(PC) Young v. Coburn ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN J. YOUNG, No. 2:18-cv-1901 JAM CKD P 12 Plaintiff, 13 v. ORDER and FINDING & RECOMMENDATIONS 14 J. COBURN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil action pursuant to 42 U.S.C. § 18 1983. Currently before the court is defendants’ motion for summary judgment. ECF No. 72. 19 I. Plaintiff’s Allegations and Procedural History 20 Plaintiff alleges in his complaint that defendants Coburn, Frederick, Baughman, Haynie, 21 Nappen, and Rodriguez violated his rights under the Eighth Amendment when they failed to 22 protect him from other inmates. (ECF No. 1 at 2-3). Specifically, plaintiff states that Coburn and 23 Frederick falsified documents regarding plaintiff’s safety; that Baughman, the supervisor, did not 24 investigate these actions; that Haynie allowed plaintiff to be attacked; and that Nappen and 25 Rodriguez lied to his cellmate. (Id. at 3.) 26 The undersigned screened the complaint and found that plaintiff’s claims against Coburn, 27 Frederick, and Baughman did not state claims for which relief could be granted. (ECF No. 32 at 28 8.) The undersigned gave the plaintiff the option of proceeding on his Eighth Amendment claims 1 against Haynie, Nappen, and Rodriguez, or amending the complaint. (Id.) Plaintiff opted to 2 proceed on his Eighth Amendment claims against Haynie, Nappen, and Rodriguez. (ECF No. 3 35.) Defendants then answered the complaint. (ECF No. 68.) 4 On November 5, 2019, defendants filed the instant motion for summary judgment. (ECF 5 No. 72.) On January 2, 2020, plaintiff filed a document titled “Motion: To Prove Corruption, 6 And Abuse of Power.” (See ECF No. 74.) Plaintiff then filed a document titled “Opposition” on 7 January 13, 2020. (ECF No. 79.) Defendants replied on January 30, 2020. (ECF No. 83.) 8 Plaintiff has also filed a motion for hearing (ECF No. 81), and a motion to subpoena a 9 witness (ECF No. 82). 10 II. Legal Standards for Summary Judgment 11 Summary judgment is appropriate when the moving party “shows that there is no genuine 12 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 13 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 14 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 15 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 16 moving party may accomplish this by “citing to particular parts of materials in the record, 17 including depositions, documents, electronically stored information, affidavits or declarations, 18 stipulations (including those made for purposes of the motion only), admissions, interrogatory 19 answers, or other materials” or by showing that such materials “do not establish the absence or 20 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 21 support the fact.” Fed. R. Civ. P. 56(c)(1). 22 “Where the non-moving party bears the burden of proof at trial, the moving party need 23 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 24 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 25 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 26 motion, against a party who fails to make a showing sufficient to establish the existence of an 27 element essential to that party’s case, and on which that party will bear the burden of proof at 28 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 1 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 2 a circumstance, summary judgment should “be granted so long as whatever is before the district 3 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 4 56(c), is satisfied.” Id. 5 If the moving party meets its initial responsibility, the burden then shifts to the opposing 6 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 7 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 8 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 9 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 10 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 11 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 12 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 13 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 14 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 15 reasonable jury could return a verdict for the nonmoving party,” Anderson, 447 U.S. at 248. 16 In the endeavor to establish the existence of a factual dispute, the opposing party need not 17 establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed 18 factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the 19 truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. V. Cities 20 Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the “purpose of summary judgment is to pierce the 21 pleadings and to assess the proof in order to see whether there is a genuine need for trial.” 22 Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted). 23 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 24 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 25 v. Central Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is 26 the opposing party’s obligation to produce a factual predicate from which the inference may be 27 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 28 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 1 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 2 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 3 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 4 U.S. at 289). 5 Defendants simultaneously served plaintiff with notice of the requirements for opposing a 6 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure along with their motion for 7 summary judgment. ECF No. 164-1; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 8 1988); Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide 9 notice). 10 III. Exhaustion Standard 11 The Prison Litigation Reform Act of 1995 provides that “[n]o action shall be brought with 12 respect to prison conditions under section 1983 of this title, . . . until such administrative remedies 13 as are available are exhausted.” 42 U.S.C. § 1997e(a). A prisoner must exhaust his 14 administrative remedies before he commences suit. McKinney v. Carey, 311 F.3d 1198, 1199– 15 1201 (9th Cir. 2002). Compliance with this requirement is not achieved by satisfying the 16 exhaustion requirement during the course of a civil action. See McKinney, 311 F.3d 1198 (9th 17 Cir. 2002). Failure to comply with the PLRA’s exhaustion requirement is an affirmative defense 18 that must be raised and proved by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). In the 19 Ninth Circuit, a defendant may raise the issue of administrative exhaustion in either (1) a motion 20 to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of 21 the complaint, or (2) a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1169 (9th 22 Cir. 2014) (en banc). An untimely or otherwise procedurally defective appeal will not satisfy the 23 exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006). 24 In order to defeat a properly supported motion for summary judgment based on a 25 prisoner’s failure to exhaust pursuant to 42 U.S.C. § 1997e(a), plaintiff must “come forward with 26 some evidence showing” that he has either (1) properly exhausted his administrative remedies 27 before filing suit or (2) “there is something in his particular case that made the existing and 28 generally available remedies unavailable to him by ‘showing that the local remedies were 1 ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.’” Williams v. 2 Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 3 778 n.5) (9th Cir. 1996)); Jones, 549 U.S. at 218. “Accordingly, an inmate is required to exhaust 4 those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the 5 action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 6 532 U.S. 731, 738 (2001)). If undisputed evidence viewed in the light most favorable to the 7 prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56 of 8 the Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). If 9 there is at least a genuine issue of material fact as to whether the administrative remedies were 10 properly exhausted, the motion for summary judgment must be denied. See Fed. R. Civ P. 56(a). 11 In the prison context, CDCR regulations provide three formal levels of review to address 12 “any policy, decision, action, condition, or omission by the department or its staff that the 13 inmate... can demonstrate as having a material adverse effect upon his or her health, safety, or 14 welfare.” Cal. Code Regs. tit. 15, § 3084.1(a); see also Cal. Code Regs. tit. 15, §§ 3084.1-3085. 15 An inmate appeal is initiated by submitting a CDCR Form 602 which describes “the specific issue 16 under appeal and the relief requested.” Cal. Code Regs. tit. 15, § 3084.2(a). The issue specified 17 in the 602 Form is “addressed through all required levels of administrative review up to and 18 including the third level. Cal. Code Regs. tit. 15, §§ 3084.1(b)-3084.2(a). First and second level 19 appeals are submitted and reviewed by the appeals coordinator at the prison. Cal. Code Regs. tit. 20 15, § 3084.2(c). If a prisoner is dissatisfied with the second level response, he or she can mail a 21 third level appeal to the Appeals Chief. Cal. Code Regs. tit. 15, § 3084.2(d)(3). Administrative 22 procedures generally are deemed exhausted once a plaintiff has received a third level review with 23 respect to his issue or claim. Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.7(d). An appeal may be 24 rejected or cancelled if it fails to comply with the regulations governing the appeal process, but 25 the inmate is provided the reason for the rejection as well as instructions on how to correct the 26 defect, if possible. See Cal. Code Regs. tit. 15, § 3084.6. California state prisoners are required 27 to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85- 28 86 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 1 An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion 2 requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006). When an inmate's administrative 3 grievance is improperly rejected on procedural grounds, however, exhaustion may be excused as 4 “effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir.2010); see also Nunez v. 5 Duncan, 591 F.3d 1217, 1224–26 (9th Cir.2010) (warden's mistake rendered prisoner's 6 administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1045 (9th 7 Cir. 2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) 8 (recognizing that “[d]elay in responding to a grievance, particularly a time-sensitive one, may 9 demonstrate that no administrative process is in fact available.”). 10 When the district court concludes that the prisoner has not exhausted administrative 11 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 12 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 13 Albino, 747 F.3d at 1168-69. 14 IV. Motion for Summary Judgment 15 A. Defendants’ Arguments 16 Defendants argue that the Prisoner Litigation Reform Act precludes plaintiff from 17 succeeding in this action because inmates must exhaust administrative remedies before filing a 18 lawsuit. (ECF No. 72-2 at 5.) Defendants contend that plaintiff did not exhaust his 19 administrative remedies when he failed to correctly appeal alleged staff misconduct by submitting 20 an appeal without the requisite Form 1858 attached. (Id. at 7.) 21 B. Plaintiff’s Response 22 At the outset, the court notes that plaintiff has failed to comply with Federal Rule of Civil 23 Procedure 56(c)(1)(A), which requires that “a party asserting that a fact . . . is genuinely disputed 24 must support the assertion by . . . citing to particular parts of materials in the record.” Plaintiff 25 has also failed to file a separate document disputing defendants’ statement of undisputed facts as 26 required by Local Rule 260(b). 27 However, it is well-established that the pleadings of pro se litigants are held to “less 28 stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 1 520 (1972) (per curiam). Nevertheless, “[p]ro se litigants must follow the same rules of 2 procedure that govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) 3 (citations omitted), overruled on other grounds, Lacey v. Maricopa County, 693 F.3d 896, 928 4 (9th Cir. 2012) (en banc). However, the unrepresented prisoners’ choice to proceed without 5 counsel “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily 6 imposes upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 7 Jacobsen v. Filler, 790 F.2d 1362, 1364-65 & n.4 (9th Cir. 1986) (alteration in original) (citations 8 and internal quotation marks omitted). Inmate litigants, therefore, should not be held to a 9 standard of “strict literalness” with respect to the requirements of the summary judgment rule. Id. 10 at 1364 n.4 (citation omitted). 11 The court is mindful of the Ninth Circuit’s more overarching caution in this context, as 12 noted above, that district courts are to “construe liberally motion papers and pleadings filed by 13 pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 14 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, the court will consider the record before it in 15 its entirety. However, only those assertions in the opposition which have evidentiary support in 16 the record will be considered. 17 Here, plaintiff filed a document titled “Motion: To Prove Corruption, And Abuse of 18 Power,” arguing that he mailed ten separate documents including the Form 1858, and that despite 19 defendants’ argument otherwise, defendants were in possession of the requisite form. (ECF No. 20 74 at 1.) Plaintiff also filed a document titled “opposition” stating that because defendants have 21 high paid lawyer, they can manipulate the facts. (ECF No. 79.) Plaintiff filed a supplementary 22 filing, arguing that several cases support the proposition that plaintiff took steps that were 23 reasonable to pursue administrative remedies, and thus his claim is not barred. (ECF No. 85 at 1.) 24 V. Facts 25 The court views the facts and draws inferences in the manner most favorable to plaintiff as 26 the non-moving party. Unless otherwise noted, the following facts are expressly undisputed by 27 the parties or the court has determined them to be undisputed based on thorough review of the 28 record. These facts are taken from the Defendants’ Statement of Undisputed Facts (DSUF), (ECF 1 No. 72-3), Plaintiff’s Opposition to Motion for Summary Judgment, (ECF No. 79), and 2 Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, (ECF 3 No. 83). 4 Plaintiff alleges defendants Haynie, Rodriguez, and Nappen endangered his safety by 5 allowing him to be attacked by other inmates. (ECF No. 1 at 3; DSUF ¶ 2.) Plaintiff alleges he 6 exhausted administrative remedies for the claims at issue by submitting appeal no. SAC-C-17- 7 02771. (ECF No. 1 at 1-2; DSUF ¶ 3.) CDCR uses a program called the Inmate Appeals 8 Tracking System (IATS) to electronically log and track non-medical appeals through all levels of 9 review. (DSUF ¶ 4.) CDCR and California State Prison, Sacramento (CSP-SAC), at all relevant 10 times, had an administrative process for inmates to submit appeals. (Id. ¶ 5.) The CSP-SAC 11 Appeals Office receives, reviews, and tracks all non-medical appeals for first and second-level 12 review, and CDCR’s Office of Appeals (OOA) receives, reviews, and tracks all third and final 13 levels of review. (Id. ¶ 6-7.) 14 Any inmate submitting an appeal must submit a CDCR Form 1858 Rights and 15 Responsibility Statement if the appeal is a complaint alleging staff misconduct. (Id. ¶ 8.) CDCR 16 Form 1858 Rights and Responsibility Statement notifies inmates of California Penal Code § 17 148.76, which makes is a misdemeanor to knowingly submit false accusations against a peace 18 officer. (Id. ¶ 13.) The form also notifies inmates that they may be subject to administrative 19 discipline for submitting a false accusation. (Id.) 20 On July 19, 2017, plaintiff submitted appeal log no. SAC-C-17-02771, which was 21 received by the CSP-SAC Appeals Office on July 19, 2017. (Id. ¶ 8.) The appeal was initially 22 screened and rejected, and then eventually granted in part in a second level review on August 21, 23 2017. (Id.) An Appeal Inquiry investigation was conducted. (Id.) Plaintiff submitted this appeal 24 to the CSP-SAC Appeals Office with a completed CDCR Form 1858 Rights and Responsibility 25 Statement. (Id.) 26 The appeal was designated a third level review, no. 1711611, however, it was not 27 accepted because it was missing a necessary supporting document, the CDCR Form 1858 Rights 28 //// 1 and Responsibility Statement.1 (Id. ¶ 9.) The appeal was rejected by OOA on November 16, 2 2017, because it was missing the CDCR Form 1858 Rights and Responsibility Statement, and 3 plaintiff received the rejected appeal with a letter that notified plaintiff that he could take 4 corrective action and resubmit the appeal within a certain timeframe as specified in the California 5 Code of Regulations. (Id.) Plaintiff resubmitted the appeal for third level review, but again it 6 was a missing CDCR Form 1858 Rights and Responsibility Statement. (Id. ¶ 10.) Plaintiff was 7 again notified by OOA, on January 8, 2018, that the appeal was rejected and that he could take 8 corrective action and resubmit the appeal. (Id.) 9 Between December 5, 2017 and March 20, 2018, OOA received multiple Form 22 10 requests submitted by plaintiff pertaining to his appeal no. 1711611. (Id. ¶ 15.) Form 22s are 11 forms used to request items or services and are not administrative appeals. (Id.) Other than these 12 forms, plaintiff submitted two additional appeals. On August 8, 2017, he submitted appeal log 13 no. SAC-17-03023, in which he referenced log no. SAC-17-02771 and requested the return of his 14 lost property. This appeal was screened out and rejected because it contained multiple issues 15 within one appeal. (Id. ¶ 16.) Plaintiff did not resubmit this appeal. Plaintiff also submitted no. 16 SAC-17-03056 on August 10, 2017. (Id. ¶ 17.) In this appeal, plaintiff requested that SAC-17- 17 02771 be processed by the appeals office. (Id.) Plaintiff attached his CDCR Form 1858 Rights 18 and Responsibility Statement, but it was screened out as plaintiff exceeded the number of appeals 19 allowed every fourteen days. (Id.) Plaintiff did not submit any other appeals relating to the 20 events at issue. (Id. ¶ 18.) 21 VI. Discussion 22 Plaintiff commenced this lawsuit on June 20, 2018. Therefore, the court must determine 23 whether plaintiff exhausted his administrative remedies regarding his claims prior to that date, 24 1 Plaintiff states that he mailed ten documents showing that the Form 1858 was submitted. ECF 25 No. 74 at 1. Plaintiff does not contest that he failed to submit the Form 1858 with his third level review, but rather argues that the document was “in their computers.” Id. Plaintiff further states 26 the CC II Lacy can testify to this. Id. However, Lacy worked in the CSP-SAC Appeals Office, 27 not the third level CDCR Office of Appeals, so any statement by Lacy is irrelevant to the central issue in this matter as it is undisputed that plaintiff submitted the form with his second level 28 appeal but not his third. 1 and if not, whether plaintiff may be excused from the pre-filing exhaustion requirement. See 2 Sapp v. Kimbrell, 623 F.3d 813, 823–24 (9th Cir. 2010). 3 The record plainly shows that administrative remedies were available to plaintiff, and that 4 he used them repeatedly. (See DSUF ¶¶ 9, 16, 17.) On November 16, 2017, OOA screened-out 5 and mailed to plaintiff a rejection of plaintiff’s appeal because he failed to include the necessary 6 supporting document, the Form 1858. (Id. ¶ 9.) The letter explained the reasoning, and informed 7 plaintiff that he could take corrective action and resubmit his appeal within a specified time. (Id.) 8 Plaintiff resubmitted his appeal but it was again rejected on January 8, 2018, because it did not 9 contain the Form 1858. (Id. ¶ 10.) He was again provided with a rejection that provided the 10 reasoning as well as the opportunity to take corrective action and resubmit the appeal. (Id.) The 11 undisputed facts plainly show that plaintiff failed to submit the requisite CDCR Form 1858 with 12 his third level review. 13 Plaintiff submitted Form 22 requests pertaining to his appeal after it was rejected. 14 Additionally, plaintiff appears to argue that because he submitted the form with his second level 15 review, the form remained in the appeals system, and therefore, should be deemed submitted for 16 the purpose of a third level review. See ECF No. 74 at 1. However, defendants have presented 17 unrefuted evidence that while OOA maintains records of third level appeals, they do not maintain 18 records of lower level reviews. ECF No. 83-1 ¶ 3. Plaintiff has failed to demonstrate a dispute as 19 to this material fact. Plaintiff has failed to provide any sort of reason for why, despite explicit and 20 repeated directions on how to properly file the appeal, he failed to supply OOA with the requisite 21 form to fully exhaust his administrative remedies. Accordingly, this court finds that plaintiff has 22 not created a genuine dispute of material fact as to whether he fully exhausted his administrative 23 remedies prior to filing this action. 24 Plaintiff filed a supplementary filing, arguing that Nunez v. Duncan, 591 F.3d 1217 (9th 25 Cir. 2010); Ross v. Blake, U.S. 136 S. Ct. 1850 (2016), McBride v. Lopez, 807 F.3d 982 (9th Cir. 26 2015); and Sapp v. Kimbell, 623 F. 3d 813 (9th Cir. 2010), show that plaintiff took steps that 27 were reasonable to pursue administrative remedies, and thus his claim is not barred. (ECF No. 85 28 at 1.) However, these cases are not applicable to the facts at hand. In Nunez, the plaintiff’s 1 failure to comply with administrative remedies was excused because the warden in that case made 2 an error which undermined the exhaustion requirement. Nunez, 591 F.3d at 1226. In McBride, 3 the Ninth Circuit reversed a district court’s holding of a failure to exhaust claim as untimely 4 because the threat of retaliation can effectively render the grievance process unavailable. 5 McBride, 807 F.3d at 987. In Sapp, the court articulated that exhaustion requirements are 6 excused when prison officials improperly screen out a grievance. Sapp, 623 F.3d at 828. 7 However, the plaintiff in Sapp was unsuccessful because plaintiff failed to file a form that was a 8 prerequisite to filing a grievance. Id. at 827. In Ross, the court determined that courts may not 9 excuse a plaintiff’s failure to exhaust because the PLRA is a statutory scheme, and thus, 10 “Congress sets the rules – and courts have a role in creating exceptions only if Congress wants 11 them to. For that reason, mandatory exhaustion statutes like the PLRA establish mandatory 12 exhaustion regimes foreclosing judicial discretion.” Ross, 136 S. Ct. at 1857. 13 Here, plaintiff was required to submit a form with his third-level appeal. He did not 14 include the required form, and defendants have provided evidence that the forms submitted with 15 his first and second level appeals were not stored on computers for OOA to review during the 16 third level review. Arguments by plaintiff stating otherwise are supported by any evidence and 17 are thus unavailing. Moreover, plaintiff has not explained why he did not correct the deficiencies 18 and submit the form after he was provided with two opportunities to cure this defect. The cases 19 that plaintiff cites are unhelpful to plaintiff’s case. Plaintiff has not raised a genuine issue as to 20 any material fact. Accordingly, the court finds that summary judgment for defendants is 21 appropriate. 22 VII. Motion for Hearing and Motion to Subpoena Witness 23 Plaintiff filed a motion requesting a hearing. (ECF No. 81.) Plaintiff states he wants a 24 “hearing of existence of 14th and 8th Amendment rights.”2 (Id. at 1.) Plaintiff has also requested 25 2 Plaintiff was informed that if he wanted to oppose defendants’ motion for summary judgment, he needed to comply with Fed. R. Civ. P. 56, which included opposing the motion for summary 26 judgment in writing. ECF No. 72-1 at 2. He was also informed that he was required to respond 27 to defendants’ DSUF by admitting or denying any disputed facts. Id. Rule 56 specifically provides that a party asserting that a fact is genuinely disputed must support the assertion by 28 “citing to particular parts of materials in the record, including depositions, documents, 1 to subpoena two witnesses: Chief of Appeals, N. Sallustio; and Appeals Coordinator, C. Lacy. 2 (ECF No. 82.) 3 There is no right to a hearing on a motion for summary judgment. See Fed. R. Civ. P. 4 78(b) (“By rule or order, the court may provide for submitting and determining motions on briefs, 5 without oral hearings.”); Willis v. Pac. Maritime Ass’n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001) 6 (explaining that the “judge has the discretion, when considering a motion for summary judgment, 7 to determine whether or not to hold an oral hearing”). On this basis, the court denies plaintiff’s 8 request for a hearing. Moreover, in the event plaintiff is requesting an evidentiary hearing to call 9 the two proposed witnesses to testify, “ordinarily there is no such thing as an evidentiary hearing 10 ... on a summary judgment motion.” Thompson v. Mahre, 110 F.3d 716, 719 (9th Cir. 1997). 11 Moreover, in the event that plaintiff’s motion for subpoenas is a motion pursuant to 12 Federal Rule of Civil Procedure 56(d) to defer defendants’ summary judgment in order to obtain 13 additional discovery, Rules 56 provides that “[i]f a nonmovant shows by affidavit or declaration 14 that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: 15 (1) defer considering the motion or deny it; or (2) allow time to obtain affidavits or declarations 16 or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). Aside from 17 not providing affidavits or declarations, plaintiff has not pointed to how the subpoenas would help 18 his case. The court notes that C. Lacy submitted a declaration which clearly demonstrates that C. 19 Lacy worked on plaintiff’s second level review, and not the third level review at issue. (See ECF 20 No. 83-2 ¶¶ 1-2.) For these reasons, plaintiff’s motions are denied. 21 VIII. Plain Language Summary for Pro Se Litigant 22 The undersigned is recommending that defendants’ motion for summary judgment be 23 granted, and that any remaining claims be dismissed. The reason for this is because you did not 24 provide any evidence that the Office of Appeals had the required Form 1858 Rights and 25 Responsibility Statement when you submitted your third-level appeal. Defendants submitted 26 electronically stored information, affidavits or declarations, stipulations (including those made for 27 purposes of the motion only), admissions, interrogatory answers, or other materials,” Fed. R. Civ. P. 56(c)(1)(A). Plaintiff had ample opportunity to provide support and evidence but elected not 28 to. He cannot circumvent the rules with a hearing to argue his case. wOASe 6 LOU VM EY EUAN NS INEZ MUO OF POO eOTeEN PF Aye 40 VI Av 1 | evidence that OOA did not have this form. Because they did not have this form, you did not 2 | properly exhaust your administrative remedies prior to bringing this action. Additionally, your 3 | requests for a hearing and to subpoena witnesses are denied. There is no right to these types of 4 | hearings when arguing a motion for summary judgment. Additionally, you did not comply with 5 || the Federal Rules in opposing the defendants’ motion. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff's motion for a hearing (ECF No. 81) is denied. 8 2. Plaintiff's motion to subpoena witnesses (ECF No. 82) is denied. 9 IT IS FURTHER RECOMMENDED that: 10 1. Defendants’ motion for summary judgment (ECF No. 72) be granted and claims 11 || against defendants be dismissed. 12 2. Judgment be entered for defendants. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 15 | after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be 17 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to 18 | the objections shall be served and filed within seven days after service of the objections. 19 | Due to exigencies in the court’s calendar, there will be no extensions of time granted. The 20 | parties are advised that failure to file objections within the specified time may waive the right to 21 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: August 28, 2020 dp. A. fe 28 CAROLYN K DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 || 18:youn1901.msj.f&r.cjra 27 28 13