(PC) Burchett v. California Dept of Corr and Rehabilitations et al, No. 1:2019cv00055 - Document 118 (E.D. Cal. 2021)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that the Eight Doe Defendants be Dismissed for Failure to Serve, that Defendant Ramirez's 115 Motion for Summary Judgment be Granted in Part and Denied in Part, that Plaintiff's Claim Against D efendant Ramirez be Dismissed without Prejudice Because Plaintiff Failed to Exhaust Available Administrative Remedies, and that this Case be Closed signed by Magistrate Judge Erica P. Grosjean on 03/16/2021. Referred to Judge Unassigned. Objections to F&R due within Twenty-One Days. (Flores, E)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 PETER BURCHETT, Plaintiff, Case No. 1:19-cv-00055-NONE-EPG (PC) 16 FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE EIGHT DOE DEFENDANTS BE DISMISSED FOR FAILURE TO SERVE, THAT DEFENDANT RAMIREZ’S MOTION FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN PART, THAT PLAINTIFF’S CLAIM AGAINST DEFENDANT RAMIREZ BE DISMISSED WITHOUT PREJUDICE BECAUSE PLAINTIFF FAILED TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES, AND THAT THIS CASE BE CLOSED 17 (ECF Nos. 103 & 109) 10 v. 11 12 JANE DOE, et al., 13 Defendants. 14 15 18 19 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 20 ORDER DENYING PLAINTIFF’S MOTION FOR EXTENSION OF TIME 21 (ECF No. 115) 22 23 24 25 26 27 28 I. INTRODUCTION Peter Burchett (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case proceeds “on Plaintiff’s excessive force claims against the eight Doe Defendants that allegedly attacked him on January 31, 2018, and defendant Ramirez.” (ECF No. 57, p. 2).1 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 On January 26, 2021, defendant Ramirez filed a motion for summary judgment. (ECF 2 No. 109). Plaintiff filed his opposition on March 2, 2021. (ECF No. 114). Defendant Ramirez 3 filed his reply on March 9, 2021. (ECF No. 117). Additionally, Plaintiff’s deadline to file a motion to substitute named defendants in 4 5 place of the Doe Defendants who allegedly attacked him on January 31, 2018, has passed, and 6 Plaintiff failed to file the motion. 7 For the reasons that follow, the Court will recommend that the eight Doe Defendants be 8 dismissed without prejudice for failure to serve, that defendant Ramirez’s motion for summary 9 judgment be granted in part and denied in part, that Plaintiff’s claim against defendant Ramirez 10 be dismissed without prejudice because Plaintiff failed to exhaust available administrative 11 remedies, and that this case be closed. 12 13 14 II. FAILURE TO SERVE a. Background and Motion for Extension On October 27, 2020, the Court gave Plaintiff sixty days “to file a motion to substitute 15 named defendants in place of the Doe Defendants who allegedly attacked him on January 31, 16 2018.” (ECF No. 103, p. 2). In the order the Court noted that “[o]n the record at the 17 Conference, defense counsel indicated that the names might be listed on Exhibit T of 18 Defendant’s initial disclosures, which is a Crime/Incident Report.” (Id. at n.1). On December 19 28, 2020, Plaintiff filed a motion for an extension of time to file the motion to substitute. (ECF 20 No. 106). On January 6, 2021, the Court granted Plaintiff’s motion and gave Plaintiff forty- 21 five days from the date of service of the order to file the motion to substitute. (ECF No. 107). 22 The Court also told Plaintiff that if he needed “an additional extension of time, in his motion he 23 should attach his request for law library access and/or paging services, as well as the 24 institution’s response to his request.” (Id. at p. 2). On February 17, 2021, Plaintiff filed 25 additional motions for an extension of the motion to substitute deadline. (ECF Nos. 111 & 26 112). The Court denied Plaintiff’s requests for additional time to file the motion to substitute 27 because Plaintiff did not attach the documents required by the Court’s order, because Plaintiff 28 failed to explain why he needed access to the law library in order to identify the defendants, 2 1 and because Plaintiff failed to explain the steps he had taken to identify the Doe Defendants. 2 (ECF No. 113). 3 4 Plaintiff’s deadline to file a motion to substitute has now passed and Plaintiff has not filed a motion to substitute. 5 On March 3, 2021, Plaintiff did file what appears to be another motion for an extension 6 of the motion to substitute deadline, as well as a statement in support. (ECF Nos. 115 & 116). 7 In the motion, Plaintiff alleges, among other things, that his institution of confinement holds 8 gladiator matches, that some institutions are flying confederate flags, and that he is being 9 retaliated against.2 10 Plaintiff’s allegations are largely unrelated to this case. The Court notes that if Plaintiff 11 believes his constitutional or other rights are being violated based on the allegations in the 12 motion, he may file separate action(s).3 13 Plaintiff does appear to allege that he is not able to provide copies of his requests for 14 law library access and/or paging services or the institution’s responses. However, even if this 15 is true, Plaintiff once again fails to explain why he needed access to the law library in order to 16 identify the Doe Defendants. Plaintiff also once again fails to explain the steps he has taken in 17 the last four months to identify the Doe Defendants. As noted above, it appears that Plaintiff 18 may already have a document in his possession that identifies the Doe Defendants. 19 Accordingly, Plaintiff’s motion for extension of time (ECF No. 115) will be denied. 20 b. Legal Standards 21 Pursuant to Federal Rule of Civil Procedure 4(m), 22 If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 23 24 25 26 27 28 2 One of the alleged incidents of retaliation involved Plaintiff being forced to participate in the scheduling conference in an area where others could see and hear Plaintiff. (ECF No. 15, pgs. 15-16). However, the telephonic scheduling conference held on October 27, 2020, was a public proceeding, not a confidential proceeding. 3 Plaintiff also appears to ask the Court to order that certain evidence be preserved. However, there are no claims proceeding in this case based on these allegations. Therefore, Plaintiff’s request is DENIED. 3 1 2 Fed. R. Civ. P. 4(m). In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of 3 the Court, shall serve the summons and the complaint. Fed. R. Civ. P. 4(c)(3). “‘[A]n 4 incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal 5 for service of the summons and complaint and … should not be penalized by having his action 6 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 7 perform his duties….’” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (quoting Puett 8 v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990) (alterations in original)), overruled on other 9 grounds by Sandin v. Connor, 515 U.S. 472 (1995). “So long as the prisoner has furnished the 10 information necessary to identify the defendant, the marshal’s failure to effect service is 11 ‘automatically good cause….’” Walker, 14 F.3d at 1422 (quoting Sellers v. United States, 902 12 F.2d 598, 603 (7th Cir.1990)). However, where a plaintiff proceeding in forma pauperis fails 13 to provide the Marshal with accurate and sufficient information to effect service of the 14 summons and complaint, dismissal of the unserved defendants is appropriate. Walker, 14 F.3d 15 at 1421-22. 16 17 c. Analysis On January 6, 2020, the Court allowed this case to proceed against eight Doe 18 Defendants. As discussed above, on October 27, 2020, the Court gave Plaintiff sixty days “to 19 file a motion to substitute named defendants in place of the Doe Defendants who allegedly 20 attacked him on January 31, 2018.” (ECF No. 103, p. 2). On that same day the Court opened 21 discovery. (ECF No. 102, p. 2). Plaintiff was given an extension of this deadline (ECF No. 22 107), but the deadline has passed and Plaintiff has failed to identify the Doe Defendants. Thus, 23 Plaintiff has failed to provide the Marshal with accurate and sufficient information to effect 24 service of the summons and complaint on the eight Doe Defendants. Plaintiff has also failed to 25 provide any explanation regarding the steps he has taken since October 27, 2020, to attempt to 26 identify these defendants. 27 28 As Plaintiff has failed to provide the Marshal with accurate and sufficient information to effect service of the summons and complaint on the eight Doe Defendants within the time 4 1 period prescribed by Federal Rule of Civil Procedure 4(m), the Court will recommend that the 2 eight Doe Defendants be dismissed from this action, without prejudice.4 3 4 III. MOTION FOR SUMMARY JUDGMENT a. Defendant’s Motion 5 According to defendant Ramirez, “[b]etween January 31, 2018, and October 16, 2018, 6 Plaintiff Peter Burchett (CDCR No. BC-1170) submitted only one appeal for a third and final 7 level of review concerning any allegation that CDCR staff used excessive force against him: 8 inmate appeal log number CCI-18-00812. In particular, inmate appeal log number CCI-18- 9 00812 (OOA log number 1805580) grieved that, on January 31, 2018, CDCR staff used 10 excessive force against Plaintiff, albeit no staff was specifically named.” (ECF No. 109-3, p. 3) 11 (citations omitted). 12 “Plaintiff’s appeal log number CCI-18-00812 was initially received by staff at 13 Substance Abuse Treatment Facility and State Prison, Corcoran (‘SATF’) at the first level of 14 review, but SATF staff then routed it to CCI for processing, because the alleged incident 15 occurred at CCI. Once received and processed, the appeals office at CCI cancelled appeal log 16 number CCI-18-00812 at the second level on April 5, 2018, pursuant to Section 3084.6(c)(4) of 17 Title 15, on the ground that Plaintiff exceeded the time limit required to submit his allegation. 18 While the incident alleged in appeal log number CCI-18-00812 occurred on January 31, 2018, 19 Plaintiff submitted the appeal on March 16, 2018, a total of forty-four days after the alleged 20 incident and fourteen days after the deadline to file an allegation.” (Id.) (citations omitted). 21 “After receiving appeal log number CCI-18-00812 for a third-level review, the Office 22 of Appels (‘OOA’) issued a notice to Plaintiff, dated June 4, 2018, providing notice that CCI- 23 18-00812 was screened out pursuant to Section 3084.6(e), on the ground that he was attempting 24 to appeal to the third level a previously cancelled allegation. The OOA explained to Plaintiff 25 that, pursuant to Section 3084.6(e), once an appeal has been cancelled, that appeal may not be 26 27 28 4 Because the Court is recommending dismissal without prejudice, Plaintiff may file a case against the Doe Defendants in the future, if he can identify them. However, Plaintiff’s claims may be subject to the applicable statute of limitations. 5 1 resubmitted, though a separate appeal can be filed on the cancellation decision. Plaintiff did 2 not appeal the cancellation decision concerning log number CCI-18-00812. The OOA did not 3 receive a separate appeal from Plaintiff concerning the third-level screen-out of appeal log 4 number CCI-18-00812.” (Id.) (citations omitted). 5 “Besides appeal log number CCI-18-00812, the only other appeals that Plaintiff 6 submitted at the first or second level on or after January 31, 2018, alleging excessive force, 7 were the following: inmate appeal log number CCI-18-00945; inmate appeal log number CCI- 8 18-01008; and inmate appeal SATF-18-01709. Appeal log number CCI-18-00945 (submitted 9 by Plaintiff on March 27, 2018), which was routed from SATF (previously identified as SATF- 10 18-01494) to CCI, was cancelled at the first level at CCI pursuant to Section 3084.6(c)(2), 11 because it duplicated the allegation in appeal log number CCI-18-00812. Plaintiff did not 12 appeal the cancellation decision concerning log number CCI-18-00945. Appeal log number 13 CCI-18-01008 (submitted by Plaintiff on March 26, 2018), which was routed from SATF 14 (previously identified as SATF-18-02050) to CCI, was cancelled at the first level at CCI 15 pursuant to Section 3084.6(c)(2), because it duplicated the allegations in appeal log numbers 16 CCI-18-00812 and CCI-18-00945. Plaintiff did not appeal the cancellation decision concerning 17 log number CCI-18-01008. Appeal log number SATF-18-01709 (dated by Plaintiff March 16, 18 2018)—which contained written allegations that duplicated, in part, the allegation in appeal log 19 number CCI-18-00812—was processed at SATF as a disabilities-related reasonable 20 accommodations request, which SATF construed as a request to be rehoused in a setting that 21 better served Plaintiff’s mental health needs. On April 4, 2018, a Reasonable Accommodation 22 Panel (‘RAP’) at SATF denied Plaintiff’s request in appeal log number SATF-18-01709, on the 23 ground that he had been, and was scheduled to be, provided with sufficient mental health 24 treatment. Plaintiff did not submit appeal log number SATF-18-01709 to the OOA for a final- 25 level review.” (Id. at 3-4) (citations omitted). 26 “All of the appeals discussed above were submitted for a first-level review before June 27 10, 2018. Between January 31, 2018, and October 16, 2018, Plaintiff did not submit any 28 inmate appeal at any level of review concerning Defendant Ramirez. Further, Plaintiff has not 6 1 ever submitted any inmate appeal that resulted in a third and final-level decision from the 2 OOA.” (Id. at 4) (citations omitted). Defendant Ramirez argues that “Plaintiff did not exhaust the administrative process 3 4 concerning his excessive force claims. Plaintiff’s initial complaint was filed on October 16, 5 2018. The incidents referenced by the FAC allegedly occurred on January 31, 2018, and June 6 10, 2018. To have exhausted the administrative process in compliance with 42 U.S.C. § 1997e, 7 Plaintiff needed to submit an administrative grievance addressing the allegations in this lawsuit 8 on or after January 31, 2018, and pursue that appeal through a third level decision by October 9 16, 2018. Plaintiff did not do so.” (Id at 6) (citations omitted). Moreover, “[e]ven assuming there are genuine disputes of material fact with respect to 10 11 whether appeal log number CCI-18-00812 (or any duplicative appeal) exhausted the 12 administrative remedies pertaining to the alleged January 31, 2018 incident, the evidence 13 indisputably demonstrates that Plaintiff did not exhaust administrative remedies pertaining to 14 the alleged June 10, 2018 incident. As discussed above, the submission dates reflected in the 15 relevant 602 appeal forms were in March 2018, which was before the alleged excessive force 16 incident on June 10, 2018.” (Id. at 8) (citation omitted). Accordingly, defendant Ramirez asks the Court to “grant this motion for summary 17 18 judgment on the ground that Plaintiff failed to exhaust the administrative remedies, and dismiss 19 this action in its entirety.” (Id. at 9). 20 b. Plaintiff’s Opposition At times Plaintiff’s opposition is difficult to understand, but Plaintiff appears to argue 21 22 that he was unable to exhaust administrative remedies because he underwent repeated transfers, 23 which were a tactic by transportation authorities to complicate (if not directly sabotage) 24 Plaintiff’s ability to exhaust administrative remedies. Plaintiff alleges he was transferred to at 25 least eight different facilities. Plaintiff also alleges that he was transferred while his 602 was 26 being processed. However, Plaintiff did not submit any evidence in support of his opposition 27 or cite to any evidence in the record. 28 \\\ 7 1 2 c. Legal Standards i. Legal Standards for Summary Judgment 3 Summary judgment in favor of a party is appropriate when there “is no genuine dispute 4 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 5 P. 56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there 6 is a genuine dispute about material facts, summary judgment will not be granted.”). A party 7 asserting that a fact cannot be disputed must support the assertion by “citing to particular parts 8 of materials in the record, including depositions, documents, electronically stored information, 9 affidavits or declarations, stipulations (including those made for purposes of the motion only), 10 admissions, interrogatory answers, or other materials, or showing that the materials cited do not 11 establish the absence or presence of a genuine dispute, or that an adverse party cannot produce 12 admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). 13 A party moving for summary judgment “bears the initial responsibility of informing the 14 district court of the basis for its motion, and identifying those portions of ‘the pleadings, 15 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 16 any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 17 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party 18 moves for summary judgment on the basis that a material fact lacks any proof, the Court must 19 determine whether a fair-minded jury could reasonably find for the non-moving party. 20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla 21 of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on 22 which the jury could reasonably find for the plaintiff.”). “[A] complete failure of proof 23 concerning an essential element of the nonmoving party’s case necessarily renders all other 24 facts immaterial.” Celotex, 477 U.S. at 322. Additionally, “[a] summary judgment motion 25 cannot be defeated by relying solely on conclusory allegations unsupported by factual data.” 26 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 27 28 In reviewing the evidence at the summary judgment stage, the Court “must draw all reasonable inferences in the light most favorable to the nonmoving party.” Comite de 8 1 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It 2 need only draw inferences, however, where there is “evidence in the record … from which a 3 reasonable inference … may be drawn…”; the court need not entertain inferences that are 4 unsupported by fact. Celotex, 477 U.S. at 330 n. 2 (citation omitted). Additionally, “[t]he 5 evidence of the non-movant is to be believed….” Anderson, 477 U.S. at 255. 6 In reviewing a summary judgment motion, the Court may consider other materials in 7 the record not cited to by the parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); 8 Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). 9 In a summary judgment motion for failure to exhaust, the defendants have the initial 10 burden to prove “that there was an available administrative remedy, and that the prisoner did 11 not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that 12 burden, “the burden shifts to the prisoner to come forward with evidence showing that there is 13 something in his particular case that made the existing and generally available administrative 14 remedies effectively unavailable to him.” Id. However, “the ultimate burden of proof remains 15 with the defendant.” Id. “If material facts are disputed, summary judgment should be denied, 16 and the district judge rather than a jury should determine the facts.” Id. at 1166. 17 ii. Legal Standards for Exhaustion of Administrative Remedies 18 At the relevant time, “[t]he California prison grievance system ha[d] three levels of 19 review; an inmate exhausts administrative remedies by obtaining a decision at each level.” 20 Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) 21 (repealed June 1, 2020) & Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). See also Cal. 22 Code Regs. tit. 15, § 3084.7(d)(3) (“The third level review constitutes the decision of the 23 Secretary of the California Department of Corrections and Rehabilitation on an appeal, and 24 shall be conducted by a designated representative under the supervision of the third level 25 Appeals Chief or equivalent. The third level of review exhausts administrative remedies….”) 26 (repealed June 1, 2020). 27 28 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 9 1 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 2 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 3 Prisoners are required to exhaust the available administrative remedies prior to filing 4 suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 5 (9th Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating 6 to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of 7 the relief sought by the prisoner and regardless of the relief offered by the process, unless “the 8 relevant administrative procedure lacks authority to provide any relief or to take any action 9 whatsoever in response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); 10 11 Ross v. Blake, 136 S.Ct. 1850, 1857, 1859 (2016). “Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong 12 for which redress is sought. The grievance need not include legal terminology or legal theories, 13 because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its 14 resolution, not to lay groundwork for litigation. The grievance process is only required to alert 15 prison officials to a problem, not to provide personal notice to a particular official that he may 16 be sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks 17 omitted). 18 As discussed in Ross, 136 S.Ct. at 1862, there are no “special circumstances” 19 exceptions to the exhaustion requirement. The one significant qualifier is that “the remedies 20 must indeed be ‘available’ to the prisoner.” Id. at 1856. The Ross Court described this 21 qualification as follows: 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 10 renders the administrative process unavailable. And then, once again, § 1997e(a) poses no bar. 1 2 3 Id. at 1859-60. “When prison officials improperly fail to process a prisoner’s grievance, the prisoner is 4 deemed to have exhausted available administrative remedies.” Andres v. Marshall, 867 F.3d 5 1076, 1079 (9th Cir. 2017). 6 If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal 7 without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. 8 at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005). 9 10 d. Analysis To begin, the Court notes that Plaintiff’s complaint appears to contain claims based on 11 two separate excessive force incidents. One incident involves the eight Doe Defendants and 12 occurred on January 31, 2018. (ECF No. 16, p. 5). The other incident appears to have occurred 13 on June 10, 2018, or July 10, 2018, and involves defendant Ramirez. (Id. at 3 & 6; see also 14 ECF No. 93, pgs. 1-2). 15 The Doe Defendants have not been served. Additionally, defense counsel does not 16 represent the Doe Defendants, and the claim against them appears to be unrelated to the claim 17 against defendant Ramirez. Given this, and that the Court is recommending that the Doe 18 Defendants be dismissed for failure to serve, the Court will recommend that defendant 19 Ramirez’s motion be denied to the extent it seeks summary judgment on behalf of the eight 20 Doe Defendants. 21 22 23 However, the Court will recommend that the motion be granted as to defendant Ramirez. “A party asserting that a fact cannot be or is genuinely disputed must support the 24 assertion by: (A) citing to particular parts of materials in the record, including depositions, 25 documents, electronically stored information, affidavits or declarations, stipulations (including 26 those made for purposes of the motion only), admissions, interrogatory answers, or other 27 materials; or (B) showing that the materials cited do not establish the absence or presence of a 28 11 1 genuine dispute, or that an adverse party cannot produce admissible evidence to support the 2 fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). “If a party fails to properly support an assertion of fact 3 or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court 4 may … consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2). 5 Here, Plaintiff submitted no evidence in support of his opposition, did not cite to any 6 evidence in the record, and did not contest the materials cited by defendant Ramirez. As 7 Plaintiff failed to properly address defendant Ramirez’s assertions of fact, the Court will 8 consider all of defendant Ramirez’s properly supported facts as undisputed for purposes of this 9 motion. Fed. R. Civ. P. 56(e)(2). 10 Defendant Ramirez has submitted evidence, in the form of a declaration from J. Stone 11 (a Grievance Coordinator at CCI), A. Shaw (a Grievance Coordinator at Substance Abuse 12 Treatment Facility and State Prison), and A. Leyva (a Grievance Coordinator at Kern Valley 13 State Prison) that each of Plaintiff’s institutions of confinement had a generally available 14 grievance procedure. (ECF No. 109-2, pgs. 24-25, ¶¶ 3-5; ECF No. 109-2, pgs. 55-56, ¶¶ 3-5; 15 ECF No. 109-2, pgs. 92-93, ¶¶ 3-5). Defendant Ramirez also submitted evidence, in the form 16 of declarations from A. Shaw, J. Stone, Howard Moseley (the Associate Director of the OOA), 17 and A. Leyva, that while Plaintiff did submit grievances, he did not submit a grievance 18 regarding the alleged June/July excessive force incident involving defendant Ramirez. (ECF 19 No. 109-2, pgs. 57-59, ¶¶ 8-9; ECF No. 109-2, pgs. 26-27, ¶¶ 8-9; ECF No. 109-2, p. 8, ¶¶ 7-8; 20 ECF No. 109-2, p. 94, ¶¶ 8-9). Moreover, defendant Ramirez has submitted evidence, in the 21 form of a declaration from Howard Moseley and a document titled “Appellant Appeal History,” 22 that Plaintiff did not submit an inmate appeal that resulted in a third and final decision from the 23 OOA. (ECF No. 109-2, pgs. 7-9, ¶¶ 6-9; ECF No. 109-2, p. 11). 24 Thus, defendant Ramirez has submitted undisputed evidence “that there was an 25 available administrative remedy, and that the prisoner did not exhaust that available remedy,” 26 Albino II, 747 F.3d at 1172, and “the burden shifts to the prisoner to come forward with 27 evidence showing that there is something in his particular case that made the existing and 28 generally available administrative remedies effectively unavailable to him,” id. As Plaintiff 12 1 submitted no evidence that there was something in his case that made the existing and generally 2 available administrative remedies effectively unavailable to him, summary judgment should be 3 granted in favor of defendant Ramirez. 4 The Court notes that even if Plaintiff signed his opposition under penalty of perjury, it 5 would not change the analysis. Plaintiff does not allege that he submitted a 602 regarding the 6 alleged excessive force incident involving defendant Ramirez. 7 Plaintiff does allege that transfers were used as a tactic by transportation authorities to 8 complicate (if not directly sabotage) Plaintiff’s ability to exhaust administrative remedies, and 9 it does appear that Plaintiff was transferred. Based on the undisputed evidence, Plaintiff was 10 housed at SATF from February 21, 2018, to June 27, 2018, at CCI from June 27, 2018, to July 11 31, 2018, and at Kern Valley State Prison from July 31, 2018, to January 3, 2019. (ECF No. 12 109-2, p. 55, ¶ 3; ECF No. 109-2, p. 24, ¶ 3; ECF No. 109, p. 92, ¶ 3). However, Plaintiff was 13 not immediately transferred after the incident,5 and Plaintiff provides no explanation as to how 14 the transfer(s) prevented him from filing a grievance. 15 As the undisputed evidence shows that there was an available administrative remedy 16 and that Plaintiff did not exhaust that available administrative remedy as to the incident 17 involving defendant Ramirez, the Court will recommend that defendant Ramirez’s motion for 18 summary judgment be granted in part and that Plaintiff’s claim against defendant Ramirez be 19 dismissed without prejudice. For the reasons described above the Court will also recommend 20 that defendant Ramirez’s motion be denied to the extent it seeks summary judgment on behalf 21 of the eight Doe Defendants. 22 23 24 IV. RECOMMENDATIONS Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 1. The eight Doe Defendants be dismissed from this action, without 25 prejudice, because of Plaintiff’s failure to provide the Marshal with 26 accurate and sufficient information to effect service of the summons and 27 28 5 As discussed above, is not clear if the incident occurred on June 10, 2020, or July 10, 2020, but in either case, Plaintiff was not immediately transferred after the incident. 13 1 complaint on the eight Doe Defendants within the time period prescribed 2 by Federal Rule of Civil Procedure 4(m); 3 2. 4 Defendant Ramirez’s motion for summary judgment be granted in part and denied in part; 5 3. Plaintiff’s claim against defendant Ramirez be dismissed without 6 prejudice because Plaintiff failed to exhaust available administrative 7 remedies; and 8 9 4. The Clerk of Court be directed to close this case. 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)(1). Within twenty- 11 one (21) days after being served with these findings and recommendations, any party may file 12 written objections with the court. Such a document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be 14 served and filed within seven (7) days after service of the objections. The parties are advised 15 that failure to file objections within the specified time may result in the waiver of rights on 16 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 17 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 Additionally, IT IS ORDERED that Plaintiff’s motion for an extension of time (ECF No. 115) is DENIED. 20 21 22 IT IS SO ORDERED. Dated: March 16, 2021 /s/ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 14
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