(PC) Trujillo v. Biter, No. 1:2014cv01370 - Document 120 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's Case be Dismissed for Failure to Exhaust Available Administrative Remedies; Objections, if any, Due within Twenty-One Days; ORDER DENYING Plaintiff's Request to File Additional Exhibits signed by Magistrate Judge Erica P. Grosjean on 11/7/2018. Referred to Judge Lawrence J. O'Neill.(Sant Agata, S)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 GUILLERMO CRUZ TRUJILLO, Plaintiff, 12 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S CASE BE DISMISSED FOR FAILURE TO EXHAUST AVAILABLE ADMINSITRATIVE REMEDIES v. 13 14 Case No. 1:14-cv-01370-LJO-EPG (PC) GOMEZ, et al., Defendants. 15 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 16 ORDER DENYING PLAINTIFF’S REQUEST TO FILE ADDITIONAL EXHIBITS 17 18 19 I. BACKGROUND 20 Guillermo Trujillo (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This action now 22 proceeds on Plaintiff’s Third Amended Complaint (ECF No. 17), on Plaintiff’s claims against 23 Officers Gomez, Juarez, and Fernandez for excessive force in violation of the Eighth 24 Amendment. (ECF Nos. 19, 21, & 98). These claims stem from Plaintiff’s allegation that 25 defendant Gomez used unprovoked force against Plaintiff when he slammed Plaintiff against a 26 wall and twisted Plaintiff’s arms, and the allegation that defendants Juarez and Fernandez used 27 unprovoked force against Plaintiff when they pepper sprayed Plaintiff. 28 On August 11, 2017, Defendants filed a motion for summary judgment on the ground 1 1 that Plaintiff failed to exhaust his administrative remedies. (ECF Nos. 81 & 82). Defendants’ 2 motion was denied because there was a genuine dispute of material fact regarding whether 3 administrative remedies were available to Plaintiff (ECF Nos. 94 & 99), but Defendants were 4 given the opportunity to request an evidentiary hearing “on the issue of whether Plaintiff 5 properly submitted grievances that prison officials improperly failed to process” (ECF No. 99, 6 p. 2). 7 On April 4, 2018, Defendants requested an evidentiary hearing. (ECF No. 102). The 8 Court held the evidentiary hearing on June 29, 2018. After the hearing, the Court allowed the 9 parties to file supplemental briefing. (ECF No. 113). On August 15, 2018, Defendants filed 10 their supplemental brief. (ECF No. 118). Plaintiff did not file a supplemental brief. 11 Based on the evidence presented at the hearing, the Court finds that Plaintiff failed to 12 exhaust his available administrative remedies. Accordingly, the Court will recommend that 13 Plaintiff’s case be dismissed because Plaintiff failed to exhaust his available administrative 14 remedies. 15 II. LEGAL STANDARDS 16 A. Exhaustion 17 “The California prison grievance system has three levels of review; an inmate exhausts 18 administrative remedies by obtaining a decision at each level.” Reyes v. Smith, 810 F.3d 654, 19 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (2011) & Harvey v. Jordan, 605 20 F.3d 681, 683 (9th Cir. 2010)). See also Cal. Code Regs. tit. 15, § 3084.7(d)(3) (“The third 21 level review constitutes the decision of the Secretary of the California Department of 22 Corrections and Rehabilitation on an appeal, and shall be conducted by a designated 23 representative under the supervision of the third level Appeals Chief or equivalent. The third 24 level of review exhausts administrative remedies….”). 25 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that 26 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. ' 1983], or any 27 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 28 such administrative remedies as are available are exhausted.” 42 U.S.C. ' 1997e(a). 2 1 Prisoners are required to exhaust the available administrative remedies prior to filing 2 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 3 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating 4 to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of 5 the relief sought by the prisoner and regardless of the relief offered by the process, unless “the 6 relevant administrative procedure lacks authority to provide any relief or to take any action 7 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); 8 Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). 9 “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong 10 for which redress is sought. The grievance need not include legal terminology or legal theories, 11 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 12 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 13 prison officials to a problem, not to provide personal notice to a particular official that he may 14 be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 15 omitted). 16 As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances” 17 exceptions to the exhaustion requirement. The one significant qualifier is that “the remedies 18 must indeed be ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this 19 qualification as follows: 20 21 22 23 24 25 26 27 28 [A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. See 532 U.S., at 736, 738, 121 S.Ct. 1819. . . . Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. . . . And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. . . . As all those courts have recognized, such interference with an inmate's pursuit of relief renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 3 1 Id. at 1859–60. 2 “When prison officials improperly fail to process a prisoner's grievance, the prisoner is 3 deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d 4 1076, 1079 (9th Cir. 2017). 5 The defendants have the initial burden to prove “that there was an available 6 administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino II, 7 747 F.3d at 1172. If the defendants carry that burden, “the burden shifts to the prisoner to 8 come forward with evidence showing that there is something in his particular case that made 9 the existing and generally available administrative remedies effectively unavailable to him.” 10 Id. However, “the ultimate burden of proof remains with the defendant.” Id. 11 If the Court concludes that Plaintiff has failed to exhaust his available administrative 12 remedies, the proper remedy is dismissal without prejudice of the portions of the complaint 13 barred by section 1997e(a). Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 14 (9th Cir. 2005). 15 III. SUMMARY OF RELEVANT PORTIONS OF PLAINTIFF’S THIRD AMENDED 16 COMPLAINT 17 Plaintiff’s Third Amended Complaint (“TAC”) alleges that on December 23, 2013, 18 Plaintiff was confined at Kern Valley State Prison (“KVSP”) when prison officials started 19 harassing and fomenting rumors of “getting” Plaintiff, and targeting him because Plaintiff had 20 filed 602 grievances, which were never logged and were returned to Plaintiff. 21 On October 22, 2014, Plaintiff went to school and told Officer Gomez that Plaintiff 22 needed to get his legal copies of a motion to file with the courts. On Plaintiff’s way back to the 23 building from class due to not feeling well, Plaintiff stopped at the law library for legal copies. 24 On the way back from the law library, Officer Gomez approached Plaintiff from behind and 25 asked if Plaintiff was going to school. Plaintiff responded no. Officer Gomez became very 26 upset and slammed Plaintiff against the concrete wall next to the library outside window, face- 27 first, and twisted his arms to place them in restraints. Plaintiff felt pain on the left side of his 28 face and his shoulders. 4 1 Officer Gomez told Plaintiff to go to the facility program holding cell area for a strip 2 search. Plaintiff complied. After the search and still naked inside the holding cage, Officers 3 Juarez and Fernandez took out their pepper spray and sprayed Plaintiff for 4 to 5 seconds. 4 Plaintiff believes the officers used force out of retaliation and harassment. 5 Plaintiff’s TAC only named Biter in the list of defendants. However, at times, when 6 Plaintiff discussed Officer Gomez, he referred to him as “Defendant Gomez.” And, while 7 Plaintiff never indicated in his complaint that Sergeant Juarez or Fernandez were meant to be 8 included as defendants, he later clarified that Gomez, Juarez, and Fernandez were meant to be 9 included as defendants (ECF No. 20). 10 IV. 11 12 Plaintiff appeared on his own behalf. Counsel Derek Lee appeared on behalf of Defendants. 13 14 SUMMARY OF EVIDENCE PRESENTED AT EVIDENTIARY HEARING Plaintiff called himself as a witness. Defendants called Aaron Gomez and Jorge Fernandez as witnesses.1 15 As evidence, Defendants submitted the processing history and underlying appeal for 16 Log Nos. KVSP-O-17-00197 (Exhibit E),2 KVSP-O-14-03684 (Exhibit B), KVSP-16-00999 17 (Exhibit D), KVSP-15-00020 (Exhibit H), KVSP-15-02069 (Exhibit I), and KVSP-15-02070 18 (Exhibit J); Plaintiff’s complaint filed September 2, 2014 (Exhibit F); and Plaintiff’s amended 19 complaint filed May 11, 2015, which was filed in Case No. 1:14-cv-01797, E.D. CA (Exhibit 20 G). 21 Plaintiff did not submit any of his own evidence.3 22 23 24 25 26 27 28 1 Defendants requested that the evidentiary hearing be continued because one of their witnesses would not be able to attend the hearing. (ECF No. 110). That request was denied (ECF No. 111), and Defendants were not able to call that witness at the hearing. However, given that the Court is recommending that this case be dismissed, the Court finds that there was no prejudice to Defendants in holding the hearing even though Defendants were not able to call one of their witnesses. 2 Plaintiff introduced Defendants’ Exhibit E into evidence. Tr. at 14:23-16:11. Exhibit E includes a copy of the 602 Plaintiff submitted in support of his opposition to Defendants’ motion for summary judgment (ECF No. 87, pgs. 5-7). 3 Plaintiff did state that he was not allowed to bring all of his exhibits with him to court, and so requested leave to submit them. Tr. at 16:11-25; 41:24-42:2. Plaintiff’s request will be denied. Plaintiff did not include these exhibits in his opposition to Defendants’ motion for summary judgment. Thus, it appears that Plaintiff did not believe that they were relevant to the issue of whether he exhausted his administrative remedies. But more 5 1 A. 2 At the evidentiary hearing, the parties agreed that the following facts are undisputed: 3 Undisputed Facts 1. “At all times relevant to the allegations in the third amended complaint, 4 Plaintiff Guillermo Trujillo, AA-2974, was a state inmate incarcerated at Kern 5 Valley State Prison, KVSP, in Delano, California.” Transcript of Proceedings 6 before Magistrate Judge Erica P. Grosjean, June 29, 2018 (“Tr.”) at 4:17-5:21. 7 2. “Plaintiff filed the third amended complaint, the operative complaint, on 8 February 16, 2016.” Id. at 5:24-6:2; 5:17-21. 3. “The conduct at issue in the third amended complaint took place on October 9 10 22nd, 2014.” Id. at 6:3-6; 5:17-21. 4. “Plaintiff filed the initial complaint on September 2nd, 2014.” Id. at 6:7-9; 5:17- 11 12 21. 5. “Plaintiff filed the third amended complaint on February 16th, 2016.” Id. at 13 14 6:10-12; 5:17-21. 15 6. “Plaintiff alleges Defendant Gomez shoved him against a wall and twisted his 16 arms to place them in restraints on October 22nd, 2014, when plaintiff informed 17 him he was not going to school.” Id. at 6:16-21; 5:17-21. 7. “Plaintiff claims Defendants Fernandez and Juarez excessively pepper sprayed 18 19 him while he was naked in a holding cage.” Id. at 7:1-4; 5:17-21. 20 8. “Kern Valley State Prison has an inmate grievance process for custody appeals, 21 which contains three levels of review. An inmate must process his grievance 22 through the third level of review in order to exhaust administrative remedies.” 23 Id. at 7:5-10; 5:17-21. 24 25 26 B. Summary of Evidence Presented at Evidentiary Hearing i. Plaintiff’s Testimony Plaintiff testified that he filed his 602 on October 22, 2014. Id. at 18:5-7. (Notably, 27 28 importantly, the Court gave the parties a deadline to file exhibit lists (ECF No. 104, p. 3), and Plaintiff failed to file such a list. Accordingly, Plaintiff’s request to file additional exhibits is DENIED. 6 1 Plaintiff never admitted into evidence any copy of the supposed 602 that he says he filed about 2 this incident.) Plaintiff testified that he submitted that original 602 about the events alleged in 3 the complaint while he was in ASU1. Id. at 13:8-9. Plaintiff testified that he never received a 4 response to that 602, despite Plaintiff filing 602s regarding the loss or delay of his original 602. 5 Id. at 13:9-18. To date, Plaintiff testified that his 602 is still under review at the first-level 6 screening because he never received a response. Id. at 13:19-20. 7 Plaintiff introduced into evidence Defendants’ Exhibit E, which Plaintiff testified was a 8 copy of a 602 he filed complaining of the loss or delay of his original 602. Id. at 14:15-16:11. 9 The 602 he admitted into evidence was titled “Lost or Delay 602 Appeal.” Exhibit E, p. 2. It 10 was dated October 22, 2014—the same date as the alleged incident. Id. at 2-3; ECF No. 17. In 11 other words, it was dated on the date of the incident yet purported to complain that a 602 about 12 that same incident had been lost and not responded to. The text of this 602 did not mention 13 anything about a lost 602—instead it described the underlying claim of excessive force.4 14 Plaintiff testified that he filed this 602, dated on the same the date of the incident, in order to 15 track down his original 602, which he no longer has. Id. at 14:23-15:3; 15:17-25. 16 Plaintiff also testified that in his original 602 he forgot to write down the facts regarding 17 the incident with defendant Gomez. Id. at 17:6-9. He “just wrote down the incident that 18 happened while we were inside the holding cell where [he] never stated the facts regarding to 19 what led to the excessive force being applied on me in the holding cell by Sergeant Castro -- 20 21 22 23 24 25 26 27 28 Specifically, in the section of the 602 titled “Explain your issue,” Plaintiff stated: “On the morning of Oct-22-14 I went to school and informed C/O Gomez that I was a (PLU) and needed to make legal copies of my motion to file with the courts. After I check in with instructor Mr. Hernandez ABE 1 Class I went to law library to received my legal copies, C/O Gomez told me that if I was going to school? I then told him I was not he immediately became upset and slam me face first to concrete wall next to the law library twisted both arms to place them in restraint’s at that point Officer Gomez told me that he wanted me to go to Facility A program cage for a strip search and I complied. After the strip search was done and still naked inside holding cage, Sgt Juarez, and Fernandez came to the holding cage I was in and took out their weapon’s of O/C pepper spray and started spraying me inside the cage for 4 to 5 second’s. I did nothing to justified the use of force nor did I violate any C.D.C.R. rules. Officer Gomez also took my legal documents which denied access to the courts.” Exhibit E, pgs. 2-3. 4 7 1 Juarez and Fernandez.” Id. at 17:10-14. When asked by the Court, “[w]hat is your best 2 memory to what you wrote in that 602,” Plaintiff stated “[t]hat Officer Gomez, Sergeant Juarez 3 and Fernandez use of excessive force applied on me.” Id. at 18:8-11. 4 When asked by the Court, “[a]nything else that you remember that you wrote,” Plaintiff 5 responded “[n]o. That's basically it, that I went out to class, I informed the instructor. And just 6 due to the fact that I was sent back because I wasn't feeling good that Officer Gomez, 7 Fernandez and Sergeant Juarez used excessive force against me.” Id. at 18:12-18. Plaintiff did 8 not introduce a copy of the original 602 he allegedly filed on October 22, 2014, into evidence. 9 10 11 When asked by the Court, “[a]nything -- any other facts that you want to say in your testimony,” Plaintiff responded “[n]o. That’s basically it.” Id. at 18:19-21. ii. Cross-examination of Plaintiff 12 On cross, Plaintiff admitted that Exhibit B included another 602, which he submitted on 13 October 22, 2014—the same date of the incident and the same date of the purported 602 about 14 a lost 602 (id. at 19:21-22; 21:2-5), and that that 602 related to at least some of his allegations 15 in this case. Id. at 21:17-23. Plaintiff admitted that he in fact received a response to this 602, 16 dated on the date of the incident and covering at least some of the underlying conduct, but 17 Plaintiff testified that he also submitted another 602 which had not received a response. Id. at 18 22:2-14. When asked, “[s]o it's fair to say that you received a response to your allegations 19 regarding Defendant Gomez,” Plaintiff responded “[r]ight.” Id. at 23:1-3. Plaintiff never 20 testified that he appealed this 602 to the third level of review. 21 22 Plaintiff also admitted that a separate case involving the same allegations against Defendants was dismissed for failure to exhaust. Id. at 26:21-29:9. 23 Plaintiff was also asked about the “Motion to Squash Defendants’ Motion for Summary 24 Judgment for Non-Exhaustion” that he filed in this case. Id. at 30:8-11. When asked, “is it fair 25 to say that this document is suggesting that you have now exhausted administrative remedies in 26 this case,” Plaintiff responded “[r]ight.” Id. at 31:1-3. However, when asked about the four 27 grievances cited to in the motion to “squash” that Plaintiff alleged showed that he exhausted his 28 administrative remedies in this case, Plaintiff admitted that none of them included allegations 8 1 of excessive force against Defendants related to the October 22 incident. Id. at 31:7-37:18. 2 iii. 3 4 Mr. Gomez testified that he is a correctional officer at Kern Valley State Prison, and that he has held that position for twelve years (including during 2014). Id. at 43:16-22. 5 6 Aaron Gomez’s Testimony Mr. Gomez further testified that he has no responsibilities regarding the appeals process or the handling of appeals. Id. at 44:5-7. 7 Plaintiff did not cross-examine Mr. Gomez. Id. at 45:22-24. 8 iv. Jorge Fernandez’s Testimony 9 Mr. Fernandez testified that he is a correctional officer as Kern Valley State Prison, and 10 that he has held that position going on thirteen years (including during 2014). Id. at 46:22- 11 47:3. Mr. Fernandez worked at the facility in which Plaintiff was housed. Id. at 47:4-6. 12 13 Mr. Fernandez further testified that he has no responsibilities regarding processing of grievances or interacting with appeals staff. Id. at 47:22-48:3. 14 15 Plaintiff did not cross-examine Mr. Fernandez. Id. at 48:22-24. V. Analysis of Evidence 16 It is undisputed that the California Department of Corrections and Rehabilitation has an 17 inmate grievance process for custody appeals, and that an inmate must process his grievance 18 through the third level in order to exhaust administrative remedies.5 Tr. at 7:5-10. It is also 19 undisputed that Plaintiff submitted an appeal covering the allegations in the complaint, and 20 received a response from the prison, yet Plaintiff did not pursue that 602 all stages of this 21 administrative process needed to exhaust his administrative remedies. As Defendants have 22 carried their burden to show that there was an available administrative remedy and that Plaintiff 23 did not exhaust that available remedy, “the burden shifts to the prisoner to come forward with 24 evidence showing that there is something in his particular case that made the existing and 25 generally available administrative remedies effectively unavailable to him.” Albino II, 747 26 F.3d at 1172. However, “the ultimate burden of proof remains with the defendant.” Id. 27 28 5 Inmate appeals or grievances are also referred to as “602s.” 9 1 Thus, the question is whether the grievances procedures were “available” to Plaintiff, in 2 light of Ninth Circuit law that “[w]hen prison officials improperly fail to process a prisoner's 3 grievance, the prisoner is deemed to have exhausted available administrative remedies.” 4 Andres, 867 F.3d at 1079. 5 Here, Plaintiff failed to meet his burden. Plaintiff testified that he submitted a different 6 602 covering the allegations in the complaint, but that the appeals office failed to respond to 7 that other 602, thus rendering the process unavailable to him. Plaintiff provided as evidence his 8 testimony that on October 22, 2014, he filed a 602 related to the incidents described in the 9 complaint. Plaintiff also provided a purported 602 related to the incidents described in the 10 complaint (Exhibit E), which he alleged he submitted to follow-up on the loss or delay of his 11 original appeal. However, Plaintiff’s testimony is not credible. 12 To begin, while Plaintiff testified that he filed the 602 that is included in Exhibit E in 13 order to inquire about the 602 he filed on October 22, 2014, the 602 does not support Plaintiff’s 14 testimony. It is true that the subject of the appeal was listed as “Lost or Delay 602 Appeal,” but 15 the 602 itself does not mention or inquire about any prior 602s. Instead, it related to the 16 excessive force incidents described in the complaint. Moreover, Plaintiff dated the grievance 17 October 22, 2014, which is the day of the alleged incident. Accordingly, the 602 does not 18 support Plaintiff’s testimony that Plaintiff submitted it in order to follow-up on a prior 19 grievance. The Court doubts the authenticity of this document. 20 Additionally, in Plaintiff’s opposition to Defendants’ motion for summary judgment, 21 Plaintiff (mis)represented to the Court that the 602 included in Exhibit E was the original 602 22 he submitted. (ECF No. 87, p. 1). In that opposition, Plaintiff stated that he “filed a 602 23 grievance on Oct-22-2014,” and referred the Court to the 602 he attached. (Id.). The 602 that 24 Plaintiff attached is the same 602 as the one included in Exhibit E. Id. at 6-7; Exhibit E, pgs. 2- 25 3. The Court relied on this representation when denying Defendants’ motion for summary 26 judgment. (ECF No. 94, pgs. 9-10; ECF No. 99). However, at the evidentiary hearing Plaintiff 27 testified, on the contrary, that he thought the 602 was “the second or third 602 regarding [] the 28 lost or delay of the original 602,” and that Plaintiff filed it “to track down the original 602.” Tr. 10 1 at 15:18-25. Given that the issue listed in the 602 was “Lost or Delay 602 Appeal,” and 2 Plaintiff’s testimony at the evidentiary hearing, it appears that this 602 was not the original 602 3 Plaintiff submitted. Plaintiff did not provide an explanation as to why he misrepresented the 4 follow-up 602 as the original in his opposition to Defendants’ motion for summary judgment. 5 Plaintiff’s misrepresentations do not end there. Plaintiff initially testified that he did not 6 receive a response to his 602s related to the incidents described in the complaint. However, on 7 cross examination, Plaintiff admitted that he did in fact receive a response to at least one of the 8 602s he filed (the response, as well as the 602 Plaintiff submitted, were admitted as Exhibit B).6 9 It thus appears that Plaintiff received a response to his 602 in a timely manner (see below), and 10 that Plaintiff had an opportunity to appeal that response but failed to do so. Thus, the 11 administrative remedy was available to Plaintiff, he simply failed to avail himself of the 12 process. Plaintiff failed to provide an explanation as to why he testified that he never received 13 a response even though he did receive a response, or why he did not file an appeal after 14 receiving the response. 15 Finally, the Court is skeptical of Plaintiff’s allegations regarding delays in processing 16 his 602s. Plaintiff testified about delays in the processing of his 602s related to the incident 17 described in his complaint, but he did not challenge the admissibly or accuracy of the 18 documents admitted as Exhibit B. And, according to those documents, Plaintiff’s 602 dated 19 October 22, 2014, was received on November 5, 2014, and Plaintiff was interviewed by R. 20 Speidell related to the allegations in the 602 on November 18, 2014 (Exhibit B, pgs. 1-3). 21 While it is not entirely clear when Plaintiff actually received the response, it does not appear 22 that there was any significant delay in the processing of this 602. 23 24 Thus, while Plaintiff was respectful and responsive, given the discrepancies in Plaintiff’s testimony the Court finds that Plaintiff’s testimony was not credible. 25 26 6 27 28 The Court notes that the facts alleged in the 602 are similar to the facts alleged in the complaint, including the date of the incident, the use of force by defendant Gomez, an ordered strip search, and Plaintiff getting pepper sprayed for four to five seconds. Exhibit B, p. 5. However, in the 602, Plaintiff alleges that it was Correctional Officer Gutierrez that pepper sprayed him. Id. There is no mention of defendants Juarez or Fernandez. Id. at 3-5 11 1 For the foregoing reasons, the Court finds that Plaintiff failed to meet his burden of 2 showing that the generally available administrative remedies were unavailable to him. 3 Therefore, the Court will recommend that this case be dismissed for failure to exhaust. 4 VII. RECOMMENDATIONS 5 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 6 1. 7 administrative remedies before filing this action; and 8 2. 9 These findings and recommendations are submitted to the United States district judge 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty- 11 one (21) days after being served with these findings and recommendations, any party may file 12 written objections with the court. 13 Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be 14 served and filed within seven days after service of the objections. The parties are advised that 15 failure to file objections within the specified time may result in the waiver of rights on appeal. 16 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 17 F.2d 1391, 1394 (9th Cir. 1991)). This action be dismissed because Plaintiff failed to exhaust his available The Clerk of Court be directed to close this case. Such a document should be captioned “Objections to 18 19 20 IT IS SO ORDERED. Dated: November 7, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 12