1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE LAMAR DUNBAR, No. 2:19-cv-1359 JAM DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendant. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims that officers used excessive force against him, denied him medical 19 treatment, and threatened him. Presently before the court is defendant’s fully briefed motion for 20 summary judgment and motion for stay and to modify the discovery and scheduling order. For 21 the reasons set forth below, the court will recommend that the motion for summary judgment be 22 granted and deny the motion for stay as moot. 23 BACKGROUND 24 I. Relevant Procedural History 25 Plaintiff initiated this action by filing the complaint in the United States District Court for 26 the Northern District of California on June 21, 2019.1 (ECF No. 1.) The complaint was 27 1 Under the prison mailbox rule, a document is deemed served on the date a prisoner signs the 28 document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 1 transferred to this court on July 19, 2019. (ECF Nos. 5, 7.) Plaintiff’s original (ECF No. 1) and 2 first amended (ECF No. 14) complaints were screened and dismissed for failure to state a claim. 3 (ECF Nos. 12, 16.) The undersigned recommended that the second amended complaint be 4 dismissed without leave to amend for failure to state a claim. (ECF No. 18.) Thereafter, plaintiff 5 filed objections indicating he had been confused, but felt he could state a cognizable claim. (ECF 6 No. 19.) The court vacated the findings and recommendations and granted plaintiff one final 7 opportunity to file an amended complaint. (ECF No. 20.) Plaintiff filed a third amended 8 complaint. (ECF No. 21.) Upon screening the court determined the third amended complaint 9 stated a cognizable claim against defendant N. Smith.2 (ECF No. 22.) 10 Defendant Smith was served (ECF No. 28), and the parties proceeded to discovery (ECF 11 No. 33). Thereafter, defendants filed the instant motion for summary judgment. (ECF No. 34.) 12 Plaintiff filed an opposition (ECF No. 37), and defendant filed a reply (ECF No. 39). 13 II. Allegations in the Complaint 14 The events giving rise to the claim occurred while plaintiff was incarcerated at High 15 Desert State Prison (HDSP). (ECF No. 21 at 4.) Plaintiff alleges that on November 13, 2015 16 John Doe 1 pointed a handgun at his head and told him to get on the ground and put his hand 17 behind his back. (Id.) Plaintiff complied with the request. John Doe 1 handcuffed plaintiff and 18 dragged him by his shirt into the scullery so that they were out of view of the surveillance camera. 19 John Doe 1 then turned plaintiff over, put his knee on plaintiff’s throat, and held plaintiff’s head 20 asking, “where is it motherfucker?” John Doe 1 continued to apply pressure on plaintiff’s throat 21 until he passed out. 22 When plaintiff regained consciousness, he was surrounded by five officers. Officer Smith 23 slapped plaintiff in the face and said, “Don’t fucking act like you’re passing out. Where is it?” 24 John Doe 1 asked, “where the fuck is it?” (Id. at 5.) Plaintiff nodded his head in the direction of

25 (1988). 2 The undersigned further determined that plaintiff stated a claim against John Doe 1 but indicated 26 that the court could not serve an unknown defendant. (ECF No. 22 at 5.) Plaintiff was advised 27 that failure to identify and move to amend the complaint to name this defendant during the course of discovery John Doe 1 would be dismissed from this action. (Id.) It appears that plaintiff was 28 not able to learn the identity of John Doe 1 during discovery. 1 a small bag containing about ten cellphones. John Doe 5 retrieved the bag of cell phones. As 2 plaintiff was lifted off the ground Smith kicked plaintiff in the upper back and told plaintiff he 3 should have made it easier. 4 As plaintiff was escorted out, he looked at Smith and said, “you’re a real bitch.” Smith 5 then rushed at plaintiff, screamed obscenities at him, grabbed his neck, and choked plaintiff. The 6 officers moved plaintiff to the dining area where he was pushed against a wall and Smith punched 7 him in the stomach. 8 Plaintiff alleges he suffered a headache but was denied medical attention. (Id.) After 9 officers learned that plaintiff was making a complaint about the incident, John Doe 1 told plaintiff 10 that if he dropped the complaint, he could get him transferred to the prison of his choice. That 11 same week John Does 2 and 3, coerced plaintiff into saying that he would not follow through with 12 his claims. Plaintiff states that he complied out of fear of retaliation until he was transferred to 13 another institution. 14 After his transfer, he spoke to John Doe 4 by phone regarding the excessive force incident. 15 Plaintiff explained the facts and John Doe 4 stated that he would get back to plaintiff. (Id. at 5-6.) 16 Plaintiff never heard back from John Doe 4. (Id. at 6.) He also claims that John Doe 4 destroyed 17 any records of plaintiff ever being housed at HDSP. 18 MOTION TO STAY DISCOVERY AND MODIFY DSO 19 Defendant filed a motion for stay and to modify the discovery and scheduling order 20 (“DSO”) concurrently with the motion for summary judgment. (ECF No. 35.) Therein they ask 21 for discovery to be stayed because the motion for summary judgment based on failure to exhaust 22 could dispose of the entire action. Because discovery closed on June 25, 2021 and the 23 undersigned will recommend that defendant’s motion be granted, the court will deny the motion 24 to stay discovery and modify the DSO as moot. 25 MOTION FOR SUMMARY JUDGMENT 26 Defendant argues that he is entitled to summary judgment because plaintiff failed to 27 exhaust administrative remedies. (ECF No. 34.) Defendant alleges plaintiff filed an appeal 28 //// 1 regarding the incident giving rise to the claim, but failed to pursue the appeal beyond the first 2 level of review. 3 Plaintiff’s opposition contains one page of arguments, a two-page declaration, and a 4 CDCR 602 form. (ECF No. 37.) Plaintiff also filed an exhibit that appears to contain two 5 additional pages of the 602 filed as an exhibit to his opposition. (ECF No. 40.) Plaintiff 6 acknowledges that he did not pursue an appeal through all three levels. He argues he should be 7 excused from compliance with the exhaustion requirement because prison officials interfered with 8 his ability to exhaust administrative remedies. (ECF No. 37 at 2-3.) 9 I. Legal Standards 10 A. Summary Judgment Under Rule 56 11 Summary judgment is appropriate when the moving party “shows that there is no genuine 12 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 13 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party bears the burden of 14 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 15 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 16 party may accomplish this by “citing to particular parts of materials in the record, including 17 depositions, documents, electronically stored information, affidavits or declarations, stipulations 18 (including those made for purposes of the motion only), admissions, interrogatory answers, or 19 other materials” or by showing that such materials “do not establish the absence or presence of a 20 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 21 Fed. R. Civ. P. 56(c)(1). 22 “Where the non-moving party bears the burden of proof at trial, the moving party need 23 only prove there is an absence of evidence to support the non-moving party’s case.” Oracle 24 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 25 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 26 motion, against a party who fails to make a showing sufficient to establish the existence of an 27 element essential to that party’s case, and on which that party will bear the burden of proof at 28 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 1 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 2 a circumstance, summary judgment should “be granted so long as whatever is before the district 3 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 4 56(c), is satisfied.” Id. 5 If the moving party meets its initial responsibility, the burden shifts to the opposing party 6 to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 7 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 8 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 9 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 10 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 11 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 12 fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty 13 Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 14 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a 15 reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248. 16 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 17 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 18 v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) (citation 19 omitted). It is the opposing party’s obligation to produce a factual predicate from which the 20 inference may be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 21 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply 22 show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 23 (citations omitted). “Where the record is taken as a whole could not lead a rational trier of fact to 24 find for the non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l 25 Bank, 391 U.S. at 289). 26 On a motion for summary judgment, it is inappropriate for the court to weigh evidence or 27 resolve competing inferences. “In ruling on a motion for summary judgment, the court must 28 leave ‘[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate 1 inferences from the facts’ to the jury.” Foster v. Metropolitan Life Ins. Co., 243 Fed.Appx. 208, 2 210 (9th Cir. 2007) (quoting Anderson, 477 U.S. at 255). 3 Generally, when a defendant moves for summary judgment on an affirmative defense on 4 which he bears the burden of proof at trial, he must come forward with evidence which would 5 entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. 6 South, 965 F.2d 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an 7 affirmative defense that must be raised in a motion for summary judgment rather than a motion to 8 dismiss. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for 9 summary judgment for non-exhaustion, the defendant has the initial burden to prove “that there 10 was an available administrative remedy, and that the prisoner did not exhaust that available 11 remedy.” Id. at 1172. If the defendant carries that burden, the “burden shifts to the prisoner to 12 come forward with evidence showing that there is something in his particular case that made the 13 existing and generally available administrative remedies effectively unavailable to him.” Id. The 14 ultimate burden of proof remains with the defendant, however. Id. If material facts are disputed, 15 summary judgment should be denied, and the “judge rather than a jury should determine the 16 facts” on the exhaustion question, id. at 1166, “in the same manner a judge rather than a jury 17 decides disputed factual questions relevant to jurisdiction and venue,” id. at 1170-71. 18 B. Exhaustion of Administrative Remedies 19 1. PLRA Exhaustion Requirement 20 Because plaintiff is a prisoner challenging the conditions of his confinement, his claims 21 are subject to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA 22 mandates that “[n]o action shall be brought with respect to prison conditions under section 1983 . 23 . . or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility 24 until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The 25 exhaustion requirement “applies to all inmate suits about prison life, whether they involve general 26 circumstances or particular episodes, and whether they allege excessive force or some other 27 wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Regardless of the relief sought, a prisoner 28 must pursue an appeal through all levels of a prison’s grievance as long as some remedy remains 1 available. “The obligation to exhaust ‘available’ remedies persists as long as some remedy 2 remains ‘available.’ Once that is no longer the case, then there are no ‘remedies . . . available,’ 3 and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th 4 Cir. 2005) (emphasis and alteration in original) (citing Booth v. Churner, 532 U.S. 731, 736 5 (2001)). 6 “Under § 1997e(a), the inmate exhaustion requirement hinges on the ‘availab[ility]’ of 7 administrative remedies: An inmate . . . must exhaust available remedies, but need not exhaust 8 unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (brackets in original). In 9 discussing availability in Ross the Supreme Court identified three circumstances in which 10 administrative remedies were unavailable: (1) where an administrative remedy “operates as a 11 simple dead end” in which officers are “unable or consistently unwilling to provide any relief to 12 aggrieved inmates;” (2) where an administrative scheme is “incapable of use” because “no 13 ordinary prisoner can discern or navigate it;” and (3) where “prison administrators thwart inmates 14 from taking advantage of a grievance process through machination, misrepresentation, or 15 intimidation.” Id. at 1859-60. “[A]side from [the unavailability] exception, the PLRA’s text 16 suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special 17 circumstances.’” Id. at 1856. “[M]andatory exhaustion statutes like the PLRA establish 18 mandatory exhaustion regimes, foreclosing judicial discretion.” Id. at 1857. 19 “[F]ailure to exhaust is an affirmative defense under the PLRA.” Jones v. Bock, 549 U.S. 20 199, 216 (2007). It is the defendant’s burden “to prove that there was an available administrative 21 remedy.” Albino, 747 F.3d at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th 22 Cir. 1996)). The burden then “shifts to the prisoner to come forward with evidence showing that 23 there is something in his particular case that made the existing and generally available 24 administrative remedies unavailable to him.” Id. 25 A prisoner is required to exhaust administrative remedies before filing suit. McKinney v. 26 Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curium). Section 1997e(a) mandates that “[n]o 27 action shall be brought . . . until [the prisoner’s] administrative remedies . . . are exhausted. 42 28 U.S.C. § 1997e(a). “The ‘available’ ‘remed[y]’ must be ‘exhausted’ before a complaint under § 1 1983 may be entertained.” Booth, 532 U.S. at 738. “Exhaustion subsequent to the filing of suit 2 will not suffice.” McKinney, 311 F.3d at 1199. 3 2. California’s Inmate Appeals Process 4 In California, prisoners may appeal “any policy, decision, action, condition, or omission 5 by the department or its staff that the inmate or parolee can demonstrate as having a material 6 adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). 7 During the time relevant to this action,3 inmates in California proceeded through three levels of 8 appeals to exhaust the appeal process: (1) formal written appeal on a CDC 602 inmate appeal 9 form; (2) second level appeal to the institution head or designee; and (3) third level appeal to the 10 Director of the California Department of Corrections and Rehabilitation (“CDCR”). Cal. Code 11 Regs. tit. 15, § 3084.7. Under specific circumstances, the first level review may be bypassed. Id. 12 The third level of review constitutes the decision of the Secretary of the CDCR and exhausts a 13 prisoner’s administrative remedies. See id., § 3084.7(d)(3). However, a cancellation or rejection 14 decision does not exhaust administrative remedies. Id., § 3084.1(b). 15 A California prisoner is required to submit an inmate appeal at the appropriate level and 16 proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 17 (9th Cir. 2005); Bennet v. King, 293 F.3d 1096, 1098 (9th Cir. 2002). In submitting a grievance, 18 an inmate is required to “list all staff members involved and shall describe their involvement in 19 the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). Further, the inmate must “state all facts known 20 and available to him/her regarding the issue being appealed at the time,” and they must “describe 21 the specific issue under appeal and the relief requested.” Id. § 3084.6(b)(8). 22 An inmate has thirty calendar days to submit their grievance from the occurrence of the 23 event or decision being appealed, or “upon first having knowledge of the action or decision being 24 appealed.” Cal. Code Regs. tit 15, § 3084.8(b). 25 //// 26 3 In 2020, California changed the grievance system from a three-tier system to a two-tier system. 27 The change became effective on June 1, 2020, after plaintiff initiated the relevant appeals in the present case. See Cal. Code Regs. tit. 15, § 3480. All citations to the California code in the text 28 refer to the prior law. 1 II. Material Facts 2 Defendant filed a Statement of Undisputed Facts (“DSUF”) as required by Local Rule 3 260(a). (ECF No. 34-3.) Plaintiff’s filing in opposition to defendant’s motion for summary 4 judgment fails to comply with Local Rule 260(b). (ECF No. 37.) Rule 260(b) requires that a 5 party opposing a motion for summary judgment “shall reproduce the itemized facts in the 6 Statement of Undisputed Facts and admit those facts are undisputed and deny those that are 7 disputed, including with each denial a citation to the particular portions of any pleading, affidavit, 8 deposition, interrogatory answer, admission, or other document relied upon in support of that 9 denial.” 10 The court is mindful of the Ninth Circuit’s instruction that district courts are to “construe 11 liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary 12 judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). Accordingly, 13 the court considers the record before it in its entirety despite plaintiff’s failure to be in strict 14 compliance with the applicable rules. However, only those assertions in the opposition that have 15 evidentiary support in the record will be considered. In light of plaintiff’s pro se status, the court 16 has reviewed plaintiff’s filings in an effort to discern whether he denies any material fact asserted 17 in the defendant’s DSUF. 18 Plaintiff has not challenged, and nothing in the record contradicts, any of the facts relating 19 to the timing of the filing and processing of his appeal, accordingly the facts surrounding these 20 events shall be deemed admitted for purposes of the motion. Fed. R. Civ. P. 56(e)(1) (“If a party . 21 . . fails to properly address another party’s assertion of facts as required by Rule 56(c), the court 22 may . . . consider the fact undisputed for purposes of the motion.”) While the parties dispute the 23 implication of plaintiff’s failure to pursue his grievance beyond the first level of review, the 24 actual events are not in dispute. 25 During the relevant time period, plaintiff was an inmate in the custody of CDCR. (DSUF 26 (ECF No. 34-3) at ¶ 5; Third Amended Complaint (“TAC”) (ECF No. 21) at 1, 4.) The incident 27 giving rise to plaintiff’s claim occurred on November 13, 2015. (DSUF (ECF No. 34-3) at ¶ 6; 28 TAC (ECF No. 21) at 4.) 1 CDCR uses a computer program system to electronically log and track inmate appeals 2 through all levels of review. (DSUF (ECF No. 34-3) at ¶ 1.) Plaintiff filed an appeal related to 3 his allegations regarding the events giving rise to the claim. (DSUF (ECF No. 34-3) at ¶ 8.) The 4 appeal was assigned log no. HDSP-O-16-01570. (Id.) Therein, plaintiff alleged that defendant 5 Smith and another officer used excessive force against him on November 13, 2015. (DSUF (ECF 6 No. 34-3) at ¶ 6, 8.) Plaintiff “requested that the matter be investigated, action be taken to rectify 7 the matter, and the officers reprimanded.” (DSUF (ECF No. 34-3) at ¶ 8.) 8 Appeal no. HDSP-O-16-01570 was partially granted at the first level of review on June 3, 9 2016. (Id.) The first level decision stated that the allegations were being reviewed and the matter 10 would be referred to the Office of Internal Affairs for follow-up and potentially an investigation. 11 (Id.) The first level decision stated that if plaintiff wished to appeal the decision further and if he 12 wanted to exhaust, he would need to submit the appeal through all three levels of review. (Id.) 13 Plaintiff did not submit appeal no. HDSP-O-16-01570 for further review. 14 The only appeals plaintiff submitted to the HDSP Grievance Office were log nos. HDSP- 15 O-16-01570 and HDSP-E-15-03038. (DSUF (ECF No. 34-3) at ¶ 12.) Appeal log no. HDSP-E- 16 15-03038 sought information about plaintiff’s case records. (DSUF (ECF No. 34-3) at ¶ 10; 17 (ECF No. 34-5 at 6).) The appeal was rejected on November 4, 2015 for failure to include 18 necessary supporting documents. (DSUF (ECF No. 34-3) at ¶ 10.) Records indicate that plaintiff 19 did not re-submit appeal log no. HDSP-E-15-03038. (Id.) 20 Plaintiff was transferred from HDSP to Folsom State Prison on December 30, 2015. 21 (DSUF (ECF No. 34-3) at ¶ 11.) Thereafter, plaintiff was transferred to Centinella State Prison 22 (“CEN”). (Id.) Inmates may submit or re-submit an appeal concerning events that occurred at a 23 different prison. (Id.) Plaintiff’s appeal regarding events that occurred at HDSP was filed while 24 he was housed at CEN. (Id.) Plaintiff was interviewed telephonically by the HDSP Grievance 25 Office. (Id.) 26 The only appeal plaintiff submitted for third level review between November 2015 and 27 June 28, 2019 was a group appeal regarding allegations of a contaminated water supply at San 28 Quentin State Prison. (DSUF (ECF No. 34-3) at ¶ 13.) 1 III. Analysis 2 Defendant argues that plaintiff filed an appeal related to his allegations in this action but 3 failed to properly exhaust by submitting it for second and third level review. (ECF No. 34-2 at 6.) 4 In the opposition plaintiff argues that he should be excused from exhaustion because he did not 5 understand the appeals process, officials refused to accept his grievance, his transfer interfered 6 with his ability to file an appeal, and a prison official told plaintiff he would “follow up.” (ECF 7 No. 37 at 1-3.) 8 In order to exhaust, an inmate is required to obtain a decision at each level of review. 9 Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b); 10 Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). The first level response to Appeal No. 11 HDSP-O-16-01570 specifically stated that it must be appealed through the third level in order to 12 be exhausted. (ECF No. 34-5 at 10.) However, plaintiff did not pursue Appeal No. HDSP-O-16- 13 01570 beyond the first level of review. Because he did not receive a decision at all three levels 14 appeal No. HDSP-O-16-01570 did not exhaust administrative remedies. 15 Defendant has put forth evidence showing that administrative remedies were available and 16 plaintiff failed to exhaust administrative remedies. Thus, the burden now shifts to plaintiff to put 17 forth evidence that “there is something in his particular case that made the existing and generally 18 available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. 19 A. Officers at HDSP Refused to Accept his Grievance Form 20 Plaintiff argues administrative remedies were unavailable because officers at HDSP 21 refused to accept his grievance. (ECF No. 37 at 1.) For purposes of resolving the instant 22 summary judgment motion, the court will take as true plaintiff’s allegation that he was prevented 23 from filing an appeal while he was housed at HDSP. However, the parties agree that plaintiff 24 filed an appeal after his transfer to CEN. Additionally, the parties agree that the appeal was 25 accepted for first level review and plaintiff was interviewed regarding the grievance. (ECF No. 26 34-5 at 10-11; ECF No. 37 at 3.) Defendant argues that plaintiff has not alleged that prison 27 officials prevented him from pursuing a grievance after his transfer and that plaintiff made no 28 //// 1 effort to pursue the appeal after he was interviewed during the first level of review. (ECF No. 39 2 at 1-3.) 3 HDSP officers’ refusal to accept plaintiff’s grievance form does not excuse plaintiff from 4 the PLRA’s exhaustion requirement because he was able to submit a grievance after his transfer. 5 See Beckwith v. McCullough, No. EDCV 16-662 MWF (MRW), 2017 WL 1377732 at *3 (C.D. 6 Cal. Feb. 6, 2017) (finding plaintiff’s allegation that officers refused to give him grievance forms 7 failed to show that administrative remedies were unavailable because plaintiff was able to submit 8 a grievance after he was transferred to a different facility). Thus, administrative remedies were 9 available to plaintiff even though prison officials initially refused to accept his grievance. 10 B. Lack of Knowledge 11 Plaintiff argues that he did not have “proper knowledge” of the appeals process, but he 12 “still took every effort to resolve or remedy the adverse actions of [the] officers while being 13 obstructed.” (ECF No. 37 at 1.) 14 “Lack of knowledge of the exhaustion requirement does not excuse an inmate’s failure to 15 exhaust administrative procedures.” Gurley v. Clark, 620 Fed. Appx. 671, 673 (10th Cir. 2015); 16 see also Ross, 578 U.S. at 642 (a reasonable misunderstanding of the prison’s grievance 17 procedure does not render the process “unavailable” for exhaustion purposes). Accordingly, 18 plaintiff is not excused from exhausting because he did not understand the appeals process. 19 C. Transfer and Loss of Documents 20 Plaintiff alleges that another inmate was helping him file an appeal after he left HDSP and 21 before he arrived at CEN. (ECF No. 37 at 2.) An officer took the documents related to the appeal 22 telling plaintiff they would be with the rest of his property, but when plaintiff arrived at CEN the 23 papers were gone. (ECF No. 37 at 3.) Plaintiff appears to argue that his transfer and the loss of 24 his papers made the appeals process unavailable. 25 Plaintiff is not excused from the PLRA’s exhaustion requirement based on his transfer 26 from HDSP to CEN. See Beckwith v. McCullough, No. EDCV 16-662 MWF (MRW), 2017 WL 27 1377732 at *3 (C.D. Cal. Feb. 6, 2017) (plaintiff not excused from exhaustion based on his 28 transfer to another prison facility); Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 35 (1st Cir. 1 2002) (“The fact that Medina-Claudio happened to be a prisoner in various locations, and under 2 the custody of different officials, does not affect his obligation to exhaust his administrative 3 remedies before filing suit”); Howard v. Baca, No. CV 10-5081-JFW (OP), 2011 WL 5570086 at 4 *5 (C.D. Cal. Sept. 27, 2011) (same); Flournoy v. Navarro, No. CV 05-7708 PA (FFM), 2008 5 WL 4184650 at *7 (C.D. Cal. Sept. 10, 2008) (same). 6 Additionally, inmates are allowed to appeal incidents at prison facilities even after they 7 have been transferred. (DSUF (ECF No. 34-3) at ¶ 11.) Thus, administrative remedies were 8 available to plaintiff even after he was transferred away from HDSP. 9 Further, the loss of documents during transfer did not make administrative remedies 10 unavailable. Plaintiff filed appeal no. HDSP-O-16-015704, after his arrival at CEN. This appeal 11 was accepted by the HDSP appeals office, rather than rejected for failure to attach the necessary 12 supporting documents. Thus, the loss of documents did not make administrative remedies 13 unavailable after his transfer. 14 D. Statement During Phone Interview 15 After arriving at CEN, plaintiff filed a grievance regarding the events giving rise to the 16 claim. The HDSP warden interviewed plaintiff over the phone, and he was interviewed in person 17 by an internal affairs officer regarding his appeal. Both officials told plaintiff they would follow 18 up, but that never happened. (Id.) Plaintiff argues that he should be excused from exhausting 19 because their failure to contact him. 20 Administrative remedies were not unavailable to plaintiff based on officials’ failure to 21 follow up. Cases where courts have found prison officials prevented inmates from exhausting 22 involve threats of retaliation if inmates pursued their appeal rights McBride v. Lopez, 807 F.3d 23 982, 987 (9th Cir. 2015) (as amended), incorrectly informed inmates that no further remedies 24 were available Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (per curiam), sent 25 plaintiff on a “wild goose chase,” Nunez v. Duncan, 591 F.3d 1217, 1226, or unreasonably 26 //// 27 4 As set forth above, appeal no. HDSP-O-16-01570 concerned the events giving rise to plaintiff’s 28 claim in this action. 1 delayed consideration of his grievances, Andres v. Marshall, 867 F.3d 1076, 1078-79 (9th Cir. 2 2017). 3 Prison officials did not tell him that he needed to wait for their response before appealing 4 to the next level of review or that he did not need to continue to pursue the appeal in order to 5 exhaust. Accordingly, the court finds that plaintiff has failed to establish that the prison officials’ 6 statements that they would “follow up” mislead him about his obligation to pursue his appeal 7 through all three levels of review. 8 E. Administrative Remedies were Available 9 As set forth above, it is undisputed that plaintiff failed to pursue an appeal related to his 10 claims in this action through all three levels of review. Additionally, he has failed to show that 11 administrative remedies were unavailable to him for any of the reasons stated in his opposition. 12 Therefore, defendant’s motion for summary judgment should be granted based on plaintiff’s 13 failure to exhaust administrative remedies. 14 CONCLUSION 15 For the reasons set forth above, IT IS HEREBY ORDERED that defendant’s motion for 16 stay and to modify the DSO (ECF No. 35) is denied as moot. 17 IT IS HEREBY RECOMMENDED that defendant’s motion for summary judgment (ECF 18 No. 34) be granted. 19 These findings and recommendations will be submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days 21 after being served with these findings and recommendations, either party may file written 22 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendations.” The parties are advised that failure to file objections within the 24 //// 25 //// 26 //// 27 //// 28 //// 1 || specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 2 | Yist, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: January 5, 2022 4 5 6

BORAH BARNES

7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13] ps2 DB/DB Prisoner Inbox/Civil-Rights/S/dunb1359.msj_ fr 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15