Willis v. Taylor ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CALVIN WILLIS, Case No. 22-cv-03427-HSG 8 Plaintiff, ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY 9 v. JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE 10 MATTHEW TAYLOR, et al., REMEDIES; ADDRESSING PENDING MOTIONS; REQUIRING RESPONSE 11 Defendants. FROM PLAINTIFF 12 Re: Dkt. Nos. 17, 20, 23, 26 13 14 Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against San 15 Quentin State Prison (“SQSP”) correctional officer Taylor, alleging that on March 14, 2019, 16 defendant Taylor used excessive force on him, in violation of the Eighth Amendment. Dkt. Nos. 17 1, 11. Now pending before the Court is defendant Taylor’s motion for summary judgment for 18 failure to exhaust administrative remedies. Dkt. No. 17. Plaintiff has filed an opposition, Dkt. No. 19 24, and defendant Taylor has filed a reply, Dkt. No. 25. After the motion was fully briefed, 20 Plaintiff filed a motion for leave to file a surreply. Dkt. No. 26. For the reasons set forth below, 21 the Court DENIES Plaintiff’s request for leave to file a surreply, Dkt. No. 26, and DENIES 22 defendant Taylor’s summary judgment motion. This order also addresses Plaintiff’s motion for 23 summary judgment, Dkt. No. 20, and Defendant’s motion to stay the deadline for responding to 24 Plaintiff’s summary judgment motion and to stay merits-based discovery, Dkt. No. 23. 25 DISCUSSION 26 I. Background 27 A. Complaint 1 the bayside stair in West Block to meet his correctional counselor, defendant Taylor grabbed 2 Plaintiff’s left arm, ripped Plaintiff’s hand away from his body, and violently slammed Plaintiff 3 into the stair rail, causing injury to Plaintiff’s lower back. Plaintiff’s lower back pain is ongoing to 4 this day. See Dkt. No. 1 at 3, 6. The Court found that the complaint stated a cognizable Eighth 5 Amendment excessive force claim against defendant Taylor. Dkt. No. 11. 6 B. CDCR Administrative Grievance Process 7 During the relevant time period, the CDCR provided inmates with the administrative 8 grievance process set forth in the version of 15 Cal. Code §§ 3084-3086 in effect at that time.1 9 The CDCR provided its inmates “an administrative mechanism for review of departmental 10 policies, decisions, actions, conditions, or omissions that have a material adverse effect upon the 11 welfare of inmates . . .” 15 Cal. Code Regs. § 3084.1(a) (2019). The grievance process required a 12 prisoner to use a CDCR Form 602 “to describe the specific issue under appeal and the relief 13 requested” by stating all facts known and available regarding the issue, and by listing all staff 14 member(s) involved and describing their involvement in the issue. 15 Cal. Code Regs. 15 § 3084.2(a) (2019). A grievance was reviewed at three different levels: (1) a first formal level 16 filed with one of the institution’s appeal coordinators, (2) a second formal level filed with the 17 institution head or designee, and (3) a third formal level filed with the CDCR’s Office of Appeals 18 (“OOA”). 15 Cal. Code Regs. § 3084.7 (2019). Pursuing a grievance through the third and final 19 level satisfied the exhaustion requirement set forth in 42 U.S.C. § 1997e(a). 15 Cal. Code Regs. 20 § 3084.1(b) (2019). 21 Appeals to the third level of review were reviewed by the Office of Appeals (“OOA”) and 22 either screened in or screened out. A grievance was screened in (answered substantively) if it 23 complied with the governing regulations. A grievance was screened out (not answered 24 25 1 The regulations that set out the features of the administrative remedies process for California prisoners underwent a substantial restructuring in 2020. On March 25, 2020, and effective June 1, 26 2020, 15 Cal. Code Regs. §§ 3084–3084.9 were repealed and replaced with renumbered and amended provisions at sections 3480 through 3487. Because the relevant events took place in 27 2019, the current administrative grievance process does not apply to Plaintiff’s claim. All the 1 substantively) if it did not comply with the governing regulations. If a grievance was screened 2 out, the grievance was returned to the inmate as cancelled or rejected. The inmate was informed 3 of the reason for the cancellation or rejection, and informed as to how the deficiency couldd be 4 cured, if the regulations provide for a cure. Dkt. No. 17-3 (“Moseley Decl.”), ¶ 4; see also 15 Cal. 5 Code Regs. § 3084.6 (2019) (listing possible reasons for cancellation or rejection, and whether 6 rejection or cancellation could be cured). 7 An inmate filing an allegation of misconduct by a correctional officer was required to read 8 and sign an advisory that specified his rights with respect to the investigation of the misconduct 9 allegations. Cal. Penal Code § 148.6 (2019); 15 Cal. Code Regs. § 3084.9(i) (2019). With respect 10 to the CDCR’s administrative grievance process, the advisory was the CDCR Form 1858, Rights 11 and Responsibility Statement. 15 Cal. Code Regs. § 3084.9(i) (2019). 12 C. Grievance No. SQ-A-19-01083 13 Grievance No. SQ-A-19-01083 is the only grievance to grieve the March 14, 2019 alleged 14 use of excessive force by defendant Taylor.2 Dkt. No. 1 at 1-2; Dkt. No. 17-4 at 7-12. Grievance 15 No. SQ-A-19-01083 was submitted on April 4, 2019 and bypassed at the first level. Dkt. No. 17-4 16 at 7. Grievance No. SQ-A-19-01083 was partially granted at the second level in that the matter 17 was referred for an confidential inquiry. 18 The second level decision was prepared on April 19, 2019; signed by the hiring authority 19 on May 6, 2019; and issued to Plaintiff on May 7, 2019. Dkt. No. 1 at 2; Dkt. No. 17-4 at 11. The 20 decision informed Plaintiff that this decision did not exhaust his administrative remedies as 21 follows: 22 • Allegations of staff misconduct do not limit or restrict the availability of further relief via the inmate appeals process. 23 • If you wish to appeal the decision, you must submit your staff complaint appeal 24 through all levels of appeal review up to, and including, the Secretary’s Level of 25 2 Prison records indicate that between March 14, 2019, when the alleged incident took place, and 26 June 1, 2020, when Plaintiff was transferred away from SQSP, Plaintiff filed four grievances that were exhausted (i.e., appealed to the third and final level). Dkt. Nos. 17-2. Of these four 27 grievances, only Grievance No. SQ-A-19-01083 grieved defendant Taylor’s alleged use of Review. Once a decision has been rendered at the Third Level, your administrative 1 remedies will be considered exhausted. 2 Dkt. No. 24 at 12. 3 On May 22, 2019, Plaintiff appealed the second level decision, alleging that the CDCR had 4 failed to protect him from abuse by defendant Taylor and had failed to determine if defendant 5 Taylor had received adequate training. In the appeal, Plaintiff stated that he had not received an 6 explanation as to why defendant Taylor assaulted him. Dkt. No. 17-3 at 8, 10. 7 On July 10, 2019, Grievance No. SQ-A-19-01083 was rejected pursuant to 15 Cal. Code 8 Regs. § 3084.6(b)(7) because it was missing the following necessary supporting documents: 9 CDCR Form 1848, Rights and Responsibilities Statement. Dkt. No. 17-4 at 6. The rejection letter 10 informed Plaintiff that a rejected grievance could not be appealed but that Plaintiff “should take 11 the corrective action necessary and resubmit the [grievance] within the timeframes specified in 12 CCR 3084.6(a) and CCR 3084.8(b).” Dkt. No. 17-4 at 6. 13 Plaintiff states that he re-submitted the grievance to the third level on September 3, 2019, 14 but did not receive any further response from correctional officials. Dkt. No. 1 at 2. Plaintiff has 15 provided the Court with a CDCR Form 1858 dated August 5, 2019. Dkt. No. 24 at 14. Defendant 16 reports that the CDCR has no record of Plaintiff resubmitting his appeal of the second level 17 decision and no record of the Office of Appeals receiving the CDCR Form 1858 dated August 5, 18 2019. No third level decision was issued for Grievance No. SQ-A-19-01083. 19 On December 23, 2019, Plaintiff sent a letter to the OOA asking about the status of 20 Grievance No. SQ-A-19-01083, stating that he was still waiting for a response to Grievance No. 21 SQ-A-19-01083: 22 I I/M Willis, AN6349; has been waiting for your response on my 602 complaint filed 4-4- 2019 Log No. SQ-A-19-01083; Your office has not respond to this matter as of yet is there 23 a Problem? As of this date 8-5-19 Your office still has not responded, this matter is of serious review of correctional officer M. Taylor. Awaiting your response, the additional 24 material is to inform Sacramento of the problems inmates are facing from correctional officer M. Taylor. 25 12-23-19 Calvin Willis 26 Dkt, No. 17-4 at 17. The OOA responded to Plaintiff with a letter dated January 3, 2020, by 27 providing Plaintiff with a summary of his recent grievance history and the status of any grievances 1 SQ-A-19-01083 and stated that this grievance had been screened out on July 10, 2019 because 2 supporting documents had not been attached. Dkt. No. 17-4 at 16. Plaintiff did not take any 3 action in response to this letter. 4 DISCUSSION 5 6 I. Plaintiff’s Request for Leave to File a Surreply 7 After the motion was fully briefed, Plaintiff filed a pleading titled “motion to respond to 8 defendant’s motion to dismiss plaintiff summary judgment.” Dkt. No. 26. The Court construes 9 this as a request for leave to file a sur-reply in opposition to Defendant’s summary judgment 10 motion because (1) Defendant has not moved to dismiss Plaintiff’s summary judgment motion and 11 has only requested to stay the deadline to oppose the summary judgment motion, and (2) the 12 pleading discusses whether Plaintiff has exhausted his administrative remedies for this claim, 13 which is the subject of Defendant’s summary judgment motion, but not of Plaintiff’s summary 14 judgment motion. N.D. Cal. L.R. 7-3(d) provides that once a reply is filed, no additional 15 memoranda, papers or letters may be filed without prior Court approval, except if new evidence 16 has been submitted in the reply or a relevant judicial opinion was published after the date the 17 opposition or reply was filed by filing. N.D. Cal. L.R. 7-3(d). Defendants’ reply brief in in 18 support of their summary judgment motion did not submit new evidence, and Plaintiff’s proposed 19 sur-reply did not reference a newly published relevant judicial opinion. See Dkt. Nos. 25, 26. 20 Accordingly, the Court DENIES Plaintiff’s request for leave to file a surreply. Dkt. No. 26. 21 II. Defendant’s Summary Judgment Motion for Failure to Exhaust Administrative 22 Remedies 23 A. Summary Judgment Standard 24 Summary judgment is proper where the pleadings, discovery and affidavits show that there 25 is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 26 law.” See Fed. R. Civ. P. 56(a). Material facts are those that may affect the outcome of the case. 27 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 1 party. See id. 2 A court shall grant summary judgment “against a party who fails to make a showing 3 sufficient to establish the existence of an element essential to that party’s case, and on which that 4 party will bear the burden of proof at trial [,] . . . since a complete failure of proof concerning an 5 essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” 6 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial 7 burden of identifying those portions of the record that demonstrate the absence of a genuine issue 8 of material fact. Id. at 323. The burden then shifts to the nonmoving party to “go beyond the 9 pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and 10 admissions on file, ‘designate ‘specific facts showing that there is a genuine issue for trial.’” See 11 id. at 324 (citing Fed. R. Civ. P. 56(e)). 12 For purposes of summary judgment, the court must view the evidence in the light most 13 favorable to the non-moving party, drawing all justifiable inferences in that party’s favor. AXIS 14 Reinsurance Co. v. Northrop Grumman Corp., 975 F.3d 840, 844 (9th Cir. 2020). If, as to any 15 given material fact, evidence produced by the moving party conflicts with evidence produced by 16 the nonmoving party, the Court must assume the truth of the evidence set forth by the nonmoving 17 party with respect to that material fact. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). 18 However, facts must be viewed in the light most favorable to the nonmoving party only if there is 19 a “genuine” dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). The court’s 20 function on a summary judgment motion is not to make credibility determinations or weigh 21 conflicting evidence. Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017). 22 B. Exhaustion 23 The PLRA sets forth the following exhaustion requirement: “No action shall be brought 24 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 25 confined in any jail, prison, or other correctional facility until such administrative remedies as are 26 available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is 27 mandatory, Jones v. Bock, 549 U.S. 199, 211 (2007), and requires “proper exhaustion” of 1 requires using all steps of an administrative process and “demands compliance with an agency’s 2 deadlines and other critical procedural rules because no adjudicative system can function 3 effectively without imposing some orderly structure on the course of its proceedings.” Woodford, 4 548 at 90–91. Compliance with prison grievance procedures is all that is required by the PLRA to 5 “properly exhaust.” Jones, 549 U.S. at 217–18. 6 “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of 7 administrative remedies: An inmate, that is, must exhaust available remedies, but need not 8 exhaust unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (alteration in original); 9 see Andres v. Marshall, 867 F.3d 1076, 1078 (9th Cir. 2017) (per curiam); see also Brown v. 10 Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The obligation to exhaust available remedies persists 11 as long as some remedy remains available. Once that is no longer the case, then there are no 12 remedies . . . available, and the prisoner need not further pursue the grievance.”) (citation and 13 internal quotation marks omitted). 14 Failure to exhaust under the PLRA is an affirmative defense that the defendant must plead 15 and prove. Jones, 549 U.S. at 204, 216. The defendant’s burden is to prove that there was an 16 available administrative remedy and that the prisoner did not exhaust that available administrative 17 remedy. Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014). Once the defendant has carried that 18 burden, the burden shifts to the prisoner to come forward with evidence showing that there is 19 something in his particular case that made the existing and generally available administrative 20 remedies effectively unavailable to him. Albino, 747 F.3d at 1172. That is, the burden shifts to 21 the prisoner to come forward with evidence showing that there is something in his particular case 22 that made the existing and generally available administrative remedies effectively unavailable to 23 him. Id. But as required by Jones, the ultimate burden of proof remains with the defendant. Id. 24 If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to 25 exhaust, a defendant is entitled to summary judgment under Rule 56. Id. at 1166. But if material 26 facts are disputed, summary judgment should be denied and the district judge rather than a jury 27 should determine the facts in a preliminary proceeding. Id. 1 C. Analysis 2 Defendant argues that he is entitled to summary judgment because Plaintiff failed to 3 exhaust administrative remedies by not submitting the required documentation after the third level 4 rejection of his appeal of the second level decision for Grievance No. SQ-A-19-01083. See 5 generally Dkt. No. 17. Plaintiff argues that the CDCR Form 1858 is not required when lodging a 6 staff misconduct complaint, as set forth in 15 Cal. Code Regs. § 3391; and that once Grievance 7 No. SQ-A-19-01083 was processed as a staff complaint, he was not required to take any further 8 steps to exhaust remedies. See generally Dkt. No. 24. 9 The PLRA’s exhaustion requirement requires Plaintiff to have complied with the CDCR 10 regulations governing the CDCR administrative grievance process. Contrary to Plaintiff’s 11 assertion, the CDCR Form 1858 is required by state regulations when a complainant alleges staff 12 misconduct. Cal. Penal Code § 148.6 (2019); 15 Cal. Code Regs. § 3084.9(i) (2019). 13 Accordingly, Plaintiff was required to submit the CDCR Form 1858 as part of the CDCR 14 administrative remedy process and the rejection of his grievance for failure to comply with the 15 CDCR Form 1858 requirement did not render the grievance process unavailable to him. 16 However, viewing the record in the light most favorable to Plaintiff, there is a triable issue 17 of fact as to whether administrative remedies were effectively unavailable to Plaintiff for 18 Grievance No. SQ-A-19-01083. Plaintiff alleges that he re-submitted the grievance to the third 19 level on September 3, 2019, but did not receive any further response from correctional officials. 20 Dkt. No. 1 at 2. This allegation is supported by (1) a copy of a CDCR Form 1858 signed on 21 August 5, 2019, and submitted by Plaintiff as part of his opposition to the summary judgment 22 motion, Dkt. No. 24 at 14; and (2) a note submitted by Plaintiff to the Office of Appeals dated 23 December 23, 2019, in which he requests an update as to the status of Grievance No. SQ-A-19- 24 01083 and references an August 5, 2019 date, Dkt. No. 17-4 at 17, which is the same date on the 25 CDCR Form 1858. Making all justifiable inferences in Plaintiff’s favor, it is possible that Plaintiff 26 copied the CDCR Form 1858 before he submitted it to prison authorities, then handed the CDCR 27 Form 1858 and his appeal of the second level decision to prison authorities sometime between 1 to the Office of Appeals through no fault of Plaintiff. Plaintiff would not know that the OOA had 2 not received his Form 1858 and appeal until he received the January 3, 2020 response to his 3 December 23, 2019 request for a status update, at which time he was outside the timeframe during 4 which he could take corrective action. These justifiable inferences create a genuine dispute as to 5 whether administrative remedies were effectively unavailable to Plaintiff for Grievance No. SQ-A- 6 19-01083. 7 Defendant argues that the CDCR Form 1858 does not create a genuine dispute as to 8 whether Plaintiff attempted to exhaust his administrative remedies because the document is not 9 authenticated; the document was backdated to August 5, 2019; and there is no evidence that the 10 Office of Appeals received this document in that there is no receiving staff name, signature or 11 date, and no received-date stamp. Dkt. No. 25 at 3-4. Defendant further argues that Exs. 1, 3, and 12 4 to the Moseley Declaration in support of his summary judgment motion are “uncontroverted 13 evidence” that Plaintiff failed to challenge the third-level rejection by resubmitting his grievance 14 with the necessary supporting document. Dkt. No. 25 at 4. Exhibit 1 is a printout of the Inmate / 15 Parolee Appeals Tracking System Level III showing that Grievance No. SQ-A-19-01083 was 16 screened out on July 10, 2019 for failure to attach the required supporting documents. Dkt. No. 17 17-4 at 1-2. Exhibit 3 is a copy of the July 10, 2019 screening letter and the grievance itself. Dkt. 18 No. 17-4 at 5-12. Exhibit 4 is a copy of the January 3, 2020 response to Plaintiff’s December 23, 19 2019 note which provided Plaintiff with a summary of his recent grievance history and status of 20 the grievances under review, and a copy of Plaintiff’s December 23, 2019 note. The attached 21 summary is a copy of Exhibit 1. Dkt. No. 17-4 at 13-18. At best, Defendant’s allegations and 22 exhibits establish that the Office of Appeals never received the CDCR Form 1858 or an appeal 23 from Plaintiff. They do not conclusively establish that Plaintiff failed to submit the CDCR Form 24 1858 and the appeal to a prison official: the documents are equally consistent with an inference 25 that Plaintiff did so, but the prison official, for whatever reason, did not convey the CDCR Form 26 1858 and the appeal to OOA. The CDCR Form 1858 presumably could be authenticated by 27 Plaintiff at an evidentiary hearing, and whether the form is backdated is a disputed issue of 1 most favorable to Plaintiff, the record shows a triable issue of material fact as to whether 2 Petitioner properly resubmitted Grievance No. SQ-A-19-01083 with the required forms; whether 3 prison officials failed to ensure that the resubmitted grievance was submitted to the Office of 4 Appeals; and whether administrative remedies were therefore effectively unavailable to Plaintiff. 5 Accordingly, the Court DENIES Defendant’s motion for summary judgment for failure to exhaust 6 administrative remedies. 7 III. Plaintiff’s Summary Judgment Motion, Dkt. No. 20, and Defendant’s Motion to Stay Deadlines and Merits-Based Discovery, Dkt. No. 23 8 9 Plaintiff has filed a pleading titled “Motion: of Summary Judgment.” Dkt. No. 20. The 10 pleading is a two-page document repeating the factual allegations in the complaint and stating 11 conclusorily that defendant Taylor used excessive force and that Plaintiff has “proven summary 12 judgment beyond reasonable doubt” because defendant Taylor “should have known better to cause 13 this harm against [Plaintiff].” Dkt. No. 20 at 2-3. Defendant has filed a motion to stay the 14 deadline for opposing Plaintiff’s summary judgment motion and merits-based discovery, arguing 15 that his motion for summary judgment for failure to exhaust administrative remedies may resolve 16 this action. Dkt. No. 23. In Dkt. No. 24, which the Court has construed as an opposition to 17 Defendant’s summary judgment motion because it addresses the exhaustion issue, Plaintiff 18 addresses the motion to stay. Plaintiff titled Dkt. No. 24 “Motion to Respond to Defendant’s 19 Meritis (sic) / Base Discovery / To Plaintiff Summary Judgment to Exhaustion Administrative 20 Remedies – Memorandum of Points and Authorities.” Dkt. No. 24 at 1. In Dkt. No. 24, Plaintiff 21 states that the Court “should grant summary judgment against defendant M. Taylor for 22 machination games with the Court,” and that the Court “missunderstood (sic) the Summary 23 Judgment and the Court should have seen in Plaintiff’s request for a lawyer he also argued 24 defendant’s Exhaust claim then.” Dkt. No. 24 at 1-2. 25 Given Plaintiff’s representation in Dkt. No. 24 and the brevity of Dkt. No. 20, it is unclear 26 if Plaintiff intended Dkt. No. 20 to serve as a summary judgment motion. Accordingly, the Court 27 DENIES Plaintiff’s motion for summary judgment, Dkt. No. 20, without prejudice to Plaintiff re- 1 Dkt. No. 20. In light of the Court’s denial of Plaintiff’s motion for summary judgment and the 2 Court’s denial of Defendant’s motion for summary judgment for failure to exhaust administrative 3 remedies, the Court DENIES as moot Defendant’s request to stay the deadline for opposing 4 Plaintiff’s summary judgment motion (Dkt. No. 20) and to stay merits-based discovery. Dkt. No. 5 23. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further 6 court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required before the 7 parties may conduct discovery. 8 CONCLUSION 9 For the foregoing reasons, the Court orders as follows. 10 1. The Court DENIES Plaintiff’s request for leave to file a sur-reply. Dkt. No. 26. 11 2. The Court DENIES Plaintiff’s motion for summary judgment. Dkt. No. 20. This 12 denial is without prejudice to Plaintiff re-filing a motion for summary judgment if and when the 13 Court sets a merits-based briefing schedule. 14 3. The Court DENIES as moot Defendant’s request to stay the deadline for opposing 15 Plaintiff’s summary judgment motion (Dkt. No. 20) and to stay merits-based discovery. Dkt. No. 16 23. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further 17 court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16 is required before the 18 parties may conduct discovery. 19 4. The Court DENIES Defendant’s motion for summary judgment for failure to 20 exhaust administrative remedies. Dkt. No. 17. 21 5. The Ninth Circuit has directed that when a motion for summary judgment for 22 failure to exhaust is denied, disputed factual questions relevant to exhaustion should be decided by 23 the judge. Albino, 747 F.3d at 1170-71 (permitting limited preliminary proceeding to “decide 24 disputed questions of fact”). Accordingly, within fourteen (14) days of the date of this order, 25 Defendant shall inform the Court whether he elects to (1) proceed with a limited evidentiary 26 hearing regarding whether Plaintiff submitted the CDCR Form 1858 on or about August 5, 2019, 27 and whether administrative remedies were rendered unavailable to Plaintiff with respect to 1 merits of this action. 2 Should Defendant elect to proceed with a limited evidentiary hearing, the Court will 3 appoint counsel for Plaintiff for the limited purpose of representation during the evidentiary 4 || hearing. The evidentiary hearing will be limited to determining whether Plaintiff re-submitted his 5 appeal of the second level decision in or around August or September of 2019. 6 Should Defendant elect to proceed to the merits of the case, the Court will set a briefing 7 schedule. 8 This order terminates Dkt. Nos. 17, 20, 23, 26. 9 IT IS SO ORDERED. 10 || Dated: 7/7/2023 11 HAYWOOD S. GILLIAM, JR. 12 United States District Judge © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28