Oden v. Voong ( 2020 )

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 DERRICK JESUS ODEN, 4 Case No. 18-cv-04922-YGR (PR) Plaintiff, 5 ORDER GRANTING DEFENDANTS’ v. MOTION FOR SUMMARY 6 JUDGMENT M. VOONG, et al., 7 Defendants. 8 9 I. INTRODUCTION 10 This is a pro se civil rights complaint under 42 U.S.C. § 1983 filed by Plaintiff, a state 11 prisoner currently incarcerated at California State Prison-Sacramento. He alleges constitutional 12 rights violations at Salinas Valley State Prison (“SVSP”) where he was previously incarcerated. 13 Dkt. 1 at 6, 8.1 He has named the following Defendants: Office of Appeals (“OOA”) Chief M. 14 Voong and Acting Chief R. L. Briggs. Plaintiff seeks injunctive relief. 15 Specifically, Plaintiff claims Defendants have prevented him from filing certain grievances 16 in which he complained that SVSP Correctional Officer E. Santana filed a false Rules Violation 17 Report (“RVR”) against him in 2013.2 Thus, in essence, Plaintiff claims Defendants’ actions have 18 violated his rights under the First Amendment to meaningful access to the courts, and he accuses 19 Defendants of obstructing his access to SVSP’s grievance procedures. 20 In an Order dated January 14, 2019, the Court screened Plaintiff’s complaint and 21 determined that he stated a cognizable claim under the First Amendment that Defendants 22 obstructed his access to grievance procedures. Dkt. 7 at 2. The Court then directed the Clerk of 23 24 1 Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by the parties. 25 2 The Court notes that Plaintiff filed a previous action in this Court, which is now closed, 26 in which he pursued various claims relating to the alleged 2013 false RVR, including First Amendment and Eighth Amendment claims against Officer Santana for authoring the false RVR, 27 among others. See Case No. C 17-5853 YGR (PR). On September 6, 2019, the Court granted 1 the Court to serve the complaint and issued a briefing schedule for the served Defendants to file a 2 dispositive motion. See id. at 3-6. 3 The parties are presently before the Court on Defendants’ motion for summary judgment. 4 Dkt. 20. Defendants move for summary judgment on Plaintiff’s First Amendment claim against 5 them on the grounds that: (1) Plaintiff has failed to exhaust administrative remedies, as required 6 by the Prison Litigation Reform Act (“PLRA”) and even if he did exhaust Defendants did not 7 cause an actual access-to-courts injury because they had no involvement in processing the 8 grievances complained of, and in any case, Plaintiff’s subsequent appeals were properly rejected, 9 cancelled, or denied; and (2) based on qualified immunity. Id. at 5. Plaintiff has filed an 10 opposition to Defendants’ motion for summary judgment. Dkt. 31. Defendants have filed a reply 11 to Plaintiff’s opposition. Dkt. 32. 12 Having read and considered the papers submitted in connection with this matter, the Court 13 GRANTS Defendants’ motion for summary judgment. 14 II. DISCUSSION 15 One of the issues presented in Defendants’ summary judgment motion is whether Plaintiff 16 properly exhausted his administrative remedies as to his First Amendment claim against 17 Defendants. Before turning to the facts of this case, the Court briefly reviews the requirements of 18 the PLRA and administrative review process applicable to California prisoners. 19 A. Legal Framework for Exhaustion of Available Administrative Remedies 20 The PLRA requires a prisoner to exhaust all available administrative remedies before 21 bringing an action with respect to prison conditions. 42 U.S.C. § 1997e(a). “[T]he PLRA’s 22 exhaustion requirement applies to all inmate suits about prison life, whether they involve general 23 circumstances or particular episodes, and whether they allege excessive force or some other 24 wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 25 Exhaustion of all “available” remedies is mandatory; those remedies neither need to meet 26 federal standards, nor must they be “plain, speedy, and effective.” Booth v. Churner, 532 U.S. 27 731, 739-40 (2001). The PLRA requires proper exhaustion of administrative remedies. Woodford 1 deadlines and other critical procedural rules because no adjudicative system can function 2 effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90- 3 91. Thus, compliance with prison grievance procedures is required by the PLRA to exhaust 4 properly. Id. 5 The CDCR provides its inmates and parolees the right to appeal administratively “any 6 departmental decision, action, condition, or policy which they can demonstrate as having an 7 adverse effect upon their welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its 8 inmates the right to file administrative appeals alleging misconduct by correctional officers. Cal. 9 Code Regs. tit. 15, § 3084.1(e). 10 On January 28, 2011, certain revisions to the California prison regulations governing 11 inmate grievances became operative. See History, Note 11, Cal. Code Regs. tit. 15, § 3084.2. In 12 order to exhaust all available administrative remedies within this system, a prisoner must submit 13 his complaint on CDCR Form 602 (“602 appeal”) and proceed through three levels of appeal: 14 (1) first formal level appeal filed with one of the institution’s appeal coordinators, (2) second 15 formal level appeal filed with the institution head or designee, and (3) third formal level appeal 16 filed with the CDCR director or designee (i.e., “Director’s level”). Cal. Code Regs. tit. 15, 17 §§ 3084.1(b), 3084.7. Under specific circumstances, the first level review may be bypassed. Id. 18 The third level of review constitutes the decision of the Secretary of the CDCR and exhausts a 19 prisoner’s administrative remedies. Id. § 3084.7(d)(3). A California prisoner is required to submit 20 an inmate appeal at the appropriate level and proceed to the highest level of review available to 21 him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 22 (9th Cir. 2002). 23 The level of detail in an administrative grievance necessary to exhaust a claim properly is 24 determined by the prison’s applicable grievance procedures. Jones v. Bock, 549 U.S. 199, 218 25 (2007). The level of specificity required in the appeal is described in the California Code of 26 Regulations as follows: 27 The inmate or parolee shall list all staff member(s) involved and shall member’s last name, first initial, title or position, if known, and the 1 dates of the staff member’s involvement in the issue under appeal. 2 Cal. Code Regs. tit. 15, § 3084.2(a)(3) (emphasis added). 3 The initial grievance must be filed within thirty calendar days of the action or event being 4 protested, and inmates must seek review at each successive level within thirty calendar days of 5 receiving an adverse decision at a lower level. Id. § 3084.8(b)(1). 6 An inmate appeal may be cancelled for any of the eight reasons listed in the regulation. 7 See id. § 3084.6(c).3 Among the reasons for cancellation is that the inmate appeal is failure to 8 comply with the time limits or duplication of a previous appeal. See id. § 3084.6(c)(2), (4). A 9 cancellation decision under section 3084.6(c) does not exhaust administrative remedies. Id. 10 § 3084.1(b). An inmate can appeal that decision to cancel his appeal by appealing the application 11 of § 3084.6(c) to his original appeal; if he prevails on that separate appeal, the cancelled appeal 12 later can be considered at the discretion of the appeals coordinator or the third level appeals chief. 13 Id. § 3084.6(a)(3) and § 3084.6(e). 14 B. Factual Background4 15 1. The Parties 16 At the time of the events set forth in his complaint, Plaintiff was a state prisoner who was 17 incarcerated at SVSP. See Dkt. 1 at 1. During the time frame at issue, Defendants Voong and 18 Briggs acted as OOA Chief and Acting Chief, respectively. Voong Decl. ¶ 1; Briggs Decl. ¶ 1. 19 20 3 An inmate appeal also may be screened out, or rejected, for any of the sixteen defects listed 21 in the regulation. See Cal. Code Regs. tit. 15, § 3084.6(b). The defects that may cause an inmate appeal to be screened out are capable of being corrected—e.g., the inmate may be required to add 22 information or documents, or make the appeal legible—and the inmate may resubmit the appeal after correcting the defect. See id. § 3084.6(a)(2). A rejection decision under § 3084.6(b) does not 23 exhaust administrative remedies. Id. § 3084.1(b). 24 4 This Order contains a few acronyms. Here, in one place, they are: 25 CDCR California Department of Corrections and Rehabilitation CMF California Medical Facility 26 RJN Request for Judicial Notice OOA Office of Appeals 27 RVR Rules Violation Report 1 Defendants were in charge of overseeing staff who receive, screen, log, route, and assign the third 2 level grievances that are submitted by inmates. Id. Their duties also included monitoring the 3 dispositions of these inmate appeals. Id. 4 2. Plaintiff’s Version 5 The following background relating to Plaintiff’s Eighth Amendment claim is taken from 6 the Court’s January 14, 2019 Order: 7 Plaintiff claims that Defendants have obstructed his access to 8 grievance procedures at SVSP based on the following actions: 9 (1) Use of inmate appeals screening form (CDC 695) to manipulate improper, excessive, and repetitive delays[;] 10 (2) Dishonest and unethical methods in screening out and 11 cancelling 602 appeal for the purpose to never be processed[;] 12 (3) Reporting deliberate false information in the course of 13 responding to 602 appeal. 14 Dkt. 1 at 3. Specifically, Plaintiff claims that Defendants have prevented him from filing . . . certain staff complaint[s], [e.g.,] log 15 no. SVSP 14-02020, in which he complains that SVSP 16 Correctional Officer E. Santana filed a false [RVR] against him in 2013. Thus, in essence, Plaintiff claims Defendants’ actions have 17 violated his rights under the First Amendment. 18 Dkt. 7 at 2 (brackets added). 19 3. Defendants’ Version 20 a. Plaintiff’s RVR For Indecent Exposure 21 On October 15, 2013, Plaintiff received an RVR for indecent exposure stemming from an 22 incident that occurred on October 6, 2013, when he allegedly exposed his genitals during a search 23 by Officer Santana. Cho Decl. ¶¶ 5, 6, Ex. B, C. 24 On October 8, 2013, Plaintiff was transferred to California Medical Facility (“CMF”). Id., 25 ¶¶ 6, 7, Ex. C, D. A senior psychologist at CMF reported that Plaintiff would be “unable to 26 participate in a disciplinary hearing while in his current elevated level of care” and recommended 27 that the RVR hearing be postponed. Id., ¶ 8, Ex. E. On December 27, 2013, Plaintiff transferred 1 officials sent a memorandum to SVSP requesting that SVSP hold the RVRs until Plaintiff’s 2 discharge from CHCF. Id., ¶¶ 7, 9, Ex. D, F. 3 On March 3, 2014, Plaintiff was transferred back to SVSP. Id., ¶ 7, Ex. D. Chief 4 Disciplinary Officer R. Binkele issued a memorandum recalculating the time limit to hold 5 Plaintiff’s RVR hearing in light of the exceptional medical circumstances due to Plaintiff’s mental 6 health conditions and determining that the new deadline was April 2, 2014. Id., ¶¶ 7, 10, Ex. D, 7 G. 8 On April 1, 2014, the RVR hearing was held on the indecent exposure RVR before the 9 hearing officer, Lieutenant P. Sullivan. Id., ¶ 11, Ex. H. Lieutenant Sullivan considered 10 statements from Officer Santana and Plaintiff and the written testimony of Correctional Officer J. 11 Castillo and kitchen employee A. Romero. Id. Lieutenant Sullivan noted that “[a]ccording to 12 Inmate ODEN’s statement made during the Investigative Employee’s report and the questions 13 asked to Officer Castillo it appears that Inmate ODEN acknowledged that he did in fact pull down 14 his shorts and exposed himself to Officer Santana,” and found Plaintiff guilty of indecent 15 exposure. Id. 16 b. Defendants’ Roles in the Administrative Appeals Process 17 Defendants have never worked at SVSP and were employed at the OOA in Sacramento, 18 where they adjudicated appeals brought to the third level. Lomeli Decl. ¶¶ 4, 7, Ex. A; Briggs 19 Decl. ¶ 6, Ex. B. Appeals adjudicated at the first and second levels of review occur at the 20 institution, and Defendants were never involved in determining any of Plaintiff’s administrative 21 appeals determined at the first two levels at SVSP. Lomeli Decl. ¶¶ 4, 10-21, Ex. B-L; Voong 22 Decl. ¶ 4, Briggs Decl. ¶¶ 2, 7. 23 c. Plaintiff’s Inmate Appeals 24 From October 2013 (when the aforementioned RVR for Indecent Exposure was issued) to 25 August 2018 (when Plaintiff filed the instant complaint), Plaintiff had administratively exhausted 26 three administrative appeals arising from the constitutional violations at SVSP—SVSP-L-13- 27 1 2804,5 SVSP-L-14-2256, and SVSP-L-18-03264. Voong Decl. ¶¶ 11, 12, 16, Ex. B; Lomeli Decl. 2 ¶¶ 12, 19, Ex. D, K. Because SVSP-L-13-2804 (relating to his classification score) is unrelated, 3 see Voong Decl. ¶ 11, the Court turns to the remaining two. In SVSP-L-14-2256, Plaintiff alleged 4 that SVSP counselors had improperly rejected an appeal (SVSP-L-14-2020) as a duplicate of a 5 previous appeal (SVSP-L-14-01989), which contested the RVR he had received for the indecent 6 exposure charge. Id., ¶ 12. Meanwhile, in SVSP-L-18-03264, Plaintiff contested the cancellation 7 of a previous appeal (SVSP-L-18-01723), which also related to the indecent exposure charge. 8 Lomeli Decl. ¶ 19. While Defendants were involved in handling the review at the third level of 9 appeal for both SVSP-L-14-2256 and SVSP-L-18-03264, the record shows that neither appeal 10 dealt with any alleged denial of access to the courts by the named Defendants. See id., Exs. D, K. 11 Turning now to the other appeals submitted by Plaintiff at the lower levels of appeal, 12 SVSP Inmate Appeals Coordinator V. Lomeli claims that the following appeals “are connected to 13 the aforementioned alleged obstruction of [Plaintiff’s] right to file a staff complaint” and to 14 Plaintiff’s challenge to his indecent explosive charge: SVSP-L-14-01989; SVSP-L-14-02020; 15 SVSP-L-14-02256; SVSP-L-14-02718; SVSP-L-14-03035; SVSP-L-14-03199; SVSP-L-14- 16 03279; SVSP-L-14-03346; LAC-X-15-01228; LAC-X-16-02456/SVSP-L-16-03721; SVSP-L-18- 17 01723; and SVSP-L-18-03264. Lomeli Decl. ¶¶ 9, 10-20, Ex. B-K; Voong Decl. ¶ 14. 18 The Court shall elaborate on each of the relevant appeals in chronological order below. 19 1) SVSP-L-14-01989 20 On May 6, 2014, Plaintiff submitted SVSP-L-14-01989, contesting the RVR he had 21 received for indecent exposure on October 6, 2013. Lomeli Decl. ¶ 10, Ex. B. In this appeal, 22 Plaintiff denied that he had exposed himself to Officer Santana, the RVR proceeding misstated the 23 identity of the individual who conducted a psychiatric evaluation on him, the psychiatric 24 evaluation was improperly performed, the regulatory time limits for the RVR had been violated, 25 26 5 The Court notes that in its previous orders in Case No. C 17-5853 YGR (PR), it inadvertently referred to this appeal as “SVSP-L-14-2804.” See Dkt. 60 at 8 in Case No. C 17- 27 5853 YGR (PR). The parties failed to point out the typographical error, but nonetheless this 1 and the RVR hearing was held while he was admitted to a mental health crisis bed. Id. On May 2 20, 2014, Plaintiff was informed that SVSP-L-14-01989 had been rejected because it involved 3 multiple issues that did not derive from a single event or could not be reasonably addressed in a 4 single response pursuant to Title 15 of the California Code of Regulations § 3084.6(b)(8). Id. 5 Plaintiff was instructed to file separate appeals regarding his denial of the indecent exposure 6 charge and the alleged rescission of a mental health assessment. Id. Instead, Plaintiff wrote a letter 7 to the OOA in Sacramento, inquiring about the status of the appeal while it was pending at SVSP. 8 Voong Decl., Ex. A, B. The OOA informed Plaintiff in a letter that he must inquire about the 9 appeal’s status at the institution. Id., Ex. B. Plaintiff’s records show he did not obtain a 10 substantive decision at the third level. Id., Ex. A. 11 2) SVSP-L-14-02020 12 On May 8, 2014, Plaintiff filed SVSP-L-14-02020, in which he contested the veracity of 13 the indecent exposure RVR. Lomeli Decl. ¶ 11, Ex. C. On May 9, 2014, Plaintiff was instructed 14 to explain how this appeal was not duplicative of SVSP-L-14-01989. Id. Plaintiff responded with 15 a CDCR Form 22, in which he wrote, “[t]his is a staff complaint it has to do with unprofessional 16 conduct which I’m reporting and which caused adverse actions against me.” Id. On May 15, 17 2014, the appeal was cancelled for duplicating SVSP-L-14-01989 and for untimeliness because it 18 had exceeded 30 days from when the allegedly false RVR was issued on October 6, 2013. Id. 19 Neither Defendant was involved in determining this appeal while it was pending at SVSP. Id. 20 There is no indication that this appeal reached the third level. Voong Decl. ¶¶ 10, 17. 21 3) SVSP-L-14-02256 22 On May 16, 2014, Plaintiff filed SVSP-L-14-02256, contesting the cancellation of SVSP- 23 L-14-02020. Lomeli Decl. ¶ 12, Ex. D. This appeal bypassed the first level of review, and was 24 denied at the second level on July 7, 2014 on the grounds that the cancellation of SVSP-L-14- 25 02020 was proper for duplicating SVSP-L-14-01989. Id. At the third level, Defendant Briggs 26 denied the appeal and upheld the ruling made at the second level. Voong Decl. ¶ 12, Ex. B; 27 Briggs Decl. ¶ 4, Ex. A. Defendant Briggs also found that there had been insufficient evidence to 1 mental issues that prevented him from properly filing his appeals. Briggs Decl. ¶ 4, Ex. A. 2 4) SVSP-L-14-02718 3 On June 24, 2014, Plaintiff filed SVSP-L-14-02718, claiming that the Appeals Office at 4 SVSP was harassing Plaintiff and improperly refusing to process appeal numbers SVSP-L-14- 5 01989 and SVSP-L-14-02020. Lomeli Decl. ¶ 13. Ex. E. This appeal bypassed the first level and 6 proceeded to the second level, where it was partially granted on August 5, 2014 in that any 7 properly filed appeals would be processed. Id. The second level reviewer also found that the 8 Appeals Office had not harassed Plaintiff or improperly refused or rejected any appeals, and did 9 not reinstate appeal numbers SVSP-L-14-01989 and SVSP-L-14-02020. Id. There is no 10 indication that this appeal reached the third level. Voong Decl. ¶¶ 10, 17. 11 5) SVSP-L-14-03035 12 On July 15, 2014, Plaintiff filed SVSP-L-14-03035, claiming that C. Barela of the Appeals 13 Office at SVSP acted with deliberate indifference and denied him his due process rights by 14 intentionally rejecting or cancelling SVSP-L-14-02020. Lomeli Decl. ¶ 14, Ex. F. He further 15 claimed that other inmates had been treated harshly by the Appeals Office as well. Id. This 16 appeal was rejected at the first level because he could only appeal on his behalf and not for other 17 inmates, he had not attached the cancelled appeal, and he could not appeal a rejected appeal. Id. 18 There is no indication that this appeal reached the third level. Id., ¶¶ 10, 17. 19 6) SVSP-L-14-03199 20 On July 27, 2014, Plaintiff submitted SVSP-L-14-03199, alleging that he had not seen his 21 legal appeal documents regarding the indecent exposure RVR since the return of SVSP-L-14- 22 01989. Lomeli Decl. ¶ 15, Ex. G. This appeal was bypassed at the first level of review. Id. On 23 August 8, 2014, the second-level reviewer partially granted the appeal because he still had an 24 appeal pending, SVSP-L-14-03346, regarding the RVR determination. Id. There is no indication 25 that this appeal reached the third level. Voong Decl. ¶¶ 10, 17, Ex. A. 26 7) SVSP-L-14-03279 27 On July 27 and 28, 2014, Plaintiff submitted SVSP-L-14-03279, alleging that C. Barela 1 cancelling his appeals of the indecent exposure RVR. Lomeli Decl. ¶ 16, Ex. H. This appeal was 2 cancelled on August 1, 2014 at the first level because Plaintiff had not submitted the appeal on the 3 CDCR 602 form. Id. There is no indication that this appeal reached the third level. Voong Decl. 4 ¶¶ 10, 17, Ex. A. 5 8) SVSP-L-14-03346 6 On July 30, 2014, Plaintiff filed SVSP-L-14-03346, contending that he had not engaged in 7 the offense of indecent exposure and that Officer Santana had been harassing him, and he 8 requested that the RVR be dismissed. Lomeli Decl. ¶ 17, Ex. I. This appeal was bypassed at the 9 first level of review and proceeded to the second level. Id. On August 14, 2014, the second-level 10 reviewer denied the appeal, finding that the RVR hearing had been fair and unbiased and that 11 Plaintiff had committed the charged offense. Id. This appeal was initially rejected by Defendant 12 Briggs at the third level on September 30, 2014 for failure to provide supporting documents. 13 Voong Decl. ¶ 13; Briggs Decl. ¶ 5, Ex. B. Specifically, Plaintiff was required to submit a CDCR 14 Form 128-B, General Chrono from the RVR proceedings. Briggs Decl. ¶¶ 5, 6. Plaintiff 15 resubmitted the appeal to the third level, where it was received on November 17, 2014 and then 16 cancelled on March 5, 2015 for untimeliness. Voong Decl. ¶ 13; Briggs Decl. ¶ 6, Ex. B. 17 9) LAC-X-15-01228 18 On March 31, 2015, Plaintiff filed LAC-X-15-01228 while he was housed at California 19 State Prison-Los Angeles County. Voong Decl. ¶ 14, Ex. B. The appeal was forwarded to SVSP 20 on April 20, 2015 for processing. Voong Decl., Ex. B. In this appeal, Plaintiff appealed the third- 21 level cancellation of SVSP-L-14-03346, and argued that no employee within CDCR’s Appeals 22 Offices, including Defendants, would process his administrative appeals and needed to stop 23 denying him his due process rights. Voong Decl. ¶ 14, Ex. B. LAC-X-15-01228 was received at 24 the third level on May 4, 2015 and was cancelled on June 26, 2015 because Plaintiff had exceeded 25 the prescribed thirty-day deadline to appeal a cancellation. Id. 26 10) LAC-X-16-02456/SVSP-L-16-03721 27 On June 7, 2016, Plaintiff filed LAC-X-16-02456 while housed at California State Prison- 1 appeal the indecent exposure RVR and that the RVR was false. Voong Decl. ¶ 15, Ex. B. It was 2 transferred to SVSP for processing on June 13, 2016, and was designed as SVSP-L-16-03721. Id. 3 On June 28, 2016, the appeal was rejected at the first level at SVSP because Plaintiff was 4 appealing a third-level decision. Voong Decl., Ex. B. This appeal was cancelled at the third level 5 on November 23, 2016 because it was a duplicate of LAC-X-15-01228, in which Plaintiff also 6 claimed Defendants violated his due process rights to appeal the indecent-exposure RVR. Id., 7 ¶¶ 14, 15, Ex. B. 8 11) SVSP-L-18-01723 9 On March 20, 2018, Plaintiff filed SVSP-L-18-01723, again claiming that Officer Santana 10 had submitted a false RVR for indecent exposure and for threatening the officer. Lomeli Decl. 11 ¶ 18, Ex. J. This appeal was rejected at the first level on March 21, 2018 because Plaintiff’s 12 allegations were five years old and untimely and because the appeal had not been submitted on an 13 approved CDCR 602 form. Id. It was cancelled on April 13, 2018, and on May 7, 2018, it was 14 rejected again because Plaintiff was attempting to resubmit an appeal that had been previously 15 cancelled. Id. Plaintiff was advised that he could appeal a cancelled appeal by submitting a 16 separate CDCR 602 form and attaching his cancelled appeal. Id. Neither Defendant was involved 17 in determining this appeal while it was pending at SVSP. Id. There is no indication that this 18 appeal reached the third level. Voong Decl. ¶¶ 10, 17, Ex. A. 19 12) SVSP-L-18-03264 20 On May 23, 2018, Plaintiff filed SVSP-L-18-03264, contesting the cancellation of SVSP- 21 L-18-01723 and requesting compensation for his loss of salary, the termination of Officer Santana 22 and a correctional sergeant, and an investigation of his staff complaint allegations in connection 23 with the indecent exposure RVR. Lomeli Decl. ¶ 19, Ex. K. This appeal was bypassed at the first 24 level of review and proceeded to the second level of review. Id. On June 14, 2018, the second- 25 level reviewer partially granted the appeal, finding that Plaintiff’s requests for an investigation 26 were addressed by appeal numbers SVSP-L-14-01989 and SVSP-L-14-02020. Id. The reviewer 27 denied Plaintiff’s requests for compensation, the staff terminations, and the witness interviews, 1 outside the 30-day time constraints. Id. This appeal was accepted at the third level on June 27, 2 2018 and was denied in a letter signed by Defendant Voong on October 2, 2018 because the 3 cancellation of SVSP-L-18-01723 had been proper. Voong Decl. ¶ 16, Ex. B. 4 13) Summary of Relevant Appeals 5 In sum, Plaintiff submitted the aforementioned relevant twelve appeals. Lomeli Decl. ¶¶ 9, 6 10-20, Ex. B-K; Voong Decl. ¶ 14. Of these twelve appeals, SVSP-L-14-02256, SVSP-L-14- 7 03346, and SVSP-L-18-03264 reached the third level. Voong Decl. ¶¶ 14-16, Briggs Decl. ¶¶ 4- 8 6, Ex. A, B. However, of the three appeals that reached the third level, only SVSP-L-14-02256 9 and SVSP-L-18-03264 received a substantive decision, which was a denial, at the third level. 10 Voong Decl. ¶¶ 12, 16; Briggs Decl. ¶ 4, Ex. A. (SVSP-L-14-03346 was cancelled on March 5, 11 2015 for untimeliness. See Voong Decl. ¶ 13; Briggs Decl. ¶ 6, Ex. B.) However, in neither 12 SVSP-L-14-02256 nor SVSP-L-18-03264 did Plaintiff raise any claims of denial of access to the 13 courts by the named Defendants. See Voong Decl. ¶¶ 14-16, Briggs Decl. ¶¶ 4-6, Ex. A, B. 14 As to Plaintiff’s appeals that specifically named Defendants as denying him due process 15 because they would not process his administrative appeals—LAC-X-15-01228 and LAC-X-16- 16 02456/SVSP-L-16-03721—neither appeal received a substantive decision at the third level. See 17 Voong Decl. ¶¶ 14-15, Exs. A, B. In LAC-X-15-01228, Plaintiff appealed the cancellation of 18 SVSP-L-14-03346 but also specifically raised the issue that employees working in the Appeals 19 Offices within the CDCR, including Defendants, were denying him due process because they 20 would not process his administrative appeals. Id., Ex. B. LAC-X-15-01228 was received at the 21 third level on May 4, 2015 and cancelled by Defendant Voong on June 26, 2015 because Plaintiff 22 had exceeded the prescribed 30-day deadline to appeal a cancellation. Id. In LAC-X-16- 23 02456/SVSP-L-16-03721, Plaintiff claimed that Defendants had denied his due process rights to 24 appeal the indecent-exposure RVR. Voong Decl. ¶ 15, Ex. B. It was ultimately cancelled by 25 Defendant Voong on November 23, 2016 at the third level of review for duplicating another 26 appeal (LAC-X-15-01228), which had been cancelled as untimely. Id. 27 Lastly, the only involvement either Defendant had in connection with any of the 1 served as the third level reviewer to deny SVSP-L-14-02256 (contesting the cancellation of SVSP- 2 L-14-02020, in which he contested the veracity of the indecent exposure RVR), see Voong Decl. 3 ¶ 12; Briggs Decl. ¶ 4, Ex. A, and to initially reject and eventually deny as untimely SPVP-14- 4 03356, see Voong Decl. ¶ 14, Briggs Decl. ¶¶ 5-6; and when Defendant Voong served as the third 5 level reviewer to cancel the two relevant appeals LAC-X-15-01228 and LAC-X-16-02456/SVSP- 6 L-16-03721 (both relating to the access to the courts claim), see Voong Decl. ¶¶ 14-15, Ex. B, and 7 to deny as proper SVSP-L-18-03264, which was appealing the cancellation of SVSP-L-18-01723 8 (relating to the indecent exposure RVR), see Voong Decl. ¶ 16, Ex. B. 9 III. LEGAL STANDARD FOR SUMMARY JUDGMENT 10 Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment 11 on some or all of the claims or defenses presented in an action. Fed. R. Civ. P. 56(a)(1). “The 12 court shall grant summary judgment if the movant shows that there is no genuine dispute as to any 13 material fact and the movant is entitled to judgment as a matter of law.” Id.; see Anderson v. 14 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of 15 establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 16 317, 323 (1986); Fed. R. Civ. P. 56(c)(1)(A) (requiring citation to “particular parts of materials in 17 the record”). If the moving party meets this initial burden, the burden then shifts to the non- 18 moving party to present specific facts showing that there is a genuine issue for trial. See Celotex, 19 477 U.S. at 324; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 20 (1986). 21 The failure to exhaust administrative remedies is an affirmative defense that must be raised 22 in a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en 23 banc). The defendants have the initial burden to prove “that there was an available administrative 24 remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172. If the 25 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 26 showing that there is something in his particular case that made the existing and generally 27 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 1 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 1166. 2 A district court may consider only admissible evidence in ruling on a motion for summary 3 judgment. See Fed. R. Civ. P. 56(e); Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). 4 In support of the motion for summary judgment, Defendants have presented their own declarations 5 and supporting exhibits (Dkts. 20-2, 20-5) as well as declarations and supporting exhibits from 6 their attorney, Deputy Attorney C. Hay-Mie Cho, and Appeals Coordinator Lomeli. Dkts. 20-3, 7 20-4. 8 Defendants have also filed a Request for Judicial Notice (“Defs. RJN”) in support of their 9 Motion for Summary Judgment. Dkt. 20-6. A district court “may take notice of proceedings in 10 other courts, both within and without the federal judicial system, if those proceedings have a direct 11 relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal 12 quotation marks and citations omitted) (granting request to take judicial notice in section 1983 13 action of five prior cases in which plaintiff was pro se litigant, to counter her argument that she 14 deserved special treatment because of her pro se status). Accordingly, the Court takes judicial 15 notice of: (1) Plaintiff’s complaint filed in his previous action, Case No. C 17-05853-YGR (PR), 16 and the civil docket sheet from the Public Access to Court Electronic Records, attached as Exhibit 17 A to Defs. RJN; (2) his petition for writ of habeas corpus, case number HC 8338, filed with the 18 Monterey County Superior Court on October 20, 2014, attached as Exhibit B to Defs. RJN; and 19 (3) the Monterey County Superior Court’s order denying Plaintiff’s petition for writ of habeas 20 corpus, case number HC 8338, on November 6, 2014, attached as Exhibit C to Defs. RJN. 21 Plaintiff’s opposition is not verified and will not be considered because it was not signed 22 under “penalty of perjury.” Dkt. 31. Because the complaint is verified, dkt. 1 at 3, the Court will 23 construe it as an opposing affidavit under Federal Rule of Civil Procedure 56, insofar as it is based 24 on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. 25 McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995). 26 IV. ANAYLSIS 27 Defendants contend that Plaintiff did not exhaust his administrative remedies as to his 1 Defendants assert that Plaintiff “has raised a freestanding claim against Defendants Voong and 2 Briggs that he did not properly raise in an administrative appeal.” Dkt. 32 at 3. Defendants argue 3 as follows: 4 In Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010), the Ninth Circuit held that an inmate-plaintiff raising a freestanding claim 5 against the prison’s appeals coordinator for improper screening must separately pursue his administrative remedies for that problem before 6 filing suit. The Court explained that although the inmate claimed his grievances about medical care were improperly screened, he could 7 not rely on those grievances to put the prison on notice about his specific claim against the appeals coordinator. Id. 8 Oden has presented an analogous situation in this case. Oden filed 9 two grievances about Defendants Voong and Briggs’s conduct— SVSP-L-16-03721 and LAC-X-15-01228. In appeal number SVSP- 10 L-16-03721, Oden claimed that Defendants Voong and Briggs denied his due process rights to appeal the indecent-exposure rules violation 11 report. (ECF No. 20-5, ¶ 15, Ex. B.) That grievance was cancelled at the third level of review for duplicating another appeal—LAC-X- 12 15-01228—which was cancelled as untimely. (Id., ¶ 14, Ex. B.) In appeal number LAC-X-15-01228, Oden argued that Defendants 13 Voong and Briggs and other employees working in the Appeals Offices denied him due process because they did not process his 14 administrative appeals. (Id., Ex. B.) Neither appeal was properly exhausted appeal because neither received a substantive decision at 15 the third level. (Id.) 16 Dkt. 32 at 3. 17 As explained above, Defendants’ burden is to prove that there was an available 18 administrative remedy and that Plaintiff did not exhaust that available administrative remedy. 19 Albino, 747 F.3d at 1172; see id. at 1176 (reversing district court’s grant of summary judgment to 20 defendants on issue of exhaustion because defendants did not carry their initial burden of proving 21 their affirmative defense that there was an available administrative remedy that prisoner plaintiff 22 failed to exhaust); see also Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005) (as there can be 23 no absence of exhaustion unless some relief remains available, movant claiming lack of 24 exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted 25 levels or through awaiting results of relief already granted as result of that process). Once 26 Defendants have carried that burden, Plaintiff has the burden of production. Albino, 747 F.3d at 27 1172. That is, the burden shifts to Plaintiff to come forward with evidence showing that there is 1 remedies effectively unavailable to him. Id. But as required by Jones, the ultimate burden of 2 proof remains with Defendants. Id. 3 A. Defendants’ Initial Burden of Proving Unexhaustion 4 In an effort to carry out their initial burden of proving unexhaustion, Defendants argue as 5 follows: 6 Oden’s complaint alleges that Defendants Voong and Briggs interfered with his access to the prison grievance system. Oden’s 7 claim against them has nothing to do with his underlying challenges to the merits of the indecent-exposure RVR. Rather, he is raising a 8 freestanding claim against Voong and Briggs in their roles as appeal reviewers concerning subsequent challenges to prior appeal 9 cancellation decisions. But Oden did not sufficiently address this alleged wrongdoing through the administrative appeal process, and 10 accordingly, he has failed to exhaust his administrative remedies against Defendants. 11 Id. at 16. Defendants acknowledge that Plaintiff filed two relevant grievances to the access to the 12 courts claim against Defendants—LAC-X-15-01228 and LAC-X-16-02456/SVSP-L-16-03721— 13 but contend that Plaintiff did not exhaust his administrative remedies because Plaintiff did not 14 receive a decision (i.e., a denial) at the highest level of appeal. Id. at 16-17. Therefore, 15 Defendants argue that they are entitled to summary judgment based on Plaintiff’s failure to 16 exhaust his administrative remedies as to the access to the courts claim. Id. 17 Defendants have met their initial burden as the moving party by setting forth evidence to 18 demonstrate Plaintiff’s non-exhaustion as to Plaintiff’s access to the courts claim, specifically by 19 conducting a search of the CDCR’s records and finding no grievances submitted to the Director’s 20 level by Plaintiff concerning the such a claim. See Williams v. Paramo, 775 F.3d 1182, 1191 (9th 21 Cir. 2015). Defendants cite the declarations of Defendants Voong and Briggs as well as Appeals 22 Coordinator Lomeli, who have reviewed Plaintiff’s grievances and concluded that: (1) Plaintiff 23 only submitted three grievances during time period at issue that were pursued to the Director’s 24 level and for which he obtained final administrative decisions (i.e., denials)—SVSP-L-13-2804, 25 SVSP-L-14-2256, and SVSP-L-18-03264—but none of the three related to the aforementioned 26 access to the courts claim; and (2) the grievances relating to Plaintiff’s access to the courts claim 27 against Defendants were cancelled as either untimely (LAC-X-15-01228) or duplicative (LAC-X- 1 16-02456/SVSP-L-16-03721) and thus Plaintiff never obtained a final administrative decision 2 because neither were accepted for substantive review at the third level. 3 B. Plaintiff’s Burden of Proving Unavailability of Administrative Remedies 4 Defendants have adequately shown that there were available administrative remedies that 5 Plaintiff did not fully exhaust. As such, the burden shifts to Plaintiff “to come forward with 6 evidence showing that there is something in his particular case that made the existing and 7 generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 8 1166. Improper screening of a prisoner’s administrative grievances may excuse a failure to 9 exhaust. See Sapp v. Kimbrell, 623 F.3d 813, 822-23 (9th Cir. 2010). The prisoner must 10 demonstrate “(1) that he actually filed a grievance or grievances that, if pursued through all levels 11 of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in 12 federal court, and (2) that prison officials screened his grievance or grievances for reasons 13 inconsistent with or unsupported by applicable regulations.” Id. at 823-24. 14 Plaintiff relies on appeal number SVSP-L-14-3346 to support his claim that he was 15 excused from the exhaustion requirement. Dkt. 31-1 at 3. However, such an argument does not 16 address Defendants’ claim that Plaintiff did not exhaust his freestanding claim against Defendants 17 Voong and Briggs. As explained above, in SVSP-L-14-3346, Plaintiff claimed that he had not 18 committed the offense of indecent exposure, that Officer Santana had been harassing him, and that 19 the indecent exposure RVR should be dismissed. Briggs Decl. ¶ 5, Ex. B (Dkt. 20-2 at 59, 61). 20 On September 30, 2014, Defendant Briggs sent Plaintiff a letter rejecting the appeal for failure to 21 provide supporting documents, namely the CDCR Form 128-B, General Chrono. Briggs Decl. 22 ¶¶ 5-6, Ex. B (Dkt. 20-2 at 63). Plaintiff alleges in his opposition that he was unable to provide 23 such documents and thus unable to exhaust this appeal because he was unable to obtain the 24 documents from SVSP and because the appeals coordinators at SVSP held the appeal for over 30 25 days. Dkt. 31-1 at 3. However, Defendant Briggs’s September 30, 2014 letter did not preclude 26 Plaintiff from completing the appeal process, as Plaintiff was allowed to resubmit to correct the 27 defect, and the record shows that SVSP-L-14-3346 was again received at the third level on 1 return his appeal within 30 days of September 30, 2014 as required by California Code of 2 Regulations, Title 15, § 3084.6(c)(10), and it was cancelled on March 5, 2015, for untimeliness. 3 See id. In addition, Defendant Briggs’s September 30, 2014 letter informing Plaintiff about the 4 cancellation of SVSP-L-14-03346 cannot exhaust Plaintiff’s freestanding claim against Defendant 5 Briggs for improper screening. As Sapp provides, Plaintiff was required to separately grieve his 6 claim against Defendant Briggs because a proper screening decision does “not foreclose the 7 possibility that exhaustion might also be excused where repeated rejections of an inmate’s 8 grievances at the screening stage give rise to a reasonable good faith belief that administrative 9 remedies are effectively unavailable.” Sapp, 623 F.3d at 826. Such an excuse is not available to 10 Plaintiff here, however, as the record shows that SVSP-L-14-03346 were screened out only once 11 at the third level of review and then it was ultimately cancelled as untimely. The issue here is that 12 after SVSP-L-14-03346 was screened out, Plaintiff could still separately grieve his access to the 13 courts claim against either Defendant Briggs or Defendant Voong. Consequently, the Court 14 concludes Plaintiff could not have had a reasonable good faith belief that further administrative 15 remedies were effectively unavailable. 16 Going back to the two requirements under Sapp, the Court points out that Plaintiff could 17 meet the first Sapp factor, as shown by his attempts to file LAC-X-15-01228 and LAC-X-16- 18 02456/SVSP-L-16-03721, which, as construed in the light most favorable to the Plaintiff above, 19 would have sufficed to exhaust his access to the courts claim because they both claim that 20 Defendants Voong and Briggs denied Plaintiff’s due process rights to appeal the indecent- 21 exposure RVR. See Voong Decl., Ex. B. However, as explained above, neither appeal was 22 accepted for substantive review at the third level because they were both cancelled as either 23 untimely (LAC-X-15-01228) or duplicative (LAC-X-16-02456/SVSP-L-16-03721). Therefore, in 24 order to satisfy the second Sapp factor Plaintiff must show that prison officials rejected LAC-X- 25 15-01228 and LAC-X-16-02456/SVSP-L-16-03721 for reasons inconsistent with applicable 26 regulations. See Sapp, 623 F.3d at 823-24. 27 The Court finds Plaintiff has failed to present evidence showing LAC-X-15-01228 and 1 explained below. Moreover, even after LAC-X-15-01228 and LAC-X-16-02456/SVSP-L-16- 2 03721 were properly cancelled, Plaintiff had various options to move the appeals process forward 3 and exhaust his administrative remedies, i.e., he could have appealed the cancellation of both 4 appeals. Cal. Code Regs. tit. 15, § 3084.6(e). But the record shows that Plaintiff did not pursue 5 such an options as further explained below. 6 1. Cancellation of LAC-X-15-01228 as Untimely 7 In LAC-X-15-01228, in which Plaintiff appealed the third-level cancellation of SVSP-L- 8 14-03346 in addition to claiming Defendants violated his due process rights to appeal the 9 indecent-exposure RVR, the third level appeal decision pointed out that LAC-X-15-01228 had 10 been cancelled. Voong Decl., Ex. B (Dkt. 20-5 at 305). Specifically, on June 26, 2015, Plaintiff 11 was sent a letter from Defendant Voong, stating: 12 Your appeal is being cancelled pursuant to the California Codes of Regulations, Title 15, Section (CCR) 3084.6(c)(4). Time limits for 13 submitting the appeal are exceeded even though the inmate or parolee had the opportunity to submit within the prescribed time constraints. 14 [SVSP-L-14-03346]6 was cancelled at the third level on March 5, 15 2015, and mailed to you on March 19, 2015. Your CDCR 602 appealing the cancellation was not received in our office until May 4, 16 2015 (46 days after third level mailed the cancelled appeal to you). This exceeds time constraints to submit for third level review. 17 Id. (footnote added). 18 At the bottom of the letter, there are further instructions, stating: 19 Be advised that you cannot appeal a rejected appeal, but should take 20 the corrective action necessary to resubmit the appeal within the timeframes, 30 calendar days as specified in CCR 3084.6(a) and CCR 21 3084.6(b). Pursuant to CCR 3084.6(e), once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate 22 appeal can be filed on the cancellation decision. The original appeal may only be resubmitted if the appeal on the cancellation is granted. 23 Id.7 24 25 6 Defendant Voong’s June 26, 2015 letter refers to SVSP-L-14-03346 using its Third Level Review (“TLR”) number, “Appeal TLR 1402438.” See Voong Decl., Ex. B (Dkt, 20-5 at 305). In 26 order to remain consistent, the Court refers to the original appeal number at the lower levels of appeal—SVSP-L-14-03346. 27 1 Title 15, California Code of Regulations § 3084.6 is entitled, “Rejection, Cancellation, and 2 Withdrawal Criteria.” Cal. Code. Regs. tit. 15 § 3084.6. According to section 3084.6(c)(4): 3 (c) An appeal may be cancelled for any of the following reasons, which include, but are not limited to: 4 . . . . 5 (4) Time limits for submitting the appeal are exceeded even though 6 the inmate or parolee had the opportunity to submit within the prescribed time constraints. In determining whether the time limit has 7 been exceeded, the appeals coordinator shall consider whether the issue being appealed occurred on a specific date or is ongoing. If the 8 issue is ongoing, which may include but is not limited to, continuing lockdowns, retention in segregated housing, or an ongoing program 9 closure, the inmate or parolee may appeal any time during the duration of the event; however, the inmate or parolee is precluded 10 from filing another appeal on the same issue unless a change in circumstances creates a new issue. 11 Id. Furthermore, section 3084.1(g) states, “An appellate shall adhere to appeal filing time 12 constraints as defined in section 3084.8.” Id., § 3084.1(g). And, section 3084.8(a)(b)(1)(2): 13 “Time limits for reviewing appeals shall commence upon the date of receipt of the appeal form by 14 the appeals coordinator. An inmate or parolee must submit the appeal within 30 calendar days of: 15 The occurrence of the event or decision being appealed, or; upon first having knowledge of the 16 action or decision being appealed.” Id., § 3084.8(a)(b)(1)(2) (emphasis added). These regulations 17 make clear that it is not the date of submission but the date of receipt by the appeals coordinator 18 which defines the time constraints. Id. The Court notes that other than civil filing deadlines and 19 service deadlines, the Ninth Circuit has found that the “mailbox rule” does not apply to 20 administrative filing deadlines such as those required of federal prisoners under 28 C.F.R. 21 §§ 542.0-.16. See Nigro v. Sullivan, 40 F.3d 990, 993-97 (9th Cir. 1994). 22 The PLRA’s exhaustion requirement cannot be satisfied “by filing an untimely or 23 otherwise procedurally defective administrative grievance or appeal.” Woodford, 548 U.S. at 84. 24 “The text of 42 U.S.C. § 1997e(a) strongly suggests that the PLRA uses the term ‘exhausted’ to 25 mean what the term means in administrative law, where exhaustion means proper exhaustion.” Id. 26 at 92. The PLRA exhaustion requirement requires proper exhaustion. Id. As explained above, 27 proper exhaustion demands “compliance with an agency’s deadlines.” Id. at 90-91. If a prisoner 1 had full opportunity and ability to file a timely grievance but failed to do so, he has not properly 2 exhausted his administrative remedies. Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009) 3 (citing Woodford, 548 U.S. at 88). Finally, a cancellation decision does not exhaust administrative 4 remedies. Cal. Code Regs. tit. 15, § 3084.1(b). 5 Here, Plaintiff fails to provide an explanation as to why he waited forty-six days to appeal 6 the third-level cancellation of SVSP-L-14-03346 after that cancellation was mailed to him on 7 March 19, 2015. There is no indication that Plaintiff was otherwise incapable of filing the appeal 8 sooner in order to meet time constraints. The undisputed facts are that Plaintiff had thirty days 9 from the date the cancellation of SVSP-L-14-03346 was mailed to him on March 19, 2015 to file a 10 timely appeal, i.e., no later than April 18, 2015, and that appeal was not received by the appeals 11 coordinator until May 4, 2015, which was sixteen days after the thirty-day period had expired. 12 Thus, the Court concludes that the third level appeal decision correctly found under the regulations 13 that LAC-X-15-01228 was filed beyond the time constraints by sixteen days (46 days minus 30 14 days) and was therefore properly cancelled as untimely. See Voong Decl., Ex. B (Dkt. 20-5 at 15 305). Most importantly, even after LAC-X-15-01228 was properly cancelled, Plaintiff failed to 16 appeal the cancellation. See Cal. Code Regs. tit. 15, § 3084.6(e). Plaintiff had filed an untimely 17 appeal, and it was also his choice to file the instant lawsuit against Defendants without complying 18 with the PLRA’s exhaustion requirement. And Plaintiff provided no evidence that Defendants 19 prevented Plaintiff from successfully exhausting his administrative remedies before filing suit. 20 Therefore, Plaintiff failed to properly exhaust his administrative remedies through inmate appeal 21 LAC-X-15-01228 because it was untimely. 22 2. Cancellation of LAC-X-16-02456/SVSP-L-16-03721 as Duplicative 23 In LAC-X-16-02456/SVSP-L-16-03721, Plaintiff claimed Defendants violated his due 24 process rights to appeal the indecent-exposure RVR, and the third level appeal decision pointed 25 out that LAC-X-16-02456/SVSP-L-16-03721 had been cancelled. Voong Decl., Ex. B (Dkt. 20-5 26 at 473). Specifically, on November 23, 2016, Plaintiff was sent a letter from Defendant Voong, 27 stating: Regulations, Title 15, Section (CCR) 3084.6(c)(2). The appeal 1 duplicates an inmate or parolee's previous appeal upon which a decision has been rendered or is pending. 2 This appeal is a duplicate to [LAC-X-15-01228].8 3 Id. (footnote added). 4 As mentioned above, a grievance may be cancelled for various reasons, including 5 duplication of other appeals. Cal. Code Regs. tit. 15, § 3084.6(c)(2). And again, a cancellation 6 decision does not exhaust administrative remedies. Id. at § 3084.1(b). Here, in LAC-X-16- 7 02456/SVSP-L-16-03721, Plaintiff claimed Defendants violated his due process rights to appeal 8 the indecent-exposure RVR. Voong Decl., Ex. B (Dkt. 20-5 at 474). As mentioned above, 9 Plaintiff claimed the same issue in LAC-X-15-01228, in which he claimed that “no one wants to 10 process and exhaust the Administrative Due Process Procedures” and requested that the OOA 11 employees, including Defendants, “stop trying to deny [him] due process . . . .” Id. (Dkt. 20-5 at 12 306-308). Thus, the undisputed facts are that Plaintiff had submitted an appeal that was a 13 duplicate of LAC-X-15-01228. However, even if Plaintiff disagreed that it was a duplicate of 14 LAC-X-15-01228, he could have filed a separate appeal in order to challenge the cancellation 15 decision. Cal. Code Regs. tit. 15, § 3084.6(e). Here, Plaintiff was informed that he could appeal 16 the cancellation of LAC-X-16-02456/SVSP-L-16-03721, but he did not do so. Therefore, Plaintiff 17 failed to properly exhaust his administrative remedies through inmate appeal LAC-X-16- 18 02456/SVSP-L-16-03721 because it was duplicative. 19 By failing to file a timely grievance relating to his access to the courts claim against 20 Defendants, choosing not to appeal the cancellations of LAC-X-15-01228 and LAC-X-16- 21 02456/SVSP-L-16-03721, and instead filing the instant action in federal court, Plaintiff deprived 22 prison officials the “time and opportunity to address complaints internally before allowing the 23 initiation of a federal case,” which is the purpose of the PLRA exhaustion requirement. Porter, 24 534 U.S. at 525. Plaintiff’s inability to exhaust is attributable, in part, to his delay in filing his 25 26 8 Defendant Voong’s November 23, 2016 letter refers to LAC-X-15-01228 using its Third Level Appeal number, “appeal log no. OOA-14-02438.” See Voong Decl., Ex. B (Dkt. 20-5 at 27 473). Again, to remain consistent, the Court refers to the original appeal number at the lower 1 appeal and to the fact that he failed to appeal any cancellations. Lastly, as in Sapp, nothing in the 2 record suggests that the CDCR has “created draconian procedural requirements that would ‘trip[ ] 3 up all but the most skillful prisoners’” and render administrative remedies effectively unavailable, 4 so as to excuse a failure to exhaust. See Sapp, 623 F.3d at 827 (citing Woodford v. Ngo, 548 U.S. 5 81, 102 (2006)). Significantly, Defendants have submitted evidence demonstrating Plaintiff has 6 prosecuted appeals through the Director’s level of review, both before and after pursuing the 7 appeal at issue herein. See Voong Decl., Ex. A. Accordingly, Plaintiff has not met his burden to 8 show that there was something in his particular case that made generally available administrative 9 remedies effectively unavailable to him. See Albino, 747 F.3d at 1172. 10 In sum, Defendants have met the ultimate burden of presenting evidence of unexhaustion, 11 which Plaintiff has not persuasively disputed. Plaintiff’s filing of untimely (LAC-X-15-01228) or 12 duplicative (LAC-X-16-02456/SVSP-L-16-03721) appeals that were eventually cancelled does 13 not constitute proper exhaustion. Woodford, 548 U.S. at 84. The prison’s requirements define the 14 boundaries of proper exhaustion. Jones, 549 U.S. at 218. A grievant must use all steps the prison 15 holds out, enabling the prison to reach the merits of the issue. Woodford, 548 U.S. at 90. The 16 undisputed facts show that Plaintiff failed to comply with these requirements, and he has not 17 presented evidence that precludes summary judgment. 18 Accordingly, the instant motion for summary judgment is GRANTED on the ground that 19 Plaintiff failed to exhaust his administrative remedies as to his access to the courts claim against 20 Defendants.9 21 V. CONCLUSION 22 For the reasons outlined above, the Court orders as follows: 23 1. Defendants’ request for judicial notice is GRANTED. Dkt. 20-6. 24 2. Defendants’ motion for summary judgment is GRANTED based on Plaintiff’s 25 failure to exhaust administrative remedies. Dkt. 20. The access to the courts claim against them is 26 27 9 The Court’s finding that Defendants are entitled to summary judgment as to Plaintiff’s 1 DISMISSED without prejudice for failure to exhaust administrative remedies. See Albino, 747 2 || F.3d at 1166. 3 3. The Clerk shall terminate all pending motions and close the file. 4 4. This Order terminates Docket No. 20. 5 IT IS SO ORDERED. 6 || Dated: March 20,2020 7 VONNE GONZALEZ ROGERS 8 United States District Judge 9 10 11 12 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28