1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KIKONGO HAKIM-AKBAR JONES, Case No. 20-cv-01422-JSW

8 Plaintiff,

ORDER GRANTING MOTION FOR

9 v. SUMMARY JUDGMENT

10 SING, et al., Re: Dkt. No. 45 Defendants. 11

12 13 INTRODUCTION 14 Plaintiff is a California prisoner proceeding pro se. The Court found that Plaintiff stated a 15 cognizable civil rights claim against three officials at Salinas Valley State Prison (“SVSP”). See 16 Docket No. 18 (“Service Order”). Defendants Singh and Sawyer have filed a motion for summary 17 judgment.1 See Docket No. 45 (“MSJ” or “Summary Judgment Motion”). Plaintiff filed an 18 opposition, Docket No. 50 (“Opposition”), and Defendants filed a reply brief, Docket No. 51 19 (“Reply”). For the reasons discussed below, Defendants’ motion is GRANTED. 20 BACKGROUND 21 A. Procedural Background 22 Plaintiff was at all relevant times a prisoner at SVSP. He filed the instant action in the 23 Central District of California on or before February 18, 2020. See Docket No. 1 at 3 (bearing a 24 1 Because Plaintiff is not entitled to proceed in forma pauperis, see Docket No. 37, he was 25 responsible for serving Defendants. Defendants Singh and Sawyer were served. See Docket No. 20. Defendant Barbosa was not served and has not appeared in this action. See Docket No. 21; 26 see also MSJ at 3 n.1. Because Plaintiff’s claim fails against all three Defendants for the reasons discussed, infra, the Court enters summary judgment in favor of Defendant Barbosa as well as 27 Defendants Singh and Sawyer. See Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th 1 stamp stating that Plaintiff’s documents were received by the Central District of California on 2 February 18, 2020). Plaintiff’s initial filing challenged, inter alia, the mental healthcare he has 3 received while in custody. See Docket No. 1 at 2. 4 The instant action was transferred to the Northern District of California on February 24, 5 2020. See Docket No. 3. The operative pleading was filed on May 28, 2020. See Docket No. 16 6 (“Complaint”) at 3 (stating that the Complaint was executed by Plaintiff on May 28, 2020); see 7 also Docket No. 16-1 (envelope mailing the Complaint, on which Plaintiff handwrote “legal mail 8 5-28-2020”); see also Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009) (applying the 9 mailbox rule to prisoner’s § 1983 complaint) (relying on Houston v. Lack, 487 U.S. 266 (1988)). 10 The Court screened the Complaint pursuant to 28 U.S.C. § 1915A, and found that it 11 “state[d] a cognizable claim for relief for the violation of [Plaintiff’s] Eighth Amendment rights,” by 12 alleging “that Defendants Dr. Barbosa, Dr. Singh, and Chief Executive Officer Sawyer were 13 deliberately indifferent to his serious mental health needs at Salinas Valley State Prison.” Docket No. 14 18 at 2. Accordingly, only Plaintiff’s mental health needs claim against Defendants Barbosa, Singh, 15 and Sawyer is at issue here. 16 B. Factual Background 17 In the Complaint, Plaintiff alleges that Defendants were deliberately indifferent to his 18 serious medical need for mental healthcare. See generally, id. 19 Specifically, Plaintiff alleges that he was placed on suicide watch from January 9 to March 20 19, 2020. See id. at 9. He alleges that his living conditions while on suicide watch amounted to 21 “torture.” Id. On March 19, 2020, Plaintiff was taken off suicide watch and placed in a single 22 cell. See id. at 9. 23 Plaintiff alleges that on April 8, 2020, Defendant Sawyer ordered Plaintiff’s discharge 24 from psychiatric care. See id. at 9. Plaintiff then attempted suicide in front of Defendant Singh. 25 See id. Plaintiff alleges that Defendant Singh encouraged this suicide attempt. See id. After this 26 suicide attempt, Defendant Sawyer had Plaintiff placed on “D-Yard on outpatient status.” See id. 27 Plaintiff alleges that on April 10, 2020, Defendant Barbosa denied Plaintiff admission to inpatient 1 After Plaintiff’s April 10 suicide attempt, he temporarily was placed into crisis-level care. 2 See id. After his discharge from crisis-level care, Plaintiff claimed to have homicidal thoughts and 3 accordingly was placed in administrative segregation. See id. at 11. After a classification 4 meeting, Plaintiff was moved to a regular housing program, but again stated he had homicidal 5 thoughts so again was transferred to administrative segregation. See id. 6 On May 21, 2020, Plaintiff was discharged from administrative segregation. See id. 7 DISCUSSION 8 A. Legal Standard 9 Summary judgment is proper where the pleadings, discovery and affidavits show that there 10 is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a 11 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the 12 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute as to a material fact is 13 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving 14 party. 15 The moving party for summary judgment bears the initial burden of identifying those 16 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 17 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). When the moving 18 party has met this burden of production, the nonmoving party must go beyond the pleadings and, 19 by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for 20 trial. If the nonmoving party fails to produce enough evidence to show a genuine issue of material 21 fact, the moving party wins. Ibid. 22 The nonmoving party must provide facts to support his arguments, or point to specific 23 place in the record where facts may be found, to carry his burden. See Greenwood v. F.A.A., 28 24 F.3d 971, 977 (9th Cir. 1994) (“Judges are not like pigs, hunting for truffles buried in briefs.”) 25 (internal citation and quotation marks omitted); Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 26 1996) (“It is not our task, or that of the district court, to scour the record in search of a genuine 27 issue of triable fact. We rely on the nonmoving party to identify with reasonable particularity the 1 Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29, 1031 (9th Cir. 2001) (“The district 2 court need not examine the entire file for evidence establishing a genuine issue of fact.”). 3 Exhaustion must ordinarily be decided in a summary judgment motion. Albino v. Baca, 4 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). If undisputed evidence viewed in the light most 5 favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment 6 under Rule 56. Id. 7 B. Analysis 8 Defendants argue that the instant action must be dismissed because Plaintiff failed to 9 exhaust his administrative remedies before filing the Complaint. They are correct. 10 1. Exhaustion requirement 11 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 12 with respect to prison conditions under [42 U.S.C. 1983], or any other Federal law, by a prisoner 13 confined in any jail, prison, or other correctional facility until such administrative remedies as are 14 available are exhausted.” 42 U.S.C. 1997e(a). Compliance with the exhaustion requirement is 15 “mandatory,” Porter v. Nussle, 534 U.S. 516, 524 (2002), and is “no longer left to the discretion of 16 the district court,” Woodford v. Ngo, 548 U.S. 81, 84 (2006). Courts may not create their own 17 “special circumstances” exceptions to the exhaustion requirement. Ross v. Blake, 578 U.S. 632, 18 639 (2016) (reversing Fourth Circuit’s ruling that failure to exhaust was justified where prisoner 19 reasonably—even though mistakenly—believed he had exhausted remedies). 20 The PLRA’s exhaustion requirement cannot be satisfied by filing a “procedurally defective 21 administrative grievance or appeal.” Woodford, 548 U.S. at 84. “Proper exhaustion demands 22 compliance with an agency’s deadlines and other critical procedural rules . . . .” Id. at 90-91 23 (footnote omitted). Here, the PLRA exhaustion requirement requires plaintiff to follow the 24 grievance procedures adopted by CDCR. See id. For healthcare-related grievances, inmates must 25 submit a form CDCR-602 HC (“602 form”). Cal. Code Regs. tit. 15, § 3999.227. At the first 26 level of review, the inmate completes Section A of the 602 form to describe the specific complaint 27 that relates to his health and submits the form to the institution’s Health Care Grievance Office 1 the grievance, which time limit “commence[s] on the day [the grievance] is received by the 2 HCGO.” Id. at § 3999.228(i). If dissatisfied with the HCGO’s disposition, the inmate may appeal 3 that disposition by completing Section B of the 602 form and submitting the package to the Health 4 Care Correspondence and Appeal Branch (“HCCAB”) in Elk Grove, California. Id. at 5 § 3999.229(a). HCCAB has “60 business days” to respond to a grievance, which time limit 6 “commence[s] on the day [the grievance] is received by the HCCAB.” Id. at § 3999.230(f). 7 CDCR has announced that “[h]ealth care grievances are subject to a headquarters’ level 8 disposition before administrative remedies are deemed exhausted.” Id. at § 3999.226(g). 9 An action must be dismissed unless the prisoner exhausted his available administrative 10 remedies before he or she filed the operative complaint, even if the prisoner fully exhausts while 11 the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see Vaden v. 12 Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative remedies are not 13 exhausted before the prisoner sends his complaint to the court it will be dismissed even if 14 exhaustion is completed by the time the complaint is actually filed). 15 The United States Court of Appeals recently clarified the effect of an amended complaint 16 on a prisoner’s responsibility to exhaust. See generally, Saddozai v. Davis, 35 F.4th 705 (9th Cir. 17 2022). In Saddozai, the prisoner had not exhausted administrative remedies prior to filing suit, but 18 “he had fully exhausted his administrative remedies” “[b]y the time he filed . . . the ‘operative 19 complaint.’” Id. at 707. The Ninth Circuit held that courts should look to the filing date of the 20 operative complaint, rather than to the filing date of the action, as the date on which exhaustion 21 must be completed. See id. at 709-10. 22 Applying Saddozai here, Plaintiff was required fully to exhaust his administrative remedies 23 before May 28, 2020. See Compl. at 3, Docket No. 16-1. 24 2. Plaintiff failed to exhaust administrative remedies before filing the Complaint. 25 Plaintiff has not exhausted his administrative remedies for any grievance, because none of 26 his grievances were addressed, or due to be addressed, by HCCAB by May 28, 2020. 27 In 2020, Plaintiff submitted eleven healthcare grievances against SVSP officials, and one 1 Exhibit A”) (an administrative log of Plaintiff’s healthcare grievances filed during 2020); Docket 2 No. 45-3 (“Mosely Declaration, Exhibit A”) (an administrative log of Plaintiff’s non-healthcare 3 grievances filed during 2020). 4 As to Plaintiff’s non-healthcare grievance against SVSP officials, this grievance was not 5 filed until May 20, 2020. See id. at 3. SVSP then had 60 calendar days to issue a decision on this 6 grievance. See Cal. Code Regs. tit. 15, § 3483(g) (providing the deadline for an institution to 7 respond to a non-healthcare grievance). Because Complaint was filed well before 60 calendar 8 days had elapsed, see Compl. at 3, Docket No. 16-1, Plaintiff’s non-healthcare grievance was 9 neither due for nor had received a disposition at the time the Complaint was filed. Plaintiff thus 10 did not exhaust his claim in the non-healthcare grievance. 11 As to Plaintiff’s eleven healthcare grievances against SVSP officials, 12  Two were not submitted to the HCGO until after the Complaint was filed. See Hart 13 Decl., Ex. A at 1 (showing grievances SVSP-HC-20001779 and SVSP-HC- 14 20001835 were received by the HCGO on Nov. 18 and 30, 2020, respectively). 15 These grievances thus cannot have exhausted Plaintiff’s claim prior to the filing of 16 the Complaint. 17  Two were not appealed to the headquarters level at all. See Hart Decl., Ex. A at 4-5 18 (showing grievances SVSP-HC-20000262 and SVSP-HC-20000366 were not 19 appealed to the headquarters level). Plaintiff thus failed to comply with CDCR’s 20 exhaustion requirements as to these two grievances, and they do not exhaust his 21 claim. See Cal. Code Regs. tit. 15, § 3999.226(g) (requiring healthcare grievances 22 to be pursued to HCCAB in order to exhaust). 23  Five were not appealed to HCCAB until after the Complaint was filed. See id. at 1- 24 3 (showing grievances SVSP-SC-20000033, SVSP-HC-20000436, SVSP-HC- 25 20000535, SVSP-HC-20000641, and SVSP-HC-20000624 were submitted to 26 HCCAB between June and August, 2020). These five grievances thus likewise fail 27 to exhaust Plaintiff’s claim. See Cal. Code Regs. tit. 15, § 3999.226(g) (requiring 1 out, before they may be deemed exhausted). 2  Two were submitted to HCCAB before the Complaint was filed, but HCCAB’s 3 response was neither issued nor due before the Complaint was filed. See Hart 4 Decl., Ex. A at 3-4 (showing SVSP-HC-20000114 was appealed to HCCAB on 5 April 13, 2020, and was denied on July 8, 2020; SVSP-HC-20000163 was appealed 6 to HCCAB on May 6, 2020, and was denied on July 31, 2020); see also Cal. Code 7 Regs. tit. 15, at § 3999.230(f) (giving HCCAB “60 business days” to respond to a 8 grievance). Because the time for HCCAB to respond to these grievances had not 9 run by the date Plaintiff filed the Complaint, these two grievances did not exhaust 10 Plaintiff’s claim. 11 Thus, Plaintiff failed to exhaust his claim in any grievance before he filed the Complaint. 12 Because Plaintiff did not exhaust any grievance before the Complaint was filed, the Court 13 is required under Supreme Court precedent to dismiss this action. See Ross, 578 U.S. at 639 14 (reversing Fourth Circuit’s ruling that failure to exhaust was justified where prisoner reasonably— 15 even though mistakenly—believed he had exhausted remedies); Saddozai, 35 F.4th at 707-10. 16 3. Plaintiff’s failure to exhaust is not excused. 17 Plaintiff argues that his failure to exhaust should be excused. See generally, Opp. It is not. 18 First, Plaintiff argues that he need not exhaust his claim following healthcare grievance 19 procedures, because he raised his claim on an “1824” form. See Opp. at 4; see also id. at 13 20 (“Plaintiff’s 1824 Form”). An 1824 form is used to raise accommodation requests. See Pl.’s 1824 21 Form (entitled “Reasonable Accommodation Request”); see also Applegate v. Cal. Dep’t of Corr. 22 & Rehab., No. 19-CV-05448-LB, 2020 WL 13444200, at *2 (N.D. Cal. July 1, 2020) (explaining 23 that an 1824 form is for inmates seeking an accommodation). By contrast, healthcare grievances 24 are submitted on a 602 form, and must be exhausted as described supra B.1. See Fairchild- 25 Littlefield v. Atinello, No. 19-CV-01579-NONE-GSA-PC, 2021 WL 4951549, at *2 (E.D. Cal. 26 Oct. 25, 2021) (distinguishing between a healthcare grievance, filed on a 602 form, and an 27 accommodation request, filed on an 1824 form), report and recommendation adopted in part, 1 WL 326348 (E.D. Cal. Feb. 3, 2022); Williams v. Wasco State Prison, No. 14-CV-01714-DAD- 2 MJS-PC, 2016 WL 7404729, at *2 (E.D. Cal. Dec. 21, 2016) (same), report and recommendation 3 adopted sub nom. Williams v. Salvatore, No. 14-CV-01714-DAD-MJS, 2017 WL 1037625 (E.D. 4 Cal. Mar. 17, 2017); Coleman v. Cal. Dep’t of Corr. & Rehab., No. 13-CV-1021-JAM-KJN, 2015 5 WL 4478146, at *4 (E.D. Cal. July 22, 2015) (same), report and recommendation adopted, No. 6 13-CV-1021-JAM-KJN-P, 2015 WL 8479631 (E.D. Cal. Dec. 9, 2015). Moreover, Plaintiff was 7 explicitly informed of this in time to exhaust his healthcare claim. Plaintiff’s 1824 Form 8 cautioned Plaintiff on its face that it does not grieve a healthcare issue, see Opp. at 13, and SVSP’s 9 response to Plaintiff’s 1824 Form expressly states that he must “file an appeal/grievance,” and 10 must attach the 1824 form and that decision “to a CDCR 602HC,” id. at 12. Thus, Plaintiff was 11 expressly warned that Plaintiff’s 1824 Form did not raise a healthcare claim, and he was expressly 12 informed how to correctly pursue a healthcare claim. Plaintiff’s 1824 Form is thus not sufficient 13 to exhaust his claim. 2 14 Second, Plaintiff argues that he “fully exhausted several administrative grievances prior to 15 bringing” the Complaint, and that his efforts to exhaust were “clearly described in prior moving 16 papers already submitted to the court in the original cop[ie]s, such as []First Amended request for 17 Injunctive Relief & Emergency Protective Order – First and Second Affidavit Declaration . . . .” 18 Opp. at 2. As explained supra A, an assertion made without citation to any page of the docket, or 19 even to a specific document therein, generally is insufficient to carry Plaintiff’s burden in 20 opposing a motion to dismiss. See Greenwood, 28 F.3d at 977; Keenan, 91 F.3d at 1279; Carmen, 21 237 F.3d at 1028-29. Nevertheless, in an abundance of caution the Court re-read Plaintiff’s four 22 motions for injunctive relief in an effort to identify the grievance(s) which Plaintiff exhausted. See 23 Docket Nos. 1, 5, 8, 30. None of these motions identified any grievances, much less the 24 allegations in those grievances or the dates on which those grievances were filed and addressed. 25

26 2 Even if Plaintiff’s 1824 Form were the proper vehicle to raise Plaintiff’s claim to SVSP officials, which it is not, this form still would not exhaust that claim because Plaintiff does not name any of 27 the Defendants as a wrongdoer. See Opp. at 13-14 (arguing he has been mistreated by SVSP’s 1 See generally id. The Court believes Plaintiff may be referring to his 1824 Form. See Docket 2 Nos. 5, 8. Plaintiff refers to this form again in his Opposition. See Opp. at 4 (arguing that he 3 “exhausted this appeal administrative remedy under log number SVSP-L-20-530”), 13 (Plaintiff’s 4 1824 Form is numbered “20-530”). However, as the Court explained supra, Plaintiff’s 1824 Form 5 was insufficient to exhaust his healthcare claim. 6 Third, Plaintiff argues that “Defendants[‘] lower ranking staff forced plaintiff to abandon 7 [his] administrative remedies.” Opp. at 2. Plaintiff provides no facts to support this contention, 8 and it is belied by his assertion in the Opposition that nursing staff helped him to file grievances. 9 See id. at 1. Moreover, as outlined supra B.2, Plaintiff filed only two grievances which were 10 “abandon[ed].” See Hart Decl., Ex. A at 4-5 (showing grievances SVSP-HC-20000262 and 11 SVSP-HC-20000366 were not appealed to the headquarters level). These two grievances both 12 were filed on March 30, 2020. See id. Even assuming Plaintiff was “forced . . . to abandon” these 13 two grievances, they would not have been exhausted prior to the date the Complaint was filed. 14 See Cal. Code Regs. tit. 15, §§ 3999.228(i) (giving HCGO “45 business days” to respond to a 15 grievance), 3999.230(f) (giving HCCAB “60 business days” to respond to a grievance). 16 In sum, Plaintiff failed to exhaust, and this is not a case where the plaintiff’s failure to 17 exhaust is excused. Plaintiff is clearly aware of the exhaustion requirement, as he has pursued 18 numerous civil rights actions in the federal courts. See Docket No. 37 at 2 (discussing six of the 19 actions Plaintiff has filed). Further, California plainly requires exhaustion of grievances against 20 prison healthcare workers, and this requirement binds the federal courts. See Cal. Code Regs. tit. 21 15, §§ 3999.227, 3999.229. Moreover, Plaintiff’s own evidence shows that he was informed 22 exhaustion was required. See Opp. at 12-13. 23 4. Amendment would be futile. 24 The Court will not permit Plaintiff merely to amend his pleading, because amendment 25 would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 26 2011) (“[A] district court may dismiss without leave [to amend] where . . . amendment would be 27 ] futile.”).? Because Plaintiff filed his claim before fully exhausting his administrative remedies, an 2 |} amended complaint would not cure the failure to exhaust. See McKinney, 311 F.3d at 1199 (an 3 action is subject to dismissal if the plaintiff exhausts while the action is pending, rather than before 4 |} filing suit); Vaden, 449 F.3d at 1051 (same); Saddozai, 35 F 4th at 709 (implying that dismissal 5 || would be proper if the prisoner fails to exhaust his claim “before the prison asserts its affirmative 6 || defense”). For Plaintiff's benefit, the Court explains that this means Plaintiff must file an entirely 7 || new action to pursue his claim, rather than filing an amended complaint in the instant action. 8 Defendants are entitled to summary judgment on exhaustion grounds on all of Plaintiffs 9 |} claim. 10 CONCLUSION 11 The motion for summary judgment is GRANTED. This action is DISMISSED without 12 || prejudice to refiling in a new action after Plaintiff’s claim has been properly exhausted.

13 The Clerk shall enter judgment and close the file.

IT IS SO ORDERED.

o 3 15 || Dated: January 6, 2023

16 (/ □□ VW of 4 □ ol UAFILM 2

FFA Y 5. WHITE

18 iy nited States istrict Judge 19 20 21 22 23 24 25 > See also Bobadilla v. Lizarraga, 834 F. App’x 376, 377 (9th Cir. 2021) (affirming dismissal of prisoner’s complaint at screening without leave to amend because amendment would have been 26 || futile); Williams v. Paramo, 840 F. App’x 212, 213 (9th Cir. 2021) (“We conclude amendment would have been futile because it would not cure Williams’ failure to exhaust available 27 || administrative remedies.”); Mahone v. Morgan, 135 F. App’x 930, 931 (9th Cir. 2005) (“The district court did not abuse its discretion in denying Mahone leave to amend his complaint because 2g || the claim he sought to include had not been administratively exhausted, so amendment would have been futile.”).