(PC) Bouie v. Willox ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIRK JA’ONG BOUIE, JR., No. 2:16-cv-0624 JAM AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS & RECOMMENDATIONS 14 R. WILLOX, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court are defendants’ motion for summary judgment (ECF 19 No. 29) and plaintiff’s motions to strike (ECF No. 34), to compel (ECF No. 54), and for extension 20 of time (ECF No. 56). 21 I. Procedural History 22 This case proceeds on the first amended complaint. ECF No. 17. Prior to the close of 23 discovery, defendants filed a motion for summary judgment on the ground that plaintiff had failed 24 to exhaust his administrative remedies. ECF No. 29. Plaintiff opposes the motion (ECF No. 32) 25 and moves to strike defendants’ reply (ECF No. 34). 26 Although the deadline for merit-based summary-judgment motions was vacated pending 27 resolution of defendants’ exhaustion motion (ECF No. 45), the parties continued with discovery 28 and plaintiff has filed a motion to compel which is also pending (ECF No. 54). 1 II. Plaintiff’s Allegations 2 Plaintiff alleges that defendants Willox and Fielder conspired to retaliate and did in fact 3 retaliate against him for pursing a habeas petition. ECF No. 17 at 16-21. Specifically, he claims 4 that after he attempted to exercise his right to pursue a habeas petition, Willox made false 5 allegations against him for the purpose of confiscating the funds in his trust account, and that 6 Fielder threatened to have him transferred if he kept pursuing the issue of his funds and then had 7 him transferred to a less desirable prison. Id. at 18-21. Defendants’ conduct was the product of a 8 conspiracy between the two to retaliate against plaintiff for exercising his rights to pursue a 9 habeas petition and file grievances. Id. at 16-17. 10 III. Motion for Summary Judgment 11 A. Defendants’ Arguments 12 Defendants argue that the complaint should be dismissed because plaintiff did not exhaust 13 his administrative remedies prior to bringing this lawsuit. ECF No. 29-2. 14 B. Plaintiff’s Response 15 At the outset, the court notes that plaintiff has failed to comply with Federal Rule of Civil 16 Procedure 56(c)(1)(A), which requires that “a party asserting that a fact . . . is genuinely disputed 17 must support the assertion by . . . citing to particular parts of materials in the record.” Plaintiff 18 has also failed to file a separate document disputing defendants’ statement of undisputed facts, as 19 required by Local Rule 260(b). 20 However, it is well-established that the pleadings of pro se litigants are held to “less 21 stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 22 520 (1972) (per curiam). Nevertheless, “[p]ro se litigants must follow the same rules of 23 procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) 24 (citations omitted), overruled on other grounds, Lacey v. Maricopa County, 693 F.3d 896, 928 25 (9th Cir. 2012) (en banc). However, the unrepresented prisoners’ choice to proceed without 26 counsel “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily 27 imposes upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 28 Jacobsen v. Filler, 790 F.2d 1362, 1364-65 & n.4 (9th Cir. 1986) (alteration in original) (citations 1 and internal quotation marks omitted). Inmate litigants, therefore, should not be held to a 2 standard of “strict literalness” with respect to the requirements of the summary judgment rule. Id. 3 at 1364 n.4 (citation omitted). 4 The court is mindful of the Ninth Circuit’s more overarching caution in this context, as 5 noted above, that district courts are to “construe liberally motion papers and pleadings filed by 6 pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 7 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, the court considers the record before it in its 8 entirety despite plaintiff’s failure to be in strict compliance with the applicable rules. However, 9 only those assertions in the opposition which have evidentiary support in the record will be 10 considered. 11 Plaintiff argues that administrative remedies were unavailable to him. Specifically, his 12 grievance regarding the confiscation of his funds was improperly rejected because he was 13 required to attach a copy of the order authorizing the seizure of his property when no such order 14 existed. ECF No. 32 at 3-4. He further claims that the motion should be denied because the 15 grievances attached to the motion for summary judgment are irrelevant and the grievance history 16 produced by defendants does not show every appeal he filed. Id. at 4-5. 17 C. Defendants’ Reply and Plaintiff’s Motion to Strike 18 In reply to the opposition, defendants argue that plaintiff’s appeal was not improperly 19 rejected because (1) plaintiff failed to comply with instructions to cure deficiencies, and (2) had 20 plaintiff requested a copy of the seizure order, one would have been provided. ECF No. 33 at 2- 21 3. Defendants attach a declaration from Willox that includes a copy of the order and avers he 22 would have provided plaintiff with a copy if asked. ECF No. 33-1. 23 Plaintiff moves to strike defendants’ reply in support of their motion for summary 24 judgment on the grounds that the copy of the order for seizure of property attached to Willox’s 25 declaration is falsified and that Willox’s declaration purporting to authenticate the document is 26 knowingly false because the order is fake. ECF No. 34 at 1-4. He argues that the order must be 27 falsified because it does not show that it was filed by the court, does not have a case number, and 28 the judge’s signature is illegible. Id. at 2. He further argues that the order must be false because 1 forfeiture proceedings require a criminal proceeding to go forward and no criminal proceedings 2 were ever brought against him. Id. at 3. 3 Contrary to plaintiff’s belief, California Health and Safety Code Section 11471, under 4 which the seizure order was issued, does not require criminal proceedings be pending at the time 5 a seizure order is issued. Seizure can be ordered where there is probable cause to believe that the 6 “property was used or is intended to be used in violation of [Division 10 of the Health and Safety 7 Code],” Cal. Health & Safety Code § 11471(d), which is the ground relied upon for issuance of 8 the order in this case, ECF No. 33-1 at 5. Willox’s declaration is also sufficient to authenticate 9 the seizure order, and plaintiff’s claims that it is fake due to perceived deficiencies are inadequate 10 to overcome defendant’s declaration. Furthermore, even without a copy of the order, Willox’s 11 sworn statement that he would have provided plaintiff with a copy of the seizure order if asked is 12 sufficient to establish that fact, and plaintiff makes no claim that he ever requested a copy of the 13 order and was denied. Accordingly, plaintiff’s motion to strike defendants’ reply will be denied. 14 D. Legal Standards for Summary Judgment 15 Summary judgment is appropriate when the moving party “shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 17 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 18 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 19 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 20 moving party may accomplish this by “citing to particular parts of materials in the record, 21 including depositions, documents, electronically stored information, affidavits or declarations, 22 stipulations (including those made for purposes of the motion only), admissions, interrogatory 23 answers, or other materials” or by showing that such materials “do not establish the absence or 24 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 25 support the fact.” Fed. R. Civ. P. 56(c)(1). 26 “Where the non-moving party bears the burden of proof at trial, the moving party need 27 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 28 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 1 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 2 motion, against a party who fails to make a showing sufficient to establish the existence of an 3 element essential to that party’s case, and on which that party will bear the burden of proof at 4 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 5 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 6 a circumstance, summary judgment should “be granted so long as whatever is before the district 7 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 8 56(c), is satisfied.” Id. 9 If the moving party meets its initial responsibility, the burden then shifts to the opposing 10 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 11 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 12 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 13 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 14 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 15 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 16 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 17 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 18 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 19 reasonable jury could return a verdict for the nonmoving party,” Anderson, 447 U.S. at 248. 20 In the endeavor to establish the existence of a factual dispute, the opposing party need not 21 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 22 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 23 truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. V. Cities 24 Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the 25 pleadings and to assess the proof in order to see whether there is a genuine need for trial.” 26 Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted). 27 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 28 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 1 v. Central Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 2 the opposing party’s obligation to produce a factual predicate from which the inference may be 3 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 4 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 5 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 6 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 7 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 8 U.S. at 289). 9 Defendants simultaneously served plaintiff with notice of the requirements for opposing a 10 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure along with their motion for 11 summary judgment. ECF No. 29-1; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 12 1988); Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide 13 notice). 14 E. Exhaustion 15 i. Legal Standards for Exhaustion 16 Because plaintiff is a prisoner suing over the conditions of his confinement, his claims are 17 subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA, 18 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or 19 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 20 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v. 21 Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners 22 seeking redress for prison circumstances or occurrences”). “[T]hat language is ‘mandatory’: An 23 inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent 24 exhaustion of available administrative remedies.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) 25 (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006); Jones v. Bock, 549 U.S. 199, 211 (2007)). 26 Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones, 27 549 U.S. at 204, 216. “[T]he defendant’s burden is to prove that there was an available 28 administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino v. 1 Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (citing Hilao v. Estate of Marcos, 103 F.3d 2 767, 778 n.5 (9th Cir. 1996)). “[T]here can be no ‘absence of exhaustion’ unless some relief 3 remains ‘available.’” Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005) (emphasis in original) 4 (citation omitted). Therefore, the defendant must produce evidence showing that a remedy is 5 available “as a practical matter,” that is, “it must be capable of use; at hand.” Albino, 747 F.3d at 6 1171 (citation and internal quotations marks omitted). “[A]side from [the unavailability] 7 exception, the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective 8 of any ‘special circumstances.’” Ross, 136 S. Ct. at 1856. “[M]andatory exhaustion statutes like 9 the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.” Id. at 1857 10 (citation omitted). 11 For exhaustion to be “proper,” a prisoner must comply with the prison’s procedural rules, 12 including deadlines, as a precondition to bringing suit in federal court. Woodford, 548 U.S. at 90 13 (“Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural 14 rules.”). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of 15 proper exhaustion.” Jones, 549 U.S. at 218; see also Marella v. Terhune, 568 F.3d 1024, 1027 16 (9th Cir. 2009) (“The California prison system’s requirements ‘define the boundaries of proper 17 exhaustion’” (quoting Jones, 549 U.S. at 218)). 18 The Supreme Court has identified “three kinds of circumstances in which an 19 administrative remedy, although officially on the books, is not capable of use to obtain relief.” 20 Ross, 136 S. Ct. at 1859. “First, . . . an administrative procedure is unavailable when (despite 21 what regulations or guidance materials may promise) it operates as a simple dead end—with 22 officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. (citing 23 Booth, 532 U.S. at 736). “Next, an administrative scheme might be so opaque that it becomes, 24 practically speaking, incapable of use.” Id. Finally, administrative remedies are unavailable 25 “when prison administrators thwart inmates from taking advantage of a grievance process through 26 machination, misrepresentation, or intimidation.” Id. at 1860. 27 When the district court concludes that the prisoner has not exhausted administrative 28 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 1 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 2 Albino, 747 F.3d at 1168-69. 3 ii. California Regulations Governing Exhaustion of Administrative Remedies 4 “The California prison system’s requirements ‘define the boundaries of proper 5 exhaustion.’” Marella, 568 F.3d at 1027 (quoting Jones, 549 U.S. at 218). In order to exhaust, 6 the prisoner is required to complete the administrative review process in accordance with all 7 applicable procedural rules. Woodford, 548 U.S. at 90. At the time relevant to the complaint, 8 California regulations allowed a prisoner to “appeal” any action or inaction by prison staff that 9 had “a material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, 10 § 3084.1(a) (2014). The appeal process was initiated by the inmate’s filing a “Form 602” the 11 “Inmate/Parolee Appeal Form,” “to describe the specific issue under appeal and the relief 12 requested.” Id., § 3084.2(a). The grievance system had three levels of review and was exhausted 13 by obtaining a decision at the third level. Id., § 3084.1(b). 14 Each prison was required to have an “appeals coordinator” whose job is to “screen all 15 appeals prior to acceptance and assignment for review.” Id., § 3084.5(b). The appeals 16 coordinator could refuse to accept an appeal and did so either by “rejecting” or “canceling” it. 17 Id., § 3084.6(a) (“Appeals may be rejected pursuant to subsection 3084.6(b), or cancelled 18 pursuant to subsection 3084.6(c), as determined by the appeals coordinator.”). 19 An appeal could be rejected because, among other things, it was “missing necessary 20 supporting documents” or the inmate “submitted the appeal for processing at an inappropriate 21 level bypassing required lower level(s) of review.” Id., § 3084.6(b)(7), (15). A rejected appeal 22 could “later be accepted if the reason noted for the rejection [was] corrected and the appeal [was] 23 returned by the inmate or parolee to the appeals coordinator within 30 calendar days of rejection.” 24 Id., § 3084.6(a)(2). 25 According to the regulations, “a cancellation or rejection decision [did] not exhaust 26 administrative remedies.” Id., § 3084.1(b). Outside of any exceptions outlined in the regulations, 27 “all appeals [were] subject to a third level of review, as described in section 3084.7, before 28 administrative remedies [were] deemed exhausted.” Id. 1 F. Undisputed Material Facts 2 Plaintiff did not respond to defendants’ statement of undisputed facts and the facts are 3 therefore deemed undisputed except as otherwise discussed. 4 At all times relevant to the complaint, plaintiff was an inmate incarcerated at Deuel 5 Vocational Institution (DVI) and defendants were employed at that institution. Defendants’ 6 Statement of Undisputed Facts (DSUF) (ECF No. 29-3) ¶¶ 1, 5. The conduct at issue in this case 7 began on August 20, 2013, DSUF ¶ 3, and plaintiff filed the original complaint in this action on 8 March 18, 2016,1 ECF No. 1 at 46. 9 During the time plaintiff was at DVI, there was an administrative remedies process in 10 place. DSUF ¶ 6. From August 2013 until the initiation of this action, plaintiff had two appeals 11 accepted and adjudicated at the third level. DSUF ¶ 7. Neither appeal dealt with the allegations 12 that form the basis of this action. DSUF ¶¶ 8-9. 13 On January 20, 2014, plaintiff filed an inmate appeal against Willox for the illegal seizure 14 of his trust account. ECF No. 17 at 15, ¶ 49.2 On February 25, 2014, plaintiff received a second- 15 level response that indicated his appeal had initially been accepted but was being rejected because 16 he failed to attach a copy of the seizure order issued by the court. Id., ¶ 50. He proceeded to file 17 his rejected appeal at the third level on March 3, 2014, with an explanation that the lower level 18 decision was flawed and his appeal should not have been rejected. Id., ¶ 51. Plaintiff received 19 the response rejecting his third-level appeal on April 25, 2014, at which point he believed that he 20 had exhausted his administrative remedies. Id., ¶¶ 52-53. 21 //// 22 23 1 Defendants state that the complaint was filed on March 24, 2016. DSUF ¶ 2. However, this date does not reflect application of the prison mailbox rule. See Houston v. Lack, 487 U.S. 266, 24 276 (1988) (establishing rule that a prisoner’s court document is deemed filed on the date the prisoner delivered the document to prison officials for mailing). 25 2 The declaration provided in support of defendants’ motion for summary judgment 26 acknowledges that prior to August 1, 2014, the Office of Appeals did not maintain copies of screened-out appeals, ECF No. 29-4 at 3, ¶ 6, and defendants have offered no evidence 27 contradicting plaintiff’s version of events. Accordingly, the court presumes for purposes of this motion that plaintiff’s allegations regarding his attempts to pursue Appeal No. DVI-14- 28 00322/HDSP-14-00298 are undisputed. 1 G. Discussion 2 Defendants set forth properly supported facts showing that there was a grievance system 3 available, that plaintiff was capable of utilizing the process, and that he did not file a third-level 4 appeal addressing his claims against defendants. DSUF ¶¶ 6-9. With this evidence, defendants 5 have met their burden of raising and proving the absence of exhaustion. Albino, 747 F.3d at 1172 6 (“[T]he defendant’s burden is to prove that there was an available administrative remedy, and that 7 the prisoner did not exhaust that available remedy.”). The burden now shifts to plaintiff to show 8 that he did not exhaust because administrative remedies were unavailable. Id. 9 Plaintiff does not dispute that an administrative remedies process existed at DVI or that he 10 was able to utilize that process in general. Nor does he dispute the fact that between August 2013 11 and the initiation of this lawsuit, only two of his appeals were accepted at the third level of 12 review. Instead, plaintiff argues that the appeals process was unavailable to him because his 13 appeal regarding the claims in this case was improperly rejected. ECF No. 32 at 3-4. 14 As an initial matter, plaintiff argues that the appeals history provided by defendants does 15 not list all the appeals he submitted during the relevant period and therefore does not prove lack 16 of exhaustion. Id. at 5. However, while plaintiff claims that there are appeals missing from the 17 list provided, he identifies only one appeal, Appeal No. DVI-14-00322/HDSP-14-00298,3 as 18 addressing the issues currently before the court. Id. Since plaintiff does not claim that any of the 19 missing appeals related to his allegations against Willox and Fielder, the fact that they are not 20 included on the list is immaterial. 21 With respect to Appeal No. DVI-14-00322/HDSP-14-00298, plaintiff argues that this 22 appeal would have exhausted his claims against Willox and Fielder, but it was improperly 23 rejected at both the second and third levels of review. Id. at 3-4. In support of this contention, he 24 attaches copies of the rejection notices (id. at 7, 9); while neither party includes a copy of the 25 appeal itself as part of the briefing on the summary-judgment motion, a copy is attached to 26 27 3 Plaintiff also appears to claim that Appeal No. DVI-14-00322/HDSP-14-00298 was not included in the grievance history. ECF No. 32 at 5. However, that appeal is clearly listed as a 28 screened-out appeal. ECF No. 29-4 at 6. 1 plaintiff’s original complaint4 (ECF No. 1 at 33-36). The appeal claims that Willox illegally 2 seized plaintiff’s inmate trust account even though an investigation had already cleared plaintiff 3 of wrong-doing, and that the seizure was in retaliation for appealing the previous investigation. 4 Id. With regard to Fielder, it states only that Fielder told plaintiff that his funds were being held 5 due to an investigation. Id. at 35. 6 “A grievance suffices to exhaust a claim if it puts the prison on adequate notice of the 7 problem for which the prisoner seeks redress.” Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 8 2010). In this instance, plaintiff’s statement that Fielder advised him his funds were being held 9 due to an investigation does nothing to put the prison on notice of the claim that Willox and 10 Fielder conspired to retaliate against plaintiff by seizing his funds, and there are no allegations 11 that Fielder threatened to or in fact did have plaintiff transferred in retaliation for filing an appeal. 12 Plaintiff’s argument that he should be excused from including all of his issues in the appeal 13 because he had only limited space and would have risked rejection of his appeal had he exceeded 14 the space limitations (ECF No. 32 at 5) has no basis in law. Plaintiff does not identify, and the 15 court is not aware of, any exception that would find or excuse exhaustion when plaintiff failed to 16 include or bring as a separate appeal his retaliation claim against Fielder and his conspiracy claim 17 against both defendants. The appeal is therefore insufficient to exhaust these claims and they 18 should be dismissed. 19 With respect to the retaliation claim against Willox, while the appeal provides a different 20 motivation for the confiscation of funds from that alleged in the complaint, it is sufficient to put 21 the prison on notice that plaintiff was claiming retaliatory confiscation of his funds. Therefore, 22 the question as to that claim becomes whether the rejection of the appeal was improper and 23 therefore excused plaintiff from exhausting the appeal. 24 The rejection notices attached to plaintiff’s opposition show that his appeal was rejected at 25 the second level because he did not include a copy of the seizure order (ECF No. 32 at 9) and at 26 the third level because he improperly bypassed the lower level of review (id. at 7). Both notices 27 4 It appears plaintiff also attempted to attach a copy to his amended complaint, but two pages are 28 missing. ECF No. 17 at 45-46. 1 advised that a rejected appeal could be resubmitted if plaintiff corrected the identified defect. Id. 2 at 7, 9. Plaintiff argues that the rejections were improper because a seizure order did not exist, 3 making it impossible to correct the defect. Id. at 3-4. This argument is consistent with the 4 allegations contained in both the original and amended complaints wherein plaintiff also argues 5 that the grievance process was inadequate and he was entitled to proceed to the third level of 6 appeal because resubmission of his appeal at the second-level would have been futile without a 7 copy of the non-existent order. ECF No. 1 at 13-15; ECF No. 17 at 15. 8 In response to plaintiff’s arguments, defendants provide evidence that a seizure order 9 existed, and that plaintiff would have been provided a copy had he requested one, demonstrating 10 that the defect was in fact curable. ECF No. 33. Plaintiff responded to the evidence by moving to 11 strike it on the ground that the order was falsified, and he reiterated his belief that no such order 12 existed. ECF No. 34. However, as addressed above, plaintiff’s conclusory assertions that the 13 order is fake are insufficient. Furthermore, at no time has plaintiff alleged that he was told that a 14 seizure order did not exist or that he asked for a copy of the order only to be denied. 15 There is no indication that plaintiff’s appeal would have continued to be rejected had he 16 followed instructions and attached a copy of the seizure order, nor is there any evidence or 17 allegation that plaintiff was told the order did not exist or that he asked for a copy and was 18 denied. Despite plaintiff’s attempt to paint it otherwise, this is not a case where plaintiff was 19 informed that the appeals process was unavailable, see Marella, 568 F.3d at 1027 (holding district 20 court erred in dismissing case for failure to exhaust where plaintiff was informed appeals process 21 was not available to him), nor is it a case where he took reasonable steps to obtain an ultimately 22 unattainable document that he was told was necessary to proceed, see Nunez v. Duncan, 591 F.3d 23 1217, 1225 (9th Cir. 2010) (exhaustion excused where plaintiff “timely took reasonable and 24 appropriate steps” to obtain copy of policy warden erroneously told him was required and that 25 was not obtainable). Instead, by plaintiff’s own account, he simply assumed that the order did not 26 exist and therefore did not take any steps to verify its existence or attempt to obtain a copy. On 27 these facts, the court cannot find that plaintiff was excused from exhausting his administrative 28 remedies because they were unavailable. 1 H. Conclusion 2 For the reasons addressed above, plaintiff failed to exhaust his administrative remedies 3 and defendants’ motion for summary judgment should be granted. 4 IV. Motion to Compel 5 In light of the recommendation that the motion for summary judgment be granted and the 6 case dismissed, the motion to compel will be denied.5 In the event the District Judge does not 7 adopt the findings and recommendations, plaintiff may renew the motion. Because the motion to 8 compel is being denied, plaintiff’s motion for an extension of time to file a reply will be denied as 9 moot. 10 V. Plain Language Summary of this Order for a Pro Se Litigant 11 It is being recommended that defendants’ motion for summary judgment be granted and 12 this case dismissed because you did not exhaust your grievance at the third-level before starting 13 this case and you have not shown that you were prevented from exhausting. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion to strike (ECF No. 34) is denied. 16 2. Plaintiff’s motion to compel (ECF No. 54) is denied without prejudice to renewal in 17 the event these findings and recommendations are not adopted. 18 3. Plaintiff’s motion for an extension of time (ECF No. 56) is denied as moot. 19 IT IS FURTHER RECOMMENDED that defendants’ motion for summary judgment 20 (ECF No. 29) be granted and the complaint be dismissed for failure to exhaust. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 27 5 The motion to compel does not seek discovery related to the exhaustion of administrative remedies and therefore does not need to be resolved prior to resolution of the pending motion for 28 summary judgment. MADE 6 LY VOM EIT EAINTT ENN RAMU SN ee PY OT Okt 1 || objections shall be served and filed within fourteen days after service of the objections. The 2 || parties are advised that failure to file objections within the specified time may waive the right to 3 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 4 | DATED: June 2, 2020 ~ 5 Hthren— Llane ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14