Thornton v. Grissom et al

Filing 104

FINDINGS and RECOMMENDATIONS recommending that 79 Defendants' Motion for Summary Judgment be GRANTED and the Clerk of Court be Directed to Close the Case re 19 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Jeremy D. Peterson on 3/15/2019. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SIMON THORNTON,
Plaintiff,

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v.
D. GRISSOM, et al.,

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Defendants.

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Case No. 1:16-cv-00498-LJO-JDP
FINDINGS AND RECOMMENDATIONS
THAT DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT FOR FAILURE
TO EXHAUST BE GRANTED IN FULL
ECF No. 79
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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Plaintiff Simon Thornton is a state prisoner proceeding without counsel in this civil rights

20 action brought under 42 U.S.C. § 1983. This action proceeds on plaintiff’s first amended
21 complaint, in which he stated an Eighth Amendment excessive force claim against defendant
22 Grissom and an Eighth Amendment failure to protect claim against defendant Cruz. ECF No. 9;
23 ECF No. 18.
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On April 23, 2018, defendants moved for summary judgment under Federal Rule of Civil

25 Procedure 56, arguing that plaintiff failed to exhaust available administrative remedies. ECF No.
26 79. Plaintiff filed an opposition on May 2, 2018, ECF No. 82, and defendants filed a reply on
27 May 9, 2018, ECF No. 83. The motion was submitted on the record without oral argument under
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1 Local Rule 230(l).1 Defendants’ motion for summary judgment is now before the court, and we
2 will recommend granting it.
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I.

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LEGAL STANDARDS
A. Summary Judgment Standard
The “purpose of summary judgment is to pierce the pleadings and to assess the proof in

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6 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith
7 Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate
8 when there is “no genuine dispute as to any material fact and the movant is entitled to judgment
9 as a matter of law.” Fed. R. Civ. P. 56(a). In addition, Rule 56 allows a court to grant summary
10 adjudication, or partial summary judgment, when there is no genuine issue of material fact as to a
11 particular claim or portion of that claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines,
12 Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 56 authorizes a summary adjudication that will
13 often fall short of a final determination, even of a single claim . . . .”) (internal quotation marks
14 and citation omitted). The standards that apply on a motion for summary judgment and a motion
15 for summary adjudication are the same. See Fed. R. Civ. P. 56 (a), (c); State of Cal. ex rel. Cal.
16 Dep’t of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying
17 summary judgment standard to motion for summary adjudication).
Summary judgment, or summary adjudication, should be entered “after adequate time for

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19 discovery and upon motion, against a party who fails to make a showing sufficient to establish
20 the existence of an element essential to that party’s case, and on which that party will bear the
21 burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party
22 bears the “initial responsibility” of demonstrating the absence of a genuine issue of material fact.
23 Id. at 323. An issue of material fact is genuine only if there is sufficient evidence for a
24 reasonable fact finder to find for the non-moving party, while a fact is material if it “might affect
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As required by Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998), plaintiff was provided
26 with notice of the requirements for opposing a summary judgment motion for failure to exhaust
administrative remedies via an attachment to the defendants’ motion for summary judgment. ECF
27 No. 79-1.
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1 the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
2 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A party
3 demonstrates that summary adjudication is appropriate by “informing the district court of the
4 basis of its motion, and identifying those portions of ‘the pleadings, depositions, answers to
5 interrogatories, and admissions on file, together with affidavits, if any,’ which it believes
6 demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (quoting
7 Fed. R. Civ. P. 56(c)).
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If the moving party meets its initial burden, the burden then shifts to the opposing party

9 to present specific facts that show there to be a genuine issue of a material fact. See Fed R. Civ.
10 P. 56(e); Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that
11 there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 587. The
12 party is required to tender evidence of specific facts in the form of affidavits, and/or admissible
13 discovery material, in support of its contention that a factual dispute exists. Fed. R. Civ. P.
14 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party is not required to establish a
15 material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be
16 shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
17 T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987).
18 However, “failure of proof concerning an essential element of the nonmoving party’s case
19 necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.
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The court must apply standards consistent with Rule 56 to determine whether the moving

21 party demonstrated there is no genuine issue of material fact and judgment is appropriate as a
22 matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). “[A] court
23 ruling on a motion for summary judgment may not engage in credibility determinations or the
24 weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017) (citation omitted).
25 The evidence must be viewed “in the light most favorable to the nonmoving party” and “all
26 justifiable inferences” must be drawn in favor of the nonmoving party. Orr v. Bank of America,
27 NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); accord Addisu v. Fred Meyer, Inc., 198 F.3d 1130,
28 1134 (9th Cir. 2000).
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In a summary judgment motion for failure to exhaust, the defendants have the initial

2 burden to establish “that there was an available administrative remedy, and that the prisoner did
3 not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that
4 burden, “the burden shifts to the prisoner to come forward with evidence showing that there is
5 something in his particular case that made the existing and generally available administrative
6 remedies effectively unavailable to him.” Id. The ultimate burden of persuasion remains with
7 defendants, however. Id. “If material facts are disputed, summary judgment should be denied,
8 and the district judge rather than a jury should determine the facts.” Id. at 1166.
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B. Exhaustion Requirement
Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought

11 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a
12 prisoner confined in any jail, prison, or other correctional facility until such administrative
13 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This statutory exhaustion
14 requirement “applies to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532
15 (2002), regardless of the relief sought by the prisoner or the relief offered by the process, Booth
16 v. Churner, 532 U.S. 731, 741 (2001). Unexhausted claims require dismissal. See Jones v.
17 Bock, 549 U.S. 199, 211 (2007).
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A prison’s own grievance process, not the PLRA, determines how detailed a grievance

19 must be to satisfy the PLRA exhaustion requirement. Id. at 218. When a prison’s grievance
20 procedures do not specify the requisite level of detail, “a grievance suffices if it alerts the prison
21 to the nature of the wrong for which redress is sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120
22 (9th Cir. 2009) (internal quotation marks omitted). “The grievance ‘need not include legal
23 terminology or legal theories,’ because ‘[t]he primary purpose of a grievance is to alert the prison
24 to a problem and facilitate its resolution, not to lay groundwork for litigation.’” Reyes v. Smith,
25 810 F.3d 654, 659 (9th Cir. 2016) (alteration in original) (quoting Griffin, 557 F.3d at 1120).
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The PLRA recognizes no exception to the exhaustion requirement, and the court may not

27 recognize a new exception, even in “special circumstances.” Ross v. Blake, 136 S. Ct. 1850,
28 1862 (2016). The one significant qualifier is that “the remedies must indeed be ‘available’ to the
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1 prisoner.” Id. at 1856. The Supreme Court has explained when an administrative procedure is
2 unavailable:
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[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. . . . 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. . . .
[S]uch interference with an inmate’s pursuit of relief renders the
administrative process unavailable. And then, once again,
§ 1997e(a) poses no bar.

10 Id. at 1859-60 (citations omitted); see also Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir.
11 2017) (“When prison officials improperly fail to process a prisoner’s grievance, the prisoner is
12 deemed to have exhausted available administrative remedies.”).
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If the court concludes that plaintiff has failed to exhaust available remedies, the proper

14 remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(a). See
15 Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
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C. CDCR’s Administrative Remedy Process
Plaintiff is a state prisoner in the custody of the California Department of Corrections and

18 Rehabilitation (“CDCR”), and CDCR has an administrative remedy process for inmate
19 grievances. See Cal. Code Regs. tit. 15, § 3084.1 (2016). To exhaust available remedies during
20 the relevant time period, an inmate must proceed through three formal levels of review unless
21 otherwise excused under the regulations. Id. § 3084.5. A prisoner initiates the exhaustion
22 process by submitting a CDCR Form 602 “Inmate/Parolee Appeal” (“grievance”) within thirty
23 calendar days (1) of the event or decision being appealed, (2) from the time the prisoner first had
24 knowledge of the action or decision being appealed, or (3) from the time the prisoner received an
25 unsatisfactory departmental response to an appeal filed. Id. §§ 3084.2(a), 3084.8(b) (quotation
26 marks omitted). There is one exception to the thirty-day rule: “There shall be no time limits for
27 allegations of sexual violence or staff sexual misconduct.” Id. § 3084.2(b)(4).
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The grievance must “describe the specific issue under appeal and the relief requested,”
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1 and the inmate “shall list all staff member(s) involved and shall describe their involvement in the
2 issue.” Id. § 3084.2(a). Furthermore, the inmate “shall state all facts known and available to
3 him/her regarding the issue being appealed at the time of submitting the Inmate/Parolee Appeal
4 Form, and if needed, the Inmate Parolee/Appeal Form Attachment.” Id. § 3084.2(a)(4). Inmate
5 grievances are subject to cancellation if “time limits for submitting the appeal are exceeded even
6 though the inmate or parolee had the opportunity to submit within the prescribed time
7 constraints.” Id. § 3084.6(c)(4).
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II.

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SUMMARY JUDGMENT RECORD
To decide a motion for summary judgment, a district court may consider materials listed

10 in Rule 56(c). Those materials include depositions, documents, electronically-stored
11 information, affidavits or declarations, stipulations, party admissions, interrogatory answers, “or
12 other materials.” Fed. R. Civ. P. 56(c). A party may object that an opponent’s evidence “cannot
13 be presented in a form that would be admissible” at trial, see Fed. R. Civ. P. 56(c)(2), and the
14 court ordinarily rules on evidentiary objections before deciding a summary judgment motion, to
15 determine which materials the court may consider. See Norse v. City of Santa Cruz, 629 F.3d
16 966, 973 (9th Cir. 2010); Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 845 (9th
17 Cir. 2004). Here, defendants present plaintiff’s complaint; the declaration of A. Lucas, an
18 Appeal Coordinator at Kern Valley State Prison (“KVSP”); and the declaration of M. Voong, the
19 Chief of the Office of Appeals (“OOA”) for CDCR. ECF No. 9; ECF No. 79-4; ECF No. 79-5.
20 Plaintiff presents his sworn opposition brief, documents related to a criminal case against him,
21 documents related to his administrative grievance, and a CDCR operations manual. ECF No. 82.
22 No party disputes these materials’ admissibility.2
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The only question here is whether plaintiff has exhausted available administrative remedies
Defendants do, however, argue that plaintiff “fail[s] to provide any evidence that supports his
argument” aside from “unsupported, conclusory allegations” and that he “failed to comply with
L.R. 260(b).” ECF No. 83 at 4. Defendant is correct that plaintiff failed to comply with Local
Rule 260(b) by not citing to particular portions of any pleading, affidavit, deposition,
interrogatory answer, admission, or other document. While the court could therefore “consider
only the cited materials,” the court will nonetheless consider plaintiff’s motion on the merits.
See Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may
consider other materials in the record.”).
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1 for his Eighth Amendment excessive force claim against defendant Grissom and his Eighth
2 Amendment failure to protect claim against defendant Cruz. In his verified complaint, ECF No.
3 9, plaintiff alleges as follows: On August 28, 2015, plaintiff informed prison staff that he felt
4 unsafe in his cell and asked to speak with medical personnel. Id. at 4. In response, defendants
5 Grissom and Cruz came to plaintiff’s cell, placed him in handcuffs, and directed him to step
6 outside the cell. Id. Once plaintiff exited the cell, Grissom placed a hand on plaintiff’s left
7 elbow and made “an assaultive gesture.” Id. Grissom said that he could throw plaintiff off the
8 tier to kill him and then report that plaintiff jumped off. Id. This comment made plaintiff feel
9 that he was in “mortal danger.” Id. Accordingly, plaintiff tried to pull his arm free from
10 Grissom’s hold but accidentally bumped into him. Id. In response, Grissom pushed plaintiff
11 forcefully toward his cell and onto the floor. Id. While Cruz acted as “look out,” Grissom
12 punched plaintiff six times in the middle of his spine. Id. at 5. On the third strike, plaintiff felt a
13 popping, breaking, and tearing sensation. Id. Plaintiff, who feared for his life, began to kick his
14 legs in self-defense. Id. Grissom then punched plaintiff in the stomach area an additional five or
15 six times. Id. At this point, Cruz gave Grissom a verbal warning that other staff were
16 approaching. Id.
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The parties agree that plaintiff submitted a grievance (KVSP-O-15-02716) concerning

18 what occurred on August 28, 2015. In the grievance, dated September 20, 2015, plaintiff
19 described the issue as follows:
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I am 602-ing the fact that on 8/28/15 correctional officer
Grissom used Excessive Force on A Inmate (myself) while in
handcuffs. Specifically he threw me across a matress causing my
face to have a Friction burn & then he repeatedly struck 5 or 6
punches to my middle back area followed by 5 or 6 punches to my
right “rear flank” or “ribcage area.” These punches were not
strength & holds & therefore constitute use of Excessive Force. I
was video taped per title 15 protocol when excessive Force is used.

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25 ECF No. 79-4 at 19-20. CO Cruz is not mentioned in the grievance.
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According to the declarations of Voong and Lucas, the timeline for appeal log number

27 KVSP-O-15-02716 is as follows:
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09/24/2015: The California Men’s Colony Inmate Appeals Office (“IAO”)
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received the appeal and “rejected” it via CDCR Form 695, advising plaintiff that

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the appeal would be forwarded to KVSP IAO for processing. ECF No. 79-4 ¶ 18.

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10/02/2015: The KVSP IAO received the appeal and referred it to the Hiring

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Authority / Chief Deputy Warden on 10/02/2015 for a Staff Complaint

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Determination. Id.

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10/05/2015: The Hiring Authority designated the appeal to be processed as a Staff

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Complaint Appeal Inquiry. The appeal bypassed the First Level of Review, and

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CDCR officials assigned it to the Second Level of Review on 10/05/2015 with an

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original due date of 11/17/2015. Id.

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10/14/2015: The associate warden of KVSP submitted a request for an extension

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of time to process the grievance, noting “Unavailability of Staff for interview.” A

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CDCR appeals coordinator approved the request, extending the 11/17/15 due date

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to 12/17/2015. Id.

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12/15/2015: The associate warden of KVSP submitted a second request for an

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extension of time to process the grievance, noting “Unavailability of Staff for

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interview.” A CDCR appeals coordinator approved the request, extending the due

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date to 01/18/2016. Id.

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01/08/2016: The associate warden of KVSP submitted a third request for an

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extension of time to process the grievance, noting “Unavailability of Staff for

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interview.” A CDCR appeals coordinator approved the request, extending the due

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date to 02/19/2016. Id.

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02/18/2016: The associate warden of KVSP submitted a fourth request for an

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extension of time to process the grievance, noting “Unavailability of Staff for

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interview.” A CDCR appeals coordinator approved the request, extending the due

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date to 03/04/2016. Id.

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03/02/2016: The associate warden of KVSP submitted a fifth request for an

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extension of time to process the grievance, noting “Unavailability of Staff for

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interview.” A CDCR appeals coordinator approved the request, extending the due
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date to 04/04/2016. Id.
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03/08/2016: CDCR officials responded to the appeal. Id. CDCR officials

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partially granted the appeal in that Grissom was questioned, but the officials

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found that Grissom did not violate CDCR policy. Id. ¶ 15.

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03/24/2016: The Hiring Authority / Chief Deputy Warden “approved” the appeal

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and provided plaintiff with the second-level response. Id. ¶ 18; ECF No. 79-5

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¶ 15.

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04/08/2016: Plaintiff filed the complaint in this lawsuit. ECF No. 1.

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04/12/2016: Plaintiff signed, dated, and completed a section of the grievance form

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set aside for an inmate to report any dissatisfaction with a second-level response.

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ECF No. 79-5 ¶ 15. Specifically, he stated, “I am dissatisfied with the second

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level response because you say he didn’t violate C.D.C.R. policy and the appeal

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was partially granted. But Grissom wasn’t fired without pension or benefits nor

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brought up on felony charges for assault & batter all that was done was a private

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investigation & a damned cover-up that took 6 months.” Id.

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04/29/16: “The appeal package was stamped as received by OOA.” Id.

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07/12/2016: The OOA mailed the third-level response to plaintiff. Id. The

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response explained that OOA “cancelled” plaintiff’s appeal on the ground that he

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exceeded time constraints to file his appeal to the third level of review. Id.

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Rather than stating that the OOA received the response on 04/29/16, the response

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states that plaintiff “submitted” the appeal on 04/29/16. Id.

22 In a declaration, A. Lucas, an Appeal Coordinator at KVSP, states that “[a]ll delays were due to
23 the unavailability of staff, D. Grissom, for interview. D. Grissom was on medical leave.” ECF
24 No. 79-4 ¶ 19.
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In his sworn opposition brief, plaintiff states that he did not “[receive] a timely response

26 [to his administrative grievance] nor was [he] given notice of timely delays every time.” ECF
27 No. 82 at 2. Plaintiff also states that he submitted his grievance to the third level “[immediately]
28 after he returned from a year in a county jail.” Id.
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III.

DISCUSSION
The court first considers whether defendants have met their initial burden of producing

3 evidence showing “that there was an available administrative remedy, and that the prisoner did
4 not exhaust that available remedy.” See Albino II, 747 F.3d at 1172. Defendants submit
5 evidence in the form of sworn declarations and supporting documents showing that CDCR had
6 an administrative grievance process available at the time of the incident that involved submission
7 of a standardized grievance form and three levels of review. ECF No. 79-4; ECF No. 79-5.
8 Defendants submit further evidence showing that, while plaintiff submitted a grievance
9 concerning the alleged constitutional violation through the second level of review, plaintiff filed
10 this lawsuit before submitting his grievance to the third and final level of review, thereby failing
11 to comply with 42 U.S.C. § 1997e(a). ECF No. 1; ECF No. 79-5, Exh. B; see 42 U.S.C.
12 § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of
13 this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
14 facility until such administrative remedies as are available are exhausted.”). Considering
15 defendants’ submissions, the court finds that defendants have met their initial burden of
16 demonstrating that the administrative remedies were generally available, and that plaintiff did
17 not exhaust those administrative remedies before filing suit. Albino, 747 F.3d at 1172.
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Because defendants have satisfied their initial burden, “the burden shifts to the prisoner to

19 come forward with evidence showing that there is something in his particular case that made the
20 existing and generally available administrative remedies effectively unavailable to him.” See
21 Albino II, 747 F.3d at 1172. Plaintiff contends that administrative remedies were not effectively
22 available to him: “[P]laintiff made a good faith effort to exhaust[] his administrative remedies
23 but was unable to [receive] a timely response nor was given notice of timely delays every time.”
24 ECF No. 82 at 2. Indeed, before plaintiff filed suit, there were numerous delays—totaling nearly
25 six months—in the processing of plaintiff’s administrative grievance. ECF No. 79-4 ¶ 18; ECF
26 No. 79-5 ¶ 15. Indefinite delays in processing an inmate’s administrative grievance may be a
27 sign that administrative remedies are effectively unavailable. Brown v. Valoff, 422 F.3d 926, 943
28 n.18 (9th Cir. 2005) (“We also note that . . . like all the other circuits that have considered the
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1 question, we refuse to interpret the PLRA so narrowly as to . . . permit [prison officials] to
2 exploit the exhaustion requirement through indefinite delay in responding to grievances.”
3 (internal quotation marks omitted)). Here, defendants acknowledge the numerous delays in
4 processing plaintiff’s grievance but explain that “[e]ach delay was due to the unavailability of
5 Officer Grissom for the required interview that is completed when there is a staff complaint.”
6 ECF No. 79-2 at 10. Defendants argue that these delays complied with relevant regulations 3
7 because “[e]ach delay was noticed to Thornton, explaining that the reason for the delay was for
8 unavailability of staff for interview.” Id.
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Plaintiff denies receiving appropriate notice of the delays in processing his appeal, but he

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provides no significant evidence in support of his contention. Although we do not engage in

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credibility determinations at the summary judgment stage, Manley, 847 F.3d at 711, we do not

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have to accept vague and conclusory statements in a declaration, F.T.C. v. Publ’g Clearing

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House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking

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detailed facts and any supporting evidence, is insufficient to create a genuine issue of material

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fact.”). Plaintiff submits a slew of court filings from a criminal case against him, ECF No. 82 at

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16-78, which he apparently hopes will show that he was in county prison for a period of time

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and so could not pursue his state prison grievance.4 Whether or not a stint in county prison

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could justify a failure to exhaust state-court remedies, plaintiff’s documents provide no direct

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support for the proposition that he was in county jail at the critical time.5 Defendants, for their

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part, submit evidence that directly contradicts plaintiff’s account. Specifically, defendants

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submit plaintiff’s “External Movements Summary”—a log of plaintiff’s movement to and from

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Cal. Code Regs. tit. 15, § 3084.8(d)(1) (“Exception to the time limits provided in subsection
23 3084.8(c) is authorized . . . in the event of . . . [u]navailability of the inmate or parolee, or staff,
or witnesses.”); id. § 3084.8(e) (“[I]f an exceptional delay prevents completion of the review
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within specified time limits, the appellant, within the time limits provided in subsection
25 3084.8(c), shall be provided an explanation of the reasons for the delay and the estimated
completion date.”).
26 4 Another issue raised by defendants, which we need not reach here, is whether plaintiff
submitted his appeal to the third level beyond the applicable 30-day deadline.
27 5 Notably, in plaintiff’s opposition to defendants’ motion to dismiss for failure to exhaust, he
made no mention of a stint in county jail interfering with his pursuit of administrative remedies.
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See ECF No. 53.
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KVSP—which shows that plaintiff resided at KVSP when the second level response was issued.

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Contrary to plaintiff’s sworn assertions, the summary indicates that CDCR transferred plaintiff

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to Mendocino County Jail for the period of June 30, 2016 to May 18, 2017, id. at 5—well after

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CDCR issued the second-level response on March 24, 2016 and after plaintiff filed this lawsuit.

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ECF No. 79-5 ¶ 15. Considering the foregoing, plaintiff has not met his burden to show that the

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generally-available administrative remedies were unavailable to him. See Albino II, 747 F.3d at

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1172. Accordingly, the court should grant summary judgment for defendants.

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IV.

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FINDINGS AND RECOMMENDATIONS
We recommend that the court grant defendants’ motion for summary judgment and that the

10 clerk of the court be directed to close this case.
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The undersigned submits the findings and recommendations to the district judge under 28

12 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District
13 Court, Eastern District of California. Within 14 days of the service of the findings and
14 recommendations, plaintiff may file written objections to the findings and recommendations with
15 the court and serve a copy on all parties. That document should be captioned “Objections to
16 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings
17 and recommendations under 28 U.S.C. § 636(b)(1)(C). Plaintiff’s failure to file objections
18 within the specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler,
19 772 F.3d 834, 839 (9th Cir. 2014).
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21 IT IS SO ORDERED.
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Dated:

March 15, 2019
UNITED STATES MAGISTRATE JUDGE

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