1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONNIE CHEROKEE BROWN, No. 2:18-cv-01088-KJM-CKD-P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 C. REIF, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. On June 15, 2018 the court screened plaintiff’s 19 complaint and found a cognizable claim for the excessive use of force against defendants Reif, 20 Overby, and Gomez and a failure to protect claim against defendant Overby, all in violation of the 21 Eighth Amendment. ECF No. 13 at 4. The court also found that the complaint stated a 22 cognizable Eighth Amendment claim challenging the conditions of plaintiff’s confinement 23 against defendants Reif and Gomez. Id. All defendants were employed at California State 24 Prison-Sacramento (“CSP-Sac”) on December 1, 2017, the date of the allegations in the 25 complaint. 26 Currently pending before the court are defendants’ motion for summary judgment based 27 on the plaintiff’s failure to exhaust administrative remedies, plaintiff’s motion for summary 28 //// 1 judgment, and numerous ancillary motions filed by plaintiff.1 ECF No. 74. The court will first 2 address plaintiff’s pending motions which are not duplicative of those previously filed. See ECF 3 No. 44 (limiting plaintiff to one dispositive motion at a time in light of plaintiff’s history of filing 4 repetitious motions). Next, the court will address defendants’ motion for summary judgment 5 which has been fully briefed by the parties. See ECF Nos. 80, 81, 88, 105.2 For the reasons 6 discussed below, the undersigned recommends granting defendants’ motion for summary 7 judgment and denying plaintiff’s motion as moot. 8 I. Plaintiff’s Motion to Appoint Counsel 9 On August 21, 2019, plaintiff filed his seventh request for the appointment of counsel. As 10 the court has previously informed plaintiff, district courts lack authority to require counsel to 11 represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 12 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily 13 represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 14 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When 15 determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 16 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 17 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 18 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 19 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 20 common to most prisoners, such as lack of legal education and limited law library access, do not 21 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 22 Having considered the factors under Palmer, the court finds that plaintiff has failed to 23 meet his burden of demonstrating exceptional circumstances warranting the appointment of 24 counsel at this time.

25 1 Plaintiff’s motion for summary judgment is procedurally deficient as it does not include a statement of undisputed facts, any supporting affidavits or declarations, and does not cite to 26 relevant portions of the record as required by Rule 56(c) of the Federal Rules of Civil Procedure. 27 See ECF No. 72. 2 Plaintiff has filed several pleadings labeled as “opposition to defendants’ summary judgment” 28 which the court has read and considered. 1 II. Plaintiff’s Motion for a Preliminary Injunction 2 Plaintiff filed his fifth motion for a preliminary injunction on June 6, 2019. ECF No. 92. 3 Defendants filed their opposition one week later. ECF No. 94. On June 27, 2019, the court 4 ordered defendants to file a supplemental response in light of the seriousness of plaintiff’s current 5 allegations against a named defendant in this action.3 ECF No. 97. Defendants filed their 6 supplemental response on July 8, 2019. ECF No. 99. 7 In his June 6, 2019 motion, plaintiff generally alleges that he fears for his safety because 8 the three defendants named in the instant lawsuit work in the building next to plaintiff’s cell at 9 CSP-Sacramento. ECF No. 92 at 2. As a remedy, plaintiff requests to be transferred back to 10 Corcoran State Prison. ECF No. 92 at 1-2. On August 22, 2019, plaintiff filed a notice of change 11 of address with the court indicating that he had been transferred to Corcoran State Prison. ECF 12 No. 109. 13 The undersigned recommends denying plaintiff’s motion for a preliminary injunction as 14 moot since plaintiff has been transferred to Corcoran State Prison. The defendants in this action 15 are no longer prison guards at the facility where he is housed. As a result, plaintiff cannot 16 demonstrate any irreparable harm that will befall him in the absence of injunctive relief. 17 Accordingly, the motion should be denied as moot. 18 III. Summary Judgment Standards 19 Summary judgment is appropriate when it is demonstrated that there “is no genuine 20 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 21 Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by 22 “citing to particular parts of materials in the record, including depositions, documents, 23 electronically stored information, affidavits or declarations, stipulations (including those made for 24 purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R. 25

3 The court took the additional step of requiring defendants to respond to another motion for a 26 preliminary injunction and a temporary restraining order filed by plaintiff on July 30, 2019. See 27 ECF No. 103 (requiring a response within 14 days); ECF No. 104 (Opposition indicating that there was no use of force against plaintiff by any correctional officer at CSP-Sac on July 24, 2019 28 as alleged by plaintiff). 1 Civ. P. 56(c)(1)(A). 2 In the endeavor to establish the existence of a factual dispute, the opposing party need not 3 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 4 dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at 5 trial.” T.W. Elec. Serv., 809 F.2d at 631. All reasonable inferences that may be drawn from the 6 facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 7 U.S. at 587. 8 In a summary judgment motion for failure to exhaust administrative remedies, the 9 defendants have the initial burden to prove “that there was an available administrative remedy, 10 and that the prisoner did not exhaust that available remedy.” Albino, 747 F.3d at 1172. If the 11 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 12 showing that there is something in his particular case that made the existing and generally 13 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 14 proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 15 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 16 1166. 17 IV. Exhaustion Standard 18 The Prison Litigation Reform Act of 1995 provides that “[n]o action shall be brought with 19 respect to prison conditions under section 1983 of this title, ... until such administrative remedies 20 as are available are exhausted.” 42 U.S.C. § 1997e(a). A prisoner must exhaust his 21 administrative remedies before he commences suit. McKinney v. Carey, 311 F.3d 1198, 1199– 22 1201 (9th Cir. 2002). Compliance with this requirement is not achieved by satisfying the 23 exhaustion requirement during the course of a civil action. See McKinney, 311 F.3d 1198 (9th 24 Cir. 2002). Failure to comply with the PLRA’s exhaustion requirement is an affirmative defense 25 that must be raised and proved by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). In the 26 Ninth Circuit, a defendant may raise the issue of administrative exhaustion in either (1) a motion 27 to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the face of 28 the complaint, or (2) a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1169 (9th 1 Cir. 2014) (en banc). An untimely or otherwise procedurally defective appeal will not satisfy the 2 exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006). 3 In order to defeat a properly supported motion for summary judgment based on a 4 prisoner’s failure to exhaust pursuant to 42 U.S.C. § 1997e(a), plaintiff must “come forward with 5 some evidence showing” that he has either (1) properly exhausted his administrative remedies 6 before filing suit or (2) “there is something in his particular case that made the existing and 7 generally available remedies unavailable to him by ‘showing that the local remedies were 8 ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.’” Williams v. 9 Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 10 778 n.5) (9th Cir. 1996)); Jones, 549 U.S. at 218. “Accordingly, an inmate is required to exhaust 11 those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the 12 action complained of.’” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 13 532 U.S. 731, 738 (2001)). If undisputed evidence viewed in the light most favorable to the 14 prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56 of 15 the Federal Rules of Civil Procedure. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). If 16 there is at least a genuine issue of material fact as to whether the administrative remedies were 17 properly exhausted, the motion for summary judgment must be denied. See Fed. R. Civ P. 56(a). 18 In the prison context, CDCR regulations provide three formal levels of review to address 19 “any policy, decision, action, condition, or omission by the department or its staff that the 20 inmate… can demonstrate as having a material adverse effect upon his or her health, safety, or 21 welfare.” Cal. Code Regs. tit. 15, § 3084.1(a); see also Cal. Code Regs. tit. 15, §§ 3084.1-3085. 22 An inmate appeal is initiated by submitting a CDCR Form 602 which describes “the specific issue 23 under appeal and the relief requested.” Cal. Code Regs. tit. 15, § 3084.2(a). The issue specified 24 in the 602 Form is “addressed through all required levels of administrative review up to and 25 including the third level. Cal. Code Regs. tit. 15, §§ 3084.1(b)-3084.2(a). First and second level 26 appeals are submitted and reviewed by the appeals coordinator at the prison. Cal. Code Regs. tit. 27 15, § 3084.2(c). If a prisoner is dissatisfied with the second level response, he or she can mail a 28 third level appeal to the Appeals Chief. Cal. Code Regs. tit. 15, § 3084.2(d)(3). Administrative 1 procedures generally are deemed exhausted once a plaintiff has received a third level review with 2 respect to his issue or claim. Cal. Code Regs. tit. 15, §§ 3084.1(b), 3084.7(d). An appeal may be 3 rejected or cancelled if it fails to comply with the regulations governing the appeal process, but 4 the inmate is provided the reason for the rejection as well as instructions on how to correct the 5 defect, if possible. See Cal. Code Regs. tit. 15, § 3084.6. California state prisoners are required 6 to use this process to exhaust their claims prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 85- 7 86 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). 8 An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion 9 requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006). When an inmate's administrative 10 grievance is improperly rejected on procedural grounds, however, exhaustion may be excused as 11 “effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir.2010); see also Nunez v. 12 Duncan, 591 F.3d 1217, 1224–26 (9th Cir.2010) (warden's mistake rendered prisoner's 13 administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1045 (9th 14 Cir.2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) 15 (recognizing that “[d]elay in responding to a grievance, particularly a time-sensitive one, may 16 demonstrate that no administrative process is in fact available.”). 17 When the district court concludes that the prisoner has not exhausted administrative 18 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 19 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 20 Albino, 747 F.3d at 1168-69. 21 V. Defendant’s Motion for Summary Judgment 22 With respect to plaintiff’s Eighth Amendment claims, defendants argue that plaintiff did 23 not exhaust his administrative appeals through all three levels of review before filing the instant 24 lawsuit. ECF No. 74-2 at 6. Their motion details numerous administrative grievances that 25 plaintiff filed and pursued between December 1, 2017, the date of the allegations in the 26 complaint, and May 1, 2018, the date plaintiff filed the complaint. ECF No. 74-2 at 8-15. 27 However, defendants argue that these administrative grievances were either properly screened out 28 or not pursued through the third and final level of administrative review before plaintiff filed suit. 1 Defendants further assert that plaintiff never filed or exhausted an administrative appeal 2 concerning his conditions of confinement in December 2017. ECF No. 74-2 at 6, 19-20. 3 Additionally, defendants contend that plaintiff is not excused from the exhaustion requirement for 4 any reason. Id. at 19-21. 5 In his opposition, plaintiff concedes that he did not exhaust his administrative appeal at 6 the third and final level of review on his Eighth Amendment claims until after he filed his 7 complaint in this case. ECF No. 80 at 1. However, plaintiff counters that CDCR was obstructing 8 his efforts to properly exhaust his administrative remedies by holding his appeals and not 9 processing them. Id. In his “motion to proceed without [an] inmate grievance” filed on the same 10 day as the complaint, plaintiff further explains that the 602 grievance he filed on December 8, 11 2017 was not being processed at the third and final level of administrative review. ECF No. 2 at 12 2. Plaintiff argues that CDCR was interfering with the grievance process effectively rendering it 13 unavailable. ECF No. 2 (citing Andrews v. Marshall, 854 F.3d 1103, 1105 (9th Cir. 2017), 14 amended and superseded by 867 F.3d 1076 (9th Cir. 2017) (per curiam) (finding that “[w]hen 15 prison officials improperly fail to process a prisoner’s grievance, the prisoner is deemed to have 16 exhausted available administrative remedies. In such circumstances, prison officials have 17 ‘thwarted inmates from taking advantage of the grievance process; making that process 18 unavailable.”). Also mentioned in the complaint, but never subsequently explained, is plaintiff’s 19 alleged “fear[] of retaliation because of threats by defendants….” ECF No. 1 at 12. 20 While plaintiff is pro se, the court notes that his opposition does not comply with Local 21 Rule 260(b) because plaintiff did not file a separate document disputing defendants' statement of 22 undisputed facts.4 The court is mindful of the Ninth Circuit’s caution that district courts are to 23 “construe liberally motion papers and pleadings filed by pro se inmates and should avoid 24 applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 25 2010) (citation omitted). Accordingly, the court considers the record in its entirety despite 26

27 4 Plaintiff’s pleadings focus on the affidavits from other prisoners concerning the events of December 1, 2017, but they do not address whether plaintiff exhausted his administrative appeals 28 prior to filing the instant lawsuit. See ECF No. 80 ag 3-4. 1 plaintiff's failure to be in strict compliance with the applicable rules.5 However, only those 2 assertions in the opposition which have evidentiary support in the record will be considered. 3 By way of reply, defendants emphasize that the “undisputed facts demonstrate that Brown 4 filed suit before receiving a third level decision on the appeal concerning his excessive force and 5 failure to intervene allegations…, and that he never filed an appeal through the initial levels of 6 review concerning his conditions of confinement allegations.” ECF No. 81 at 1. In response to 7 plaintiff’s argument that exhaustion should be excused in his case, defendants counter that 8 plaintiff was correctly advised of the need to pursue the allegations in this case through the third 9 level of administrative review and the applicable time frames and procedural rules for doing so. 10 ECF No. 81 at 4. Plaintiff’s numerous administrative grievances failed to comply with these rules 11 and timeframes. Id. 12 In an unauthorized sur-reply, plaintiff indicates that he first attempted to file a 602 13 grievance concerning the excessive force claim on December 9, 2017, but it “disappeared and 14 was never answered.” ECF No. 88 at 1-2.6 He subsequently filed a “2nd 602 appeal[] [on] 15 January 2, 2018 for excessive force….” Id. at 2. Plaintiff argues generally that the exhaustion of 16 his administrative remedies was obstructed by state officials. ECF No. 88 at 3. 17 VI. Undisputed Material Facts 18 The CDCR Office of Appeals (“OOA”) receives, reviews, and maintains all non-medical 19 related inmate grievances at the third and final level of administrative review. Defendants’ 20 Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment (“DSUF”) 21 at ¶ 12. A request for the institution to modify or amend an appeal from the third level of 22 administrative review does not exhaust the appeal. DSUF at ¶ 13. The inmate is still required to 23 appeal any modified or amended decision to the third level of administrative review once the 24 amended response from the inmate’s institution is received. ECF No. 74-17 at ¶ 4 (Declaration of 25 M. Voong). 26 5 The court has also read and considered plaintiff’s exhibits regarding exhaustion of 27 administrative remedies filed on July 23, 2018, a full eight months before defendants’ summary judgment motion was even filed. ECF No. 24. 28 6 This opposition was not signed under penalty of perjury. 1 Between December 2017 and May 1, 2018, plaintiff submitted fourteen non-medical 2 appeals to CSP-Sac’s appeals office that were accepted for review. ECF No. 74-4 at ¶ 9 (S. 3 Boxall Declaration); ECF No. 74-5 at 22-25 (Inmate/Parolee Appeals Tracking System -I & II 4 printout). The appeals related to the allegations in plaintiff’s complaint are discussed in more 5 detail below. 6 Appeal Log Number SAC-B-17-04677: 7 Plaintiff submitted Appeal Log Number SAC-B-17-04677 on December 12, 2017 alleging 8 that a correctional officer had thrown him to the ground and placed an inmate manufactured knife 9 on the ground near him. DSUF ¶ 17. Nowhere in this appeal did plaintiff state that he was 10 denied all necessities for a period of five days following the incident. Id. This appeal bypassed 11 the first level of administrative review and was elevated to the second level of formal review. 12 DSUF ¶ 18. The appeal was partially granted on January 26, 2018 in that the Hiring Authority 13 conducted an appeal inquiry by interviewing defendants Overby and Reif as well as Sergeant 14 Vitale. DSUF ¶ 18. 15 On February 14, 2018, plaintiff appealed this grievance to the Office of Appeals or 16 “OOA.” ECF No. 74-6 at 6; ECF No. 74-17 at 1 (Declaration of M. Voong); DSUF ¶ 19. The 17 OOA returned the appeal to CSP-Sac on February 28, 2018 in order to obtain additional 18 information. DSUF ¶ 19. As part of the additional information requested, Officers Nieto, 19 Gomez, and Lieutenant Mayhew were all interviewed. DSUF ¶ 20. Plaintiff was sent a letter on 20 this same day indicating that he would receive an amended response within 30 working days. Id. 21 On March 26, 2018 an amended second level response was completed partially granting Appeal 22 Log Number SAC-B-17-04677. DSUF ¶ 20. The amended response instructed plaintiff that if he 23 “wish[ed] to appeal the decision, [he] must submit [his] staff complaint appeal through all levels 24 of appeal review up to, and including the Secretary’s Level of Review. Once a decision has been 25 rendered at the Third Level [his] administrative remedies will be considered exhausted.” DSUF ¶ 26 20. 27 Plaintiff submitted Appeal Log Number SAC-B-17-04677 to the third level of review on 28 or about April 10, 2018. DSUF ¶ 21. OOA rejected the appeal on May 18, 2018 informing 1 plaintiff that he was missing CDCR Form 1858, the Rights and Responsibilities Statement. 2 DSUF ¶ 22. On May 23, 2018, plaintiff resubmitted this appeal to the third level of review and 3 included a signed CDCR Form 1858. DSUF ¶ 22. In August 2018 the OOA forwarded Appeal 4 Log Number SAC-B-17-04677 back to the appeals office at CSP-Sac for a second time in order 5 to make modifications to certain internal confidential documentation related to the Institutional 6 Executive Review Committee (IERC). DSUF ¶ 22. Plaintiff was notified of this action and 7 informed that “[i]f you have not received the original appeal and notification of the further action 8 taken within 30 working days, you may file an appeal on the inaction with the institution.” DSUF 9 ¶ 22; ECF No. 74-6 at 8. On or about February 5, 2019, plaintiff was provided an amended 10 second level response to Appeal Log Number SAC-B-17-04677 indicating that the IERC 11 concluded that “staff’s actions were in compliance with policies, procedure and training.” DSUF 12 ¶ 23; ECF No. 74-6 at 2-3. Plaintiff was informed that “[i]f you wish to appeal the decision, you 13 must submit your staff complaint appeal through all levels of appeal review up to, and including, 14 the Secretary’s Level of Review. Once a decision has been rendered at the Third Level, your 15 administrative remedies will be considered exhausted.” DSUF ¶ 23; ECF No. 74-6 at 3. Plaintiff 16 took no further action regarding this appeal. DSUF ¶ 24. 17 Rejected, Cancelled or Duplicative Appeals: 18 Rejection or cancellation of an appeal does not exhaust an inmate’s administrative 19 remedies. ECF No. 74-4 at ¶ 8; ECF No. 74-17 at ¶ 4. Between December 2017 and May 1, 20 2018 plaintiff submitted multiple appeals that were rejected or cancelled based on plaintiff’s 21 failure to properly submit them. DSUF at ¶ 16. Each time an appeal was rejected, plaintiff was 22 instructed on how to correct the issue. DSUF at ¶ 16. Defendants concede that CSP-Sac, the 23 prison where plaintiff was housed at all relevant times, “does not always keep copies of rejected 24 inmate appeal forms.” ECF No. 74-4 at ¶ 8 (Declaration of S. Boxall). 25 -Appeal Log Number SAC-17-04668 26 This appeal concerned events that occurred on December 1, 2017 in which plaintiff 27 alleged that defendants Overby and Reif planted an inmate manufactured weapon on him and 28 charged him with a false Rules Violation Report (“RVR”). DSUF ¶ 25. This appeal was rejected 1 on December 19, 2017 at the first level of administrative review because plaintiff had exceeded 2 the allowable number of appeals filed in a 14 calendar day period in violation of Cal. Code Regs. 3 tit. 15, § 3084.1(f). DSUF ¶ 25. Plaintiff was advised that he could submit this appeal on or after 4 January 2, 2018. Id. Plaintiff re-submitted this appeal as instructed but it was cancelled on 5 January 5, 2018 because it duplicated his grievance in Appeal Log Number SAC-B-17-04677.7 6 DSUF ¶ 25. On or about May 1, 2018, plaintiff filed this appeal at the third level of formal 7 review. DSUF ¶ 26. It was screened out on June 4, 2018 because plaintiff was attempting to 8 submit an appeal that had been cancelled at a lower level of review. Id.; ECF No. 74-17 at 8 9 (Inmate/Parolee Appeals Tracking System – Level III). As a result, this appeal was not accepted 10 at any level of review. Id. 11 -Appeal Log Number SAC-B-18-01047 12 The appeals office at CSP-Sac received this appeal on February 23, 2018 in which 13 plaintiff was attempting to appeal the cancellation of Appeal Log Number SAC-B-17-04668 14 concerning his excessive force allegations. DSUF ¶ 33. On March 16, 2018, the appeals office 15 cancelled SAC-B-18-01047 as duplicative of SAC-B-17-04677. DSUF ¶ 33. In said cancellation 16 notice, plaintiff was informed that Appeal Log Number SAC-B-17-04677 was awaiting 17 amendment at the second level of administrative review, and that if he was still dissatisfied once 18 he received the amended response, he could resubmit the cancellation of Appeal Log Number 19 SAC-B-17-04668. DSUF ¶ 33. Appeal Log Number SAC-B-18-01047 was not accepted at any 20 level of review. Id. 21 -Appeal Log Number SAC-B-17-04669 22 This appeal was submitted on December 6, 2017 and concerned plaintiff’s Eighth 23 Amendment claims arising from the December 1, 2017 incident. DSUF ¶ 27; ECF No. 74-5 at 24 54. It was rejected on December 19, 2017 at the first level of administrative review because 25

7 Plaintiff submitted an inquiry about the cancellation asking whether he would be able to exhaust 26 the issues raised by appealing the cancellation or through Appeal Log Number SAC-B-17-04677. 27 DSUF ¶ 25. On March 9, 2018 the CSP-Sac appeals office responded by informing plaintiff that he would be provided the opportunity to exhaust his administrative remedies on the staff 28 complaint issue stemming from December 1, 2017 in Appeal Log No. SAC-B-17-04677. Id. 1 plaintiff exceeded the maximum allowable number of appeals in a 14 day period in violation of 2 Cal. Code Regs. tit. 15, § 3084.1(f). DSUF ¶ 27. Plaintiff was advised that he could resubmit the 3 appeal on or after January 2, 2018, but he took no further action. Id. This appeal was not 4 accepted at any level of administrative review. DSUF ¶ 27. 5 -Appeal Log Number SAC-P-18-00602 6 On January 2, 2018 plaintiff submitted a 602 grievance challenging the rules violation 7 report (“RVR”) that he was issued on December 1, 2017 as well as “excessive force.” ECF No. 8 74-8 at 2-6. He requested dismissal of the RVR, $613,000 in monetary damages, and the firing of 9 the 3 officers involved in the excessive force incident. Id. The first level of administrative 10 review of this grievance was bypassed. Id. at 2. It was rejected at the second level of review 11 because plaintiff attached multiple duplicate forms and because the staff complaint concerning 12 excessive force “was duplicative to an issue addressed in staff complaint log # SAC-B-17- 13 04677.” DSUF at ¶ 30; ECF No. 74-8 at 19. Plaintiff resubmitted the appeal without extra pages 14 and with the explanation that “[t]his 602 is not a duplicate…, its more detailed and [more] staff 15 added….” DSUF ¶ 30. This appeal was then accepted at the second level of administrative 16 review on March 6, 2018 and denied on April 4, 2018. Id.; ECF No. 74-8 at 20-22. In the denial 17 letter, plaintiff was specifically advised that review was limited to the RVR issue only because 18 the staff complaint issue was already being addressed in Appeal Log Number SAC-B-17-04677. 19 Id. On April 18, 2018 plaintiff’s appeal of this grievance was accepted at the third level of 20 review. DSUF ¶ 31; ECF No. 74-17 at 7. OOA denied the appeal on July 12, 2018 finding no 21 due process violation resulting from the December 1, 2017 RVR. DSUF ¶ 31; ECF No. 74-17 at 22 65-66. 23 -Appeal Log Number SAC-B-18-00769 24 Plaintiff submitted this appeal on February 14, 2018 concerning the Eighth Amendment 25 claims that occurred on December 1, 2017. ECF No. 74-8 at 31-35. This appeal bypassed the 26 first level of administrative review and was cancelled at the second level of review on March 9, 27 2018 because the appeal was a duplicate of Appeal Log Number SAC-B-04677. DSUF ¶ 32. As 28 a result, this appeal was not accepted at any level of review. Id. 1 As part of the cancellation notice of this appeal, plaintiff was informed that Appeal Log 2 Number SAC-B-17-04677 was currently being amended at the second level of review. DSUF ¶ 3 32. Plaintiff was further instructed that if he was dissatisfied after receiving the amended second 4 level appeal back, he could “forward that appeal to the Office of Appeals for Third Level 5 processing.” ECF No. 74-8 at 29; DSUF ¶ 32. 6 -Appeal Log Number SAC-B-18-01788 7 This appeal which concerned plaintiff’s Eighth Amendment claims from December 1, 8 2017 was filed on April 23, 2018. ECF No. 74-9 at 3-6; DSUF ¶ 34. It was cancelled at the first 9 level of review on April 26, 2018 because it duplicated Appeal Log Number SAC-B-17-04677. 10 DSUF ¶ 34. Plaintiff resubmitted this appeal again and was notified via a letter dated May 15, 11 2018 that he could not submit an appeal on an issue that had already been cancelled. DSUF ¶ 34; 12 ECF No. 74-9 at 8. Plaintiff was instructed that if he disagreed with the cancellation decision 13 then he could submit a new appeal explaining why the cancellation was in error. Id. This appeal 14 was not accepted at any level of administrative review. DSUF ¶ 34. 15 As part of the May 15, 2018 screen out of this appeal, plaintiff was provided another 16 courtesy copy of the second level appeal decision in SAC-B-17-04677 that was dated March 26, 17 2018 and explained to plaintiff on April 6, 2018. ECF No. 74-9 at 8, 15-19; DSUF ¶ 34. Plaintiff 18 was instructed that if he was dissatisfied with this appeal resolution he should follow the 19 instructions “in Section F of the Form 602.” ECF No. 74-9 at 8. Appeal Log Number SAC-B- 20 18-01788 was not accepted at any level of review. DSUF ¶ 34. 21 -Appeal Log Number SAC-B-18-00333 22 On January 17, 2018, the CSP-Sac appeals office received Appeal Log Number SAC-B- 23 18-00333 from plaintiff concerning alleged missing property resulting from a December 29, 2017 24 cell search conducted by Officers Bartlett and Brennfleck. DSUF ¶ 28. When interviewed on 25 February 5, 2018 plaintiff changed the date of the search to December 1, 2017. DSUF ¶ 28. This 26 appeal was denied at the first level of administrative review on February 11, 2018. Id. Plaintiff 27 appealed to the second level of formal review on February 20, 2018 and complained that he was 28 “placed in Cell 109 buttnaked for 3 days after he was beaten up…” on December 1, 2017. DSUF 1 ¶ 28; ECF No. 74-7 at 15. This second level grievance was rejected on March 12, 2018 because 2 plaintiff introduced new and duplicate issues. Id. Plaintiff was informed that the “new issues will 3 need to be submitted separately time [constraints] permitting.” ECF No. 74-7 at 11. The CSP- 4 Sac appeals office further instructed plaintiff to cross out the new issues on his 602 form and 5 resubmit his appeal to the second level of administrative review in order to focus on the property 6 issue being grieved. Id.; DSUF ¶ 28. Plaintiff followed these instructions by crossing out the 7 area requested and returned the appeal to the second level of formal review. DSUF ¶ 28; ECF 8 No. 74-7 at 33. This appeal was denied on April 30, 2018 and plaintiff took no further action. 9 DSUF ¶ 28. 10 Plaintiff did not submit another appeal concerning his conditions of confinement in 11 December 2017 involving defendants Reif and Gomez. DSUF ¶ 29. 12 VII. Analysis 13 Plaintiff commenced this lawsuit on May 1, 2018.8 ECF No. 1. Therefore, the court must 14 determine whether plaintiff exhausted his administrative remedies regarding all three of his 15 claims prior to that date, and if not, whether plaintiff may be excused from the pre-filing 16 exhaustion requirement. See Sapp v. Kimbrell, 623 F.3d 813, 823–24 (9th Cir. 2010). The court 17 will address the exhaustion issue with respect to his conditions of confinement claim first, and 18 then the remaining Eighth Amendment claims. 19 A. Conditions of Confinement Claim 20 The undisputed material facts demonstrate that plaintiff’s only attempt to exhaust his 21 administrative remedies concerning his conditions of confinement in December 2017 was Appeal 22 Log Number SAC-B-18-00333. Plaintiff’s second level appeal of this grievance filed on or about 23 March 20, 2018 was the first time that he mentioned being placed in a cell naked for three days. 24 Since he did not include this information in his first level appeal, plaintiff was instructed that he 25 could appeal this new issue via a separate appeal if time permitted. Following the denial of this 26

27 8 The complaint was filed electronically from CSP-Sac. ECF No. 1 at 1 (indicating that plaintiff’s complaint was scanned at CDCR and e-mailed on May 1, 2018. As a result, the prison mailbox 28 rule does not apply to this initial filing. 1 second level appeal on April 30, 2018, plaintiff filed the instant civil rights lawsuit and did not 2 pursue his administrative remedies at all three levels. Plaintiff does not dispute this fact. 3 Accordingly, defendants have met their burden of demonstrating plaintiff’s non-exhaustion of his 4 conditions of confinement claim prior to filing suit. Albino v. Baca, 747 F.3d 1162, 1166 (9th 5 Cir. 2014). 6 To the extent that plaintiff asserts that he failed to exhaust his administrative remedies 7 because of a fear of retaliation by defendants, this conclusory assertion is not supported by any 8 evidence in the record even after the court ordered defendants to file multiple responses to the 9 plaintiff’s motions for a temporary injunction.9 As a result, the undersigned finds that plaintiff 10 has failed to meet his burden of demonstrating the unavailability of administrative remedies. See 11 Albino, 747 F.3d at 1166. For all these reasons, the undersigned recommends granting 12 defendants’ motion for summary judgment based on plaintiff’s failure to exhaust his 13 administrative remedies on the conditions of confinement claim. 14 B. Eighth Amendment Excessive Force and Failure to Protect Claims 15 In order to meet their initial burden as the moving party, defendants need only show “that 16 there was an available administrative remedy, and that the prisoner did not exhaust that available 17 remedy.” Albino, 747 F.3d at 1172. Defendants’ undisputed evidence establishes that plaintiff 18 filed an appeal at the first level of administrative review on December 12, 2017 in Appeal Log 19 Number SAC-B-17-04677 and never completed the third level of review of this grievance before 20 filing the instant lawsuit, or, even thereafter. Moreover, plaintiff has conceded that he did not 21 exhaust his administrative remedies prior to filing suit as required by the PLRA.10 ECF No. 2, 80, 22 88 at 4. Therefore, defendants have met their initial burden of demonstrating plaintiff's non- 23 exhaustion prior to filing suit. Consequently, the burden shifts to plaintiff to come forward with 24 evidence “showing that there is something in his particular case that made the existing and 25 9 The court makes the same finding with respect to the exhaustion of plaintiff’s Eighth 26 Amendment claims. 27 10 On the complaint form filed in this case, plaintiff checked boxes indicating that administrative remedies were available at his institution; that he had filed a request for administrative relief; but, 28 had not appealed to the highest level. ECF No. 1 at 3, 1 generally available administrative remedies effectively unavailable to him.” Id. 2 Plaintiff argues that his administrative remedies were effectively unavailable because the 3 responses were being purposely delayed and his attempts to exhaust were being improperly 4 rejected or cancelled. The Ninth Circuit has recognized that administrative remedies may be 5 rendered effectively unavailable if prison officials improperly screen out an inmate appeal. Sapp, 6 623 F.3d at 822–23. To satisfy this exception to the exhaustion requirement, a plaintiff must 7 show “(1) that he actually filed a grievance or grievances that, if pursued through all levels of 8 administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal 9 court, and (2) that prison officials screened his grievance or grievances for reasons inconsistent 10 with or unsupported by applicable regulations.” Id. at 823–24. 11 Construing the evidence presented on summary judgment in the light most favorable to 12 plaintiff, there is no genuine dispute as to any material fact with respect to his pre-suit exhaustion. 13 Even assuming that Appeal Log Numbers SAC-17-04668 and SAC-P-18-00602 would have 14 sufficed to exhaust his Eighth Amendment claims and further assuming that they were improperly 15 screened out at the third level of administrative review, plaintiff did not receive the responses to 16 these appeals until June 4, 2018 and July 12, 2018, after he had already filed the instant § 1983 17 suit. See Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010). At most, plaintiff’s evidence 18 demonstrates a delay in processing his second level of review in Appeal Log Number SAC-B-17- 19 04677 based on requests for additional information. However, the undersigned does not find that 20 this rendered his administrative remedies effectively unavailable. See Brown v. Valoff, 422 F.3d 21 940, 942 (9th Cir. 2005). These delays were attributable to requests for additional staff 22 interviews and internal confidential documentation. 23 Moreover, the record plainly shows that administrative remedies were available to 24 plaintiff and that he used them repeatedly to file duplicative appeals concerning the Eighth 25 Amendment allegations at issue in the present case. Plaintiff simply failed to wait for a response 26 to Appeal Log Number SAC-B-17-04677 at the second level of administrative review before 27 filing the present lawsuit, much less properly exhaust said grievance by appealing to the third 28 //// 1 level of administrative review.11 While the court is cognizant that time passes slower in a 2 correctional setting, this does not justify bypassing available administrative remedies and 3 prematurely filing suit in federal court. See 42 U.S.C. § 1997e(a). Even though staff misconduct 4 claims such as the excessive force allegations in the present case may take longer to exhaust, the 5 Ninth Circuit Court of Appeal has concluded that an inmate is still required to wait until the 6 administrative investigation of such allegations is complete before filing a federal civil rights 7 lawsuit. Brown v. Valoff, 422 F.3d 940, 942 (9th Cir. 2005) (concluding that inmate Brown fully 8 exhausted all available administrative remedies because he waited for a response from the 9 California Office of the Inspector General concerning his staff complaint before filing his federal 10 lawsuit) (finding that inmate Hall had not exhausted his administrative remedies prior to filing his 11 §1983 lawsuit in “June 1999, before the staff complaint investigation was completed on 12 November 2, 2000, and before he was notified on July 2, 2001 that ‘the findings of said 13 allegations were partially sustained.’”). In this case, the undersigned finds that prison 14 administrators did not thwart plaintiff’s ability to take “advantage of a grievance process through 15 machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. at 159-60. After 16 appealing to the third level of administrative review, Appeal Log Number SAC-B-17-04677 was 17 returned to the second level of administrative review on two separate occasions for additional 18 staff interviews as well as modifications of internal confidential documentation. Following 19 receipt of two amended second level appeal responses, plaintiff was instructed that if he was still 20 dissatisfied he could appeal to the third level of appeal in order to fully exhaust his administrative 21 remedies. This does not demonstrate an attempt to misrepresent or actively thwart the 22 administrative grievance process available at CSP-Sac. 23 Thus, it remains undisputed that administrative remedies remained available to plaintiff 24 and were unexhausted prior to his filing of this lawsuit. Accordingly, the undersigned 25 recommends granting defendants’ motion for summary judgment on this basis. See McKinney v. 26 27 11 A cursory review of the docket in this case reveals plaintiff’s same habit of filing repetitive and duplicative motions for relief before the court can even rule on a pending motion. See ECF No. 28 44. 1 Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (“Congress could have written a statute making 2 exhaustion a precondition to judgment, but it did not. The actual statute makes exhaustion a 3 precondition to suit.”); Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (dismissal is 4 appropriate for a suit that begins too soon, even when administrative remedies are exhausted 5 during the course of the litigation). In light of this recommendation, the undersigned further 6 recommends denying plaintiff’s motion for summary judgment as moot. 7 VIII. Plain Language Summary for Pro Se Party 8 The following information is meant to explain this order in plain English and is not 9 intended as legal advice. 10 After reviewing all of the arguments and exhibits filed in connection with defendants’ 11 motion for summary judgment, the magistrate judge has concluded that at the time you filed this 12 lawsuit you were still exhausting your administrative remedies at the prison. The federal statute 13 called the Prison Litigation Reform Act requires that all administrative remedies be exhausted 14 prior to filing a civil rights lawsuit in federal court. As a result, the magistrate judge is 15 recommending that defendants’ motion for summary judgment be granted and that your case be 16 dismissed without prejudice. If adopted by the district court judge assigned to your case, this 17 means that your case will be closed and there will be no trial. 18 You have fourteen days to explain to the court why this is not the correct outcome in your 19 case. If you choose to do this you should label your explanation as “Objections to Magistrate 20 Judge’s Findings and Recommendations.” The district court judge assigned to your case will 21 review any objections that are filed and will make a final decision on the motion for summary 22 judgment. 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. The Clerk of Court shall strike the following docket entries filed in violation of this 25 Court’s November 9, 2018 order: ECF Nos. 98, 102, 106 and 107. 26 2. Plaintiff's motion for an order to show cause (ECF No. 102) is denied. 27 3. Plaintiff’s motion for the appointment of counsel (ECF No. 107) is denied without 28 1 IT IS FURTHER RECOMMENDED that: 2 1. Plaintiff's motion for a preliminary injunction (ECF No. 92) be denied as moot; 3 2. Defendants’ motion for summary judgment (ECF No. 74) be granted; 4 3. Plaintiff's motion for summary judgment (ECF No. 72) be denied as moot; and, 5 4. Plaintiff's complaint be dismissed without prejudice for failing to exhaust 6 administrative remedies. 7 These findings and recommendations are submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 9 | after being served with these findings and recommendations, any party may file written 10 | objections with the court and serve a copy on all parties. Such a document should be captioned 11 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 | objections shall be served and filed within fourteen days after service of the objections. The 13 | parties are advised that failure to file objections within the specified time may waive the right to 14 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 15 Dated: September 9, 2019 Cardy Kt LX (g-— 7 CAROLYN K.DELANEY 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 12/brow1088.msj+tro.docx 25 26 27 28 19