 8. Plaintiff Williams’s interrogatory responses 8. Plaintiff’s Responses to Defendants’ 11 state that he exhausted administrative First Set of Interrogatories, Response 12 r ae gm aie nd si te Ds ein fe t nh dis a nm t a Vtt ie llr e a ss c ato z th hi rs o c ul ga him s to Interrogatory No. 3 (Duggan Decl. Ex. P.) grievance log numbers CSP-S-15-07078, 13 SAC-O-17-04402, RJD-A-17-07281, RJD- 17-06533, CSP-S-18-00043, and SOL-17- 14 02714. 15 9. Between May 24, 2015, and March 29, 9. Plaintiff’s Responses to Defendants’ 16 2018, Plaintiff Williams was aware of, and First Set of Interrogatories, Response 17 u fis le ind g C aD t lC eaR s’ ts t hin irm tya t ge r ig er vie av na cn ec s e i np r tho ac te s tis m, e to Interrogatories No. 1-2 (Duggan Decl. Ex. P.); Inmate/Parolee Appeals period. 18 Tracking System results for Plaintiff Williams 2-5 (Petty Decl. Ex. A). 19 10. Grievance log number CSP-S-15-07078 10. Petty Decl. ¶ 16. 20 filed at California State Prison, Solano, was filed by another inmate, and does not relate to 21 Williams. 22 11. There is a typographical error in a 11. Petty Decl. ¶ 16. 23 response regarding appeal log number CSP-S- 17-02714, dated February 3, 2017, that 24 mentions log number CSP-S-15-07078. The number cited in that response should be CSP- 25 S-15-01018, not CSP-S-15-07078.
26 27 28 1 12. In grievance log number CSP-S-15- 12. Inmate/Parolee Appeal log number 2 01018, received by CDCR on May 27, 2015, CSP-S-15-01018 (Petty Decl. Ex. B, at Plaintiff Williams asserted that Defendant 1-2). Just assaulted Williams in his cell on May 24, 3 2015. 4 13. Grievance log number CSP-S-15-01018 13. Inmate/Parolee Appeal log number 5 did not mention Defendant Villescaz, nor did CSP-S-15-01018 (Petty Decl. Ex. B, at it mention Williams’s claim that Villescaz 1-2). 6 refused Williams’s request for medical assistance. 7 14. In the second level response to grievance 14. Second Level Response to 8 log number CSP-S-15-01018, the reviewer Inmate/Parolee Appeal log number states that Williams “states his head is in pain CSP-S-15-01018 (Petty Decl. Ex. B, at 9 and Officer Just wouldn’t take him to 3). medical.” 10 15. Neither grievance log number CSP-S-15- 15. Inmate/Parolee Appeal log number 11 01018, nor the responses thereto, mention the CSP-S-15-01018 and responses thereto 12 c mla ei dm ic ath l a at s V sisil tl ae ns cc ea z f or re f Wus ie lld i at mo sc .a ll for (Ramos Decl. Ex. M, at 1-14). 13 14 16. Grievance log numbers RJD-17-06533 16. Petty Decl. ¶ 17; Frijas Decl. ¶ 16. and SOL-17-02714 are assigned to the same 15 grievance, which was first filed at Richard J. Donovan state prison and given the log 16 number RJD-17-06533, then sent to California State Prison, Solano for further 17 processing under log number SOL-17-02714.
18 17.Grievance log number SOL-17-02714 17.Inmate/Parolee Appeal log number 19 asserted that Defenant Villescaz came to SOL-17-02714 (Petty Decl. Ex. D, at Williams’s cell on May 24, 2015, that 2, 4). 20 Williams asked her to call for medical assistance for his injuries, and that she did not 21 call for medical assistance. 18.Grievance log number SOL-17-02714was 18.Inmate/Parolee Appeal log number 22 not exhausted before March 29, 2018, and SOL-17-02714 and responses thereto indeed was never exhausted. (Ramos Decl.Ex. O, at 1-16). 23 24 25 19.CDCR officials received grievance log 19.Inmate/Parolee Appeal log number number SOL-17-02714 on November 8, SOL-17-02714 (Ramos Decl. Ex. O, at 26 2017. 2). 27 28 1 20.Grievance log number SOL-17-02714was 20.First-level response to 2 cancelled at the first level as untimely. Inmate/Parolee Appeal log number SOL-17-02714 (Ramos Decl. Ex. O, at 3 13). 4 21.Williams appealed the first-level 21.Inmate/Parolee Appeal log number 5 cancellation of grievance log number SOL- CSP-S-18-00043 (Petty Decl. Ex. F, at 17-02714 in grievance log number CSP-S-18- 4-5). 6 00043. 7 22.In a second-level response granting 22.Second-level response to 8 grievance log number CSP-S-18-00043 dated Inmate/Parolee Appeal log number January 16, 2018, grievance log number CSP-S-18-00043 (Petty Decl. Ex. F, at 9 SOL-17-02714 was reinstated for second- 1, 3). level review. 10 23.The second-level response to grievance 23.Second-level response to 11 log number SOL-17-02714, signed in Inmate/Parolee Appeal log number 12 F Fe eb br ru ua ar ry y, 22 00 11 78 ) ( fa on ud n dm ti hs ata t k se tan fl fy dd ia dt e nd o t SOL-17-02714 (Ramos Decl. Ex. O, at 6-7). violate CDCR policy with respect to the 13 issues appealed. 14 24.Williams appealed grievance log number 24.Third-level response to 15 SOL-17-02714 to the third level, and on June Inmate/Parolee Appeal log number 16 8 th, i2 rd0 1 le8 v, eth l e o fg rr eie vv iea wnc ae s w ua ns t ic man elc ye .l led at the SOL-17-02714 (Ramos Decl. Ex. O, at 1). 17 18 25. At his deposition, Williams argued that he 25. Williams Depo. Tr. 39:15-40:11 did not have to appeal grievance log number (Duggan Decl. Ex. Q). 19 SOL-17-02714 to the third level to exhaust. 20 21 26. The second-level response to grievance 26. Second-level response to log number SOL-17-02714 states “Appellant Inmate/Parolee Appeal log number 22 alleges Officer Villescaz failed to call a SOL-17-02714 (Ramos Decl. Ex. O, at medical code on his behalf after claiming to 6). 23 of been assaulted by Officer Just. A full investigation was already conducted on the 24 alleged staff misconduct (see appeal CSP-S- 15-07078).” 25
26 27 28 1 27. The second-level response to grievance 27. Second-level response to 2 log number SOL-17-02714 states “If you Inmate/Parolee Appeal log number wish to appeal the decision and/or exhaust SOL-17-02714 (Ramos Decl. Ex. O, at administrative remedies, you must submit 3 7). your staff complaint appeal through all levels of appeal review up to, and including, the 4 Secretary’s/Third Level of Review.” 5 6 28. The second-level response to grievance 28. Second-level response to log number SOL-17-02714 informed Inmate/Parolee Appeal log number 7 Williams that “your appeal was referred for SOL-17-02714 (Ramos Decl. Ex. O, at an appeal inquiry,” and that “[a]llegations of 6). staff misconduct do not limit or restrict the 8 availability of further relief via the inmate appeals process.” 9
10 29. Grievance log numbers RJD-A-17-07281 29. Petty Decl. ¶ 17; Frijas Decl. ¶ 16. 11 and CSP-S-18-00043 are both assigned to the same grievance, which was first filed at 12 Richard J. Donovan state prison and given the log number RJD-A-17-07281, then sent to 13 California State Prison, Solano for further processing under log number SOL-18-00043. 14 15 30. Grievance log number SAC-O-17-04402 30. Inmate/Parolee Appeal log number appealed the cancellation of grievance log SAC-17-04402 (Ramos Decl. Ex. N, at 16 number SOL-17-02526. 3, 5). 17 18 31.Grievance log number SOL-17-02526 31.Inmate/Parolee Appeal log number sought to have certain charges from SOL-17-02526 (Ramos Decl. Ex. N, at 19 Williams’s trust account removed. 3, 5). 20 21 32.Grievance log number SOL-17-02526 did 32.Inmate/Parolee Appeal log number not mention Defendant Villescaz or any SOL-17-02526 (Ramos Decl. Ex. N, at 22 allegation that Williams was denied medical 3, 5). care. 23 24 33.Grievance log number SAC-O-17- 33.Petty Decl. ¶ 17. 04402was sent to CSP-SOL for processing 25 under log number CSP-S-17-02873. 26 27 28 1 34.Grievance log number CSP-S-17-02873 34.Third-level response to 2 was processed to the third level, and was Inmate/Parolee Appeal log number denied at the third level on April 30,2018. CSP-S-17-02873 (Ramos Decl. Ex. N, 3 at 1-2). 4
5 6 B. Plaintiff’s Evidence 7 Plaintiff’s motion for summary judgement is supported by the following exhibits:
8 Exhibit A Second level response to Appeal # CSP-S-15- 01018. ECF No. 51, pgs. 13-18. 9 Exhibit B Inmate interview for allegation of excessive force. 10 ECF No. 51, pgs. 19-20.
11 Exhibit C Second level response to Appeal # CSP-S-17-02714. ECF No. 51, pgs. 21-23. 12 Exhibit D Denial of Appeals RJD-17-06533 and SOL-17- 13 02714. ECF No. 51, pgs. 24-25.
14 Exhibit E CDCR rules violation report of Williams (plaintiff) dated December 8, 2015. ECF No. 51, 15 pgs. 26-30
16 Exhibit F Request by plaintiff for third level decision for log # CSP-5-15-07078. ECF No. 51, pgs. 31-33. 17 Exhibit G First level administrative appeal for excessive force 18 grievance against officer Just. CSP-S-15-07078.
19 20 III. STANDARD FOR SUMMARY JUDGEMENT 21 The Federal Rules of Civil Procedure provide for summary judgment or summary 22 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 23 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 24 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 25 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 26 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 27 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 28 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 1 moving party
2 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 3 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 4 genuine issue of material fact.
5 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 6 If the moving party meets its initial responsibility, the burden then shifts to the 7 opposing party to establish that a genuine issue as to any material fact actually does exist. See 8 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 9 establish the existence of this factual dispute, the opposing party may not rely upon the 10 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 11 form of affidavits, and/or admissible discovery material, in support of its contention that the 12 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 13 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 14 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 15 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 16 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 17 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 18 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 19 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 20 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 21 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 22 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 23 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 24 In resolving the summary judgment motion, the court examines the pleadings, 25 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 26 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 27 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 28 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 1 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 2 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 3 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 4 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 5 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 6 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 7 imposed.” Anderson, 477 U.S. at 251. 8 9 IV. DISUCSSION 10 Defendant argues that the Prison Litigation Reform Act (PLRA) required plaintiff 11 to exhaust his administrative remedies through the grievance process available from the 12 California Department of Corrections and Rehabilitation (CDCR) before filing this lawsuit, and 13 that plaintiff failed to properly do so. Plaintiff contends that he diligently pursed his 14 administrative remedies and that, to the extent he failed, it was because he was purposefully 15 deprived of such remedies. The Court ultimately finds that: (1) plaintiff had administrative 16 remedies available to him throughout the relevant timeframe; (2) plaintiff was required to exhaust 17 those remedies prior to filing this action; and (3) plaintiff failed to properly exhaust his 18 administrative remedies. Therefore, defendant’s motion for summary judgement should be 19 granted. 20 Prisoners seeking relief under § 1983 must exhaust all available administrative 21 remedies prior to bringing suit. See 42 U.S.C. § 1997e(a). This requirement is mandatory 22 regardless of the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001) (overruling 23 Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999)). Because exhaustion must precede the filing of 24 the complaint, compliance with § 1997e(a) is not achieved by exhausting administrative remedies 25 while the lawsuit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). The 26 Supreme Court addressed the exhaustion requirement in Jones v. Bock, 549 U.S. 199 (2007), and 27 held: (1) prisoners are not required to specially plead or demonstrate exhaustion in the complaint 28 because lack of exhaustion is an affirmative defense which must be pleaded and proved by the 1 defendants; (2) an individual named as a defendant does not necessarily need to be named in the 2 grievance process for exhaustion to be considered adequate because the applicable procedural 3 rules that a prisoner must follow are defined by the particular grievance process, not by the 4 PLRA; and (3) the PLRA does not require dismissal of the entire complaint if only some, but not 5 all, claims are unexhausted. The defendant bears burden of showing non-exhaustion in first 6 instance. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If met, the plaintiff bears the 7 burden of showing that the grievance process was not available, for example because it was 8 thwarted, prolonged, or inadequate. See id. 9 The Supreme Court held in Woodford v. Ngo that, in order to exhaust 10 administrative remedies, the prisoner must comply with all of the prison system’s procedural 11 rules so that the agency addresses the issues on the merits. 548 U.S. 81, 89-96 (2006). Thus, 12 exhaustion requires compliance with “deadlines and other critical procedural rules.” Id. at 90. 13 Partial compliance is not enough. See id. Substantively, the prisoner must submit a grievance 14 which affords prison officials a full and fair opportunity to address the prisoner’s claims. See id. 15 at 90, 93. The Supreme Court noted that one of the results of proper exhaustion is to reduce the 16 quantity of prisoner suits “because some prisoners are successful in the administrative process, 17 and others are persuaded by the proceedings not to file an action in federal court.” Id. at 94. 18 A prison inmate in California satisfies the administrative exhaustion requirement 19 by following the procedures set forth in §§ 3084.1-3084.8 of Title 15 of the California Code of 20 Regulations. In California, inmates “may appeal any policy, decision, action, condition, or 21 omission by the department or its staff that the inmate . . . can demonstrate as having a material 22 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). 23 The inmate must submit their appeal on the proper form, and is required to identify the staff 24 member(s) involved as well as describing their involvement in the issue. See Cal. Code Regs. tit. 25 15, § 3084.2(a). Inmates are must file grievances within thirty calendar days of the incident in 26 question. Cal Code Regs. tit. 15, § 3084.8(b)(1). These regulations also require the prisoner to 27 proceed through three levels of appeal. See Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. 28 A decision at the third formal level, which is also referred to as the director’s level, is not 1 appealable and concludes a prisoner’s departmental administrative remedy. See id. 2 Departmental appeals coordinators may reject a prisoner’s administrative appeal for a number of 3 reasons, including untimeliness, filing excessive appeals, use of improper language, failure to 4 attach supporting documents, and failure to follow proper procedures. See Cal. Code Regs. tit. 5 15, §§ 3084.6(b). If an appeal is rejected, the inmate is to be provided clear instructions how to 6 cure the defects therein. See Cal. Code Regs. tit. 15, §§ 3084.5(b), 3084.6(a). 7 A. Availability of Remedies 8 Defendant argues that plaintiff had an administrative remedy available to him. 9 Specifically, defendant states that:
10 CDCR provides its inmates with a comprehensive administrative appeals process in which inmates may appeal a decision, action, condition, 11 policy or omission, made by the Department or its staff, which the inmate believes has had a material adverse effect on their welfare. (UMF No. 4.) 12 Plaintiff was aware of and used CDCR’s administrative appeals process. (UMF No. 9.) Accordingly, there is no dispute that Plaintiff had an 13 administrative remedy available to him.
14 ECF No. 47-2, pg. 4
15 Plaintiff argues that: 16 Plaintiff did not have administrative remedies available to him 17 because it was made unavailable by defendants during plaintiff[‘s] attempts to exhaust his remedies on the appeal claims against defendant T. 18 Villescaz for deliberate indifference.
19 ECF No. 51, pgs. 2-3. 20 Here, the Court agrees with defendant. As defendant notes, prisoners in CDCR 21 facilities are provided with “a comprehensive administrative grievance process in which inmates 22 may appeal any decision, action, condition, policy or omission, made by the Department or its 23 staff, which the inmate believes has had a material adverse effect on their welfare.” ECF No. 47- 24 3, pg. 2. It appears that plaintiff was in fact aware of the grievance process and utilized it for his 25 current claims. The same administrative process was utilized against defendant Just and claims 26 against Just proceed before this Court without issue or challenge based on failure to exhaust. 27 Also, plaintiff responded to defendant’s interrogatory No. 4 as follows:
28 Interrogatory No. 4 Did you fully exhaust an inmate appeal for 1 each of your claims against each Defendant in this matter through the third level of 2 review before April 3, 2018?
3 Response Yes
4 ECF No. 47-8, pg. 7. 5 This response demonstrates that plaintiff did in fact utilize the CDCR grievance procedures. 6 Therefore, despite plaintiff’s assertions in his opposition, the dispute here does not appear to be 7 whether plaintiff had an administrative remedy available to him (he did), but instead whether that 8 remedy was properly exhausted. 9 B. Requirement to Exhaust 10 The Court also recognizes that plaintiff’s § 1983 action against Villescaz requires 11 an exhaustion of the CDCR’s administrative grievance procedures before it can proceed. As 12 discussed above, CDCR regulations require a prisoner to proceed through three levels of appeal. 13 See Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.2, 3084.7. A decision at the third formal level is 14 not appealable and concludes a prisoner’s departmental administrative remedy. See id. Therefore, 15 assuming defendant satisfies her initial burden of showing non-exhaustion of plaintiff’s remedies, 16 plaintiff will need to demonstrate that he was denied a proper opportunity to exhaust such 17 remedies. See Albino, 747 F.3d at 1172. 18 C. Failure to Exhaust 19 The crux of defendant’s motion is the contention that plaintiff failed to adequately 20 exhaust his administrative remedies such that plaintiff’s action against Villescaz should be 21 dismissed. At issue is whether the following administrative grievances satisfied plaintiff’s 22 exhaustion requirements3: 23 /// 24 /// 25 /// 26 3 The following chart comes from defendant’s motion to dismiss. ECF No. 47-2, 27 pgs. 10-11. Though parties dispute whether these administrative appeals satisfied plaintiff’s exhaustion requirements, the chronology of plaintiff’s appeal process does not appear to be in 28 1 Exhibit(s) Institution Log Number(s) Third- Disposition 2 Level Log Number 3 B, M CSP-S-15-01018 [mistaken as 1501245 Denied at the third level 4 “CSP-S-15-07078” due to Feb. 5, 2016 alleged typographical error 5 D, H, O SOL-17-02714; RJD-A-17- 1803688 Cancelled at the third level 06533 June 8, 2018 6 F, I CSP-S-18-00043 Granted at the second 7 level January 4, 2018
8 E, K, N SAC-17-04402; SOL-17- 1801354 Denied at the third level 02873; April 30, 2018 9 RJD-17-06602 10 Not CSP-S-15-07078 [Grievance does not relate 11 attached to plaintiff’s claims]
12 1. Grievance CSP-S-15-07078 13 Defendant argues that grievance CSP-S-15-07078 did not satisfy plaintiff’s 14 exhaustion requirement because the grievance was filed by another inmate and does not related to 15 plaintiff’s claims. Specifically: 16 Grievance log number CSP-S-15-07078 was filed by another 17 inmate, and does not relate to Plaintiff Williams. (UMF No. 10.) Williams cites that number in his interrogatory responses because that number is 18 listed in a response regarding appeal log number CSP-S-17-02714. (UMF No. 11.) That listing was a typographical error. The log number that 19 should have been listed was CSP-S-15-01018. (Id.) Accordingly, log number CSP-S-15-07078 did not exhaust as to Williams’s claims here. 20 ECF No. 47, pg. 5 21 22 Plaintiff argues that this typographical error was an “art of fraud” on the part of the 23 defendants and that it clearly illustrates that plaintiff satisfied his exhaustion requirements for his 24 claim against Villescaz through grievance CSP-S-15-01018. ECF No. 51, pgs. 6-7. 25 Here, the Court agrees with defendant insofar as grievance CSP-S-15-07078 does 26 not satisfy plaintiff’s exhaustion requirements. As the record shows, CSP-S-15-07078 was filed 27 by another inmate and does not relate to the conduct at issue in this action. ECF No. 47-4, pgs. 4, 28 32-37. Plaintiff offers no convincing evidence or argument to the contrary. Therefore, this 1 grievance cannot be considered to have exhausted plaintiff’s administrative grievance process. To 2 the extent that plaintiff argues that his exhaustion requirement was nonetheless satisfied through 3 grievance CSP-S-15-01018, the Court shall next address the grievance. 4 2. Grievance CSP-S-15-01018 5 Defendant argues that grievance CSP-S-15-01018 did not exhaust because it did 6 not mention Villescaz’s alleged refusal to provide plaintiff with medical assistance. Specifically:
7 . . .The grievance did not mention Defendant Villescaz, nor did it mention Williams’s claim that Villescaz refused Williams’s request for 8 medical assistance. (UMF No. 13.)
9 * * *
10 During the grievance process, Williams asserted that after that alleged assault, Defendant Just refused to take Williams to medical. (UMF 11 No. 14.) Williams did not make any such claim as to Defendant Villescaz at any point in the grievance process. (UMF No. 15.) Accordingly, the 12 grievance did not exhaust as to Williams’s claim against Villescaz. See, e.g., Lira v. Herrera, 427 F.3d 1164, 1169 n.6 (9th Cir. 2005) (“only 13 exhausted claims can be litigated”).
14 ECF No. 47-2, pgs. 5-6. 15 Plaintiff argues that he addressed his claims against defendant Villescaz during his 16 face-to-face interview with Sergeant F. Clay on June 22, 2015. Plaintiff apparently also brought 17 up Villescaz during two video interviews discussing the incident. ECF No. 51, pgs. 7-8. 18 According to plaintiff, it was “through no fault of plaintiff” that his interviewers did not write 19 down plaintiff’s complaints against Villescaz down. Id. at 8. Also, plaintiff argues that CSP-S-15- 20 01018 did in fact address his claims against Villescaz. According to plaintiff:
21 [L]og no. 01018 had a 602-A continuation sheet attached to it that mention[ed] claims against T. Villescaz that has been removed by prison 22 official not by plaintiff, the first page of plaintiff’s log no. 01018 section A ends with a hyphen showing plaintiff’s claim was continuing, a thorough 23 review of all plaintiff’s appeals that have this hyphen have a 602-A attachment with it, this art of fraud by defendants is a genuine material 24 fact dispute that log no. 01018 did not mention T. Villescaz. (See: Exhibit G). 25 ECF No. 51, pgs. 7-8. 26 27 /// 28 /// 1 Here, the Court agrees with defendant. “The amount of detail in an administrative 2 grievance necessary to properly exhaust a claim is determined by the prison's applicable 3 grievance procedures.” Stephen v. Alvarez, No. 14-cv-01245-SI, 2016 U.S. Dist. LEXIS 74186, 4 at *12 (N.D. Cal. June 7, 2016) (referencing Jones v. Bock, 549 U.S. 199, 218 (2007)). As 5 defendant notes, California prisons require that the inmate “list all staff members involved,” and that 6 the inmate “state all facts known and available to him/her regarding the issue being appealed.” Cal. 7 Code Regs. tit. 15, § 3084.2(a)(3), (a)(4) (2016). Defendant presents evidence which shows that 8 CSP-S-15-01018 does not reference Villescaz or her alleged denial of medical care. See ECF No. 9 47-4, pgs. 11-18. It is unclear why plaintiff did not reference Villescaz’s conduct in this 10 grievance, considering that her conduct occurred on the same day as Just’s alleged attack and 11 plaintiff knew Villescaz’s name at the time. ECF No. 1, pg. 5 (“upon coming to my senses . . . a 12 cell search receipt was left with the name Officer T. Villescaz who came to my cell . . .”) Thus, 13 defendant has satisfied her initial burden of showing plaintiff’s lack of exhaustion and it is now 14 plaintiff’s obligation to provide evidence which counters that showing. However, here, plaintiff 15 has provided no such evidence. 16 Despite plaintiff’s unsupported allegations that his interviewers failed to include 17 his references to Villescaz in his complaint, plaintiff was the one who ultimately wrote out and 18 submitted grievance CSP-S-15-01018. As is clear from the papers, plaintiff did not mention 19 Villescaz or her alleged misconduct. Also, to the point that plaintiff claims that CDCR employees 20 deliberately conspired to remove plaintiff’s references to Villescaz, the Court is similarly 21 unconvinced. At the summary judgement stage, the Court may consider the evidence presented to 22 determine whether there is a genuine dispute, but it may not make that determination based solely 23 on a party’s blanket allegations. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 24 n.11. Plaintiff’s claim that prison employees purposefully removed a continuation sheet 25 describing Villescaz’s misconduct is just that, a blanket allegation unsupported by evidence. 26 Plaintiff supports his “art of fraud” argument with his opposition’s Exhibit G. However, that 27 exhibit is simply a photocopy of CSP-S-15-01018. As discussed above, CSP-S-15-01018 does not 28 reference Villescaz and there is nothing evident in the form that would suggest that a prison 1 employee manipulated its contents. Therefore, CSP-S-15-01018 did not satisfy plaintiff’s 2 exhaustion requirements. 3 3. Grievance RJD-17-06533/SOL-17-02714 4 It appears undisputed that:
5 Grievance log numbers RJD-17-06533 and SOL-17-02714 are both assigned to the same grievance. (UMF No. 16.) The grievance was 6 first filed at Richard J. Donovan state prison and given the log number RJD-17-06533, then sent to CSP-SOL for further processing under log 7 number SOL-17-02714. (Id.) The grievance asserted that Villescaz came to Williams’s cell on May 24, 2015, that Williams asked her to call for 8 medical assistance for his injuries, and that she did not call for medical assistance. (UMF No. 17.). The grievance was not exhausted before 9 Williams filed suit, and indeed was never exhausted. (UMF No. 18).
10 ECF No. 47-2, pg. 6. 11 Defendant argues that the RJD/SOL grievances did not satisfy plaintiff’s 12 exhaustion requirement because: (1) plaintiff initiated this lawsuit before the grievance was 13 cancelled at the third level; and (2) regardless, the grievance was untimely. Defendant states:
14 First, the June 8, 2018, cancellation took place after Williams filed this lawsuit in March 2018. Accordingly, processing of the grievance had 15 not been completed when Williams filed suit, and therefore administrative remedies were not exhausted. See, e.g., McKinney v. Carey, 311 F.3d 16 1198, 1199 (9th Cir. 2001) (“a prisoner does not comply with this requirement by exhausting available remedies during the course of the 17 litigation”). Second, the June 8, 2018 cancellation did not exhaust 18 administrative remedies. Cal. Code Regs. tit. 15, § 3084.1(b) (“[A] cancellation or rejection decision does not exhaust administrative 19 remedies.”) As the Supreme Court has held, a prisoner cannot exhaust administrative remedies by filing an untimely grievance. Woodford v. 20 Ngo, 548 U.S. 81, 83-84 (2006) (“This case presents the question whether a prisoner can satisfy the Prison Litigation Reform Act’s exhaustion 21 requirement, 42 U.S.C. § 1997e(a), by filing an untimely or otherwise procedurally defective administrative grievance or appeal. We hold that 22 proper exhaustion of administrative remedies is necessary.”) Under CDCR’s regulations, Williams’s grievance was two years late. (UMF No. 23 19; Cal. Code Regs. tit. 15, § 3084.8(b)(1).) “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural 24 rules.” Woodford, 548 U.S. at 90. Williams did not comply with CDCR’s deadlines, and accordingly did not exhaust through grievance log number 25 RJD-17-06533 and SOL-17-02714.
26 ECF No. 47-2, pgs. 6-7. 27 /// 28 /// 1 Plaintiff argues that he was free to file his administrative appeals, even after the 2 thirty-day period. ECF No. 51, pg. 9. Alternatively, plaintiff argues that he did in fact file an 3 administrative appeal within thirty days (though it is unclear what he is referring to). Id. Also, 4 plaintiff claims that on February 3, 2017, his administrative remedies were made unavailable such 5 that he was not required to wait until he received a third level response to file the current lawsuit. 6 Id. 7 The Court agrees with defendant. It is apparent from the record that plaintiff 8 submitted these administrative appeals in an untimely manner and thus did not exhaust his 9 remedies. Plaintiff claims that on May 24, 2015, Villescaz failed to procure medical aid for 10 plaintiff. However, plaintiff did not submit the earlier of the two appeals, RJD-A-17-6533, until 11 October 9, 2017, more than two years after the incident. See ECF No. 47-5, pg. 19. The grievance 12 was eventually reinstated and analyzed at the second level where that review body found that 13 CDCR staff did not violate policy. See ECF No. 47-4, pgs. 61-66; see also ECF No. 51, pgs. 21- 14 23. However, at the subsequent third level, the grievance was again determined to be untimely 15 and cancelled. To the extent plaintiff argues that the second-level reinstatement of his appeal 16 means that his grievance was in fact exhausted, the Court here disagrees, noting:
17 Because plaintiff's appeal was not timely filed, prison officials' subsequent cancellation of the third level appeal was proper. Section 3084.1(b) 18 provides that "[a]ll lower level reviews are subject to modification at the third level of review," and "[e]rroneous acceptance of an appeal at a lower 19 level does not preclude the next level of review from taking appropriate action, including rejection or cancellation of the appeal." Cal. Code Regs. 20 tit. 15, § 3084.6(a)(5). In addition, "a cancellation or rejection decision does not exhaust administrative remedies." Cal. Code Regs. tit. 15, § 21 3084.1(b).
22 Vaughn v. Hood, No. 2:14-cv-2235 MCE KJN P, 2015 U.S. Dist. LEXIS 111228, at *21 (E.D. Cal. Aug. 20, 2015) 23 24 Thus, the third level cancelation here did not exhaust plaintiff’s administrative 25 remedies. Since plaintiff did not exhaust his administrative remedies, his current action is 26 improper. As discussed above, failure to properly exhaust all administrative remedies bars 27 commencement of a civil action under § 1983; and compliance with administrative deadlines is 28 required for exhaustion to be proper. See 42 U.S.C. § 1997e(a); see also Woodford, 548 U.S. at 1 90. 2 4. Grievance SOL-17-02714 3 Defendant argues that grievance SOL-17-02714 was not exhausted after the 4 second-level response. Defendant states that:
5 At his deposition, Williams argued that he did not have to appeal grievance log number SOL-17-02714 to the third level to exhaust. (UMF 6 No. 25.) Williams bases his argument on the following statement from the second-level response to grievance log number SOL-17-02714: 7 Appellant alleges Officer Villescaz failed to call a medical code on 8 his behalf after claiming to of been assaulted by Officer Just. A full investigation was already conducted on the alleged staff 9 misconduct (see appeal CSP-S-15-07078).
10 (UMF Nos. 25-26.)
11 As stated above, Williams’s previous grievance did not, in fact, exhaust as to the claim against Villescaz. The reference to CSP-S-15- 12 07078 is a typographical error, the grievance that was meant to be listed is CSP-S-15-01018. (UMF No. 11.) Grievance log number CSP-S-15-01018 13 did not address any conduct by Villescaz, and accordingly did not exhaust as to the claims against her. See supra § II.C.2. 14 The statement in the second-level response did not mean that Williams’s administrative remedies were exhausted. The Ninth Circuit has 15 held that “a prisoner need not press on to exhaust further levels of review once he has . . . been reliably informed by an administrator that no 16 remedies are available.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). The second level response here did not so inform Williams. First, it 17 states that an investigation was conducted on the “alleged staff misconduct.” (UMF No. 26.) “[A]lleged staff misconduct” refers to the 18 alleged assault by officer Just described in the previous sentence, not the claim against Villescaz. That reference is confirmed by the citation to 19 CSP-S-15-07078 (intended to be CSP-S-15-01018), which dealt with the allegations of assault against Just. See supra § II.C.2. 20 Second, even if the second-level response statement were referring to an investigation into whether Villescaz called for medical care for 21 Williams (and it is not), the second level response states only that an investigation has been conducted. It does not state that no administrative 22 remedies remain available. Indeed, the response states the opposite, confirming that Williams had additional administrative remedies 23 available:
24 If you wish to appeal the decision and/or exhaust administrative remedies, you must submit your staff complaint appeal through all 25 levels of appeal review up to, and including, the Secretary’s/Third Level of Review. 26 (UMF No. 27.) 27
28 1 In fact, Williams pursued that remedy, albeit after filing suit in this matter. (UMF No. 24.) Williams was not “reliably informed” that no further 2 administrative remedies were available.
3 ECF No. 47-2, pgs. 7-8 4 Plaintiff argues that there was no need to appeal SOL-17-02714 to the third level 5 since second-level review communicated to him that his appeals process had been exhausted. 6 Plaintiff relies on the following statement made at his second-level determination:
7 Appellant alleges Officer Villescaz failed to call a medical code on his behalf after claiming to of been assaulted by Officer Just. A full 8 investigation was already conducted on the alleged staff misconduct (see appeal CSP-S-15-07078). 9 ECF No. 51, pg. 22. 10 Plaintiff also argues that, under the case Brown v. Valoff, 422 F.3d 926 (9th Cir. 11 2005), plaintiff’s grievance was a staff complaint and the second-level determination that an 12 investigation had been conducted was sufficient to imply an exhaustion of his administrative 13 remedies. ECF No. 51, pgs. 10-11. In Brown, a prisoner filed a civil rights action against the 14 prison and contested the prison’s motion to dismiss alleging that plaintiffs failed to exhaust 15 administrative remedies. The court held that the prisoner satisfied the exhaustion requirements of 16 the PLRA because the prison did not establish that once it had ordered an investigation into a 17 correction officer's alleged misconduct through the separate "staff complaint" process, it had any 18 remaining authority to act through the grievance procedure. Brown, 422 F.3d at 937-38. Bulletin 19 postings and wording in the prison manual ultimately led the court to conclude that no further 20 relief was in fact "available" through the appeals process. Id. 21 The Court agrees with defendant that SOL-17-02714 did not satisfy the exhaustion 22 requirement. First, the second-level determination did not communicate that plaintiff was not 23 required to seek third-level review to properly exhaust. The Ninth Circuit has held that “a 24 prisoner need not press on to exhaust further levels of review once he has . . . been reliably 25 informed by an administrator that no remedies are available.” Brown, 422 F.3d at 935. Here, the 26 second-level determination found that “staff did not violate CDCR policy . . .” ECF No. 51, pg. 27 22. It did not notify plaintiff that their ruling exhausted plaintiff’s administrative remedies. In 28 1 fact, at the end of the document, the determination states:
2 If you wish to appeal the decision and/or exhaust administrative remedies, you must submit your staff complaint appeal through all level of appeal 3 review up to, and including, the Secretary’s/Third Level of Review. Once a decision has been rendered at the Third Level, administrative remedies 4 will be considered exhausted.
5 ECF No. 51, pg. 23. 6 Thus, plaintiff was informed of the necessity to file an appeal to the third level of 7 review and it cannot plausibly be argued that plaintiff was reliably informed that “no remedies are 8 available.” Brown, 422 F.3d at 935 9 Second, plaintiff’s reliance on Brown for the assertion that a staff complaint 10 investigation satisfies the exhaustion requirement is outdated. As defendant notes in her motion:
11 Since the decision in Brown, CDCR has amended its regulations with regard to staff complaints. Specifically, since January 2011, a staff 12 complaint is not a separate procedure, as contemplated in Brown, but instead “[a] staff complaint filed by an inmate or parolee shall be 13 processed as an appeal pursuant to [Cal. Code Regs. tit. 15 § 3084 et seq.].” Cal. Code Regs. tit. 15, § 3084.9 (history note 1 providing date 14 section became operative). Depending on the allegations, staff complaints may be sent for an internal affairs investigation, or an appeal inquiry may 15 be conducted by the grievance reviewer. Cal. Code Regs. tit. 15, § 3084.9(i)(3)(A-B) (stating that for healthcare grievances, staff shall 16 conduct a confidential inquiry where the grievance is not referred to outside investigation). A staff complaint, just as with any other appeal, is 17 “subject to a third level of review . . . before administrative remedies are deemed exhausted.” Cal. Code Regs. tit. 15, § 3084.1(b). Further, in that 18 third-level review, “[a]ll lower level reviews are subject to modification.” Cal. Code Regs. tit. 15, § 3084.1(b). Accordingly, officials still have 19 authority to act through the grievance process after the grievance has been characterized as a staff complaint. 20 ECF No. 47-2, pgs. 8-9. 21 22 The alleged misconduct which drives this action occurred in 2015, well after the 23 CDCR amended its regulations regarding staff complaints. Therefore, plaintiff’s administrative 24 remedies, including staff complaints, were all subject to a three-level tier of review. As described 25 above, plaintiff’s second-level determination explicitly informed him of this requirement. Despite 26 this, plaintiff elected not to appeal the second-level determination. Therefore, SOL-17-02714 did 27 not satisfy plaintiff’s exhaustion requirements. 28 /// 1 5. Grievance RJD-A-17-07281/CSP-S-18-00043 2 It appears undisputed that:
3 Grievance log numbers RJD-A-17-07281 and CSP-S-18-00043 are assigned to the same grievance. (UMF No. 29.) It was first filed at Richard 4 J. Donovan state prison and given the log number RJD-A-17-07281, then sent to CSP-SOL for further processing under log number CSP-S-18- 5 00043. (Id.) The grievance appealed the cancellation of grievance log number CSP-S-17-02714, discussed above, which had been cancelled as 6 untimely. (UMF No. 21.) On January 16, 2018, log number CSP-S-18- 00043 was granted, and CSP-S-17-02714 was reinstated for further 7 processing at the second level. (UMF No. 22.)
8 ECF No. 47-2, pg. 9. 9 Defendant argues simply that “CSP-S-18-00043 did not exhaust as to the claim 10 against Villescaz here; after CSP-S-18-00043 was granted, the grievance that included the claim 11 against Villescaz (CSP-S-17-02714) was still being processed.” ECF No. 47-2, pg. 9. Plaintiff 12 argues that the grievances “were not meant to exhaust and did not need[] to be exhausted[.] 13 [T]hey were filed to appeal cancellation of log no. CSP-5-17-02714 and assist in the exhaustion 14 of it which was haphazardly hindered by defendants . . .” ECF No. 51, pg. 11. 15 Here, the Court agrees with defendant insofar as the grievances did not satisfy 16 plaintiff’s exhaustion requirements. As discussed above, grievance SOL-17-02714 contained 17 allegations of medical misconduct against Villescaz but was deemed untimely at the first level of 18 review. It was then reinstated by virtue of these appeals (RJD-A-17-07281/CSP-S-18-00043), and 19 a second-level determination of SOL-17-02714 found that Villescaz did not violate CDCR policy. 20 Therefore, RJD-A-17-07281/CSP-S-18-00043 simply reinstated SOL-17-02714 which, as 21 discussed above, did not exhaust plaintiff’s administrative remedies. 22 6. Grievance SAC-O-17-04402 23 It appears undisputed that:
24 Grievance log number SAC-O-17-04402 relates to another issue, and not the alleged conduct in this case. Grievance log number SAC-O- 25 17-04402 appealed the cancellation of grievance log number SOL-17- 02526. (UMF No. 30.) Grievance log number SOL-17-02526, in turn, 26 sought to have certain charges from Williams’s trust account removed. (UMF No. 31.) Grievance log number SOL-17-02526 did not mention 27 Defendant Villescaz or her alleged conduct. (UMF No. 32.) Accordingly,
28 /// 1 log number SAC-O-17-04402 did not exhaust as to the claims against Villescaz. 2 ECF No. 47-2, pg. 10. 3 4 Plaintiff concedes that “log no. SAC-O-17-04402 was mentioned in error and is 5 | irrelevant to this case.” ECF No. 51, pg. 11. Therefore, it is undisputed that SAC-O-17-04402 did 6 | not satisfy plaintiff's exhaustion requirement. 7 8 V. CONCLUSION 9 Based on the foregoing, the undersigned recommends that defendant Villescaz’s 10 | motion for summary judgement, ECF No. 47, be granted. 11 These findings and recommendations are submitted to the United States District 12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 13 | after being served with these findings and recommendations, any party may file written objections 14 | with the court. Responses to objections shall be filed within 14 days after service of objections. 15 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 16 | Yist, 951 F.2d 1153 (9th Cir. 1991). 17 1g | Dated: March 30, 2020 19 DENNIS M. COTA 0 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 23