(PC) Dell v. Espinoza, et al., No. 1:2016cv01769 - Document 45 (E.D. Cal. 2017)

Court Description: ORDER granting 39 Motion for Extension of Time; granting 37 Motion for Protective Order and denying as moot 38 Motion for Extension of Time. FINDINGS and RECOMMENDATIONS to grant 36 MOTION for SUMMARY JUDGMENT for failure to exhaust administrative remedies signed by Magistrate Judge Michael J. Seng on 12/29/2017. Referred to Judge Dale A Drozd; Objections to F&R due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JONATHAN L. DELL, 10 11 12 13 14 15 16 17 18 19 20 21 Plaintiff, CASE No. 1:16-cv-1769-DAD-MJS (PC) ORDER (1) GRANTING PLAINTIFF’S MOTION FOR EXTENSION OF TIME; v. R. ESPINOZA et al., Defendants. (2) GRANTING DEFENDANTS’ MOTION FOR PROTECTIVE ORDER; (3) DENYING AS MOOT DEFENDANTS’ MOTION FOR EXTENSION OF TIME; AND FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (ECF NOS. 36, 37, 38, 39) FOURTEEN-DAY DEADLINE 22 23 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights 24 action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff‘s original 25 November 22, 2016, complaint against Correctional Officer ( CO ) R. Espinoza and CO 26 R. Roque on an Eighth Amendment excessive force claim, against Sergeant C. James 27 on an Eighth Amendment failure to protect claim, and against Dr. S. Barnett and Lt. L.A. 28 Martinez on an Eighth Amendment deliberate indifference claim. (ECF No. 9.) 1 Pending before the Court is Defendants‘ motion for summary judgment for failure 1 2 to exhaust administrative remedies.1 Plaintiff opposes the motion. This matter is fully 3 briefed and ready for disposition. Also pending is Defendants‘ motion for protective order 4 (ECF No. 37) and motion for extension of time to respond to Plaintiff‘s discovery (ECF 5 No. 38). Plaintiff has not filed an opposition to either of these latter motions. 6 I. 7 8 Plaintiff’s Allegations The events underlying this action occurred while Plaintiff was an inmate housed at California State Prison in Corcoran, California ( CSP-Cor ). 9 A. 10 Allegations against Dr. Barnett On August 22, 2014, Plaintiff was escorted by COs R. Espinoza and R. Roque to 11 Acute Care Hospital ( ACH ) at CSP-Cor for suicide evaluation. Dr. S. Barnett, a 12 psychologist at ACH, approached Plaintiff and asked him if he wanted to talk. Plaintiff 13 responded angrily, No, I‘m suicidal, homicidal. I tore up my state clothing, flooded my 14 cell, all I wanted to do was hurt myself. Dr. Barnett then turned away and had a private 15 conversation with COs Espinoza and Roque. When the conversation ended, CO 16 Espinoza told Plaintiff that they were going to escort Plaintiff back to his cell. Plaintiff 17 responded, I‘m suicidal I‘m not going back. 18 B. 19 CO Espinoza opened the holding cage where Plaintiff was seated and Allegations against CO Espinoza, CO Roque, and Sgt. James 20 handcuffed. When the door was open, CO Espinoza grabbed Plaintiff and threw him to 21 the floor outside of the holding cage. COs Espinoza and Roque then assaulted Plaintiff, 22 punching and kicking him while Plaintiff remained handcuffed. Following a brief period of 23 calm, CO Espinoza assaulted Plaintiff again. Sgt. James witnessed this second assault 24 but failed to respond or stop it. 25 26 27 28 11 Defendants also originally argued that Plaintiff fails to comply with the applicable statute of limitations, but they voluntarily withdrew that argument in their Reply to Plaintiff‘s Opposition. (See Defs. Reply (ECF No. 41) at 5-6). 2 1 C. 2 While waiting outside the ACH for an ambulance to return Plaintiff to his assigned Allegations against Lt. Martinez 3 cell, Lt. Martinez arrived at the scene. Plaintiff screamed at Lt. Martinez that he was 4 suicidal and would harm himself again if returned to his cell. Plaintiff also told Lt. 5 Martinez about the assault by CO Espinoza and CO Roque. Plaintiff then complained to 6 non-party Nurse Arriola, who was standing nearby, about his injuries and pain following 7 the assault. Nurse Arriola came towards Plaintiff to look at the injuries but was turned 8 away by Lt. Martinez. 9 II. 10 Undisputed Facts Between August 22, 2014, when the incidents underlying this action occurred, 11 and November 22, 2016, when this case was initiated, Plaintiff filed several inmate 12 appeals. See Decl. of D. Goree in Supp. Defs.‘ Mot. Summ. J. (ECF No. 36-4) ¶¶ 4, 10- 13 14, Exs. A-E; Decl. of A. Sheldon in Supp. Defs.‘ Mot. Summ. J. (ECF No. 36-5) ¶¶ 9-10, 14 Exs. A-B; Decl. of M. Voong in Supp. Defs.‘ Mot. Summ. J. (ECF No. 36-6) ¶¶ 5-8, Exs. 15 A-C. Of these appeals, only two are relevant to this action: IAB Log No. 14-03495 and 16 CSP-Cor Log No. 14-06872. 17 In IAB Log No. 14-03495, which was submitted on September 5, 2014, Plaintiff 18 complained that on August 22, 2014, he was assaulted by CO Espinoza and CO Roque, 19 and that Lt. Martinez refused to allow Plaintiff to be seen for medical care. Voong Decl. 20 Ex. B (ECF No. 36-6 at 9-14). There are no claims as to Dr. Barnett, and the only 21 allegation as to Sgt. James is that this Defendant pulled CO Espinoza off of Plaintiff‘s 22 leg. See id. Plaintiff submitted this appeal directly to the third level of review to ensure it 23 receives the necessary appeal procedure without bias. I do not believe my appeal will 24 properly be addressed at Corcoran State Prison due to staff corruption. Voong Decl. Ex. 25 B (ECF No. 36-6 at 19-20). On October 10, 2014, Plaintiff‘s appeal was rejected at the 26 third level of review for bypassing the lower levels of review. Id. (ECF No. 36-6 at 8). 27 In CSP-Cor Log No. 14-06872, which was submitted on October 26, 2014, 28 Plaintiff complained that certain personal property was missing after he went to the crisis 3 1 bed on August 22, 2014. Goree Decl. Ex. E. This appeal was granted in part at the first 2 level of review, and Plaintiff did not pursue this appeal to any other level of review. See 3 id. This appeal is notable because while Plaintiff‘s claim relates to August 22, 2014, the 4 day of the incident, he does not complain about excessive force, deliberate indifference, 5 or failure to protect on the part of any of the Defendants. 6 III. 7 Defendants’ Motion for Summary Judgment A. 8 Legal Standards 1. Summary Judgment Standards 9 The court must grant a motion for summary judgment if the movant shows that 10 there is no genuine dispute as to any material fact and the moving party is entitled to 11 judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 12 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the 13 case. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if there is 14 sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. 15 at 248-49. 16 The party moving for summary judgment bears the initial burden of informing the 17 court of the basis for the motion, and identifying portions of the pleadings, depositions, 18 answers to interrogatories, admissions, or affidavits which demonstrate the absence of a 19 triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet 20 its burden, the moving party must either produce evidence negating an essential 21 element of the nonmoving party's claim or defense or show that the nonmoving party 22 does not have enough evidence of an essential element to carry its ultimate burden of 23 persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 24 1102 (9th Cir. 2000); see Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) 25 ( When the nonmoving party has the burden of proof at trial, the moving party need only 26 point out that there is an absence of evidence to support the nonmoving party's case.‘ ) 27 (quoting Celotex, 477 U.S. at 325). 28 4 1 If the moving party meets its initial burden, the burden shifts to the non-moving 2 party to produce evidence supporting its claims or defenses. Nissan Fire & Marine Ins. 3 Co., Ltd., 210 F.3d at 1103. The non-moving party may not rest upon mere allegations or 4 denials of the adverse party's evidence, but instead must produce admissible evidence 5 that shows there is a genuine issue of material fact for trial. See Devereaux, 263 F.3d at 6 1076. If the non-moving party does not produce evidence to show a genuine issue of 7 material fact, the moving party is entitled to judgment. See Celotex, 477 U.S. at 323. 8 9 Generally, when a defendant moves for summary judgment on an affirmative defense on which he bears the burden of proof at trial, he must come forward with 10 evidence which would entitle him to a directed verdict if the evidence went 11 uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). 12 The failure to exhaust administrative remedies is an affirmative defense that must be 13 raised in a motion for summary judgment rather than a motion to dismiss. See Albino v. 14 Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc). On a motion for summary 15 judgment for nonexhaustion, the defendant has the initial burden to prove that there 16 was an available administrative remedy, and that the prisoner did not exhaust that 17 available remedy. Id. at 1172. If the defendant carries that burden, the burden shifts to 18 the prisoner to come forward with evidence showing that there is something in his 19 particular case that made the existing and generally available administrative remedies 20 effectively unavailable to him. Id. The ultimate burden of proof remains with the 21 defendant, however. Id. If material facts are disputed, summary judgment should be 22 denied, and the judge rather than a jury should determine the facts on the exhaustion 23 question, id. at 1166, in the same manner a judge rather than a jury decides disputed 24 factual questions relevant to jurisdiction and venue, id. at 1170-71. 25 In ruling on a motion for summary judgment, inferences drawn from the underlying 26 facts are viewed in the light most favorable to the non-moving party. Matsushita Elec. 27 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 28 5 1 A verified complaint may be used as an opposing affidavit under Rule 56, as long 2 as it is based on personal knowledge and sets forth specific facts admissible in 3 evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) 4 (treating plaintiff's verified complaint as opposing affidavit where, even though 5 verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of 6 perjury that contents were true and correct, and allegations were not based purely on his 7 belief but on his personal knowledge). Plaintiff‘s pleading is signed under penalty of 8 perjury and the facts therein are evidence for purposes of evaluating the defendants' 9 motion for summary judgment. 10 2. California’s Administrative Exhaustion Rules 11 No action shall be brought with respect to prison conditions under [42 U.S.C. § 12 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other 13 correctional facility until such administrative remedies as are available are exhausted. 14 42 U.S.C. § 1997e(a). Exhaustion in prisoner cases covered by § 1997e(a) is 15 mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); Ross v. Blake, 136 S. Ct. 1850, 16 1856-57 (2016) (mandatory language of § 1997e(a) forecloses judicial discretion to craft 17 exceptions to the requirement). All available remedies must be exhausted; those 18 remedies need not meet federal standards, nor must they be plain, speedy, and 19 effective.‘ Porter, 534 U.S. at 524. Even when the prisoner seeks relief not available in 20 grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; 21 Booth v. Churner, 532 U.S. 731, 741 (2001). Section 1997e(a) requires proper 22 exhaustion of available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93 23 (2006). Proper exhaustion requires using all steps of an administrative process and 24 complying with deadlines and other critical procedural rules. Id. at 90. 25 The State of California provides its inmates and parolees the right to appeal 26 administratively any policy, decision, action, condition, or omission by the department or 27 its staff that the inmate or parolee can demonstrate as having a material adverse effect 28 upon his or her health, safety, or welfare. Cal. Code Regs. tit. 15, § 3084.1(a). In order 6 1 to exhaust available administrative remedies, a prisoner must proceed through three 2 formal levels of appeal and receive a decision from the Secretary of the CDCR or his 3 designee. Id. § 3084.1(b), § 3084.7(d)(3). 4 The amount of detail in an administrative grievance necessary to properly exhaust 5 a claim is determined by the prison's applicable grievance procedures. Jones v. Bock, 6 549 U.S. 199, 218 (2007); see also Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) 7 ( To provide adequate notice, the prisoner need only provide the level of detail required 8 by the 9 administrative complaint on a CDCR-602 form (or a CDCR-602 HC form for a health- 10 The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue. To assist in the identification of staff members, the inmate or parolee shall include the staff member's last name, first initial, title or position, if known, and the dates of the staff member's involvement in the issue under appeal. If the inmate or parolee does not have the requested identifying information about the staff member(s), he or she shall provide any other available information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question. [¶] The inmate or parolee shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal form, and if needed, the Inmate/Parolee Appeal Form Attachment. 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 regulations ). California prisoners are required to lodge their care matter). The level of specificity required in the appeal is described in a regulation: 11 20 prison's Cal. Code Regs. tit. 15, § 3084.2(a)(3-4).2 2 Several Ninth Circuit cases have referred to California prisoners' grievance procedures as not specifying the level of detail necessary and instead requiring only that the grievance describe the problem and the action requested. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Cal. Code Regs. tit. 15, § 3084.2); Sapp, 623 F.3d at 824 ( California regulations require only that an inmate describe the problem and the action requested.‘ Cal. Code Regs. tit. 15, § 3084.2(a) ); Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (when prison or jail's procedures do not specify t he requisite level of detail, a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought‘ ). Those cases are distinguishable because they did not address the regulation as it existed at the time of the events complained of in Plaintiff‘s pleading. Section 3084.2 was amended in 2010 (with the 2010 amendments becoming operative on January 28, 2011), and those amendments inc luded the addition of subsection (a)(3). See Cal. Code Regs. tit. 15, § 3084.2 (history notes 11-12 providing operative date of amendment). Wilkerson and Sapp used the pre-2011 version of section 3084.2, as evidenced by their statements that the regulation required the inmate to describe the problem and the action requested – a phrase that does not exist in the version of the regulation in effect in and after 2011. Griffin is distinguishable because it discussed the Maricopa County Jail administrative rem edies rather than the 7 1 Exhaustion of administrative remedies may occur if, despite the inmate's failure to 2 comply with a procedural rule, prison officials ignore the procedural problem and render 3 a decision on the merits of the grievance at each available step of the administrative 4 process. Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); e.g., id. at 659 (although 5 inmate failed to identify the specific doctors, his grievance plainly put prison on notice 6 that he was complaining about the denial of pain medication by the defendant doctors, 7 and prison officials easily identified the role of pain management committee's 8 involvement in the decision-making process). 9 B. Analysis 10 Defendants move for summary judgment on all of Plaintiff‘s claims on the grounds 11 that Plaintiff did not exhaust his administrative remedies as to any of them. In support of 12 their motion, Defendants have submitted evidence showing that Plaintiff did not properly 13 exhaust administrative remedies even though such remedies were available to him. The 14 Defendants have thus carried their burden to demonstrate that there were available 15 administrative remedies for Plaintiff and that Plaintiff did not properly exhaust those 16 available remedies as to any of his claims. The undisputed evidence shows that 17 California provides an administrative-remedies system for California prisoners to 18 complain about their conditions of confinement, and that Plaintiff used that California 19 inmate-appeal system to complain about other events unrelated to his complaints here. 20 Once the Defendants met their initial burden, the burden shifted to Plaintiff to 21 come forward with evidence showing that something in his particular case made the 22 existing administrative remedies effectively unavailable to him. See Albino, 747 F.3d at 23 1172. For a remedial procedure to be available it must exist both in law and, in actual 24 practice, be capable of use to obtain some relief for the action complained of. Ross, 25 136 S. Ct. at 1859 (internal quotation marks omitted). In Ross, the Supreme Court 26 27 28 CDCR's administrative remedies. Whatever the former requirements may have been in the CDCR and whatever requirements may still exist in other facilities, since January 28, 2011, the operative regulation has required California prisoners using the CDCR's inmate appeal system to list the name(s) of the wrongdoer(s) in their administrative appeals. 8 1 enumerated three instances where a procedure, in a practical sense, is unavailable: (1) 2 when the process operates as a simple dead end with no actual possibility of relief to 3 prisoners; (2) when the process is so opaque or confusing that it is essentially 4 unknowable—so that no ordinary prisoner can make sense of what it demands ; and (3) 5 when prison officials thwart inmates from using the process through machination, 6 misrepresentation, or intimidation. Id. at 1859–60 (internal quotation marks omitted). 7 Plaintiff admits that he bypassed the lower levels of review but argues that he did 8 so due to staff misconduct and corruption at CSP-Cor. In support, Plaintiff makes 9 multiple arguments and submits several attachments to his opposition, each of which is 10 addressed here. 11 Plaintiff first relies on a document that he claims to be the notes of an interview 12 conducted by Plaintiff‘s private investigator with a Lt. Gonzales, who is allegedly married 13 to Sgt. James. Pl.‘s Opp‘n Ex. B. These notes appear to corroborate Plaintiff‘s account of 14 the August 22, 2014, incident, but otherwise provide no information about Plaintiff‘s 15 attempt to exhaust his administrative remedies. 16 Plaintiff also submits a purported email from Lt. Gonzales who interviewed 17 Plaintiff on September 12, 2015. Pl.‘s Opp‘n Ex. C. In this email, Lt. Gonzales wrote that 18 a videotaped interview should be conducted concerning the August 22, 2014, incident 19 and that, in the event Plaintiff claimed that he tried to appeal the issue, he should be 20 asked for copies of the 602s. See id. Assuming this email to be properly authenticated 21 with proper foundation3 and to the extent Plaintiff relies on it to argue that he did try to 22 exhaust his administrative remedies in October 2014, Plaintiff fails to submit any 23 evidence of any previously-filed inmate grievances or any CDCR 22 forms requesting 24 the status of those appeals. [V]ague assertion[s] that prison officials did not process an 25 inmate's appeals, or stopp[ed] them from being processed, are insufficient to create a 26 3 27 28 Defendants submit several evidentiary objections to the documents filed in support of Plaintiff‘s Opposition. See Defs.‘ Objections to Pl.‘s Evidence (ECF No. 41-1). For the purposes of these Findings and Recommendations only, the Court considered this evidence, and will therefore overrule Defendants' objections. However, such ruling is not on the merits of the objections and does not suggest that the objections are not well-taken. 9 1 genuine factual dispute regarding the availability vel non of a remedy. See Tubach v. 2 Lahimore, No. 1:10–cv–913 AWI SMS (PC), 2012 WL 4490792, at *3 (E.D. Cal. Sep. 28, 3 2012); see also Kidd v. Livingston, 463 Fed. Appx. 311, 313 (5th Cir. 2012) (per curiam) 4 (conclusory assertions that prison officials did not process grievance fail[ ] to create a 5 genuine dispute as to [inmate's] exhaustion of this grievance (citation omitted)); Jeffries 6 v. Fields, No. CV 12–1351 R(JC), 2014 WL 994908, at *18 (C.D. Cal. Mar. 10, 2014) 7 ( conclusory assertion[s] that prison officials obstructed the remedy process and 8 tamper[ed] with inmate's grievances are insufficient to demonstrate that any failure to 9 exhaust was excused due to misconduct by prison officials that rendered further 10 administrative remedies unavailable (citations omitted)); Meador v. Wedell, 2:10–cv– 11 00901–KJM–DAD, 2012 WL 360199, at *7 (E.D. Cal. Feb. 2, 2012) ( Plaintiff's mere 12 conclusory allegation that his inmate appeals were improperly rejected and closed is 13 insufficient to show that prison officials improperly screened-out said appeals. (citing 14 cases)), report and recommendation adopted, 2:10–cv–00901–KJM–DAD (E.D. Cal. 15 Mar. 28, 2012); Crayton v. Hedgpeth, No. C 08–00621 WHA (PR), 2011 WL 1988450, at 16 *7 (E.D. Cal. May 20, 2011) ( Plaintiff's allegations of lost, stolen, and destroyed 17 grievances are too vague to effectively rebut defendants' claim that plaintiff has failed to 18 exhaust his administrative remedies .... ); Rodgers v. Reynaga, No. CV 1–06– 1083– 19 JAT, 2009 WL 2985731, at *3 (E.D. Cal. Sep. 16, 2009) ( To grant Plaintiff an exception 20 to PLRA's demand for exhaustion based solely on Plaintiff's self-serving testimony that 21 his grievance was surreptitiously destroyed by prison officials would completely 22 undermine the rule. ); Hendon v. Baroya, No. 1:05–cv–00838–OWW–SMS PC, 2007 WL 23 3034263, at *3 (E.D. Cal. Oct. 16, 2007) ( The vague assertion that grievances were 24 filed is insufficient to make the requisite showing that exhaustion either occurred or was 25 excused due to some form [of] conduct on the part of prison officials which prevented 26 plaintiff from properly utilizing the appeals process. (citations omitted)), report and 27 recommendation adopted, 2008 WL 482868 (E.D. Cal. Feb. 20, 2008). 28 10 1 Attached to Lt. Gonzales‘s purported email are three undated and unsigned typed 2 pages. Pl.‘s Opp‘n Ex. C. Plaintiff contends these pages were drafted by Lt. Gonzales 3 and show that correctional staff were attempting to cover up the August 22, 2014, 4 assault. Again, assuming the admissibility of this evidence, it does not support Plaintiff‘s 5 claim that he was thwarted from exhausting his administrative remedies. Rather, it 6 serves to support Plaintiff‘s version of the assault incident; it reveals that Lt. Gonzales 7 independently interviewed Plaintiff outside of any grievance process; and it highlights 8 that, to the extent the incident was investigated by anyone, it was only in response to 9 Sgt. James‘s reporting of the incident, not an administrative grievance filed by Plaintiff. 10 Plaintiff next relies on an inmate appeal he filed at Pelican Bay State Prison, 11 submitted on May 28, 2016, and assigned Log No. PBSP-0-16-01249, in which he 12 sought to have his personal property, including legal property, sent to him at CSP-Cor, 13 where he had been temporarily transferred. Pl.‘s Opp‘n Ex. F. This appeal was denied at 14 the first level of review. It was then granted at the second level of review, and Plaintiff‘s 15 personal property was transferred to his new housing assignment at Kern Valley State 16 Prison. Plaintiff‘s appeal was denied at the third level of review. Assuming Plaintiff relies 17 on this appeal to argue that he could not file an earlier grievance because his legal 18 property was improperly withheld, this appeal fails to show how or why Plaintiff could not 19 follow the proper administrative procedures for filing a timely administrative grievance 20 nearly 1.5 years beforehand. 21 Plaintiff also argues that he did not seek to bypass the lower levels of review by 22 mailing his grievance to the Office of Appeals; instead, he simply sought to have his 23 appeal handled without bias. But Plaintiff does not deny that he was aware of the 24 prescribed procedures for filing grievances; indeed, his other grievances filed duri ng this 25 same time period demonstrate that he was aware of and capable of following these 26 procedures for unrelated complaints. 27 28 11 1 Lastly, Plaintiff argues that the screening order of IAB Log No. 14-03495 failed to 2 include instructions to appeal the rejection of his appeal. To the contrary, this rejection 3 letter stated as follows: 4 Be advised that you cannot appeal a rejected appeal, but should take the corrective action necessary and resubmit the appeal within the timeframes specific in CCR 3084.6(a) and CCR 3084.8(b). Pursuant to CCR 3084.6(e), once an appeal has been cancelled, that appeal may not be resubmitted. However, a separate appeal can be filed on the cancellation decision. The original appeal may only be resubmitted if the appeal on the cancellation is granted. 5 6 7 8 9 Voong Decl. Ex. B. 10 Much of Plaintiff‘s opposition is directed to his claim that the Defendants are 11 corrupt and that they misled or threatened officials during the Rules Violation Report 12 hearing following the incident and at various times afterward. See e.g., Pl.‘s Opp‘n ¶¶ 29, 13 34, 37, 45, 53. Plaintiff, however, submits no evidence that the Defendants actively 14 attempted to thwart his attempts to exhaust administrative remedies or that any other 15 individuals involved in the processing of his appeals were colluding with the Defendants 16 to thwart Plaintiff‘s attempts at exhaustion. 17 Based on the foregoing, then, the undersigned concludes that Defendants have 18 carried their burden to show that Plaintiff failed to exhaust administrative remedies that 19 were available to him. Defendants‘ motion for failure to exhaust administrative remedies 20 should thus be granted. 21 IV. Defendants’ Motion for Protective Order 22 In light of their pending motion for summary judgment, Defendants simultaneously 23 move to stay discovery except as it relates to the issue of exhaustion pending resolution 24 of their summary judgment motion. (ECF No. 37.) 25 The Court is vested with broad discretion to manage discovery. Dichter-Mad 26 Family Partners, LLP v. U.S., 709 F.3d 749, 751 (9th Cir. 2013); Hunt v. County of 27 Orange, 672 F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor Prods., 406 28 12 1 F.3d 625, 635 (9th Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 2 Pursuant to Rule 26(c)(1), the Court may, for good cause, issue a protective order 3 forbidding or limiting discovery. The avoidance of undue burden or expense is grounds 4 for the issuance of a protective order, Fed. R. Civ. P. 26(c), and a stay of discovery 5 pending resolution of potentially dispositive issues furthers the goal of efficiency for the 6 courts and the litigants, Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (stay of 7 discovery pending resolution of immunity issue). The propriety of delaying discovery on 8 the merits of the Plaintiff's claims pending resolution of an exhaustion motion was 9 explicitly recognized by the Ninth Circuit. Albino, 747 F.3d at 1170-71; see also Gibbs v. 10 Carson, No. C-13-0860 THE (PR), 2014 WL 172187, at *2-3 (N.D. Cal. Jan. 15, 2014). 11 The failure to exhaust is an affirmative defense, and Defendants are entitled to 12 judgment on Plaintiff's claims against them if the Court determines the claims are 13 unexhausted. Albino, 747 F.3d at 1166. Thus, the pending exhaustion motion has the 14 potential to bring final resolution to this action, obviating the need for merits-based 15 discovery. Gibbs, 2014 WL 172187, at *3. In Albino, the Ninth Circuit recognized that 16 [e]xhaustion should be decided, if feasible, before reaching the merits of a prisoner's 17 claims, and discovery directed to the merits of the suit should be left until later. Albino, 18 747 F.3d at 1170. 19 Because Defendants' motion for summary judgment is based solely on the ground 20 that Plaintiff failed to exhaust the administrative remedies, any discovery requests 21 related to the underlying merits of the complaint is outweighed by Defendants' burden in 22 responding to discovery requests that may not be necessary if the motion for summary is 23 granted. Therefore, all merits-based discovery is stayed pending resolution of 24 Defendants' motion for summary judgment. In light of this ruling, Defendants‘ motion for 25 extension of time to respond to Plaintiff‘s discovery requests will be denied as moot. 26 V. 27 Conclusion Accordingly, IT IS HEREBY ORDERED that: 28 13 1 1. Plaintiff‘s motion for extension of time (ECF No. 39) is GRANTED. Plaintiff‘s 2 opposition is deemed timely filed; 3 2. Defendants‘ motion for protective order (ECF No. 37) is GRANTED. All 4 discovery in this action is hereby stayed pending resolution of Defendants‘ 5 motion for summary judgment for failure to exhaust administrative remedies; 6 3. Defendants‘ motion for extension of time to respond to Plaintiff‘s discovery 7 8 9 requests (ECF No. 38) is DENIED as moot; and IT IS HEREBY RECOMMENDED that Defendants‘ motion for summary judgment for failure to exhaust administrative remedies (ECF No. 36) be GRANTED. 10 The findings and recommendation will be submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 12 Within fourteen (14) days after being served with the findings and recommendation, the 13 parties may file written objections with the Court. The document should be captioned 14 Objections to Magistrate Judge‘s Findings and Recommendation. A party may respond 15 to another party‘s objections by filing a response within fourteen (14) days after being 16 served with a copy of that party‘s objections. The parties are advised that failure to file 17 objections within the specified time may result in the waiver of rights on appeal. 18 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 19 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 22 23 IT IS SO ORDERED. Dated: December 29, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 14

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