Robertson v. Garcia et al.

Filing 56

FINDINGS and RECOMMENDATIONS recommending that Defendant's partial motion for summary judgment for failure to exhaust 36 , be Granted; Defendant Jones be Dismissed from this action; Plaintiff's claims against Defendant Garcia regarding the use of excessive force, other than the use of OC spray, be Dismissed from this action ; referred to Judge Drozd, signed by Magistrate Judge Barbara A. McAuliffe on 05/09/2022. (Objections to F&R due within 14-Day Deadline)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WAYNE JEROME ROBERTSON,

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Plaintiff,

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v.

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GARCIA, et al.,

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FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT
BASED ON PLAINTIFF’S FAILURE TO
EXHAUST AVAILABLE
ADMINISTRATIVE REMEDIES

Defendants.
(ECF No. 36)

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FOURTEEN (14) DAY DEADLINE

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FINDINGS AND RECOMMENDATIONS

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Case No. 1:17-cv-01022-DAD-BAM (PC)

I.

Background

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Plaintiff Wayne Jerome Robertson (“Plaintiff”) is a state prisoner proceeding pro se in this

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civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended

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complaint against Defendants Garcia and Jones for excessive force in violation of the Eighth

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Amendment.

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On January 4, 2019, Defendants filed a motion for partial summary judgment based on

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Plaintiff’s failure to exhaust administrative remedies prior to filing this action as required by the

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Prison Litigation Reform Act, as to Defendant Jones entirely, and as to the allegations of

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excessive force other than the use of OC spray by Defendant Garcia. Fed. R. Civ. P. 56(c),

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Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 574 U.S. 968 (2014).
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(ECF No. 36.) Plaintiff filed a timely opposition on January 4, 2019. (ECF No. 37.) After

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finding that Defendants failed to include a Rand warning with the motion, the Court issued a

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second informational order providing Plaintiff with notice of the requirements for opposing a

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motion for summary judgment and permitted Plaintiff an opportunity to file a supplemental

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opposition. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952,

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957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 41.)

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Plaintiff filed a supplemental opposition on May 6, 2019. (ECF No. 42.) Defendants filed a reply

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on May 13, 2019. (ECF No. 43.)

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The motion for summary judgment is deemed submitted. Local Rule 230(l).
II.

Legal Standards

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A.

Statutory Exhaustion Requirement

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Section 1997e(a) of the Prison Litigation Reform Act of 1995 provides that “[n]o action

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shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal

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law, by a prisoner confined in any jail, prison, or other correctional facility until such

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administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is

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required regardless of the relief sought by the prisoner and regardless of the relief offered by the

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process, Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to

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all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002).

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The failure to exhaust is an affirmative defense, and the defendants bear the burden of

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raising and proving the absence of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007); Albino,

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747 F.3d at 1166. “In the rare event that a failure to exhaust is clear on the face of the complaint,

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a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166. Otherwise,

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the defendants must produce evidence proving the failure to exhaust, and they are entitled to

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summary judgment under Rule 56 only if the undisputed evidence, viewed in the light most

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favorable to the plaintiff, shows he failed to exhaust. Id.

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Defendant must first prove that there was an available administrative remedy and that

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Plaintiff did not exhaust that available remedy. Williams v. Paramo, 775 F.3d 1182, 1191 (9th

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Cir. 2015) (citing Albino, 747 F.3d at 1172) (quotation marks omitted). The burden then shifts to
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Plaintiff to show something in his particular case made the existing and generally available

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administrative remedies effectively unavailable to her. Williams, 775 F.3d at 1191 (citing Albino,

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747 F.3d at 1172) (quotation marks omitted). The ultimate burden of proof on the issue of

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exhaustion remains with Defendant. Id. (quotation marks omitted).

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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

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if the movant shows that there is no genuine dispute as to any material fact and the movant is

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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino,

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747 F.3d at 1166; Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). Each

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party’s position, whether it be that a fact is disputed or undisputed, must be supported by

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(1) citing to particular parts of materials in the record, including but not limited to depositions,

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documents, declarations, or discovery; or (2) showing that the materials cited do not establish the

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presence or absence of a genuine dispute or that the opposing party cannot produce admissible

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evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may

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consider other materials in the record not cited to by the parties, although it is not required to do

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so. Fed. R. Civ. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.

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2001); accord Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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The defendant bears the burden of proof in moving for summary judgment for failure to

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exhaust, Albino, 747 F.3d at 1166, and he must “prove that there was an available administrative

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remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172. If the defendant

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carries his burden, the burden of production shifts to the plaintiff “to come forward with evidence

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showing that there is something in his particular case that made the existing and generally

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available administrative remedies effectively unavailable to him.” Id. “If undisputed evidence

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viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is

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entitled to summary judgment under Rule 56.” Id. at 1166. However, “[i]f material facts are

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disputed, summary judgment should be denied, and the district judge rather than a jury should

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determine the facts.” Id.

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III.

Discussion
Summary of CDCR’s Administrative Review Process

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A.

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At the relevant time, “[t]he California prison grievance system ha[d] three levels of

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review; an inmate exhausts administrative remedies by obtaining a decision at each level.” Reyes

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v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (citing Cal. Code Regs. tit. 15, § 3084.1(b) (repealed

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June 1, 2020) & Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010)). See also Cal. Code Regs.

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tit. 15, § 3084.7(d)(3) (“The third level review constitutes the decision of the Secretary of the

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California Department of Corrections and Rehabilitation on an appeal, and shall be conducted by

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a designated representative under the supervision of the third level Appeals Chief or equivalent.

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The third level of review exhausts administrative remedies….”) (repealed June 1, 2020).
Pursuant to this system, an inmate may appeal “any policy, decision, action, condition, or

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omission by the department or its staff that the inmate . . . can demonstrate as having a material

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adverse effect upon his . . . health, safety, or welfare.” Id. at § 3084.1(a).

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The process was initiated by submitting a CDCR Form 602, Inmate/Parolee Appeal. Id. at

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§ 3084.2(a). In the appeal form, prisoners must list all staff members involved and describe their

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involvement in the issue. Id. at § 3084.2(a)(3). If the inmate does not have the requested

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identifying information about the staff member, he must provide any other available information

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that would assist the appeals coordinator in making a reasonable attempt to identify the staff

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member in question. Id.

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B.

Allegations in First Amended Complaint

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Plaintiff is currently housed at Mule Creek State Prison in Ione, California. The events in

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the first amended complaint are alleged to have occurred while Plaintiff was incarcerated at the

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California Correctional Institution (“CCI”) in Tehachapi, California. Plaintiff names the

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following defendants: Correctional Officer D. Garcia and Correctional Officer B. Jones. Plaintiff

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alleges as follows:

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On January 24, 2017, around 4:00 p.m. Plaintiff was inside the CCI gym taking a

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urinalysis test when Defendants Garcia and Jones attacked and assaulted him when he asked a

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question about viewing of the test. Defendant Garcia allegedly walked up to Plaintiff, pulled out
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his MK9 OC pepper spray fogger and shot Plaintiff directly in the face without provocation,

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emptying the spray. When Plaintiff turned away, Defendant Garcia then hit Plaintiff in the right

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side with a baton. Plaintiff asserts that Defendant Garcia’s actions caused burning to his face,

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shortness of breath, and pain. After Defendant Garcia used pepper spray and hit Plaintiff with a

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baton, Defendant Jones then grabbed Plaintiff and slammed him into the ground on the left side of

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his face, causing swelling, bruising, and discoloration. Plaintiff further alleges that Defendant

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Garcia gave a false statement in a crime incident report to justify his actions. On January 25,

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2017, when Plaintiff “made the second allegations of staff misconduct against D. Garcia when the

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lieutenant J. Tingley, interviewed me and order another CDCR 7219 medical report because he

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could clearly see bruising and discolored in may face area on my left cheek and right side of my

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back.” (ECF No. 4, p. 5.) Plaintiff also alleges that Defendant Jones made a false statement in a

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RVR report and gave false statements to the Lieutenant on a crime incident report in order to

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justify his actions.

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As relief, Plaintiff seeks damages.

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C.

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Undisputed Material Facts (UMF)1

1. Plaintiff is a California State Prison inmate. At all relevant times alleged in the

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Complaint, Plaintiff was housed at the California Correctional Institute in Tehachapi,

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California (“CCI”). At the time that Plaintiff filed the Complaint at issue in this case,

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Plaintiff was housed at CCI. Plaintiff is currently incarcerated at Mule Creek State Prison

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in Ione, California. (ECF No. 14, First Amended Complaint (“FAC”) at 4; ECF No. 51,

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Notice of Change of Address.)

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ECF No. 36-1. Plaintiff did not provide a separate statement of undisputed facts in his opposition or supplemental
opposition. Local Rule 260(a). As a result, Defendants’ Statement of Undisputed Facts in Support of Defendants’
Motion for Summary Judgment Based on Plaintiff’s Failure to Exhaust Administrative Remedies is accepted except
where brought into dispute by Plaintiff’s verified first amended complaint, (ECF No. 14), and verified supplemental
opposition to the motion for summary judgment, (ECF No. 42). See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir
2004) (verified complaint may be used as an opposing affidavit if it is based on pleader’s personal knowledge of
specific facts which are admissible in evidence; Johnson v. Melzer, 134 F.3d 1393, 1399–1400 (9th Cir. 1998) (same,
with respect to verified motions). Unless otherwise indicated, disputed and immaterial facts are omitted from this
statement and relevant objections are overruled.

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2. On August 1, 2017, Plaintiff filed a Complaint brought under 42 U.S.C. § 1983 alleging

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various claims against Defendants B. Jones and D. Garcia. (ECF No. 1, Complaint.)

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3. On February 20, 2018, the Court issued an Order dismissing Plaintiff’s Complaint with

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leave to amend, ordering an amended complaint to be filed within 30 days. (ECF No. 13.)

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4. On March 12, 2018, Plaintiff filed his First Amended Complaint. (ECF No. 14.)

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5. CDCR has a comprehensive administrative appeals system for prisoners’ complaints,

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described in the California Code of Regulations (CCR), Title 15, section 3084, et seq.2

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CCR, Title 15, section 3084.1(a) provides that any inmate may appeal any departmental

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decision, action, condition, or policy which they can demonstrate as having a material

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effect upon their welfare. Declaration of M. Voong, Chief of Office of Appeals (Voong

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Decl.) ¶ 4; Declaration of J. Wood, Appeal Coordinator at CCI (Wood Decl.) ¶ 2–3.)

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6. Under Title 15 of the California Code of Regulations, an inmate has 30 calendar days to

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submit an appeal from the occurrence of the event or decision being appealed, or upon

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first knowledge of the action or decision being appealed. Cal. Code Regs., tit. 15,

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§ 3084.8 (b); (Wood Decl. ¶ 8).

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7. To exhaust the administrative appeal process, the inmate must complete his appeal

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through the Third Level of review. Cal. Code Regs., tit. 15, § 3084.7; (Voong Decl. ¶ 7;

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Wood Decl. ¶¶ 4, 6.)

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8. The grievance procedure requires the inmate to identify, by name and title or position,

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each staff member alleged to be involved in the action or decision being appealed, along

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with the dates each staff member was involved in the issue being appealed. If the inmate

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does not have this information, he must provide any other available information that

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would assist the appeals coordinator in identifying the staff member. Cal. Code Regs., tit.

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15, § 3084.2(a)(3).

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Effective January 28, 2011, the regulations governing inmate appeals were amended by Title 15 of the CCR,
Section 3084, et seq. See CCR, tit. 15, §§ 3084–3084.8 (amended 2011). Because Plaintiff’s claims relate to an
incident that occurred in 2017, the amended regulations described herein apply, as they were in effect at the time the
events alleged occurred.

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9. The grievance procedure also requires the inmate to include each staff member’s

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involvement in the issue under appeal. The inmate “shall” also state all facts known and

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available to him/her regarding the issue being appealed at the time of submitting the

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Appeal Form. Id. § 3084.2(a)(4).

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10. If an inmate submits an appeal that is untimely, lacks critical information, or otherwise

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does not comply with the regulations governing the appeal process, the appeal may be

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cancelled or rejected, meaning it is not accepted for review. The cancellation or rejection

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of an appeal at any level does not exhaust the appeal process. Id. § 3084.1(b) (2015)

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(describing that all appeals are subject to a third level review before administrative

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remedies are deemed exhausted, and a cancellation or rejection decision does not exhaust

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administrative remedies); (Voong Decl. ¶¶ 5, 7, 9; Wood Decl. ¶¶ 4, 6); see also Cal.

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Code Regs., tit. 15, § 3084.6(a)–(f) (describing rejection, cancellation, and withdrawal

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criteria).
11. Plaintiff submitted inmate grievances through CDCR’s administrative appeals system

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while incarcerated at CCI. (Voong Decl. ¶¶ 12–14, Ex. C; Wood Decl. ¶¶ 12–14, Ex. B.)

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Appeal re: January 24, 2017 Incident – Log No. CCI-17-00502

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12. Plaintiff submitted a grievance under Appeal Log No. CCI-17-00502, alleging that on

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January 24, 2017 Defendant Garcia and 2 other unnamed officers3 assaulted him with OC

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pepper spray during a urinalysis, without warning or provocation. (Voong Decl. ¶ 13(a),

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Ex. A; Wood Decl. ¶ 12(a).)

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13. In this appeal, Plaintiff wrote: “I look down, started to pull my talle wacker out when all

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three officer approached me with the empty bottle in my right hand about to piss when I

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was sprayed in the face without warning. Officer D. Garcia, along with his two fellow

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officers assaulted me with “OC” spray without warning or provocation.” (ECF No. 14, p.

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12 (unedited text); Voong Decl. ¶ 13(a), Ex. A.)
14. On November 2, 2016, Plaintiff’s 602 appeal logged under appeal number CCI-17-00502

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was denied at the Third Level of review. (Voong Decl. ¶ 13(a), Ex. A.)
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Plaintiff only named two officers in the FAC, Defendants D. Garcia and B. Jones.

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15. Plaintiff did not name Defendant B. Jones in his appeal at the first and second levels and

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did not allege any use of force by any correctional officer other than the use of pepper

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spray. (Voong Decl. ¶ 13(a), Ex. A; Wood Decl. ¶ 11(a), Ex. A.)
16. In his response to the Second Level response, Plaintiff wrote “I requested a full

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investigation into Officer D. Garcia, and Officer B. Jones, use of excessive force and

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unnecessary force against me for asking a question.” Plaintiff still never details any use of

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force by either of the Defendants other than the use of OC spray and B. Jones was only

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identified and referenced when the appeal was submitted to the Third Level, bypassing the

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first two levels of review. (Voong Decl. ¶ 13(a), Ex. A.)

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17. Defendant D. Garcia wrote an Incident Report under CCI-FAA-17-01-0027 detailing the

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incident involving Plaintiff on January 24, 2017, which was the subject of Plaintiff’s

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appeal under CCI-17-00502. In this Incident Report, Defendant Garcia only references

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the use of OC spray and use of baton by Defendant Garcia. Defendant Garcia does not

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reference any use of force by Defendant Jones. Defendant Garcia states that Defendant

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Jones’ only involvement, other than as witness, was to handcuff Plaintiff after he was

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compliant. (Voong Decl. ¶ 13(a), Ex. A.)

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18. Defendant B. Jones wrote an Incident Report under CCI-FAA-17-01-0027 detailing the

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incident involving Plaintiff on January 24, 2017, which was the subject of Plaintiff’s

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appeal under CCI-17-00502. In the Report, Defendant Jones does not indicate that he

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used any force or OC spray or was involved in any use of force. The only involvement

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Defendant Jones indicates he had in the incident, other than being a witness, was that he

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handcuffed Plaintiff after he had already complied with orders. (Wood Decl. ¶ 13(a), Ex.

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A.)

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19. During the investigation into Plaintiff’s allegations, prison officials were not on notice of

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Plaintiff’s claims against Defendant B. Jones or on notice Plaintiff was claiming that

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excessive force was used upon him, aside from his claims that correctional officers used

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OC spray. (Voong Decl. ¶ 13(a), Ex. A; Wood Decl. ¶¶ 12(a), 14.)

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Other Appeals

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20. On November 8, 2017, Plaintiff’s 602 Appeal Log No. CCI-17-02654 was denied at the

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second level of review. That appeal addressed Plaintiff’s allegations relative to CDC

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Form 115, Rules Violation Report (RVR), Log No. 2131025 dated January 24, 2017 for

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Assault on a Peace Officer by Means Not Likely to Cause Great Bodily Injury. In the

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appeal, Plaintiff alleged his due process rights were violated during the RVR hearing

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because he was not allowed to call witnesses. He requested the RVR be dismissed due to

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due process violations. (Wood Decl. ¶ 12(b); Voong Decl. ¶ 13(b), Ex. B.)

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21. On April 4, 2017, Plaintiff’s 602 Appeal Log No. CCI-17-00575 was rejected pursuant to

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Cal. Code Regs. tit. 15, § 3084.6(b)(15). Plaintiff submitted the appeal directly to the

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Third Level, without submitting it to the first two low levels of appeal, bypassing the

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required lower levels of review. That appeal addressed Plaintiff’s allegations that Officers

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D. Garcia and B. Jones fabricated their 115 Rules Violation Report Log No. 2131025,

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issued to Plaintiff on January 24, 2017. Plaintiff alleges the untrue statements were of a

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sexual nature and done in order to intimidate and sexually harass Plaintiff in order to get

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him to withdraw his allegations of employee misconduct. (Voong Decl. ¶ 14(a).)

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No Other Relevant Appeals Submitted

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22. CCI has no record of receiving any other appeal that is relevant to the allegations in the

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FAC. The Office of Appeals and Inmate Correspondence and Appeals Branch has no

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record of receiving any other appeal from Plaintiff regarding his claims arising from the

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January 24, 2017 incident against any prison official. (Wood Decl. ¶ 14; Voong Decl.

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¶ 15.)

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D.

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The allegations at issue in this suit occurred on January 24, 2017, and therefore all claims

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arising from that incident were required to be exhausted prior to Plaintiff initiating this action on

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August 1, 2017, or Plaintiff is required to come forward with evidence showing that the existing

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and generally available administrative remedies were effectively unavailable to him.

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Discussion

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1.

Parties’ Positions

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Defendants argue that there is no genuine dispute of fact that Plaintiff failed to exhaust his

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administrative remedies against Defendant Jones as to any claims, or against Defendant Garcia as

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to any claims other than the use of excessive force by use of OC spray. (ECF No. 36.) Although

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Plaintiff filed a grievance regarding the incident that occurred, appeal number CCI-17-00502, he

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only alleged that he was assaulted by Defendant Garcia’s use of OC spray. Plaintiff did not

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allege any use of excessive force by Defendant Garcia other than the use of OC spray.

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Furthermore, Plaintiff did not name Defendant Jones specifically until he wrote a reply to the

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Second Level Appeal Response, and he did not allege that Defendant Jones used any physical

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force outside of the original allegations of the use of OC spray by “two officers.” Finally,

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Plaintiff was aware of the inmate appeals process, used it to submit a grievance regarding the

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incident at issue in this action, and the process was therefore available to him. (Id.)

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Plaintiff argues in opposition that appeal number CCI-17-00502 was fully exhausted as

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required, and any other appeals referenced by Defendants are irrelevant to this action. (ECF No.

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37.) Plaintiff states that he identified Defendant Jones during the second level review of CCI-17-

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00502 conducted by K. Armstrong, which is the appropriate time during the interview to add

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more information to the 602. Plaintiff alleges that at that time he identified Defendant Jones “as

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the officer whom attacked Plaintiff and slammed Plaintiff to the floor on his face in the A Facility

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Gym on January 24, 2017 at the California Correctional Institution.” (Id. at 2.) Plaintiff goes on

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to argue that the merits of this action are in dispute and must be decided by a jury. Plaintiff’s

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supplemental opposition largely reiterates the same arguments set forth in the original opposition.

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(See ECF No. 42.)

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In reply, Defendants argue that while Plaintiff may have alleged that Defendant Jones

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slammed him to the ground in other documents or interviews, such as his Medical Report from

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the date of the incident or his videotaped interview taken as part of a force review, Plaintiff never

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provided any information at any point during the appeals process that Defendant Jones grabbed

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him and slammed him to the ground. (ECF No. 43.) Plaintiff cannot rely on these allegations

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that were not part of the appeals process to support his allegation, and Plaintiff’s contention that
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simply naming Defendant Jones during the appeals process is not sufficient to exhaust his

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administrative remedies as to any allegation of excessive use of force by Defendant Jones or any

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excessive use of force other than the use of OC spray by any defendant. Finally, Defendants

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argue that Defendants’ motion should be granted based on Plaintiff’s failure to comply with Local

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Rule 260(b) in filing his opposition and supplemental opposition to the motion for summary

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judgment.

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2.

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Appeal Log No. CCI-17-00502

As the parties do not dispute that the grievance process was available to Plaintiff at the
relevant time, Plaintiff submitted a grievance related to the incident at issue in this action, (UMF

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12), or that Appeal Log No. CCI-17-00502 was appealed through the third and final level of

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review, (UMF 14), the remaining issue is whether CCI-17-00502 was sufficient to exhaust

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Plaintiff’s administrative remedies with respect to any claims against Defendant Jones or to any

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claims regarding the use of excessive force beyond the use of OC spray.4

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In completing CCI-17-00502, Plaintiff alleged that on January 24, 2017, he was preparing

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to complete a urinalysis when Defendant Garcia, along with two fellow officers, sprayed him in

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the face with OC spray without warning or provocation. (UMF 13.) Plaintiff identified

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Defendant Jones by name during a March 2, 2017 interview conducted at the second level. (UMF

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16.) However, Plaintiff “reiterated what was stated in the appeal” and apparently did not add any

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new information regarding Defendant Jones’ actions during the January 24, 2017 incident. (Id.;

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ECF No. 36-3, p. 13.)

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Despite Plaintiff’s contention in his opposition that he identified Defendant Jones during

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that interview as the officer who slammed Plaintiff to the floor on his face on January 24, 2017,

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Plaintiff does not point to any evidence in the record to demonstrate that prison officials were put

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on notice, during the appeals process itself, that Plaintiff was raising these allegations against

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Defendant Jones. Although Plaintiff complained that Defendant Jones slammed him to the

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As Plaintiff does not allege in the complaint, first amended complaint, or in his opposition or supplemental
opposition to Defendants’ motion for summary judgment, that Defendant Jones used OC spray against Plaintiff, the
Court does not consider any claims against Defendant Jones for the use of OC spray. Rather, the only claim
considered is the use of excessive force by Defendant Jones when he allegedly grabbed Plaintiff and slammed him to
the ground. (See ECF No. 15, pp. 2–3.)

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ground during the use of force review of the incident and in a medical report, this was not

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sufficient to place prison officials on notice that he wished to appeal that issue when Plaintiff

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filed an appeal complaining only about the use of OC spray.

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As Plaintiff states in his opposition, he was aware that the second level review interview

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was the appropriate time to add more information to his appeal, but the only information he

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apparently added was Defendant Jones’ name. Plaintiff’s opposition and supplemental

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opposition, though they are both signed under penalty of perjury, are insufficient on their own to

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raise a genuine issue of material fact regarding whether Plaintiff added information to his appeal

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about Defendant Jones slamming him to the ground during his second level review interview.

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F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as amended (Apr.

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11, 1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any supporting

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evidence, is insufficient to create a genuine issue of material fact.”). The Court therefore finds

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that Plaintiff failed to exhaust his administrative remedies as to any claim that Defendant Jones

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slammed him to the ground, or that Defendant Garcia used any force other than the use of OC

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spray.

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IV.

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Recommendation
Based on the foregoing, IT IS HEREBY RECOMMENDED as follows:
1. Defendant’s partial motion for summary judgment for failure to exhaust, (ECF No. 36), be
GRANTED;

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2. Defendant Jones be DISMISSED from this action;

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3. Plaintiff’s claims against Defendant Garcia regarding the use of excessive force, other

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than the use of OC spray, be DISMISSED from this action; and

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4. This action proceed only on Plaintiff’s claim against Defendant Garcia for excessive force

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in violation of the Eighth Amendment for spraying Plaintiff with OC spray on January 24,

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2017.

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***

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
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fourteen (14) days after being served with these Findings and Recommendations, the parties may

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file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 9, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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