(PC) Delphin v. Morley ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY DELPHIN, Case No. 1:19-cv-01076-SKO (PC) 12 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 13 v. (Doc. 96) 14 J. MORLEY, et al., 15 Defendants. 16 17 Plaintiff Jeremy Delphin is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth 19 Amendment claims of excessive force and/or failure to intercede against Defendants Morley, 20 Villalobos, Banuelos, and Brown, and claims of deliberate indifference to serious medical needs 21 against Defendants Brown and Stewart. 22 I. RELEVANT BACKGROUND1 23 On March 13, 2023, Defendants filed a motion for summary judgment, alleging Plaintiff 24 has failed to exhaust his administrative remedies. (Doc. 96.) Plaintiff filed an opposition on May 25 18, 2023 (Doc. 108), and Defendants filed a reply on May 30, 2023 (Doc. 109). 26 27 1 On March 21, 2023, this action was reassigned to the undersigned for all purposes with the issuance of District Judge Jennifer L. Thurston’s Order Reassigning Case. (See Doc. 102.) 28 1 On June 12, 2023, Plaintiff submitted a document titled “Opposition to Summary 2 judgment and request for Evidentiary Hearing.” (Doc. 114.) On June 22, 2023, Plaintiff submitted 3 a document titled “Reply to Defendants Support of Motion for Summary Judgment and request 4 for more Evidentiary Hearing.” (Doc. 115.) 5 On June 23, 2023, the Court issued its Order Striking Plaintiff’s Rebuttals to Defendants’ 6 Motion for Summary Judgment as Improper Surreplies and Order Denying Plaintiff’s Motions for 7 an Evidentiary Hearing Without Prejudice. (Doc. 116.) 8 On October 12, 2023, Plaintiff filed a document titled “Request for Ex Parte Application 9 and Change of Address Notify.” (Doc. 118.) On October 16, 2023, the Court issued its Order 10 Denying Plaintiff’s Ex Parte Application for An Extension of Time as Moot. (Doc. 119.) 11 II. SUMMARY OF FACTS 12 A. The Allegations in Plaintiff’s Complaint 13 Plaintiff contends that on August 1, 2017, Defendants Morley and Villalobos approached 14 his cell and ordered him to step out. (Doc. 1 at 8.) Defendant Hammonds2, who was up in the 15 “[t]ower,” opened his cell door. (Id.) As Plaintiff was exiting, Morley and Villalobos “began 16 [b]rutally [s]triking” him with their batons until he fell unconscious. (Id.) After Plaintiff regained 17 consciousness, Hammonds sounded an alarm. (Id. at 13.) Defendants Banuelos and Brown 18 responded, and they and Morley and Villalobos again beat Plaintiff with their batons, fists, and 19 boots. (Id. at 9.) Plaintiff contends the baton strikes to his left arm caused the bone to pop out, 20 “showing it was clearly broken.” (Id.) The officers escorted Plaintiff to the clinic, and while being 21 escorted to a holding cage, Morley and Villalobos started beating Plaintiff again until he again 22 lost consciousness. (Id. at 10.) 23 Plaintiff alleges that at the clinic, Defendant Stewart advised the officers that Plaintiff 24 needed to go to the hospital. (Doc. 1 at 9.) Plaintiff contends that Stewart did not comply with the 25 decision to send Plaintiff to an outside hospital and allowed Defendant Brown to interfere. (Id. at 26 15.) Brown told Stewart he would not let Plaintiff be treated at an outside hospital. (Id.) Brown 27 2 Plaintiff’s claims against Defendants Hammonds and Whitson were dismissed on March 21, 2021. (Doc. 28 37; see also Doc. 45.) 1 held Plaintiff’s arm and “pushed the bone back under the skin, so it would not be exposed,” 2 causing Plaintiff more pain. (Id.) Stewart and Brown failed to provide any relief for Plaintiff’s 3 pain during his stay in the clinic. (Id. at 15-16.) After Plaintiff was transported to the mental 4 health facility in Stockton the following day, he was seen by medical personnel and was given a 5 splint for his injured arm. (Id. at 10-11.) Three or four days later, Plaintiff was taken to a hospital 6 where a doctor had to re-break and re-set his arm to allow it to heal properly. (Id. at 11.) Six 7 months later, a specialist advised Plaintiff the bone was deformed and the arm was not healing 8 properly, and another cast was applied. (Id.) Plaintiff underwent surgery on November 24, 2018; 9 his arm was re-broken, and plates and screws were used to correct the condition of his arm. (Id.) 10 B. Defendants’ Statement of Undisputed Facts 11 Defendants submit the following separate statement of undisputed material facts: 12 1. Plaintiff is a prison inmate currently housed at California State Prison, Sacramento. 13 2. At all relevant times alleged in the Complaint, Plaintiff was in the custody of the 14 California Department of Corrections and Rehabilitation (“CDCR”) and incarcerated 15 at California Correctional Institution (“CCI”). 16 3. Plaintiff alleges that on August 1, 2017, Defendants Morley, Villalobos, Banuelos, and 17 Brown used excessive force or failed to stop the excessive force of other Defendants 18 [fn. omitted]. 19 4. The Complaint alleges that Defendants Morley and Villalobos beat Plaintiff in his cell 20 and dragged Plaintiff, while Plaintiff was unconscious, to the dayroom. Then, 21 Defendants Morley, Villalobos, Banuelos, and Brown beat Plaintiff with their batons, 22 fists, and boots. When Defendant Stewart, a nurse, stated that Plaintiff needed to be 23 transferred to an outside hospital, Defendant Brown beat Plaintiff. 24 5. Plaintiff alleges that later the same day, on August 1, 2017, Defendants Stewart and 25 Brown were deliberately indifferent to his serious medical needs. 26 6. Plaintiff alleges that Defendant Stewart allowed Defendant Brown to intervene in her 27 medical treatment of Plaintiff by listening to Defendant Brown when he told her not to 28 send Plaintiff to an outside hospital for further treatment. Further, Defendant Brown 1 was deliberately indifferent to Plaintiff’s serious medical needs when he pushed 2 Plaintiff's bone under Plaintiff’s skin. 3 7. At all times relevant to Plaintiff’s allegations, CDCR had a comprehensive 4 administrative appeal process whereby a prisoner under CDCR’s jurisdiction could 5 appeal any policy, decision, action, condition, or omission by CDCR or CDCR staff 6 that had a material adverse effect upon the inmate’s health, safety, or welfare. 7 8. As Plaintiff admits in the Complaint, the administrative grievance process was 8 available to Plaintiff while he was housed at CCI. Plaintiff utilized this appeal process 9 to file eight appeals while he was incarcerated at CCI. 10 9. During the relevant time, to exhaust claims related to an appeal for non-health care 11 related issues, an inmate’s appeal was required to go through three formal levels of 12 administrative review. 13 10. A decision at the third level constituted the final decision for non-health care related 14 appeals and exhausted the inmate’s administrative remedies. 15 11. For health care related issues, an inmate was required to go through two levels of 16 review: an institutional level of review and a headquarters level of review. 17 12. Health care grievances were subject to a headquarters’ disposition before 18 administrative remedies were deemed exhausted. 19 13. Between 2017 and 2018, while Plaintiff was incarcerated at CCI, Plaintiff submitted 20 eight appeals. 21 14. Two appeals, log nos. CCI-0-17-03280 (“Original Appeal”) and CCI-0-18-01797 22 (“Cancellation Appeal”), include allegations relevant to some of the allegations pled in 23 the Complaint. During his deposition, Plaintiff testified that he did not submit any 24 other appeals regarding Defendants. 25 15. On November 28, 2017, Plaintiff submitted the Original Appeal, alleging that on 26 August 1, 2017, Defendants Morley and Banuelos and dismissed defendant Whitson, 27 [fn. omitted] broke Plaintiff’s arm and lied about breaking Plaintiff’s arm in a Rules 28 Violation Report. The [] Original Appeal did not mention any unidentified officers or 1 that any other correctional or medical staff were involved in the alleged misconduct. 2 16. During his deposition, Plaintiff also testified that, where he wrote “Villalobos” in the 3 Original Appeal, he meant to write “Banuelos.” 4 17. On December 15, 2017, Plaintiff was provided a CDC Form 695 notifying him that 5 the Original Appeal had been cancelled for exceeding the time limits for submitting an 6 appeal (“December Cancellation”). 7 18. The December Cancellation noted that, pursuant to Title 15, § 3084.6(c)(4), Plaintiff 8 had thirty days from the date he was aware of the appealable issue to submit a CDCR 9 Form 602 appeal. 10 19. The December Cancellation noted Plaintiff was aware of the issue since August 1, 11 2017, yet Plaintiff waited more than thirty days to file his appeal, thereby violating 12 Title 15’s time constraints. 13 20. The December Cancellation was consistent with CDCR’s administrative policies 14 which state that an appeal may be cancelled where “[t]ime limits for submitting the 15 appeal are exceeded even though the inmate or parolee had the opportunity to submit 16 the appeal within the prescribed time constraints.” Further, pursuant to Title 15, 17 inmates had thirty calendar days to submit appeals, and if an appeal was submitted 18 after the thirty-day time period, the appeal could be cancelled. 19 21. On February 20, 2018, the CCI Appeals Office received Plaintiff’s response to the 20 December Cancellation. In his response, Plaintiff stated that he was unable to meet the 21 thirty-day time constraints because he was heavily medicated, transferred to acute 22 care, the Psychiatric Inpatient Program, and intermediate care, "and was to the first of 23 my knowledge to 602, Art 8, Sec. 3084.” 24 22. On February 20, 2018, Plaintiff received a second CDC Form 695 regarding the 25 December Cancellation of the Original Appeal, stating that the Original Appeal was 26 being returned to Plaintiff (“February Screening”). 27 23. The February Screening noted that the Original Appeal was cancelled on December 28 15, 201[7], yet Plaintiff’s response was not received until February 20, 2018, 1 exceeding the thirty-day time constraints to respond. Further, the February Screening 2 noted that Plaintiff failed to attach any proof of his alleged inability to submit an 3 appeal within the time constraints and advised Plaintiff to review Title 15, § 3084. 4 Importantly, Title 15 states that an appeal may be cancelled for failure to correct and 5 return a rejected appeal within thirty calendar days of the rejection. 6 24. Plaintiff responded to the February Screening saying that he was submitting 602s as to 7 other issues and had to wait two weeks while he submitted the other 602s. 8 25. Plaintiff never appealed the Original Appeal to the Office of Appeals and therefore did 9 not receive a Third Level Decision for the Original Appeal. 10 26. On July 16, 2018, pursuant to Title 15 § 3084.6(e), Plaintiff [submitted] an appeal 11 grieving the cancellation of the Original Appeal (the Cancellation Appeal). In the 12 Appeal, Plaintiff claimed that his Original Appeal was late because he was in a crisis 13 bed and lacked access to a pen to write a 602 in a timely manner. The appeal also 14 requested that Defendants Brown, Banuelos, Morley, and Villalobos take a polygraph 15 and drug test, and to get help for their “violent behavior.” 16 27. Included in the Cancellation Appeal was a copy of a letter from a Clinical Social 17 Worker, dated May 15, 2018, stating that Plaintiff was admitted to the Psychiatric 18 Inpatient Program’s Acute unit from August 2, 2017, to October 7, 2017, during which 19 time Plaintiff was placed on maximum custody and, in terms of writing materials, 20 Plaintiff was only provided crayons. The letter from the Clinical Social Worker also 21 stated that, on October 7, 2017, Plaintiff was transferred to an intermediate care 22 facility and his max custody status was removed on November 22, 2017. 23 28. Plaintiff also submitted three CDCR Form 22s “Inmate/Parolee Request for Interview, 24 Item or Service” (“Form 22”) with the Cancellation Appeal. 25 29. One Form 22, received on June 5, 2018, inquired "about the process of [his] 602 26 excessive force at Tehachapi.” Staff responded on June 12, 2018, asking for more 27 information regarding the incident. 28 30. A second Form 22, received on July 12, 2018, requested a copy of the Original 1 Appeal. Staff responded on July 26, 2018, stating Plaintiff needed to submit a trust 2 withdrawal to his counselor at his prison. 3 31. Staff received a third Form 22 on August 7, 2018, requesting a copy of the Original 4 Appeal. Staff responded on August 13, 2018, stating he didn’t see Plaintiff’s appeal in 5 his file. 6 32. On July 24, 2018, Plaintiff was provided a CDC Form 695 advising him that the 7 Cancellation Appeal was rejected and being returned to Plaintiff because it was 8 missing necessary supporting documents, pursuant to Title 15, § 3084.3 (“July 9 Rejection”). 10 33. The July Rejection advised Plaintiff that he could obtain copies of requested 11 documents by sending a request with a signed trust withdrawal form to his assigned 12 counselor. 13 34. Further, the July Rejection specifically identified that the Cancellation Appeal was 14 missing the Original Appeal, as well as proof for his delay in filing the Cancellation 15 Appeal. 16 35. On September 16, 2018, Plaintiff responded, on the 602 form for the Cancellation 17 Appeal, stating that he had "a lot of 602s submitted for different issues which caused a 18 long time to submit a 602 in this case." 19 36. Plaintiff also wrote that he needed to wait fourteen calendar days between his appeals 20 and that he was constantly being transferred, causing him to have to wait for property. 21 37. Then, on September 24, 2018, Plaintiff responded to the July Rejection saying he 22 "didn't find out till 22 form on 6-20-18 because CCI-17-03280 was never given back 23 to me, I bar[e]ly got the copies of the 602 on 9-5-18 because Counselor Garza.” 24 38. On October 8, 2019, Plaintiff was provided a second CDC Form 695 (“October 25 Screening”) stating that Cancellation Appeal was being returned to Plaintiff. 26 39. The October Screening noted that, though Plaintiff was provided instructions 27 regarding the appeal on July 24, 2018, Plaintiff did not resubmit his appeal until sixty- 28 two days later. The October Screening also stated that Plaintiff did not follow 1 instructions from the July Screening. 2 40. The October Screening advised Plaintiff that if he had a valid explanation for his 3 delay, he could indicate as such. The bottom of each CDCR Form 695 states that 4 where an inmate is required to respond or explain to the CDCR Form 695, the inmate 5 must use the four lines provided to write such a response or explanation. 6 41. Plaintiff responded to the October Screening, stating that he was transferred 7 institutions and had to wait for his property, and then he was sent to the wrong 8 housing, causing him to wait for property again. Further, Plaintiff responded that he 9 had four other appeals, and had to wait fourteen calendar days. 10 42. On November 14, 2018, Plaintiff was provided a third CDC Form 695 (“November 11 Cancellation”). 12 43. The November Cancellation stated that the Cancellation Appeal was being cancelled 13 and returned to Plaintiff, pursuant to [] for failure to correct and return a rejected 14 appeal within thirty calendar days of the rejection. 15 44. The November Cancellation noted that Plaintiff failed to provide a justification for his 16 delay in resubmitting the Cancellation Appeal within thirty calendar days of the 17 rejection (July 24, 2018). Here, Plaintiff’s response to the July Rejection was not 18 received until September 24, 2018, such that his response was untimely and the first 19 level cancelled the Cancellation Appeal, after giving Plaintiff two opportunities to 20 remedy the identified deficiencies. The November Cancellation noted that Plaintiff 21 was transferred and sent to the wrong housing did not justify his delay because 22 Plaintiff was still housed in CDCR custody. 23 45. Plaintiff responded to the November Screening. As best as can be deciphered, Plaintiff 24 responded that the delay was due to him barely receiving his property, including 25 supporting documents, until September 21, 2018, and because he had to wait for 26 committee and he had to wait fourteen days to submit the appeal due to Title 15, § 27 3084.3(c)4 and § 3084.4(a)(1). [Fn. omitted.] However, Title 15, §3084.4(a)(1) only 28 applies to initial appeals, such that Plaintiff did not need to wait fourteen days before 1 responding to the November Cancellation of the Cancellation Appeal. 2 46. On December 14, 2018, the Office of Appeals received the Cancellation Appeal. 3 47. On February 11, 2019, the Office of Appeals sent Plaintiff a letter, screening out the 4 appeal and advising Plaintiff that the Office of Appeals examines and responds to 5 appeals after the second level responds. 6 48. The Office of Appeals noted that Plaintiff improperly attempted to submit a previously 7 cancelled appeal and advised him that, pursuant to Title 15, § 3084.4, Plaintiff’s 8 actions constituted a misuse or abuse of the appeals process. 9 49. Finally, the Office of Appeals advised that a separate appeal could be filed on the 10 cancellation decision, within thirty days of the screen out form cancelling the appeal, 11 and that the original appeal could be resubmitted only if the appeal on the cancellation 12 was granted. 13 50. In his deposition, Plaintiff testified that he received a Third Level Decision for the 14 Cancellation Appeal. However, by “Third Level Decision,” Plaintiff was referring to 15 the screen out letter from the Office of Appeals, which did not constitute a Third Level 16 Decision. 17 51. Plaintiff did not receive a Third Level Decision for the Cancellation Appeal. 18 52. Plaintiff did not submit any other appeals attempting to appeal the cancellation of the 19 Original Appeal. 20 53. Plaintiff did not submit any appeals as to Defendants Villalobos, Brown, or Stewart 21 regarding his allegations against them and therefore did not receive any Third Level 22 Decisions as to them. 23 54. During his deposition, Plaintiff testified that he intended to amend the Original Appeal 24 to add Defendants Villalobos and Brown once he got more information regarding their 25 names, but never amended the Original Appeal to include their names. 26 55. At different points during his deposition, Plaintiff testified that he either did not 27 submit a grievance as to Defendant Stewart, thinking his excessive force appeal would 28 apply to Defendant Stewart, or that he may have submitted such an appeal, but was not 1 sure. 2 56. Defendant Stewart served a written discovery request, via personal service, for 3 Plaintiff to produce any and all documents supporting his contention that he exhausted 4 his available administrative remedies, related to his allegations in the Complaint. 5 57. Plaintiff’s responses were due on March 9, 2023. 6 58. As of the date of the instant motion [3/13/23], Plaintiff has not served his response. 7 (Doc. 96-1, hereafter “UDF.”) 8 III. LEGAL STANDARDS 9 A. Summary Judgment 10 Summary judgment is appropriate when the moving party “shows that there is no genuine 11 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 12 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 13 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 14 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by 15 “citing to particular parts of materials in the record, including depositions, documents, 16 electronically stored information, affidavits or declarations, stipulations …, admissions, 17 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 18 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 19 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 20 the burden of proof at trial, “the moving party need only prove that there is an absence of 21 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 22 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 23 Summary judgment should be entered against a party who fails to make a showing 24 sufficient to establish the existence of an element essential to that party’s case, and on which that 25 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 26 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 27 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 28 “so long as whatever is before the district court demonstrates that the standard for the entry of 1 summary judgment … is satisfied.” Id. at 323. 2 B. Exhaustion of Administrative Remedies 3 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with 4 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 5 confined in any jail, prison, or other correctional facility until such administrative remedies as are 6 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is 7 mandatory and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 8 211 (2007). Inmates are required to “complete the administrative review process in accordance 9 with the applicable procedural rules, including deadlines, as a precondition to bringing suit in 10 federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). The exhaustion requirement applies 11 to all inmate suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), regardless of 12 the relief sought by the prisoner or offered by the administrative process, Booth v. Churner, 532 13 U.S. 731, 741 (2001). 14 The failure to exhaust administrative remedies is an affirmative defense, which the 15 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of 16 producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if 17 the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff 18 failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 19 On a motion for summary judgment, the defendant must prove (1) the existence of an 20 available administrative remedy and (2) that the plaintiff failed to exhaust that remedy. Albino, 21 747 F.3d at 1172 (citation omitted). If the defendant meets this burden, the plaintiff then “has the 22 burden of production. That is, the burden shifts to the prisoner to come forward with evidence 23 showing that there is something in his particular case that made the existing and generally 24 available administrative remedies effectively unavailable to him.” Id. (citation omitted). 25 “However, … the ultimate burden of proof remains with the defendant.” Id. 26 An inmate “need not exhaust unavailable [remedies].” Ross v. Blake, 578 U.S. 632, 642 27 (2016). An administrative remedy is unavailable “when (despite what regulations or guidance 28 materials may promise) it operates as a simple dead end with officers unable or consistently 1 unwilling to provide any relief to aggrieved inmates”; or when “an administrative scheme [is] so 2 opaque that it becomes, practically speaking, incapable of use, [i.e.,] some mechanism exists to 3 provide relief, but no ordinary prisoner can discern or navigate [the mechanism]”; or “when 4 prison administrators thwart inmates from taking advantage of a grievance process through 5 machination, misrepresentation, or intimidation.” Id. at 643-44. 6 When the district court concludes that the prisoner has not exhausted administrative 7 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 8 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 9 Albino, 747 F.3d at 1168-69. “If a motion for summary judgment is denied, disputed factual 10 questions relevant to exhaustion should be decided by the judge.” Albino, 747 F.3d at 1170. If the 11 court finds that remedies were not available, the prisoner exhausted available remedies, or the 12 failure to exhaust available remedies should be excused, the case proceeds to the merits. Id. at 13 1171. 14 C. CDCR Grievance Process 15 The CDCR has an administrative grievance system for prisoners to appeal a policy, 16 decision, action, condition, or omission by the department or staff if it has an adverse effect on 17 prisoner health, safety, or welfare. Cal. Code Regs. tit. 15, § 3084.1(a). Compliance with 42 18 U.S.C. § 1997e(a) requires California state prisoners to utilize CDCR’s grievance process to 19 exhaust their claims prior to bringing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th 20 Cir. 2010); see also Woodford, 548 U.S. at 85-86. In 2017 and 2018, administrative grievances 21 were subject to three levels of review before the remedy was deemed exhausted. Cal. Code Regs. 22 tit. 15, § 3084.1(b); see also Sapp, 623 F.3d at 818. 23 IV. EVIDENTIARY MATTERS 24 Plaintiff has failed to properly respond to Defendants’ Statement of Undisputed Facts in 25 support of the motion for summary judgment. Plaintiff was served with a Rand warning that 26 included the following language: “In opposing Defendants’ motion for summary judgment, Local 27 Rule 260(b) requires Plaintiff to reproduce Defendants’ itemized facts in the Statement of 28 Undisputed Facts and admit those facts which are undisputed and deny those which are disputed. 1 If Plaintiff disputes (denies) a fact, Plaintiff must cite to the evidence used to support that denial 2 (e.g., pleading, declaration, deposition, interrogatory answer, admission, or other document). 3 Local Rule 260(b).” (See Doc. 103 at 3, ¶ 6 [Second Informational Order-Notice And Warning Of 4 Requirements For Opposing Defendants’ Summary Judgment Motion].) 5 Plaintiff neither reproduced Defendants’ itemized facts, nor admitted or denied those 6 facts. (See Doc. 108.) Because Plaintiff has not complied with Rule 260(b), the Court deems 7 Plaintiff to have admitted those facts. See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by 8 failing specifically to challenge the facts identified in the defendant's statement of undisputed 9 facts, [plaintiff] is deemed to have admitted the validity of the facts contained in the [defendant's] 10 statement.”); Brito v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. 11 July 15, 2020) (deeming defendant's undisputed facts as admitted after plaintiff failed to comply 12 with Local Rule 260(b)); see also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). Where 13 Plaintiff’s verified complaint or evidence submitted in support of his opposition to Defendants’ 14 motion for summary judgment bring Defendants’ proffered facts into dispute, the Court considers 15 the complaint and any evidence. Jones, at 923 (the court considers as evidence those parts of the 16 verified complaint based on plaintiff’s personal knowledge). 17 V. SUMMARY OF THE PARTIES’ POSITIONS 18 Defendants’ Motion 19 Defendants contend Plaintiff did not submit any grievance or appeal regarding his 20 allegations against Defendants Brown, Stewart, or Villalobos. (Doc. 96 at 17.) Defendants 21 contend the undisputed evidence shows that Plaintiff failed to provide adequate notice regarding 22 his allegations of excessive force or failure to intervene as to Defendants Brown and Villalobos 23 because Plaintiff did not submit any grievances or appeals identifying them or their conduct. 24 Defendants further allege Plaintiff failed to submit any grievances or appeals as to Defendants 25 Brown and Stewart regarding his allegations of deliberate indifference to serious medical needs. 26 (Id. at 18-20.) 27 Defendants also allege that Plaintiff failed to exhaust his administrative remedies with 28 regard to Defendants Banuelos and Morley because he did not receive a third level decision 1 regarding his grievances or appeals involving those Defendants. (Doc. 96 at 20.) Defendants next 2 allege Plaintiff’s related appeals were properly screened out, and do not demonstrate 3 unavailability that would excuse Plaintiff’s failure to exhaust. (Doc. 96 at 20-24.) 4 Finally, Defendants request that an Albino3 hearing be set should this Court find a dispute 5 of material fact exists concerning the issue of exhaustion. 6 Plaintiff’s Opposition4 7 Plaintiff contends he was “not provided a grievance” in order to exhaust his administrative 8 remedies. (Doc. 108 at 1.) He states he was housed in a crisis bed without access to “paper, pen or 9 grievance” and that when he obtained a pen, correctional officers at the California Health Care 10 Facility (“CHCF”) refused to provide him with a grievance. (Id.) Plaintiff also contends he was 11 heavily medicated, and those “extraordinary circumstances” prevented him from complying with 12 the relevant deadline. (Id.) 13 Plaintiff alleges CHCF officers told him administrative remedies were not available in the 14 crisis bed unit and when Plaintiff asked for assistance from CHCF physicians, they refused to 15 provide a grievance. (Id. at 1-2.) Plaintiff contends the actions by CHCF officers were taken to 16 “shield” officers “from personal liability violating the Supremacy Clause.” (Id. at 2.) Plaintiff 17 states he has “sent ten request[s] about grievance process, 30 day extension, and lost grievance 18 and lost request of 30 day extensions.” (Id.) Plaintiff states that while he “was at crisis bed the 19 C.O.s made the grievance process unavailable.” (Id. at 2-3.) Plaintiff alleges he “had to wait till 20 C.O.s wanted to give a grievance, so C.O.s interrupted the grievance process and the grievance 21 was reserved until after [expiration] of time constraints.” (Id. at 3.) 22 Plaintiff next contends he was “thwarted by improper screening because of the grievances 23 3 Albino v. Baca, 474 F.3d 1162, 1170-71 (9th Cir. 2014). 24 4 Plaintiff twice states that the Court can view certain “camera footage” or listen to “audio” from the 25 facility that will prove the unavailability of the administrative remedy. (See Doc. 108 at 2, 3.) It is not the Court’s duty to obtain evidence for any party. If Plaintiff believes video or audio recordings would support 26 his claims or argument here, his obligation was to obtain that evidence and submit it to the Court for consideration. The Court notes it issued its Discovery and Scheduling Order (“D&SO”) on July 14, 2022. 27 (Doc. 81.) The D&SO was modified three times (see Docs. 85, 87, 91) and the deadline for the completion of all discovery was May 15, 2023 (see Doc. 91 at 3). 28 1 kept getting [lost] or thrown away when [he] sent for a response.” (Doc. 108 at 3.) He alleges the 2 “C.O.s lied about the address” being wrong and advised him the “mailroom throw away 3 grievance.” (Id.) Plaintiff states “C.C.I appeals never responded” to his numerous requests for 4 copies of missing grievances and to his extension requests. (Id. at 3-4.) Plaintiff contends mail 5 was delayed, that “because of plaintiff change of address that time constraints were violated,” and 6 that because “all forms of requesting for 30 day [extension] are not on the file [that shows] that 7 C.O.s never turned it in.” (Id. at 4.) Plaintiff states he “felt he was at a dead end.” (Id.) He 8 contends he went “the grievance and a note to Chief of Appels with a letter asking Chief of 9 Appeals to send the grievance to CCI appeal’s proper address.” (Id.) Plaintiff also states he 10 “turned in a medical grievance but [it] was never given back to” him. (Id.) Despite making “about 11 ten requests about [the] medical grievance,” he received no response to the requests and the 12 medical grievance “turned up missing from Plaintiff’s property and from administrative file, so it 13 was probably thrown away.” (Id. at 5.) Plaintiff asserts the grievance process was made hard to 14 understand because C.C.I.’s responses “were short and [they] never got back at Plaintiff’s request 15 and only filing a blank response.” (Id.) Plaintiff states that “[i]t is known that correctional officers 16 can defeat an inmate’s civil action by throwing away grievance.” (Id.) 17 Plaintiff requests an evidentiary hearing “so courts can review camera footage” from 18 CHCF between August 2, 2017, and August 9, 2017. (Doc. 108 at 5.) Plaintiff states “please be 19 aware that C.O.s tampering of camera footage by stopping and starting video as if to say the C.O. 20 is stratched” and that he is “missing more for [his] discovery due to C.O.s taking out and 21 throwing it away.” (Id. at 6.) 22 Plaintiff submitted Exhibits A through Z and “A-2” through “H-2” in support of his 23 opposition. (Doc. 108 at 8-50.) The exhibits consist of copies of documents associated with his 24 grievances or appeals accompanied by Plaintiff’s handwritten notes or entries. 25 Defendants’ Reply 26 Defendants contend administrative remedies were available to Plaintiff, his supporting 27 exhibits are “of unauthenticated, improperly altered records containing handwritten notes of 28 argument in an attempt to establish that administrative remedies were unavailable to him” but the 1 undisputed evidence shows otherwise, his inadmissible evidence does not create a dispute of 2 material fact and does not demonstrate unavailability, and that his grievances or appeals were 3 properly screened out. (See Doc. 109.) 4 VI. DISCUSSION 5 The Court begins with a description and procedural background for the two grievances or 6 appeals relevant to the claims asserted in this action. 7 Log No. CCI-0-17-03280 8 Log No. CCI-0-17-03280 is dated November 28, 2017. (Doc. 96-4 at 97-100.) Explaining 9 his issue, Plaintiff wrote: 10 2nd shift J. Morley, Whitson and Villabos broke my arm and lied about it on report. I told them my arm was broken and they used 11 mechanical restraints as punishment that made my bone pop out of my skin. They did not want to do a polygraph examination. There 12 was no legitimate reason or purpose. Immediate use of force. This happen on 8.1.17. 13 14 (Id. at 99.) 15 In a first level screening letter dated December 15, 2017, returning Plaintiff’s documents, 16 Plaintiff was advised his appeal had been cancelled as untimely pursuant to section 3084.6(c)(4). 17 (Doc. 94-4 at 96.) The screening letter stated, “due to exceeding time constraints in appealing this 18 issue; you will not be afforded a written response. You are filing an appeal on an issue you have 19 been aware of since 8/1/17. On 8/2/17 you were transferred to CHCF and remain there. You had 20 30 days from the date of incident to file an appeal. You have violated time constraints.” (Id.) 21 Plaintiff replied using the space provided at the bottom of the screening letter, explaining: 22 I was not able to meet the 30 day time constraints because I was heavily medicated, [transferred] to [acute] and PIP also 23 [intermediate] and was to the first of my knowledge to 602. Art 8, sec 3084 24 25 (Doc. 96-4 at 96.) Plaintiff’s reply was received by the institution on February 20, 2018. (Id.) 26 In a first level screening letter dated February 20, 2018, Plaintiff’s documents were 27 returned to Plaintiff with the following statement: “Your appeal was cancelled on 12/15/18 and 28 was not received to the CCI appeals office until 2/20/18. Well over the 30 days you had to file an 1 appeal on the [cancellation]. You are claiming that you were incapable of doing an appeal but 2 have not attached any proof of this. Before filing an appeal you should review CCR Title 15, 3 Section 3084.” (Doc. 96-4 at 95.) 4 Log No. CCI-0-18-01797 5 Log No. CCI-0-18-01797 is dated July 16, 2018. (Doc. 96-4 at 110-113.) Explaining his 6 issue, Plaintiff wrote: 7 I am appealing cancellation due to time [constraints] because I was in crisis bed and had no access to a pen to write a 602 in a [timely] 8 manner 9 (Id. at 112.) 10 In a first screening letter dated July 24, 2018, Plaintiff’s documents were returned to him 11 for the following reasons: (1) the appeal was rejected pursuant to section 3084.6(b)(7) and (2) the 12 appeal was missing necessary supporting documentation pursuant to section 3084.3. (Doc. 96-4 at 13 114.) The letter also states: “When filing an appeal on a [cancellation] you need to attach the 14 original appeal. You are claiming that you were in MHCB and could not file an appeal. However, 15 the documents you attached show you were released on November 22, 2017. Attached original 16 appeal and attach proof of your delay in filing appeal.” (Id.) 17 Plaintiff expressed his dissatisfaction with the first level response on September 16, 2018, 18 and replied: 19 I have a lot of 602’s submitted for different issues which caused a long time to submit a 602 in this case. You need 14 calendar days 20 period. All my original appeal was never given back to me. I am constantly getting [transferred] and have to go through orientation 21 waiting for my property. Art 8 sec 3084.2(h)(6), Art 8 3084.3(d), Art sec 3084.6(c)(4). It was because of CHCF-B-18-0388, Sac B-16- 22 03798, Sac 18-00918, Sac 18-00687. I also don’t want to go back to CCI Tehachapi ever not even for court. I also want C.O.s Brown, E. 23 Banuelos, Morley, T. Villalobos to take a polygraph test and drug test after and some type of anger management. Compensation for 24 pain and suffering. 25 (Doc. 96-4 at 113.) 26 On October 8, 2018, Plaintiff’s documents were returned with the following notation: “1. 27 CCI-018-01797 was screened back to you on July 24, 2018 with instructions to follow however 28 you did not resubmit your appeal to SAC appeals to be forwarded to CCI until when SAC 1 received the appeal on 09-24-18; 62 days later. 2. If you have a valid explanation for delay in 2 filing, you may indicate such. 3. Further, you have not followed instructions within the CDCR 3 695 from CCI dated 07-24-18.” (Doc. 96-4 at 109.) 4 Plaintiff responded to the October 2018 screening letter as follows: 5 I was transferred from Stockton C.H.C.F. to Sac and had to wait for my property than I was sent to the wrong housing A-7 and had to 6 wait for property again. I also had other appeals I sent in and had to keep waiting the 14 calendar day for them. C.H.C.F. B-18-0388, Sac 7 B-16-03798, Sac B-00918, Sac 18-605 8 (Doc. 96-4 at 109.) 9 On November 14, 2018, Plaintiff’s documents were returned and he was advised his 10 appeal was cancelled pursuant to section 3084.6(c)(10) for a failure to correct and return a 11 rejected appeal within 30 days. (Doc. 96-4 at 108.) The letter further stated: “You failed to 12 resubmit your appeal within the 30 calendar days from when it was screened back to you. This 13 appeal was screened back to you on: 07-24-18 and was not re-received in SAC Inmate Appeals to 14 be forwarded to CCI Appeals until: 09-24-18; 62 days later. The explanation you have provided 15 does not justify a reasonable reason for delay as you were housed within CDCR custody the 16 entire time.” (Id.) 17 Analysis 18 As set forth below, Defendants have met their initial burden of proving the existence of an 19 available administrative remedy and Plaintiff failed to exhaust his remedies. Albino, 747 F.3d at 20 1172; see also UDF Nos. 7-12; Doc. 96-5; Doc. 96-6. 21 Defendants contend Plaintiff did not submit any appeals as to Defendants Brown, Stewart, 22 or Villalobos. (Doc. 96 at 17-20.) Defendants allege the undisputed evidence shows Plaintiff 23 failed to provide adequate notice to CDCR concerning his allegations of excessive force or failure 24 to intervene regarding Defendants Brown and Villalobos or his allegations of deliberate 25 indifference by Defendants Brown and Stewart because he failed to submit any grievances or 26 appeals identifying them or describing their conduct. (Id. at 18; UDF Nos. 51-52.) 27 28 1 The Court concludes Plaintiff did not submit any appeals concerning Brown and Stewart.5 2 Regarding Defendant Brown, neither Log No. CCI-0-1703280, nor Log No. CCI-0-1801797 3 make any mention of Defendant Brown. (See Doc. 96-4 at 97-100 [Exhibit E] & 96-4 at 110-113 4 [Exhibit G].) During his deposition, Plaintiff also agreed that the Log No. CCI-0-17-03280 refers 5 only to Morley, Whitson, and Villalobos. (Delphin Depo., at 129-130.) Plaintiff testified he 6 “intended to add Banuelos and Brown” but “didn’t have their names.” (Id. at 132.) When asked 7 whether he ever included that information, Plaintiff replied, “No.” (Id.) 8 Regarding Defendant Stewart, neither Log No. CCI-0-1703280, nor Log No. CCI-0- 9 1801797 make any mention of Stewart. (See Doc. 96-4 at 97-100 [Exhibit E] & 96-4 at 110-113 10 [Exhibit G].) During Plaintiff’s deposition, the following colloquy occurred regarding Plaintiff’s 11 claim against Stewart: 12 Q. Did you ever file a 602 related to Nurse Stewart? 13 A. No. Wait. No. 14 Q. Okay. I’m sorry, I cut you off. What did you say? 15 A. No. 16 Q. Okay. So the two grievances that you - - you only filed two grievances related to your allegations against defendants in this 17 Complaint, correct? 18 A. Correct. 19 Q. And in those two grievances you acknowledge that you did not, um, refer to any allegations against Defendant Stewart, correct? 20 A. Right. 21 Q. So you did not file any 602s against Nurse Stewart, correct? 22 A. I’m not sure. I might have. I’m not sure. 23 Q. Okay. If you later find that grievance, will you please produce a 24 copy of it to me? 25 A. Okay. 26 Q. Okay. Is it your contention though that if you did not file a 602 27 5 Nor was any health care grievance was submitted by Plaintiff between August 1, 2017 (incident date) and 28 May 7, 2019 (date complaint filed). (See Doc. 96-6 at 3, ¶ 9 [Gates Decl.].) 1 against Nurse Stewart, you did not exhaust administrative remedies as to Nurse Stewart? 2 A. Well, I thought, um, applying the excessive force would apply to 3 him. 4 Q. Got it. So if you didn’t file a 602 against Nurse Stewart, your reasoning was you thought that your excessive force allegations 5 against the other four Defendants covered your allegations against Nurse Stewart for deliberate indifference? 6 A. Yes. 7 8 (Delphin Depo., at 136-138.) Defendants’ undisputed evidence establishes that Plaintiff did not 9 name Defendant Stewart in any grievance or appeal, and Plaintiff offers no evidence to the 10 contrary. At his deposition, Plaintiff initially agreed that he did not name Stewart, then testified 11 he was not sure, and later stated he “thought” the reference to “excessive force would apply” to 12 Stewart. Plaintiff’s mistaken belief is unavailing. See, e.g., Cortinas v. Vasquez, No. 1:19-cv- 13 00367-JLT-SKO (PC), 2022 WL 16748864, at *12 (E.D. Cal. Nov. 7, 2022) (finding excessive 14 force grievance did not serve to exhaust administrative remedies as to plaintiff’s sexual assault 15 claim because excessive force grievance made no mention of sexual assault or misconduct). 16 There is nothing in either Log No. CCI-0-1703280 or Log No. CCI-0-1801797 to give the 17 CDCR notice that Plaintiff was contending Defendants Brown and Stewart were deliberately 18 indifferent to his serious medical needs. McClure, 246 F.Supp.3d at 1291; Estrada v. California 19 Correctional Institution, No. 1:18-cv-00599-AWI-SAB (PC), 2021 WL 3268555, at *6-8 (E.D. 20 Cal. July 30, 2021) (Defendant Bounville not identified in original grievance, nor did plaintiff file 21 administrative appeal against Bounville; “Plaintiff has failed to exhaust the administrative 22 remedies as to Bounville”). 23 Plaintiff’s opposition states he “turned in medical grievances but medical appeals 24 coordinator has [not] gotten back at plaintiff even when plaintiff has requested about the medical 25 grievance about 10 time to appeals coordinator not getting proper treatment from Defendant 26 Swart [sic]. All the request and medical grievance turned up missing or thrown away.” (Doc. 114 27 at 5.) Defendants have submitted evidence to establish that Plaintiff did not submit any health 28 care grievances concerning Defendants Brown or Stewart following this incident. (See Doc. 96- 1 6.) Plaintiff has provided no evidence to support his assertions that he submitted a grievance 2 involving Defendants Brown or Stewart. Vague and conclusory allegations are insufficient to 3 create a genuine dispute of material fact. See Sapp, 623 F.3d at 823-24 (plaintiff bears burden of 4 demonstrating exception to exhaustion requirement based on prison officials’ misconduct 5 thwarted attempts to exhaust remedies); Penn v. Lucas, No. 1:18-cv-01482-AWI-HBK (PC), 6 2022 WL 17669951, at *6 (E.D. Cal. Dec. 14, 2022) (recommending summary judgment be 7 granted because “[a]side from conclusory allegations, Plaintiff presents no evidence to 8 substantiate his conclusory claims that prison official's refusal to file his grievances thwarted the 9 process”), recommendations adopted (E.D. Cal. Apr. 7, 2023); Jeffries v. Fields, 2014 WL 10 994908 * 18 (C.D. Cal. March 10, 2014) (stating conclusory allegations are insufficient to 11 demonstrate that failure to exhaust was excused by prison officials’ misconduct). 12 Plaintiff offers only self-serving statements to support his contention that his grievances 13 were lost or otherwise not considered. This is insufficient to raise a genuine issue of material fact. 14 Rodgers v. Reynaga, No. CV 1-06-1083-JAT, 2009 WL 2985731, at *3 (E.D. Cal. Sept. 16, 2009) 15 (“To grant Plaintiff an exception to PLRA's demand for exhaustion based solely on Plaintiff's 16 self-serving testimony that his grievance was surreptitiously destroyed by prison officials would 17 completely undermine the rule.”); Avery v. Virga, No. 2:11-cv-1945-KJM-EFP (TEMP), 2016 18 WL 3548799, at *9, (E.D. Cal. June 24, 2016) (plaintiff's claim without further evidence that a 19 mailroom officer caused his grievance to be lost did not show a genuine issue of material fact as 20 to exhaustion). Plaintiff’s assertions that his numerous requests for information were ignored is 21 also belied by this record. See, e.g., UDF Nos. 28-31. 22 Regarding Defendants’ assertion that Plaintiff did not submit any appeals regarding his 23 allegation against Defendant Villalobos, the Court notes Plaintiff’s grievance Log No. CCI-0- 24 1703280, regarding the use of excessive force includes Defendant Villalobos, or as Plaintiff wrote 25 “Villabos.” (See Doc. 96-4 at 97.) During his deposition, Plaintiff testified that the grievance 26 refers only to Morley, Whitson, and Villalobos. (Delphin Depo., at 129-130.) Plaintiff testified he 27 “got Villalobos and Banuelos mixed up.” (Id. at 131.) Plaintiff also testified he “intended to add 28 Banuelos and Brown” but “didn’t have their names” and did not add them. (Id. at 132, emphasis 1 added.) Regardless of any confusion concerning the Villalobos and Banuelos surnames, the Court 2 finds Plaintiff’s grievance provided adequate notice of his excessive force claim against 3 Defendant Villalobos. Sapp, 623 F.3d at 824. 4 Plaintiff failed to administratively exhaust his claims against Defendants Banuelos, 5 Morley, and Villalobos, because he did not receive any third level decision. Woodford, 548 U.S. 6 at 88, 93 (a plaintiff must complete the administrative review process prior to filing suit); Sapp, 7 623 F.3d at 818 (all levels of the grievance process must be exhausted prior to filing suit).6 8 As Defendants have established, neither Log No. CCI-0-1703280 nor Log No. CCI-0- 9 1801797 received a third level determination. See UDF Nos. 25 & 51. Plaintiff’s attempt to obtain 10 third level review regarding Log No. CCI-0-1801797 was not successful because he attempted to 11 thwart proper grievance procedure by skipping the second level review. See UDF Nos. 46-48. 12 Based on the record, the Court concludes that Plaintiff did not complete the grievance process. 13 To the extent Plaintiff testified at his deposition that he did receive a third level decision 14 regarding the events giving rise to his claims, Plaintiff’s testimony does not create a genuine issue 15 of material fact. While Plaintiff testified that he received a third level appeal response (see 16 Delphin Depo., at 123, 138, 144), other testimony provided (see id. at 140-142, 145) and 17 Defendants’ supporting exhibits establish that Plaintiff’s belief is mistaken. And as noted above, 18 Plaintiff’s contention that his grievances were lost or otherwise not filed are supported by only 19 self-serving statements. Self-serving statements are insufficient to raise a genuine issue of 20 material fact. Rodgers, 2009 WL 2985731, at *3; Avery, 2016 WL 3548799, at *9. 21 To the extent Plaintiff contends his grievances or appeals were improperly screened out, 22 the Court does not agree. “[I]mproper screening of an inmate's administrative grievances renders 23 administrative remedies ‘effectively unavailable’ such that exhaustion is not required under the 24 PLRA. If prison officials screen out an inmate's appeals for improper reasons, the inmate cannot 25 pursue the necessary sequence of appeals, and administrative remedies are therefore plainly 26 unavailable.” Sapp, 623 F.3d at 823. “To fall within this exception, a prisoner must show that he 27 6 During his deposition, Plaintiff acknowledged a third level determination was required prior to filing suit. 28 (Delphin Depo., at 144-145.) 1 attempted to exhaust his administrative remedies but was thwarted by improper screening.” Id. 2 “In particular, the inmate must establish (1) that he actually filed a grievance or grievances that, if 3 pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that 4 he seeks to pursue in federal court, and (2) that prison officials screened his grievance or 5 grievances for reasons inconsistent with or unsupported by applicable regulations.” Id. at 823-24 6 Plaintiff has not established that officials screened out his grievances or appeal for reasons 7 inconsistent with the applicable regulations. Log No. CCI-0-1703280 was untimely as the 8 incident occurred on August 1, 2017, and Plaintiff signed the initial grievance on November 28, 9 2017--well beyond the applicable 30-day deadline.7 Officials advised Plaintiff of the untimeliness 10 finding and cancellation, and indicated any appeal of the cancellation must comply with 11 regulations, referencing section 3084. See, e.g., UDF Nos. 14-25. 12 Plaintiff appealed the cancellation in Log No. CCI-0-1801797 but it was also untimely. 13 UDF Nos. 14, 26-44. The Court concludes that Plaintiff was properly notified and advised 14 regarding both grievance or appeals submissions and failed to follow the instructions provided 15 and the relevant guidelines applicable to those submissions. See, e.g., Catanzarite v. Pierce, No. 16 1:12-cv-01502-LJO-SAB (PC), 2015 WL 3774285, at *13 (June 16, 2015) (“Defendants submit 17 each of the rejection letters … which sets forth the reasons the grievance was screened-out and 18 returned to Plaintiff for resubmission. [] In response to such letters, Plaintiff either failed to 19 correct the deficiency and/or created a new deficiency in the resubmitted grievance”). Simply put, 20 Plaintiff has failed to establish that prison officials were the cause of his failure to properly 21 exhaust his administrative remedies. 22 The PLRA contains a “built-in exception to the exhaustion requirement: A prisoner need 23 not exhaust remedies if they are not ‘available.’” Ross v. Blake, 578 U.S. 632, 635-36 (2016). “By 24 7 The Court notes Plaintiff alleges he was unable to file this grievance before November 28, 2017, because 25 he was in a crisis bed. The record also includes an unrelated grievance submitted by Plaintiff on October 19, 2017—more than a month prior to the initial grievance relevant to this action—undermining Plaintiff’s 26 assertion that he was unable to submit a grievance prior to November 28, 2017. See Doc. 96-4 at 85-88 (concerning missing or lost property). Because Plaintiff used a pen on October 19, 2017, even had the 27 officials considered October 19, 2017 as a start date (rather than August 1, 2017), Plaintiff’s November 28, 2017 grievance would be untimely. It was submitted 40 calendar days after Plaintiff had access to a pen 28 and grievance forms, or 10 days late. 1 way of a non-exhaustive list, the [Supreme] Court recognized three circumstances in which an 2 administrative remedy was not capable of use to obtain relief despite being officially available to 3 the inmate: (1) when the administrative procedure ‘operates as a simple dead end’ because 4 officers are ‘unable or consistently unwilling to provide any relief to aggrieved inmates’; (2) 5 when the administrative scheme is ‘so opaque that it becomes, practically speaking, incapable of 6 use’ because ‘no ordinary prisoner can discern or navigate it’; and (3) when prison administrators 7 ‘thwart inmates from taking advantage of a grievance process through machination, 8 misrepresentation, or intimidation.’” Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) 9 (quoting Ross, 578 U.S. at 643-44). The Court concludes the CDCR’s administrative procedure 10 does not operate as a simple dead end and is not so opaque to be incapable of use. Id. at 1078. 11 Plaintiff has also failed to submit sufficient evidence to show prison officials thwarted Plaintiff’s 12 ability to take advantage of the grievance process through machination, misrepresentation, or 13 intimidation. Id. 14 In sum, Plaintiff has failed to set forth evidence showing his failure to exhaust 15 administrative remedies should be excused. See Williams v. Paramo, 775 F.3d 1182, 1191 (9th 16 Cir. 2015). Defendants have met their ultimate burden to show Plaintiff failed to exhaust his 17 administrative remedies prior to filing suit. Albino, 747 F.3d at 1172. Therefore, Defendants are 18 entitled to summary judgment. Celotex, 477 U.S. at 322-33. 19 VII. CONCLUSION AND ORDER 20 For the foregoing reasons, Defendants’ motion for summary judgment (Doc. 96) is 21 GRANTED. Judgment shall be entered in favor of Defendants. Plaintiff’s complaint is dismissed 22 without prejudice. The Clerk of the Court is directed to vacate any pending deadlines and to close 23 this case. 24 IT IS SO ORDERED. 25 26 Dated: May 21, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 27 28