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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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9 MATTHEW MCCLANE, Case No. 1:17-cv-00928-LJO-JDP

10 Plaintiff, FINDINGS AND RECOMMENDATIONS

THAT COURT GRANT DEFENDANTS’

11 v. MOTION FOR SUMMARY JUDGMENT

12 G. CASAS, et al., OBJECTIONS DUE IN 14 DAYS

13 Defendants. ECF No. 30

14 ORDER GRANTING DEFENDANTS’

MOTION TO VACATE THE PRESENT

15 DISCOVERY AND SCHEDULING ORDER

16 ECF No. 38

17 18 Plaintiff Matthew McClane is a state prisoner proceeding without counsel with this civil 19 rights action under 42 U.S.C. § 1983. McClane alleges that defendants, who are employees of 20 the California Department of Corrections and Rehabilitation (“CDCR”), violated his Eighth 21 Amendment rights by failing to protect him from a violent cellmate. See ECF No. 9. On 22 September 13, 2018, defendants moved for summary judgment, arguing that McClane failed to 23 properly exhaust administrative remedies. See ECF No. 30. McClane filed an opposition on 24 October 30, and the defendants filed a reply on November 2. See ECF Nos. 35 and 36.1 25 26 1 As required by Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998), plaintiff was provided 27 with notice of the requirements for opposing a summary judgment motion via an attachment to defendant’s motion for summary judgment. See ECF No. 30-1. 1 I recommend granting defendants’ motion for summary judgment. McClane did not ` 2 exhaust all available administrative remedies as required by the Prison Litigation Reform Act 3 (“PLRA”). See 42 U.S.C. § 1997e(a). McClane did not obtain a decision on the merits at all 4 three levels of administrative review because he filed an untimely initial complaint. 5 I. Undisputed Facts 6 In January 2016, McClane asked defendants to move cells because he was having 7 difficulties with his cellmate. See ECF No. 9 at 14; see also ECF No. 30-2 at 2. The 8 defendants did not accommodate McClane’s request. ECF No. 9 at 14-26; ECF No. 30-2 at 2. 9 On January 27, 2016, McClane’s cellmate attacked and injured him. ECF No. 9 at 5; ECF No. 10 30-2 at 2. 11 The CDCR administrative appeals system has three levels. McClane submitted an initial 12 administrative grievance on March 21, 2016. ECF No. 9 at 5. He received a first-level 13 administrative response on April 22 and a second-level response on July 26, 2016. See id. at 8 14 and 10. The first- and second-level responses considered the merits of McClane’s grievance. 15 Id. 16 McClane received a third-level response on February 22, 2017. This response did not 17 consider the merits of the grievance, but instead informed McClane that he had not filed his 18 grievance “within the prescribed time constraints” of the administrative process and, thus, his 19 appeal would be canceled. Id. at 13. The response concluded by informing McClane that “a 20 separate appeal can be filed on the cancellation decision.” Id. McClane did not appeal this 21 cancellation decision. See, e.g., ECF No. 35 at 10. Instead, he proceeded to federal court. 22 II. Standard of Review 23 Summary judgment is appropriate when there is “no genuine dispute as to any material 24 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 25 factual dispute is genuine if a reasonable trier of fact could find in favor of either party at trial. 26 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The disputed fact is material if 27 it “might affect the outcome of the suit under the governing law.” See id. at 248. 1 The party seeking summary judgment bears the initial burden of demonstrating the ` 2 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 3 (1986). Once the moving party has met its burden, the non-moving party may not rest on the 4 allegations or denials in its pleading, Anderson, 477 U.S. at 248, but “must come forward with 5 ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co., 6 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). 7 In making a summary judgment determination, a court “may not engage in credibility 8 determinations or the weighing of evidence,” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 9 2017) (citation omitted), and it must view the inferences drawn from the underlying facts in the 10 light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 11 655 (1962) (per curiam); Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). 12 III. Analysis 13 The PLRA requires that “[n]o action shall be brought with respect to prison conditions 14 under section 1983 of this title, or any other Federal law, by a prisoner . . . until such 15 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion 16 under the PLRA “demands compliance with an agency’s deadlines and other critical 17 procedural rules because no adjudicative system can function effectively without imposing 18 some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 19 (2006). Here, California law required that McClane file his grievance within thirty days of the 20 alleged events. See Cal. Code Regs. tit. 15, § 3084.8(b)(1)(2). The relevant events—the denial 21 of McClane’s request for different housing and the attack—took place in January of 2016. 22 McClane’s initial grievance, submitted on March 21, 2016, was thus untimely. 23 While the issue isn’t raised in the briefs, McClane’s case is complicated by the fact that 24 his grievance received two initial responses on the merits before it was canceled on procedural 25 grounds. Under some circumstances, a prison’s failure to invoke a procedural bar can result in 26 an inmate satisfying the exhaustion requirement, even if that inmate’s original complaint was 27 procedurally flawed. See Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016) (“When prison 1 merits, the purposes of the PLRA exhaustion requirement have been fully served.”); see also ` 2 Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011) (“[T]he exhaustion requirement of the 3 PLRA is satisfied by an untimely filing of a grievance if it is accepted and decided on the 4 merits by the appropriate prison authority.”). 5 Here, the prison did eventually raise the procedural defect, giving McClane an 6 opportunity to contest it. Ideally, a threshold procedural defect should not be discovered only 7 at the last step of a long process. Indeed, under some circumstances, an administrative scheme 8 that decides complaints on the merits, only to discover fatal procedural issues at the eleventh 9 hour, might be “so opaque” as to be “practically speaking, incapable of use” by the ordinary 10 prisoner. Ross v. Blake, 136 S. Ct. 1850, 1853-54 (2016). But I do not believe such 11 circumstances present themselves in this case. 12 The Ninth Circuit Court of Appeals has suggested in an unpublished memorandum 13 opinion that Reyes, cited above, does not extend to cases in which prison officials fail to 14 enforce a procedural rule only initially. See Wilson v. Zubiate, 718 F. App’x 479, 481 (9th Cir. 15 2017), cert. denied, 138 S. Ct. 1567, 200 L. Ed. 2d 758 (2018). Other judges in this circuit 16 have similarly found that inmates fail to exhaust administrative remedies when they fail to 17 contest a procedural cancellation at the third and final administrative step. See Hunter v. 18 Sorheim, No. 2:15-CV-9253, 2018 WL 1475034, at *1 (C.D. Cal. Feb. 27, 2018); Vaughn v. 19 Hood, No. 2:14-CV-2235, 2015 WL 5020691, at *8 (E.D. Cal. Aug. 21, 2015). 20 These results accord with a key teaching of Reyes: a prisoner has exhausted available 21 remedies “if prison officials ignore the procedural problem and render a decision on the merits 22 of the grievance at each available step of the administrative process.” Reyes, 810 F.3d at 658 23 (emphasis added). When CDCR issues a merits decision at only some steps of the 24 administrative process, and ultimately reaches a decision on procedural grounds, the initial 25 merits decision is not final and the administrative record is only partially developed for federal 26 court. This logic accords with the plain text of the PLRA, which requires—without 27 exception—that a prisoner exhaust “such administrative remedies as are available.” 42 U.S.C. 1 Contesting the procedural cancellation of his appeal was a remedy “available” to ` 2 McClane. Because McClane did not contest the cancellation or receive a decision on the 3 merits at every step, he failed to satisfy the exhaustion requirement. See also Cortinas v. 4 Portillo, 754 F. App’x 525, 527 (9th Cir. 2018) (“Because Cortinas could have appealed his 5 cancellation decision . . . the improper cancellation of his appeal did not render administrative 6 remedies effectively unavailable to him.”). 7 In his response to defendants’ motion, McClane offers two other reasons why he either 8 satisfied or should be excused from the exhaustion requirements. First, he contends that the 9 option to file a timely grievance was, on account of his injuries, “effectively unavailable.” See 10 Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). Second, McClane argues that the 11 threats to his safety were “ongoing” and, thus, he was entitled to an exception to the 30-day 12 deadline. See Cal. Code Regs. tit. 15, § 3084.6(c)(4). But these are still arguments that 13 McClane was required to pursue in the administrative process. California law requires that, 14 “[i]f an appeal is cancelled at the third level of review, any appeal of the third level 15 cancellation decision shall be made directly to the third level Appeals Chief.” Cal. Code Regs. 16 tit. 15, § 3084.6(e). The Supreme Court has made clear that “[t]he benefits of exhaustion can 17 be realized only if the prison grievance system is given a fair opportunity to consider the 18 grievance,” and further noted that “[t]he prison grievance system will not have such an 19 opportunity unless the grievant complies with the system’s critical procedural rules.” 20 Woodford, 548 U.S. at 95. Allowing McClane to proceed straight to federal court after a single 21 procedural cancellation would produce the outcome that the Supreme Court explicitly warned 22 of in Woodford. See id. at 95 (“[A] prisoner wishing to bypass available administrative 23 remedies could simply file a late grievance without providing any reason for failing to file on 24 time. If the prison then rejects the grievance as untimely, the prisoner could proceed directly to 25 federal court . . . . We are confident that the PLRA did not create such a toothless scheme.”); 26 see also Davenport v. Gomez, No. 2:16-CV-1739, 2019 WL 636844, at *6 (E.D. Cal. Feb. 14, 27 2019) (noting that arguments similar to McClane’s “do not demonstrate that the appeals 1 additional arguments attempt to explain why the initial cancellation decision was improper, but ` 2 they cannot excuse his failure to appeal the cancellation decision using the proper 3 administrative channels.2 4 IV. Findings and Recommendations 5 For the foregoing reasons, I recommend that: 6 1. The court grant in defendant’s motion for summary judgment, ECF No. 30. 7 2. The court dismiss the case without prejudice. 8 These findings and recommendations are submitted to the U.S. district judge presiding 9 over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 10 service of the findings and recommendations, the parties may file written objections to the 11 findings and recommendations with the court and serve a copy on all parties. That document 12 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 13 presiding district judge will then review the findings and recommendations under 28 U.S.C. 14 § 636(b)(1)(C). 15 V. Order 16 Defendants request to vacate the discovery and scheduling order, ECF No. 38, is granted. 17 A new discovery and scheduling order will be produced if necessary.

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21 2 While I need not reach the substance of McClane’s two arguments to resolve the exhaustion 22 issue, I note that McClane’s allegations and evidence, with inferences drawn in his favor, would still be insufficient to create a genuine and material dispute. McClane’s medical submission, 23 dated February 1, 2016, confirms the seriousness of his injuries. Serious injury can excuse an untimely filing, see Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009), but McClane’s 24 February 1 medical form is insufficient to create a genuine and material dispute regarding the timeliness of McClane’s March 21 complaint. Nor has McClane offered any evidence that 25 threats to his safety were “ongoing” such that he would be entitled to an exception to the 30-day 26 filing deadline. See Cal. Code Regs. tit. 15, § 3084.6(c)(4). The record evidence suggests that McClane’s complaint concerned only a small number of discrete events: his requests to move 27 and the attack on January 27, 2016. No evidence suggests that McClane was housed with the same inmate after this date, and McClane does not contend otherwise. 1 □

T IS SO ORDERED.

° p : CN prssenn —_ ated: _ September 5, 2019 4 UNI STATES MAGISTRATE JUDGE 5 6 7 No. 205 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28