Case 2:18-cv-02301-PA-GJS Document 115 Filed 02/01/22 Page 1 of 4 Page ID #:1577

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 TIMOTHY RAY BAKER, Case No. 2:18-cv-2301-PA (GJS)

12 Plaintiff

ORDER ACCEPTING FINDINGS

13 v. AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

14 SERGEANT F. VILLALOBOS, ET JUDGE

AL,

15 Defendants. 16

17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records on file, 18 including the operative Complaint (Dkts. 1, 7), Defendants’ Motion for Summary 19 Judgment for Failure to Exhaust Administrative Remedies (Dkt. 100, “Motion”), 20 Plaintiff’s Opposition to Motion for Summary Judgment, (Dkt. 106), Defendants’ 21 Reply in support of the Motion (Dkt. 107), the Report and Recommendation of the 22 assigned United States Magistrate Judge (“Report”) (Dkt. 109), Plaintiff’s Objection 23 to the Report and Recommendation (Dkt. 113), and Defendants’ Response to 24 Plaintiff’s Objections. (Dkt. 114). The Court has engaged in a de novo review of 25 those portions of the Report and Recommendation to which objections have been 26 made. 27 Plaintiff’s objections consist of two broad contentions. First, Plaintiff 28 contends that administrative remedies were effectively made unavailable to him Case 2:18-cv-02301-PA-GJS Document 115 Filed 02/01/22 Page 2 of 4 Page ID #:1578

1 because the prison’s appeal process was so “inadequate and incapable of use” that 2 summary judgment should be denied in the interest of justice. Second, Plaintiff 3 argues that he was misled to believe that a review of his excessive force claim by the 4 prison’s Investigative Services Unit (ISU) sufficed to exhaust administrative 5 remedies. [Dkt. 113 at 1-6, 9, 13.] Neither contention has merit. 6 Plaintiff spends the bulk of his first argument lamenting about the confusing 7 back and forth he was required to endure because prison officials kept denying his 8 appeals at the second and third levels of review due to missing documentation. In 9 arguing that his efforts to exhaust were thwarted, Plaintiff argued in his opposition 10 to the Motion and again here in the objections that his supporting documents were 11 attached to his grievances while prison officials alleged those documents were not 12 attached, so on and so forth. While that back and forth could arguably raise a 13 question of material fact, the Court never reached those arguments in ruling on the 14 Motion because it was undisputed that Plaintiff’s grievance failed to allege the 15 excessive force and deliberate indifference claims brought in the instant action. 16 [Dkt. 109 at 16.] Rather, Plaintiff failed to exhaust administrative remedies because 17 the only relevant grievance, LAC-S-15-04254, challenged “the validity of Plaintiff’s 18 Rules Violation Report disciplinary conviction and not the excessive force and 19 medical deliberate indifference issues presented in Plaintiff’s complaint.” [Dkt. 109 20 at 8-9.] As the Magistrate Judge correctly noted in the Report, the appeal issue and 21 appeal decision were limited to Plaintiff’s challenge to the disciplinary proceedings. 22 Because Plaintiff never brought a timely inmate grievance challenging his excessive 23 force and deliberate claims, based upon the undisputed evidence on summary 24 judgment, Plaintiff failed to exhaust his administrative remedies prior to filing suit 25 as required. Nothing in Plaintiff’s objections regarding the challenges he faced later 26 in the exhaustion process alters that conclusion. 27 Plaintiff’s second argument raises for the first time that prison officials 28 purposefully misled him into believing that his ISU investigation satisfied the 2 Case 2:18-cv-02301-PA-GJS Document 115 Filed 02/01/22 Page 3 of 4 Page ID #:1579

1 exhaustion requirements. Plaintiff did not raise this argument in his complaint or 2 opposition to Defendants’ motion for summary judgment. Plaintiff proffers no 3 explanation for his failure to raise this theory in his Opposition to Defendants’ 4 Motion nor has he provided any evidence or citation to the record to support the 5 assertion. “[A]llowing parties to litigate fully their case before the Magistrate and, 6 if unsuccessful, to change their strategy and present a different theory to the district 7 court would frustrate the purpose of the Magistrate Act.” See Greenhow v. 8 Secretary of Health & Human Services, 863 F.2d 633, 638-39 (9th Cir. 1988), 9 overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th 10 Cir. 1992) (en banc). The Court therefore declines to consider this belatedly 11 asserted theory. 12 Nevertheless, to be clear, in Plaintiff’s opposition to the Motion he argued 13 that he put prison officials on verbal notice when he “told everyone envolved [sic] 14 that I was going to tell all of their immediate officials in charge what they did and to 15 contact Internal Affairs which I followed through on my word. There was an ISU 16 investigation so that’s my notice of intent!” [Dkt. 106 at 10.] Plaintiff maintained 17 throughout his Opposition that prison officials were well aware of his complaints 18 which should have put them adequately on notice. [Dkt. 106 at 5.] In response to 19 this argument, the Magistrate Judge correctly noted that verbal notice and 20 exhaustion efforts outside of the prison grievance procedures are insufficient to 21 exhaust Plaintiff’s administrative remedies. (Dkt. 109 at 13-14.) Thus, to the extent 22 that Plaintiff argues his ISU investigation satisfies his exhaustion requirements, his 23 argument has already been considered and rejected. 24 Nothing in Plaintiff’s Objections alters or calls into question anything set 25 forth in the Report. Having completed its review, the Court accepts the findings, 26 recommendations, and conclusions set forth in the Report. Accordingly, IT IS 27 ORDERED that: 28 (1) The Magistrate Judge’s Report and Recommendation is accepted. 3 Case |2:18-cv-02301-PA-GJS Document Filed 02/01/22 Page4of4 Page ID #:1580

1 (2) Defendants’ motion for summary judgment for failure to exhaust the 2 || administrative remedies (Dkt. 100) is GRANTED; 3 (3) This action is dismissed without prejudice; and 4 (4) The Clerk of Court is directed to close this case. 5 he J 6 || DATE: February 1, 2022 7 PERCY ANDERSON

UNITED STATES DISTRICT JUDGE

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