1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ARNOLD RODRIGUEZ, No. 2:19-cv-1108 MCE AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS &

RECOMMENDATIONS

14 N. ALBONICO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 18 42 U.S.C. § 1983. Currently before the court is defendants’ motion for summary judgment. ECF 19 No. 55. 20 I. Procedural History 21 This case proceeds on plaintiff’s first amended complaint. ECF No. 9. On screening, the 22 court found that plaintiff had stated claims for relief against defendants. ECF No. 23. After the 23 close of discovery, defendants filed a motion for summary judgment. ECF No. 55. Plaintiff filed 24 a cross-motion for summary judgment (ECF No. 72) and an opposition (ECF No. 73). The cross- 25 motion was construed as a further opposition to the motion for summary judgment, and plaintiff 26 was given an opportunity to submit another copy of his opposition because it appeared to be 27 incomplete. ECF No. 74. Plaintiff proceeded to file a complete copy of his opposition. ECF No. 28 75. 1 II. Plaintiff’s Allegations 2 Plaintiff alleges that defendants Albonico, Loftin, and Jackson violated his rights under 3 the Eighth Amendment. ECF No. 9. Specifically, plaintiff alleges that on May 19, 2015, Loftin 4 and Jackson escorted plaintiff to Albonico’s office to talk and for a disciplinary hearing. Id. at 5, 5 ¶¶ 1-3. After plaintiff was seated, Loftin stood behind plaintiff and began digging his fingers into 6 plaintiff’s shoulders for no reason, causing pain and discomfort. Id., ¶ 4. This continued 7 throughout the meeting with Albonico and neither Albonico nor Jackson attempted to stop Loftin, 8 despite plaintiff’s obvious pain and discomfort. Id. At the end of the meeting Albonico 9 threatened plaintiff and told him that if he kept disrespecting staff he was going to get hurt. Id. at 10 6, ¶ 6. During the escort back to plaintiff’s cell, Loftin and Jackson deliberately elevated 11 plaintiff’s arms so that he had to bend at the waist to prevent his shoulders from dislocating, and 12 as they approached plaintiff’s wing they coordinated to body slam plaintiff face first into the 13 concrete floor, causing plaintiff to lose consciousness and sustain significant injuries. Id. at 6-7, 14 ¶¶ 8-13. Defendants, including Albonico who responded to the scene, then failed to get plaintiff 15 medical assistance in a timely manner. Id. at 8, ¶¶ 14-17. 16 III. Motion for Summary Judgment 17 A. Defendants’ Arguments 18 Defendants argue that they are entitled to summary judgment because the claims are 19 barred by the statute of limitations and plaintiff failed to properly exhaust his administrative 20 remedies prior to filing suit. ECF No. 55-2. 21 B. Plaintiff’s Response 22 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 23 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted), overruled on other grounds, 24 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). However, it is well- 25 established that district courts are to “construe liberally motion papers and pleadings filed by 26 pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 27 611 F.3d 1144, 1150 (9th Cir. 2010). The unrepresented prisoner’s choice to proceed without 28 counsel “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily 1 imposes upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 2 Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (alteration in original) (citations and 3 internal quotation marks omitted). Inmate litigants, therefore, should not be held to a standard of 4 “strict literalness” with respect to the requirements of the summary judgment rule. Id. (citation 5 omitted). 6 Accordingly, though plaintiff has partially complied with the rules of procedure, the court 7 will consider the record before it in its entirety. However, only those assertions in the opposition 8 which have evidentiary support in the record will be considered. 9 Plaintiff appears to argue that this action is timely under the continuing violation doctrine 10 and that he was excused from exhaustion because his appeal was improperly cancelled as 11 untimely. ECF No. 72 at 5-7. 12 IV. Legal Standards for Summary Judgment 13 Summary judgment is appropriate when the moving party “shows that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 15 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 16 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 17 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 18 The moving party may accomplish this by “citing to particular parts of materials in the record, 19 including depositions, documents, electronically stored information, affidavits or declarations, 20 stipulations (including those made for purposes of the motion only), admissions, interrogatory 21 answers, or other materials” or by showing that such materials “do not establish the absence or 22 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 23 support the fact.” Fed. R. Civ. P. 56(c)(1). 24 “Where the non-moving party bears the burden of proof at trial, the moving party need 25 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 26 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 27 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 28 motion, against a party who fails to make a showing sufficient to establish the existence of an 1 element essential to that party’s case, and on which that party will bear the burden of proof at 2 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 3 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 4 a circumstance, summary judgment should “be granted so long as whatever is before the district 5 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 6 56(c), is satisfied.” Id. 7 If the moving party meets its initial responsibility, the burden then shifts to the opposing 8 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 9 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 10 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 11 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 12 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 13 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 14 fact “that might affect the outcome of the suit under the governing law,” and that the dispute is 15 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving 16 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 17 In the endeavor to establish the existence of a factual dispute, the opposing party need not 18 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 19 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 20 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 21 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the 22 “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see 23 whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal 24 quotation marks omitted). 25 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 26 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” 27 Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). 28 It is the opposing party’s obligation to produce a factual predicate from which the inference may 1 be drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 2 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 3 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 4 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 5 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 6 391 U.S. at 289). 7 Defendants simultaneously served plaintiff with notice of the requirements for opposing a 8 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure along with their motion for 9 summary judgment. ECF No. 55-1; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 10 1988) (pro se prisoners must be provided with notice of the requirements for summary judgment); 11 Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide notice). 12 V. Undisputed Material Facts 13 Except as noted, the following facts are undisputed. Additional facts have been taken 14 from the records of plaintiff’s appeals, the authenticity of which are not in dispute. 15 At all relevant times, plaintiff was a prisoner in the custody of the California Department 16 of Corrections and Rehabilitation, and he is serving a prison sentence of less than life. 17 Defendants’ Statement of Undisputed Facts (DSUF) (ECF No. 55-3) ¶¶ 1, 3; ECF No. 75 at 1-2.1 18 Defendants state that inmate Appeal No. HDSP-Z-15-01436 was submitted on June 3, 19 2015, which is the same date reflected in the appeals tracking system. DSUF ¶ 4; ECF No. 55-4 20 at 8. The appeal form is stamped as being received by the HDSP Appeals Office on June 2, 2015. 21 ECF No. 55-6 at 12. The grievance alleged the same conduct by defendants as is alleged in this 22 action.2 DSUF ¶ 4. The appeal was partially granted at the first level of review. Id. Defendants 23

24 1 Although plaintiff denies DSUF ¶ 3, he states that he is indeterminately sentenced to 104 years to life with the possibility of parole. ECF No. 75 at 2. Since plaintiff’s sentence includes the 25 possibility of parole, it is a sentence of less than life. 26 2 Plaintiff disputes DSUF ¶ 4 on the ground that it “mischaracterizes incident narrative described in complaints and appeal log No. HDSP-Z-15-01436.” ECF No. 75 at 3. However, DSUF ¶ 4 27 summarizes only those allegations made in plaintiff’s first level appeal and plaintiff’s argument that it does not address other facts not contained in the appeal does not create a dispute of fact. 28 DSUF ¶ 4 is therefore deemed undisputed. 1 state that the appeal was granted in part on July 14, 2015, the same date reflected in the appeals 2 tracking system as the date of completion. Id.; ECF No. 55-4 at 8. The first-level response is 3 dated July 9, 2015, and was signed by the reviewing authority on July 10, 2015. ECF No. 55-4 at 4 19-20. On the copy of the appeal form maintained by the HDSP Appeals Office, the box 5 indicting when the first-level response was “mailed/delivered to appellant” has “7/14/15” crossed 6 out with “7/21/15” written underneath and a further notation that it was “Rec’d on August 15, 7 2015 at ASU 2-G-187 Delivered by Sgt. Kiel/Rec’d 9/29/15 [illegible] office.” Id. at 17. An 8 effective communication assignment form also indicates that on August 15, 2015, Sgt. Kiel was 9 assigned to assist plaintiff with understanding the appeal response. Id. at 25. 10 Plaintiff filed an appeal at the second level. DSUF ¶ 5; ECF No. 75 at 4. Defendants 11 assert that plaintiff appealed to the second level of review on December 10, 2015, the same date 12 reflected in the appeals tracking system. DSUF ¶ 5; ECF No. 55-4 at 8. Plaintiff claims that he 13 appealed to the second level of review on September 5, 2015, the same day the second-level 14 appeal is dated, ECF No. 75 at 4, 11. The copy of the appeal form maintained by the HDSP 15 Appeals Office includes stamps showing it was received at the HDSP Appeals Office on 16 October 9 and December 10, 2015, and there is a third stamp indicating receipt on December 3, 17 2015, but it is unclear to which office the stamp belongs. ECF No. 55-4 at 17. The second-level 18 appeal was partially granted. DSUF ¶ 5; ECF No. 75 at 4. The response is dated January 1, 19 2016, and was signed by the hiring authority on January 19, 2016. ECF No. 55-4 at 12-13. The 20 form reflects that it was “mailed/delivered to appellant” on January 19, 2016, and this is also 21 noted as the date of completion in the appeals tracking system. Id. at 8, 18. Plaintiff claims that 22 he did not receive a copy of the response until February 4, 2016, after he notified an appeals 23 coordinator that he had not yet received a response. ECF No. 75 at 5. 24 On February 29, 2016, plaintiff mailed his third-level appeal to the Office of Appeals 25 where it was received on March 3, 2016, and assigned Appeal Log No. 150988. DSUF ¶ 7; ECF 26 No. 75 at 5-6. The appeal was cancelled on June 1, 2016, as untimely.3 Id. 27 3 Plaintiff argues that his appeal was erroneously cancelled but does not dispute that the 28 (continued) 1 On July 5, 2016, the Office of Appeals received plaintiff’s appeal of the cancellation of 2 Appeal No. HDSP-Z-15-01436 and assigned it Appeal Log No. 1600034. DSUF ¶ 8; ECF No. 75 3 at 6. The appeal was rejected on July 20, 2016, on the ground that it inappropriately bypassed 4 required lower levels of review. ECF No. 55-6 at 129. On August 15, 2016, the Office of Appeal 5 received plaintiff’s resubmitted appeal, which was dated August 8, 2016. Id. at 141-42. The 6 resubmitted appeal was rejected on September 7, 2016, on the ground that it was missing 7 documents. ECF No. 55-6 at 140. Plaintiff asserts that the documents were missing because staff 8 removed them. ECF No. 75 at 6. On September 29, 2016, plaintiff submitted the appeal for a 9 third time, and it was received by the Office of Appeal on October 5, 2016. ECF No. 55-6 at 151, 10 161. The appeal was accepted and ultimately denied on November 3, 2016, on the ground that 11 the cancellation of Appeal No. HDSP-Z-15-01436 was proper. DSUF ¶ 10; ECF No. 75 at 7. 12 In addition to Appeal No. HDSP-Z-15-01436, plaintiff submitted four other non- 13 healthcare grievances that were cancelled on the ground that they were duplicative of Appeal No. 14 HDSP-Z-15-01436. DSUF ¶ 6; ECF No. 75 at 5. Plaintiff asserts that he also submitted seven 15 healthcare grievances related to the events of May 19, 2015. ECF No. 75 at 5. 16 VI. Discussion 17 A. Statute of Limitations 18 i. Legal Standard 19 Because § 1983 does not contain its own statute of limitations, the court applies the forum 20 state’s limitations period for personal injury claims. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th 21 Cir. 1999). In California, the limitations period is two years. Jones v. Blanas, 393 F.3d 918, 927 22 (9th Cir. 2004) (citing Cal. Code Civ. Proc. § 335.1). The court also applies “the forum state’s 23 law regarding tolling, including equitable tolling, except to the extent any of these laws is 24 inconsistent with federal law.” Id. (citing Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999)). 25 In California, the limitations period is statutorily tolled for another two years for prisoners 26 serving less than a life sentence. Cal. Civ. Proc. Code § 352.1(a); Johnson v. State of California, 27 cancellation was for being untimely. ECF No. 75 at 5-6. DSUF ¶ 7 is therefore deemed 28 admitted. 1 207 F.3d 650, 654 (9th Cir. 2000). Additionally, “the applicable statute of limitations must be 2 tolled while a prisoner completes the mandatory exhaustion process.” Brown v. Valoff, 422 F.3d 3 926, 943 (9th Cir. 2005) (citations omitted); Elkins v. Derby, 12 Cal. 3d 410, 414 (1974) 4 (“[W]henever the exhaustion of administrative remedies is a prerequisite to the initiation of a civil 5 action, the running of the limitations period is tolled during the time consumed by the 6 administrative proceeding.” (citations omitted)). 7 ii. Discussion 8 Although defendants initially argued that the complaint was filed outside the statute of 9 limitations regardless of whether statutory tolling and tolling during exhaustion run concurrently 10 or consecutively (ECF No. 55-2 at 5-6), they concede in their reply that the complaint is timely if 11 the two tolling periods run consecutively (ECF No. 76 at 3). Defendants acknowledge that there 12 is no binding authority on whether the tolling provisions run concurrently or consecutively and 13 urge the court to find they run concurrently. Id. at 3. In support of their position, they argue that 14 the court should follow its previous decision in Reece v. Basi, No. 2:11-cv-2712 GEB AC, 2013 15 WL 1339048 (E.D. Cal. Apr. 3, 2013), in which the undersigned found that the tolling provisions 16 run concurrently. Id. at 3. 17 As defendants have recognized, there is currently no binding authority on whether 18 equitable tolling while a prisoner pursues administrative remedies runs concurrently or 19 consecutively to the two-year statutory tolling provided based on incarceration, and there is a split 20 among the district courts that have considered the matter. In Stevenson v. Holland, the court 21 aptly summarized the applicable tolling rules and the rationale behind the opposing positions as 22 follows: 23 After a claim has accrued, California law may operate to toll the running of the limitations period. Such is the case when a plaintiff is 24 incarcerated for a term less than life; California Code of Civil Procedure § 352.1 tolls the statute of limitations for up to two years. 25 The tolling ends at the first of (1) release from custody or (2) two years of tolling. Cabrera v. City of Huntington Park, 159 F.3d 374, 26 378-379 (9th Cir. 1998). 27 In addition to the statutory tolling afforded under California law, federal courts in California also apply California’s equitable tolling 28 rules in Section 1983 actions. Cervantez v. City of San Diego, 5 F.3d 1 1273, 1275 (9th Cir. 1993). Under California law, “the effect of equitable tolling is that the limitations period stops running during 2 the tolling event, and begins to run again only when the tolling event has concluded. As a consequence, the tolled interval, no matter when 3 it took place, is tacked onto the end of the limitations period . . . .” Lantzy v. Centex Homes, 31 Cal.4th 363, 370-371 (2003), modified 4 (Aug. 27, 2009). California’s judge-made doctrine of equitable tolling allows tolling of a claim where alternative relief was sought 5 prior to filing suit upon a showing of: (1) “timely notice” of the first claim for relief to the defendants; (2) “lack of prejudice[ ] to the 6 defendant[s]”; and (3) “reasonable and good faith conduct on the part of the plaintiff.” McDonald v. Antelope Valley Comm. College 7 Dist., 45 Cal. 4th 88, 102 (2008); accord Cervantes, 5 F.3d at 1275; Thomas v. Gilliand, 95 Cal. App. 4th 427, 434 (Cal. Ct. App. 2002); 8 see Elkins v. Derby, 12 Cal. 3d 410, 414 (1974) (en banc) (Equitable tolling applies “when an injured person has several legal remedies 9 and, reasonably and in good faith, pursues one.”) The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust 10 remedies within the prison grievance system before filing a related Section 1983 action. 42 U.S.C. § 1997e(a). Filing of a prisoner 11 grievance can place the defendants on notice of the claim. Running of the limitations period “must be tolled” during the pendency of the 12 exhaustion process. Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005); Donoghue v. Orange County, 848 F.2d 926, 930-931 (9th Cir. 13 1988). . . . 14 . . . . 15 Most of the district courts that have permitted equitable tolling in addition to statutory tolling when the tolling events overlap have 16 relied upon language from Lantzy: “[e]quitable tolling under California law operates independently of the literal wording of the 17 [California] Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure fundamental practicality and 18 fairness.” E.g., Carranza v. Lewis, 2017 WL 1050538, *17-18 (N.D. Cal. Mar. 17, 2017); Beard v. Pennington, 2015 WL 7293652, *6-7 19 (N.D. Cal. Nov. 19, 2015); Burns v. Crook, 2008 WL 5103183, *3 (S.D. Cal. Dec. 3, 2008). Those courts have read California law 20 regarding equitable tolling to require tacking of additional time (beyond the statutory tolling period) to the end of a limitations period 21 when an equitable tolling event occurs during a period of statutory tolling. Carranza, 2017 WL 1050538 at *18 (“[N]o matter when [the 22 equitable tolling event] took place, [the duration of the equitable tolling event] is tacked onto the end of the limitations period.”); 23 Akhtar v. Mesa, 2014 WL 1922576, *7-8 (E.D. Cal. May 14, 2014); (applying tolling for the duration of the prison exhaustion process 24 and statutory tolling to a prisoner’s claim to extend the limitations period beyond four years); Dawkins v. Woodford, 2012 WL 554371, 25 *5 (S.D. Cal. Feb. 21, 2012) (same); Crayton v. Hedgpeth, 2011 WL 1988450, *9 (E. D Cal. May 20, 2011) (same); Burns, 2008 WL 26 5103183 at *3 (same); see also Adler, 2013 WL 3481584 at *5 (assuming without deciding that the plaintiff could receive the 27 benefit of equitable and statutory tolling even when the tolling events overlap in time). 28 1 The district courts that have declined to apply equitable tolling in addition to statutory tolling when the equitable tolling event overlaps 2 with the period of statutory tolling have relied upon (1) the “common sense” explanation that “when two or more reasons for tolling exist” 3 during the same period that those reasons “will toll concurrently during the time they are both active, and are not tacked 4 consecutively, one upon the other,” and (2) Rose v. Petaluma & S.R. Ry. Co. for the proposition that separate periods of disability cannot 5 be tacked. Lopez v. Schwarzenegger, 2012 WL 78377, *5 (E.D. Cal. Jan. 10, 2012); accord Oliver v. McDaniel, 2016 WL 4535389, *3 6 (C.D. Cal. June 2, 2016); see also Martin v. Biaggini, 2015 WL 1399240, *4 (N.D. Cal. Mar. 26, 2015) (identifying that Rose and 7 Lantzy are both inapt analogs but agreeing that overlapping reasons for tolling should result in only a single period of tolling). 8 9 Stevenson, No. 1:16-cv-1831 AWI SKO, 2017 WL 2958731, at *4-6, 2017 U.S. Dist. LEXIS 10 107170, at *13-14 (E.D. Cal. July 11, 2017) (bracketed alterations in original) (footnotes 11 omitted). The Stevenson court ultimately held that 12 [t]he former camp’s reasoning is most consistent with Ninth Circuit authority on tolling pending exhaustion of administrative relief. 13 Brown v. Valoff, 422 F.3d at 943 (tolling the limitations period during the administrative exhaustion process without regard to 14 statutory tolling); see Elmore v. Arong, 2010 WL 366628, *2 (E.D. Cal. Jan. 26, 2010). Application of statutory and equitable tolling 15 consecutively is also more consistent with the mandate of California law to tack time to the end of the limitations period for equitable 16 tolling. See Lantzy, 31 Cal. 4th at 370-371. 17 Id., 2017 WL 2958731, at *6, 2017 U.S. Dist. LEXIS 107170, at *14-15. 18 While the court acknowledges the contrary decision in Reece, it finds the reasoning set 19 forth in Stevenson to be persuasive and more consistent with Ninth Circuit authority on the 20 matter. Accordingly, the undersigned now agrees with the Stevenson court that the two periods 21 of tolling run consecutively. Because plaintiff is entitled to consecutive tolling for the time that 22 he pursued his administrative remedies, the complaint is timely. 23 B. Exhaustion 24 i. Legal Standard 25 Because plaintiff is a prisoner suing over the conditions of his confinement, his claims are 26 subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA, 27 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or 28 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 1 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v. 2 Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners 3 seeking redress for prison circumstances or occurrences”). “[T]hat language is ‘mandatory’: An 4 inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent 5 exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) 6 (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). 7 Failure to exhaust is “an affirmative defense the defendant must plead and prove.” 8 Jones v. Bock, 549 U.S. 199, 204, 216 (2007). “[T]he defendant’s burden is to prove that there 9 was an available administrative remedy, and that the prisoner did not exhaust that available 10 remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (citing Hilao v. Estate 11 of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). “[T]here can be no ‘absence of exhaustion’ 12 unless some relief remains ‘available.’” Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005) 13 (emphasis in original). Therefore, the defendant must produce evidence showing that a remedy is 14 available “as a practical matter,” that is, “it must be capable of use; at hand.” Albino, 747 F.3d at 15 1171 (citation and internal quotations marks omitted). “[A]side from [the unavailability] 16 exception, the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective 17 of any ‘special circumstances.’” Ross, 578 U.S. at 639. “[M]andatory exhaustion statutes like 18 the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.” Id. (citation 19 omitted). 20 For exhaustion to be “proper,” a prisoner must comply with the prison’s procedural rules, 21 including deadlines, as a precondition to bringing suit in federal court. Woodford, 548 U.S. at 90 22 (“Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural 23 rules.”). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of 24 proper exhaustion.” Jones, 549 U.S. at 218; see also Marella v. Terhune, 568 F.3d 1024, 1027 25 (9th Cir. 2009) (“The California prison system’s requirements ‘define the boundaries of proper 26 exhaustion’” (quoting Jones, 549 U.S. at 218)). 27 As long as some potential remedy remained available through the administrative appeals 28 process, even if it was not the remedy he sought, plaintiff was required to exhaust his remedies. 1 Booth v. Churner, 532 U.S. 731, 741 & n.6 (2001) (“Congress has provided in § 1997e(a) that an 2 inmate must exhaust irrespective of the forms of relief sought and offered through administrative 3 avenues.”). The Supreme Court has identified “three kinds of circumstances in which an 4 administrative remedy, although officially on the books, is not capable of use to obtain relief.” 5 Ross, 578 U.S. at 643. “First, . . . an administrative procedure is unavailable when (despite what 6 regulations or guidance materials may promise) it operates as a simple dead end—with officers 7 unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. (citing Booth, 8 532 U.S. at 736). “Next, an administrative scheme might be so opaque that it becomes, 9 practically speaking, incapable of use.” Id. Finally, administrative remedies are unavailable 10 “when prison administrators thwart inmates from taking advantage of a grievance process through 11 machination, misrepresentation, or intimidation.” Id. at 644. 12 When the district court concludes that the prisoner has not exhausted administrative 13 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 14 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 15 Albino, 747 F.3d at 1168. 16 ii. California Regulations Governing Administrative Remedies Process 17 Exhaustion requires that the prisoner complete the administrative review process in 18 accordance with all applicable procedural rules. Woodford, 548 U.S. at 90. This review process 19 is set forth in the California Code of Regulations. At the time relevant to this complaint, those 20 regulations allowed prisoners to “appeal any policy, decision, action, condition, or omission by 21 the department or its staff that the inmate or parolee can demonstrate as having a material adverse 22 effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a) (2015). 23 At the time plaintiff was proceeding through the appeals process, it was comprised of 24 three levels of review for most types of appeals. Id. § 3084.7. “The second level [was] for 25 review of appeals denied or not otherwise resolved to the appellant’s satisfaction at the first level, 26 or for which the first level [was] otherwise waived by [the] regulations.” Id. § 3084.7(b). 27 Relevant to the issues here, the third level was “for review of appeals not resolved at second 28 level,” “appeals [that] alleged third level staff misconduct,” and “appeals [of] a third level 1 cancellation decision or action.” Id. § 3084.7(c). An inmate was required to “submit the appeal 2 within 30 calendar days of: (1) The occurrence of the event or decision being appealed, or; 3 (2) Upon first having knowledge of the action or decision being appealed, or; (3) Upon receiving 4 an unsatisfactory departmental response to an appeal filed.” Id. § 3084.8(b). 5 Each prison was required to have an “appeals coordinator” whose job was to “screen all 6 appeals prior to acceptance and assignment for review.” Id. § 3084.5(a), (b). The appeals 7 coordinator could also refuse to accept an appeal, whereupon “the inmate or parolee [would] be 8 notified of the specific reason(s) for the rejection or cancellation of the appeal and of the 9 correction(s) needed for the rejected appeal to be accepted.” Id. § 3084.5(b)(3). An appeal could 10 be rejected if it was “missing necessary supporting documents as established in section 3084.3” or 11 cancelled if it duplicated a previous appeal or the “[t]ime limits for submitting the appeal [were] 12 exceeded even though the inmate or parolee had the opportunity to submit within the prescribed 13 time constraints.” Id. § 3084.6(b)(7), (c)(2), (c)(4). A rejected appeal could “later be accepted if 14 the reason noted for the rejection [was] corrected and the appeal [was] returned by the inmate or 15 parolee to the appeals coordinator within 30 calendar days of rejection.” Id. § 3084.6(a)(2). A 16 cancelled appeal could not be accepted unless it was determined that the cancellation was in error 17 or new information made the appeal eligible for further review. Id. § 3084.6(a)(3), (e). However, 18 the cancellation of the appeal could be separately appealed. Id. § 3084.6(e). “[A] cancellation or 19 rejection decision [did] not exhaust administrative remedies.” Id. § 3084.1(b). 20 iii. Discussion 21 There is no dispute that a grievance process existed during the relevant time period. The 22 parties are also in agreement that Appeal No. HDSP-Z-15-01436 addressed the claims at issue in 23 this case. Instead, the parties dispute whether plaintiff was prevented from properly exhausting 24 Appeal No. HDSP-Z-15-01436. Defendants argue that plaintiff failed to exhaust his 25 administrative remedies because Appeal No. HDSP-Z-15-01436 was cancelled as untimely at the 26 third level of review and plaintiff’s appeal of the cancellation was appropriately denied on the 27 ground that the cancellation was proper. ECF No. 55-2 at 8-9. Plaintiff argues that Appeal No. 28 HDSP-Z-15-01436 was improperly cancelled because he submitted his third-level appeal within 1 thirty days of receiving the response to his second-level appeal and the denial of his appeal of the 2 cancellation was in error. 3 If, as plaintiff avers, he did not receive the second-level response until February 4, 2016, 4 then his third-level appeal, which was mailed on February 29, 2016, was timely and Appeal No. 5 HDSP-Z-15-01436 was improperly cancelled. See Cal. Code Regs. tit. 15, § 3084.8(b) (appeal 6 due within thirty calendar days of receiving unsatisfactory response). Plaintiff has provided a 7 sworn statement that he first received the second-level response on February 4, 2016. ECF No. 8 75 at 5. While defendants argue that he received the response on January 19, 2016, their only 9 evidence of this fact is that prison records show the appeal was completed on that date and the 10 grievance form indicates that the response was mailed or delivered on that date. ECF No. 55-4 at 11 3, 18. There is no evidence to establish whether January 19, 2016, was the date of mailing or the 12 date that the response was actually delivered to plaintiff. Moreover, even without the ambiguity 13 surrounding whether the response was mailed or delivered on that date, the unexplained date 14 discrepancies in the records, as outlined above in the undisputed facts, call into question the 15 reliability of defendants’ evidence to establish purported dates of receipt. Defendants have 16 therefore failed to rebut plaintiff’s evidence that he did not receive the appeal until February 4, 17 2016. 18 To the extent defendants argue that plaintiff failed to timely appeal because even if he 19 received the response on February 4, 2016, he “would have had more than two weeks left to 20 submit a timely appeal,” ECF No. 76 at 4, they misstate the applicable timeframes. The 21 regulations provided that an appeal was due within thirty days of first having knowledge of the 22 appeal decision being appealed or of receiving an unsatisfactory response. Cal. Code Regs. tit. 23 15, § 3084.8(b). If plaintiff was not aware of and did not receive the response until February 4, 24 2016, he had thirty days from that date to file his appeal. 25 The evidence before the court demonstrates that plaintiff’s third-level appeal was timely 26 and the cancellation was therefore improper. Plaintiff availed himself of his remaining 27 //// 28 //// 1 || administrative remedies by appealing the cancellation,’ but the appeal was denied and the 2 || cancellation was upheld. Because “improper screening of an inmate’s administrative grievances 3 || renders administrative remedies ‘effectively unavailable’ such that exhaustion is not required 4 | under the PLRA,” Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010), the undersigned finds that 5 | plaintiff's administrative remedies were unavailable and he was excused from exhaustion. 6 VII. Conclusion 7 Defendants’ motion for summary judgment should be denied because the complaint was 8 | timely filed and plaintiff has demonstrated that administrative remedies were unavailable, thus 9 || excusing him from the exhaustion requirement. 10 CONCLUSION 11 IT IS HEREBY ORDERED that plaintiffs request for a ruling (ECF No. 78) is 12 | GRANTED to the extent that findings and recommendations have now issued. 13 IT IS FURTHER RECOMMENDED that defendants’ motion for summary judgment 14 || (ECF No. 55) be DENIED. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 17 || after being served with these findings and recommendations, any party may file written 18 || objections with the court and serve a copy on all parties. Such a document should be captioned 19 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 || objections shall be served and filed within fourteen days after service of the objections. The 21 || parties are advised that failure to file objections within the specified time may waive the right to 22 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 23 || DATED: September 7, 2022. ~ 24 Chttt0n— Chane

ALLISON CLAIRE

25 UNITED STATES MAGISTRATE JUDGE 26 | The court notes that plaintiff's initial attempt to appeal the third-level cancellation was 27 || improperly rejected on the ground that it inappropriately bypassed required lower levels of review. See ECF No. 55-6 at 129. Under the regulations, the third level of appeal was for 28 | “appeals [of] a third level cancellation decision or action.” Cal. Code Regs. tit. 15, § 3084.7(c). 15