1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 ROMAINE L. NEVELS, CASE NO. CV 17-6434-JVS (AS) 12 Plaintiff,

ORDER ACCEPTING FINDINGS,

13 v.

CONCLUSIONS AND RECOMMENDATIONS

14 DEBBIE ASCUNION, et al.,

OF UNITED STATES MAGISTRATE

15 Defendants.

JUDGE

16

17 Pursuant to 28 U.S.C. section 636, the Court has reviewed the 18 Third Amended Complaint, all of the records herein, and the Report 19 and Recommendation of a United States Magistrate Judge. After 20 having made a de novo determination of the portions of the Report 21 and Recommendation to which the parties’ Objections were directed, 22 the Court finds that Defendants’ and Plaintiff’s respective 23 Objections to the Report and Recommendation are without merit and 24 do not cause the Court to reconsider its decision to accept the 25 Magistrate Judge’s conclusions and recommendations. 26 27 28 1 Defendants argue in their Objections that Plaintiff failed to 2 exhaust administrative remedies as to any Defendant, including 3 Avalos, because he never received a third-level decision on the 4 merits of his appeal. (Defs.’ Objections at 1-4). As Defendants 5 acknowledge, this argument directly contradicts their own Motion 6 for Summary Judgment (“Motion”), in which they asserted, multiple 7 times, that Plaintiff exhausted his remedies as to Defendant 8 Avalos, even though the third-level decision merely affirmed the 9 prior appeal’s cancellation for untimeliness. (Motion at 3, 8) 10 (citing Defs.’ SUF ¶ 16). According to Defendants, these clear 11 statements in their own Motion were based on a mistake of law, 12 which they now wish to correct. (Defs.’ Objections at 3-4). They 13 contend that Plaintiff’s claims are in fact unexhausted because a 14 third-level decision affirming the cancellation of an inmate’s 15 prior appeal does not satisfy the administrative exhaustion 16 requirements. (Defs.’ Objections at 2). Defendants present this 17 new argument based on facts that were already in the record. 18 19 The Court has discretion to consider arguments raised for the 20 first time in a party’s objections.1 See Brown v. Roe, 279 F.3d 21 1 Defendants contend, incorrectly, that the Court is required 22 to consider their argument because their Motion raised the issue of exhaustion on other grounds, and the underlying facts were 23 already in the record. (Defs.’ Objections at 4). On this point, they rely on cases from the Fourth Circuit, despite that the Fourth 24 and Ninth Circuits differ on this issue. See Brown v. Roe, 279 25 F.3d 742, 745-46 (“[W]e do not go as far as the Fourth Circuit, which has held that a district court must consider new arguments 26 raised for the first time in an objection to a magistrate judge’s findings and recommendation.”) (citation omitted). In the Ninth 27 Circuit, the matter is clearly within the Court’s discretion. Id. at 744-46. 28 1 742, 744 (2002); United States v. Howell, 231 F.3d 615, 621 (9th 2 Cir. 2000). Defendants do not merit such consideration here, 3 particularly as they have no excuse for failing to assert the 4 argument before. Indeed, because Defendants’ Motion expressly 5 conceded that the third-level decision exhausted Plaintiff’s 6 remedies against Avalos, they arguably waived this issue. See Lira 7 v. Herrera, 427 F.3d 1164, 1171 (9th Cir. 2005) (PLRA’s exhaustion 8 requirement is waived if not raised by defendant); cf. Ross v. 9 Davis, 2019 WL 5459604, at *4 (C.D. Cal. Sept. 16, 2019) (in habeas 10 action, government’s “express waiver was not rendered invalid by 11 the possibility that its position on exhaustion was 12 incorrect”), report and recommendation adopted, 2019 WL 5455715 13 (C.D. Cal. Oct. 24, 2019) (citing Eichwedel v. Chandler, 696 F.3d 14 660, 671 (7th Cir. 2012)). 15 16 Moreover, even if the Court considered Defendants’ new 17 argument and agreed that the third-level decision on Plaintiff’s 18 appeal did not qualify for exhaustion under applicable regulations, 19 dismissal still would not be warranted. To support their claim 20 that Plaintiff’s appeal did not suffice, Defendants cite Gil v. 21 Spaulding, 2017 WL 6594637 (E.D. Cal. Dec. 26, 2017), in which the 22 district court dismissed an inmate’s civil rights claims for lack 23 of exhaustion because the inmate’s administrative third-level 24 appeal had been cancelled as untimely, and he failed to demonstrate 25 that the cancellation was improper. Gil, 2017 WL 6594637, at *5- 26 8. The plaintiff in Gil argued that he had been unable to timely 27 submit the appeal because his second-level response arrived after 28 the appeal deadline. The court rejected this argument in part 1 because the defendants provided declarations from appeals examiners 2 which described the procedures used to ensure timely processing 3 and delivery of appeal responses, and averred that there was no 4 record of delay in the inmate’s case. The court also noted that 5 in contrast to other district court cases – specifically, Thorns 6 v. Ryan, 2008 WL 544398 (S.D. Cal. Feb. 26, 2008), and Sanchez v. 7 Penner, 2008 WL 544591 (E.D. Cal. Feb. 26, 2008) – the plaintiff 8 in Gil had not been transferred when the second-level response was 9 issued, and he had not inquired into the status the response or 10 noted its delay in his belated third-level appeal. Gil, 2017 WL 11 6594637, at *6-7; see Thorns, 2008 WL 544398, at *3-4 (dismissal 12 for lack of exhaustion due to cancelled third-level appeal was not 13 warranted where plaintiff asserted that he had received the second- 14 level decision late, and he offered supporting evidence showing 15 that he had been transferred to another facility after the decision 16 was purportedly issued, had made several unsuccessful attempts to 17 obtain a copy of the decision, and had explained within his late 18 third-level appeal that he had only recently received the second- 19 level decision); Sanchez, 2008 WL 544591, at *6 (defendant failed 20 to rebut prisoner’s evidence that his appeal was late due to his 21 transfer to a different prison). 22 23 Here, as in Gil, Plaintiff has argued that he was unable to 24 timely submit his third-level appeal because his second-level 25 response was delivered to him after the appeal deadline. 26 Defendants have neglected even to address this argument. Moreover, 27 unlike in Gil, Plaintiff has provided evidence, in the form of his 28 deposition testimony and signed statements, attesting that he was 1 transferred multiple times while awaiting the second-level 2 response, and that he submitted several inquiries regarding the 3 status of the response. (See Opposition to Motion at 4-10; Dkt. 4 No. 119 at 2-4; Pl.’s Depo. at 101-02). Administrative documents 5 in the record also reflect that Plaintiff raised this issue in his 6 late third-level appeal and in his subsequent appeal of the 7 cancellation. (See Jung Decl. ¶ 6, Exh. B at 9, 55-57, 68). 8 9 Defendants have offered nothing to rebut Plaintiff’s evidence 10 here. Accordingly, even if Defendants had not waived this issue, 11 their argument would fail. As in Sanchez and Thorns, Plaintiff 12 has satisfied his burden under the applicable standard to show that 13 further administrative remedies were rendered effectively 14 unavailable. See Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 15 2010) (exhaustion is not required “when circumstances render 16 administrative remedies effectively unavailable”) (citation 17 omitted); Thorns, 2008 WL 544398, at *3-4 (denying motion to 18 dismiss); Sanchez, 2008 WL 544591, at *6 (denying motion for 19 summary judgment); see also Gil, 2017 WL 6594637, at *7-8 20 (distinguishing Thorns and Sanchez and granting summary judgment 21 for lack of exhaustion). 22 23 Defendants’ other arguments were addressed in the Report and 24 Recommendation and merit little discussion here. Defendants 25 dispute the Magistrate Judge’s conclusion that Plaintiff’s appeals 26 regarding the incident with Defendant Avalos also sufficed to 27 exhaust administrative remedies for his excessive-force claim 28 1 against Defendant Barbato.2 (Defs.’ Objections at 5-10). Although 2 the appeals did not mention that Plaintiff was struck by any officer 3 other than Avalos, the appeals did allege that Officers Barbato 4 and Im maliciously wielded their batons against the inmates in the 5 incident. (Jung Decl. ¶ 6, Exh. B at 10-11). Plaintiff’s appeal 6 to the third level also referenced the officers’ incident reports, 7 in which Barbato and others attested that Barbato himself struck 8 Plaintiff with his baton (albeit just once in the knee) while 9 Avalos and Im were striking the other two inmates with whom 10 Plaintiff had been struggling. (Id. at 11, 21-36). Based on these 11 facts, regarding a fast-moving incident in which multiple officers 12 were using force against several inmates in a struggle, Plaintiff’s 13 appeals gave prison officials at least “enough information” to 14 allow them to investigate the matter and “take appropriate 15 responsive measures” regarding Defendant Barbato’s involvement. 16 See Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009); see 17 also Washington v. Guerra, 2017 WL 1197861, at *5 (C.D. Cal. Jan. 18 31, 2017) (prisoner exhausted remedies with respect to claims 19 against defendants, including some officers not named in 20 administrative appeals, because the appeals alleged excessive force 21 on particular date and referenced incident reports that identified 22 the defendant officers’ involvement, so that “prison officials 23 plainly knew” defendants were involved in the alleged excessive- 24 force incident), report and recommendation adopted, 2017 WL 1197667 25

26 2 The Magistrate Judge determined that Plaintiff exhausted available remedies regarding all three Defendants, but the claim 27 against Defendant Im need not be addressed because it fails on the merits, for the reasons stated in the Report and Recommendation. 28 1 (C.D. Cal. Mar. 29, 2017) (citing Reyes v. Smith, 810 F.3d 654, 2 659 (9th Cir. 2016)). 3 4 Defendants have therefore failed to demonstrate any basis for 5 dismissal on exhaustion grounds. As for the merits, Defendants 6 contend that evidence of the officers’ malicious intent is 7 “equivocal” and “contradictory.” (Defs.’ Objections at 11-14). 8 However, construed under the proper standard, Plaintiff’s 9 statements consistently attest that Avalos and Barbato continued 10 striking him multiple times even after he was subdued, creating a 11 genuine dispute of material fact as to whether Defendants used 12 excessive force in violation of Plaintiff’s Eighth Amendment 13 rights. (See Pl.’s Opposition to Motion at 6, 27; Third Amended 14 Complaint at 4; Pl.’s Depo. at 53-54). 15 16 Plaintiff’s Objections similarly fail to identify any basis 17 to depart from the Magistrate Judge’s recommendations. Although 18 he opposes the dismissal of his claim against Defendant Im, he 19 remains unable to point to any plausible facts showing that Im had 20 a realistic opportunity to intervene and protect Plaintiff from 21 any alleged excessive force during the incident. (Pl.’s Objections 22 at 6-9). Otherwise, Plaintiff apparently disputes the 23 recommendation to deny as moot the filing construed as Plaintiff’s 24 Motion to Amend his Third Amended Complaint. (Pl.’s Objections at 25 3-4). Plaintiff contends that he “mislabeled” the document, and 26 had intended merely to give notice of the exhibits attached to it. 27 (Id.). Regardless, these exhibits were already part of the record, 28 and do not affect the Court’s analysis of the issues presented in 1 || Defendants’ Motion. Plaintiff’s remaining objections do not merit 2 || further discussion.? 3 4 IT IS ORDERED that (1) Defendants’ Motion for Summary Judgment 5 is GRANTED IN PART AND DENIED IN PART, as follows: (a) the Motion 6 || 1s GRANTED to the extent that Plaintiff’s claims against Defendant 7 || Im are DISMISSED with prejudice; (b) the Motion is otherwise 8 || DENIED; and (3) the filing construed as Plaintiff’s Motion to Amend 9 || the Third Amended Complaint (Dkt. No. 122) is DENIED AS MOOT. 10 11 IT IS FURTHER ORDERED that the Clerk serve copies of this 12 || Order on Plaintiff and counsel for Defendants. 13

LET JUDGMENT BE ENTERED ACCORDINGLY.

14 15 || DATED: February 19, 2021 16 [ le f 7 / [/ rt / f 0 ON □□ = 17 BOE NS y

JAMES /V . SELNA

18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 3 Along with his Objections, Plaintiff filed a Motion for 54 Appointment of Counsel. (Dkt. No. 133). The Court has previously denied several motions to appoint counsel for Plaintiff in this 25 || case (see Dkt. Nos. 12, 44, 50, 83), but a separate order will issue to address whether this relief is now warranted going 26 || forward. The Court observes, however, that Plaintiff appears to have handled the issues in the case adequately thus far without 27 || counsel, and all filings have been construed in light of 28 Plaintiff's status as a pro se inmate.