Germany v. Coelho, et al.
Filing
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FINDINGS and RECOMMENDATIONS Regarding Defendants' 24 Motion for Summary Judgment for Failure to Exhaust the Administrative Remedies signed by Magistrate Judge Stanley A. Boone on 11/8/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 12/14/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRANKIE L. GERMANY,
Plaintiff,
v.
M. COELHO, et al.,
Defendants.
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Case No.: 1:17-cv-00005-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST THE ADMINISTRATIVE REMEDIES
[ECF No. 24]
Plaintiff Frankie L. Germany is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendants’ motion for summary judgment based on Plaintiff’s
alleged failure to exhaust the administrative remedies, filed on September 28, 2017.
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I.
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RELEVANT BACKGROUND
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This action is proceeding against Defendants Ward, Garcia-Fernandez, Hanson and Coelho for
excessive force in violation of the Eighth Amendment.
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On September 11, 2017, Defendants filed an answer to the complaint.
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On September 13, 2017, the Court issued the discovery and scheduling order.
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As previously stated, on September 28, 2017, Defendants filed the instant motion for summary
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judgment for failure to exhaust the administrative remedies. Plaintiff did not file an opposition and the
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time period to do so has passed. Accordingly, the motion is deemed submitted for review without oral
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argument. Local Rule 230(l).
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II.
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LEGAL STANDARD
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A.
Statutory Exhaustion Requirement
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The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such
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administrative remedies as are available” before commencing a suit challenging prison conditions.”
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42 U.S.C. § 1997e(a); see Ross v. Blake, __ U.S. __ 136 S.Ct. 1850 (June 6, 2016) (“An inmate need
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exhaust only such administrative remedies that are ‘available.’”). Exhaustion is mandatory unless
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unavailable. “The obligation to exhaust ‘available’ remedies persists as long as some remedy remains
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‘available.’ Once that is no longer the case, then there are no ‘remedies … available,’ and the prisoner
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need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (emphasis
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in original) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).
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This statutory exhaustion requirement applies to all inmate suits about prison life, Porter v.
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Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by the
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prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741 (2001), and
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unexhausted claims may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing
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Porter, 534 U.S. at 524).
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The failure to exhaust is an affirmative defense, and the defendants bear the burden of raising
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and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino, 747 F.3d at 1166. “In the rare
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event that a failure to exhaust is clear from the face of the complaint, a defendant may move for
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dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise, the defendants must produce
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evidence proving the failure to exhaust, and they are entitled to summary judgment under Rule 56 only
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if the undisputed evidence, viewed in the light most favorable to the plaintiff, shows he failed to
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exhaust. Id.
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“An inmate is required to exhaust only available remedies.” Albino, 747 F.3d at 1171 (citing
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Booth v. Churner, 532 U.S. 731, 736 (2001)). “To be available, a remedy must be available ‘as a
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practical matter’; it must be ‘capable of use; at hand.’” Albino, 747 F.3d at 1171 (quoting Brown v.
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Valoff, 422 F.3d 926, 937 (9th Cir. 2005)). In Ross v. Blake, the Court set forth the following three
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examples of when the administrative remedies are not available: (1) the “administrative procedure …
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operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to
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aggrieved inmates;” (2) the “administrative scheme … [is] so opaque that it becomes, practically
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speaking, incapable of use … to that no ordinary prisoner can make sense of what it demands; and (3)
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“prison administrators thwart inmates from taking advantage of a grievance process through
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machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2006)
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(citations omitted). In addition, when an inmate’s administrative grievance is improperly rejected on
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procedural grounds, exhaustion may be excused as effectively unavailable. Sapp v. Kimbrell, 623
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F.3d 813, 823 (9th Cir. 2010); see also Nunez v. Duncan, 591 F.3d 1217, 1224-1226 (9th Cir. 2010)
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(warden’s mistake rendered prisoner’s administrative remedies “effectively unavailable”); Brown v.
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Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third level where appeal
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granted at second level and no further relief was available).
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B.
Summary Judgment Standard
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Any party may move for summary judgment, and the Court shall grant summary judgment if
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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 747 F.3d at
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1166; Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position,
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whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of
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materials in the record, including but not limited to depositions, documents, declarations, or discovery;
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or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or
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that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P.
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56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to
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by the parties, although it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco
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Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609
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F.3d 1011, 1017 (9th Cir. 2010).
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Defendant bears the burden of proof in moving for summary judgment for failure to exhaust,
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Albino, 747 F.3d at 1166, and they must “prove that there was an available administrative remedy, and
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that the prisoner did not exhaust that available remedy,” id. at 1172. If the defendants carry their
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burden, the burden of production shifts to the plaintiff “to come forward with evidence showing that
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there is something in his particular case that made the existing and generally available administrative
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remedies effectively unavailable to him.” Id. “If the undisputed evidence viewed in the light most
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favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment
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under Rule 56.” Id. at 1166. However, “[i]f material facts are disputed, summary judgment should be
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denied, and the district judge rather than a jury should determine the facts.” Id.
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III.
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DISCUSSION
Description of CDCR’s Administrative Remedy Process
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A.
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Plaintiff is a former state prisoner who was at the time of filing the instant complaint in the
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custody of the California Department of Corrections and Rehabilitation (“CDCR”). CDCR has an
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administrative remedy process for inmate grievances. Cal. Code Regs. tit. 15, § 3084.1 (2014).
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Compliance with section 1997e(a) is mandatory and state prisoners are required to exhaust CDCR’s
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administrative remedy process prior to filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 85-
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86 (2006); Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 2010). CDCR’s administrative grievance
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process for non-medical appeals consists of three levels of review: (1) first level formal written
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appeals; (2) second level appeal to the Warden or designees; and (3) third level appeal to the Office of
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Appeals (OOA). Inmates are required to submit appeals on a standardized form (CDCR Form 602),
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attach necessary supporting documentation, and submit the appeal within thirty days of the disputed
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event. Cal. Code Regs. tit. 15, §§ 3084.2, 3084.3(a), 3084.8(b).
Summary of Allegations Underlying Plaintiff’s Constitutional Claims
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B.
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On December 5, 2016, while detained in North Kern State Prison, (“North Kern”) Plaintiff
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claims three correctional officers and one sergeant used excessive force causing injuries to Plaintiff.
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Throughout the day and on a couple of instances, Plaintiff spoke with Officer Coelho and requested a
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cell move. Plaintiff reasons that his request for a cell move was warranted as Plaintiff sustained a
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broken arm by falling off the top bunk. Upon denying Plaintiff’s request, Plaintiff then asked to speak
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with a sergeant, to which Officer Coelho replied, “hell no.” As such, Officer Coelho denied both
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requests. Later, during meal time in the dayroom, Plaintiff asked Officer Coelho if he could speak
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with a sergeant, and Officer Coelho began to pepper spray Plaintiff without provocation. Immediately
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after, Officer Coelho and his co-workers then proceeded to kick and punch Plaintiff while he was on
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the ground. Defendants picked Plaintiff up off the ground and proceeded to handcuff him. While
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being escorted out of the building, Plaintiff was body slammed to the ground and was beat again.
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Defendant proceeded to pick Plaintiff up off the ground and continued to escort Plaintiff to the
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program office where he was placed in a cell. Plaintiff named the following Defendants and claims
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they were also involved in this incident, Officer P. Ward, Officer Garcia-Fernandez, and Sergeant
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Hanson.
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C.
Statement of Undisputed Facts1
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1.
At all times relevant to this lawsuit, Plaintiff was an inmate in the custody of the
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California Department of Corrections and Rehabilitation (CDCR). (Amd. Compl., ECF No. 12 at 1.)
2.
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On December 11, 2016, Plaintiff submitted an inmate grievance (CDCR Form 602)
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Log No. NKSP-D-16-04573, alleging that he had been pepper sprayed and assaulted by correctional
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staff on December 5, 2016. (Decl. of M. Voong at ¶ 4, Ex. A.)
3.
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On January 17, 2017, Plaintiff’s appeal was granted in part at the second level of
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review in that an appeal inquiry was conducted regarding his allegations, but staff was determined to
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have followed policy with respect to the issues raised. (Decl. of M. Voong, Ex. A.)
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review. (Decl. of M. Voong at ¶ 5, Ex. A.)
5.
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6.
On April 6, 2017, Plaintiff resubmitted NKSP-D-16-4573 to the third level of review.
(Decl. of M. Voong at ¶ 7, Ex. A.)
7.
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On March 16, 2017, NKSP-D-16-4573 was rejected at the third level of review because
it was missing necessary documentation. (Decl. of M. Voong at ¶ 6, Ex. B.)
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On February 16, 2017, Plaintiff submitted NKSP-D-16-4573 to the third level of
On June 5, 2017, NKSP-D-16-4573 was denied at the third level of review, exhausting
Plaintiff’s administrative remedies. (Decl. of M. Voong at ¶ 7, Ex. C.)
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Referenced hereinafter as “UDF”.
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8.
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Plaintiff has not filed any other appeals concerning the allegations in this lawsuit that
were addressed at the third level of review. (Decl. of M. Voong at ¶ 8.)
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Plaintiff filed his original complaint in this matter on December 29, 2016. (ECF No. 1
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D.
Findings on Defendants’ Motion
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Defendants argue that there is no dispute that Plaintiff’s relevant appeal, Appeal Log No.
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at 6.)
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NKSP-D-16-4573 was not exhausted through the third and final level of review at the time Plaintiff
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filed the instant action, and therefore the action is subject to dismissal, without prejudice.
Defendants submit the declaration of M. Voong, Appeals Coordinator, who declares that
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Plaintiff filed only one appeal, Appeal Log No. NKSP-D-16-4573, relevant to the claims of excessive
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force in this lawsuit on December 11, 2016. (UDF 2, 8.) On January 17, 2017, the second level
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review granted the appeal in that an inquiry into Plaintiff’s allegations was conducted but denied it as
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to the substantive claims. (UDF 3.) However, prior to issuance of the January 17, 2017 response,
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Plaintiff filed the instant action on December 29, 2016. (UDF 9.) Pursuant to CDCR regulations, the
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second level review had thirty working days to issue a response to the appeal. Cal. Code Regs. tit. 15,
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§ 3084.8(c)(2).2 Plaintiff then submitted the appeal through the third and final level which was
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rejected on March 22, 2017, prior to final denial on June 5, 2017. (UDF 5, 7.) Both of the third level
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responses were issued within sixty working days of Plaintiff’s appeal submission, as set forth in
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CDCR regulations. Cal. Code Regs. tit. 15, § 3084.8(c)(3).
It is undisputed that Plaintiff did not exhaust his appeal through the third level of review prior
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to filing the instant action. Even if the inmate fully exhausts the administrative remedies during the
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pendency of suit, dismissal, without prejudice, is still warranted. See McKinney v. Carey, 311 F.3d
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1198, 1199 (9th Cir. 2002 (an inmate must exhaust the available administrative remedies before he
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filed suit, even if the inmate fully exhausts while the suit is pending); Vaden v. Summerhill, 449 F.3d
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1047, 1051 (9th Cir. 2006) (same). Furthermore, it is undisputed that Plaintiff received timely
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responses to his appeal at all levels of review. Defendants have meet their burden of proof in
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The appeal was dated by Plaintiff on December 11, 2016, and the second level response was therefore due on or before
January 26, 2017, excluding weekends and state holidays.
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demonstrating that Plaintiff failed to properly exhaust the administrative remedies prior to filing suit,
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and there is no evidence before the Court that something in this case made the existing administrative
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remedies effectively unavailable to Plaintiff or that Plaintiff is excused from the exhaustion
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requirement. Albino v. Baca, 757 F.3d at 1172; Sapp v. Kimbrell, 623 F.3d at 823; Nunez v. Duncan,
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591 F.3d at 1224-1226; Brown v. Valoff, 422 F.3d at 940. Accordingly, Defendants’ motion for
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summary judgment should be granted and the instant action should be dismissed, without prejudice.
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IV.
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RECOMMENDATIONS
Based on the foregoing, it is HEREBY RECOMMENDED that:
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Defendants’ motion for summary judgment be granted; and
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The instant action be dismissed, without prejudice, for failure to properly exhaust the
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administrative remedies.
These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after
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being served with these Findings and Recommendations, the parties may file written objections with
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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified time
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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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November 8, 2017
UNITED STATES MAGISTRATE JUDGE
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