(PC) Thomas v. Kern Valley State Prison

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD LEE THOMAS, Case No.: 1:21-cv-01675-JLT-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 KERN VALLEY STATE PRISON, et al., REGARDING EXHAUSTION 15 Defendants. (Doc. 32) 16 14-DAY OBJECTION PERIOD 17 Plaintiff Richard Lee Thomas is proceeding pro se and in forma pauperis in this civil 18 rights action. This action proceeds on Plaintiff’s Eighth Amendment excessive force claims 19 against Defendants Peralta and Sandoval and failure to intervene claim against Defendant 20 Melendez. 21 I. INTRODUCTION 22 On October 22, 2024, Defendants filed a timely motion for summary judgment alleging 23 Plaintiff failed to exhaust his administrative remedies. (Doc. 32.) When Plaintiff failed to file a 24 response to Defendants’ motion, the Court issued its Order to Show Cause (OSC) in Writing Why 25 Sanctions Should Not Be Imposed for Plaintiff’s Failure to File an Opposition or Statement of 26 Non-Opposition on November 19, 2024. (Doc. 33.) On December 13, 2024, the Court issued its 27 Order Directing Clerk of the Court to Modify Plaintiff’s Address of Record and to Re-Serve the 1 Order to Show Cause Issued November 19, 2024; Plaintiff was to respond within in 14 days. 2 (Doc. 34.) 3 On December 16 and December 23, 2024, Plaintiff filed responses to the OSC. (Docs. 35 4 & 37.) On December 30, 2024, Plaintiff filed an untitled document, addressed “To Whom It 5 Concerns.” (Doc. 38.) That document was docketed as an opposition to Defendants’ summary 6 judgment motion. On January 13, 2025, Defendants filed a timely reply to Plaintiff’s opposition. 7 (Doc. 39.)1 8 II. PLAINTIFF’S ALLEGATIONS 9 Plaintiff contends that on March 23, 2021, Defendant Melendez threatened to shoot him in the throat during a verbal altercation. 10 (Doc. 13 at 3.) He asserts this led to Defendants Peralta and Sandoval to stop Plaintiff in the yard as he went to get his morning medication. 11 (Id.) Plaintiff alleges they directed him to place his hands on the wall [and] patted him down in a body search. (Id.) Once Peralta and 12 Sandoval handcuffed Plaintiff, they threw him aggressively to the ground and unnecessarily beat him, “continually punching, kneeing 13 [and] elbowing” Plaintiff in the head from behind. (Id.) Plaintiff contends they forced his face into the “asphalt blacktop.” (Id. at 3-4.) 14 Plaintiff asserts Peralta and Sandoval “proclaimed an illegitimate Code 1 violation on their intercom radios,” falsely reporting battery 15 on a peace officer. (Id. at 4.) Plaintiff alleges Melendez watched Peralta and Sandoval “use unnecessary roughness and utitlize/assert 16 police brutality in a malevolent, cruel & unusual, sadistic manner.” (Id.) 17 Plaintiff contends that after the radio call, “more officers” responded 18 and “began to partake in the criminally intentional & negligent acts of policy brutality, by dropping knees” on Plaintiff while he lie 19 prone. (Doc. 13 at 4.) Plaintiff asserts he was non-confrontational, cooperative and compliant throughout the incident. (Id.) Plaintiff 20 alleges he “was even yelling and shouting statements & claims of brutal police misconduct.” (Id.) He contends the official rules 21 violation reports were “corroboratively fabricated falsely & illegally in a framing of assault on officers.” (Id.) Plaintiff states camera 22 footage and photographs show his “swollen face, and the scuffs and blood on officers knuckles & knees.” (Id. at 5.) Plaintiff asserts 23 neither pepper spray nor batons were used because he was “complacent & compliant.” (Id.) 24 25 (See Doc. 14 at 3-4 [Second Screening Order].) 26 27 1 On February 19, 2025, the Court issued its Order Granting Defendants’ Second Ex Parte Application to Modify the Discovery and Scheduling Order, extending the deadline for filing dispositive motions to 45 days “after the order addressing the pending exhaustion motion is issued, if necessary.” (Doc. 41.) 1 III. SUMMARY OF THE PARTIES’ POSITIONS 2 Defendants’ Summary Judgment Motion re Exhaustion 3 Defendants contend Plaintiff did not properly exhaust available administrative remedies 4 regarding his claims against Defendants Peralta, Sandoval, and Melendrez. Specifically, 5 Defendants assert Plaintiff failed to exhaust any relevant non-health care grievance, including 6 three non-health care grievances concerning the alleged use of force incident giving rise to his 7 claims in this action. Further, Defendants maintain that administrative remedies were available to 8 Plaintiff, but Plaintiff failed to avail himself of that process. Finally, to the extent this Court were 9 to find a genuine dispute of material fact regarding exhaustion, Defendants ask the Court to hold 10 an Albino2 hearing. 11 Plaintiff’s Opposition 12 Plaintiff acknowledges he failed to exhaust his administrative remedies to the highest 13 level regarding his claims against Defendants but contends that failure is irrelevant. He claims 14 “criminal activity needs to be reported and dealt with accordingly” and because he could not trust 15 the California Department of Corrections and Rehabilitation (CDCR) “and its form of 16 administrative resolutions,” he elected to file a complaint. Plaintiff states that he finds “it absurd 17 that the focus of this civil complaint is being directed at [his] failure to exhaust administrative 18 remedies” when the Defendants are “getting away with” committing a crime against him. Plaintiff 19 states that the “appropriate solution” was to “do exactly what [he has done],” by taking “legal 20 action, in prosecuting a case against criminally active police officers.” Plaintiff asserts that 21 although he has tried to find a lawyer to represent him, “there aren’t any laws in place which call 22 for the need for proper representation for civil claims litigators” such as himself, allowing for a 23 lack of accountability from “criminal cops” and “no such thing as actual justice.” 24 Defendants’ Reply 25 Defendants contend that Plaintiff fails to show administrative remedies were unavailable 26 to him. Defendants assert Plaintiff’s alleged failure to understand the CDCR grievance process is 27 2 1 unpersuasive because Plaintiff was specifically advised of the relevant second level procedure 2 following denial of his grievances at the institutional level. Plaintiff’s argument that his failure to 3 exhaust his administrative remedies is irrelevant is also improper because the Prison Litigation 4 Reform Act (PLRA) requires exhaustion prior to filing suit. Defendants ask this Court to grant the 5 summary judgment motion “based on Plaintiff’s admitted failure to exhaust.” 6 IV. APPLICABLE LEGAL STANDARDS 7 A. Summary Judgment 8 Summary judgment is appropriate when the moving party “shows that there is no genuine 9 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 10 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 11 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 12 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by 13 “citing to particular parts of materials in the record, including depositions, documents, 14 electronically stored information, affidavits or declarations, stipulations …, admissions, 15 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 16 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 17 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 18 the burden of proof at trial, “the moving party need only prove that there is an absence of 19 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 20 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 21 Summary judgment should be entered against a party who fails to make a showing 22 sufficient to establish the existence of an element essential to that party’s case, and on which that 23 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 24 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 25 facts immaterial.” Id. at 322-23. In such a circumstance, summary judgment should be granted, 26 “so long as whatever is before the district court demonstrates that the standard for the entry of 27 summary judgment … is satisfied.” Id. at 323. 1 B. Exhaustion of Administrative Remedies 2 The PLRA provides that “[n]o action shall be brought with respect to prison conditions 3 under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or 4 other correctional facility until such administrative remedies as are available are exhausted.” 42 5 U.S.C. § 1997e(a). Exhaustion of administrative remedies is mandatory and “unexhausted claims 6 cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). Inmates are required to 7 “complete the administrative review process in accordance with the applicable procedural rules, 8 including deadlines, as a precondition to bringing suit in federal court.” Woodford v. Ngo, 548 9 U.S. 81, 88, 93 (2006). 10 The exhaustion requirement applies to all inmate suits relating to prison life, Porter v. 11 Nussle, 534 U.S. 516, 532 (2002), regardless of the relief sought by the prisoner or offered by the 12 administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). 13 The failure to exhaust administrative remedies is an affirmative defense, which the 14 defendant must plead and prove. Jones, 549 U.S. at 204, 216. The defendant bears the burden of 15 producing evidence that proves a failure to exhaust; and, summary judgment is appropriate only if 16 the undisputed evidence, viewed in the light most favorable to the plaintiff, shows the plaintiff 17 failed to exhaust. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 18 On a motion for summary judgment, the defendant must prove (1) the existence of an 19 available administrative remedy and (2) that the plaintiff failed to exhaust that remedy. Albino, 20 747 F.3d at 1172 (citation omitted). If the defendant meets this burden, the plaintiff then “has the 21 burden of production. That is, the burden shifts to the prisoner to come forward with evidence 22 showing that there is something in his particular case that made the existing and generally 23 available administrative remedies effectively unavailable to him.” Id. (citation omitted). 24 “However, … the ultimate burden of proof remains with the defendant.” Id. 25 An inmate “need not exhaust unavailable [remedies].” Ross v. Blake, 578 U.S. 632, 642 26 (2016). An administrative remedy is unavailable “when (despite what regulations or guidance 27 materials may promise) it operates as a simple dead end with officers unable or consistently 1 opaque that it becomes, practically speaking, incapable of use, [i.e.,] some mechanism exists to 2 provide relief, but no ordinary prisoner can discern or navigate [the mechanism]”; or “when 3 prison administrators thwart inmates from taking advantage of a grievance process through 4 machination, misrepresentation, or intimidation.” Id. at 643-44. 5 When the district court concludes that the prisoner has not exhausted administrative 6 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 7 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 8 Albino, 747 F.3d at 1168-69. 9 “If a motion for summary judgment is denied, disputed factual questions relevant to 10 exhaustion should be decided by the judge.” Albino, 747 F.3d at 1170. If the court finds that 11 remedies were not available, the prisoner exhausted available remedies, or the failure to exhaust 12 available remedies should be excused, the case proceeds to the merits. Id. at 1171. 13 C. CDCR Grievance Process 14 The CDCR has an administrative grievance system for prisoners to appeal a policy, 15 decision, action, condition, or omission by the department or staff if it has an adverse effect on 16 prisoner health, safety, or welfare. Prior to June 2020, the grievance process involved three levels 17 of review. Cal. Code Regs. tit. 15, §§ 3084-85. As of June 1, 2020, prisoners are required to 18 follow a two-level review procedure. Cal. Code Regs. tit. 15, §§ 3480-3487. Compliance with 42 19 U.S.C. § 1997e(a) requires California-state prisoners to utilize CDCR’s grievance process to 20 exhaust their claims prior to filing suit in court. See Sapp v. Kimbrell, 623 F.3d 813, 818 (9th Cir. 21 2010); see also Woodford, 548 U.S. at 85-86. 22 V. EVIDENTIARY MATTERS 23 Plaintiff has failed to properly respond to Defendants’ Statement of Undisputed Facts in 24 support of the motion for summary judgment. Plaintiff was served with a Rand3 warning that 25 included the following language: 26 In accordance with Local Rule 260(a), Defendants have filed a Statement of Undisputed Facts that contains discrete, specific 27 3 Rand v. Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc). 1 material facts to support their entitlement to summary judgment. In response to this Statement, Local Rule 260(b) requires you to 2 “reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are 3 disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, 4 admission, or other document relied upon in support of that denial.” You may also “file a concise Statement of Disputed Facts, and the 5 source thereof in the record, of all additional material facts as to which there is a genuine issue precluding summary judgment or 6 adjudication.” Id. You are responsible for filing all evidentiary documents cited in the opposing papers. Id. 7 8 (Doc. 32-3 at 3.) Plaintiff neither reproduced Defendants’ itemized facts, nor admitted or denied 9 those facts. Because Plaintiff has not complied with Rule 260(b), the Court deems Plaintiff to 10 have admitted those facts. See, e.g., Beard v. Banks, 548 U.S. 521, 527 (2006) (“by failing 11 specifically to challenge the facts identified in the defendant's statement of undisputed facts, 12 [plaintiff] is deemed to have admitted the validity of the facts contained in the [defendant's] 13 statement.”); Brito v. Barr, No. 2:18-cv-00097-KJM-DB, 2020 WL 4003824, at *6 (E.D. Cal. 14 July 15, 2020) (deeming defendant's undisputed facts as admitted after plaintiff failed to comply 15 with Local Rule 260(b)); see also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). 16 Nevertheless, where Plaintiff’s verified complaint or evidence submitted in support of any 17 opposition to Defendants’ motion for summary judgment bring Defendants’ proffered facts into 18 dispute, the Court considered the complaint and any evidence. Jones, at 923 (the court considers 19 as evidence those parts of the verified complaint based on plaintiff’s personal knowledge). 20 VI. DEFENDANTS’ STATEMENT OF UNDISPUTED FACTS 21 1. Plaintiff Richard Thomas is an incarcerated person in the custody of the CDCR, and at 22 all times relevant to the First Amended Complaint (FAC) was incarcerated at Kern 23 Valley State Prison (KVSP). 24 2. At all times relevant to the FAC, Defendants Peralta, Sandoval, and Melendrez were 25 employed by CDCR as correctional officers. 26 3. Plaintiff filed the operative FAC on February 8, 2023. 27 4. The Court screened the FAC under 28 U.S.C. § 1915A(a) and found that, when liberally construed, it alleged a cognizable Eighth Amendment excessive force claim 1 against Defendants Peralta and Sandoval, and a failure to intervene claim against 2 Defendant Melendrez. 3 5. At all times relevant to this action, CDCR required incarcerated persons to use an 4 administrative grievance/appeal process to bring health care and non-health care 5 related claims. 6 6. The Health Care Correspondence and Appeals Branch (HCCAB) receives, reviews, 7 and maintains all health care related appeals (medical, dental, and mental health) while 8 the Office of Appeals (OOA) receives, reviews, and maintains all appeals not related 9 to health care issues. 10 7. At all times relevant to this action, the grievance/appeal process to exhaust 11 administrative remedies was available to Plaintiff. 12 8. Title 15 of the California Code of Regulations governs the inmate appeal/grievance 13 process for non-health care issues. Between June 1, 2020, and December 31, 2021, an 14 incarcerated person was required to follow the procedures set forth in California Code 15 of Regulations, title 15, sections 3480-3487, when submitting a non-health care related 16 grievance/appeal. 17 9. The administrative remedy process for non-health care grievances has two levels of 18 review. At the first level of review, the process requires the incarcerated person to 19 submit a grievance in writing to the Institutional Office of Grievances (OOG) at the 20 prison, reentry facility, or fire camp where they are housed within thirty (30) days of 21 discovering an adverse policy, decision, action, condition, or omission of CDCR or its 22 staff. 23 10. If the incarcerated person wishes to appeal the OOG’s decision to the second level of 24 review, then they may do so in writing to the OOA. 25 11. A decision from the OOA represents the final level of review in CDCR’s grievance 26 and appeal process for non-health care related issues. 27 12. Under the regulations, a claim is not deemed exhausted if it is rejected. 1 submitted forty-one (41) non-health care grievances to the OOG at KVSP. 2 14. Based on Plaintiff’s Appeal History Report, Plaintiff only submitted three (3) of these 3 non-health care grievances to the OOA for final level review. 4 15. None of the three (3) grievances submitted to the OOA for final level review during 5 the Relevant Period, identified as Appeal Log Nos. KVSP 150182, KVSP 161515, and 6 KVSP 175770, contained allegations against Defendants Peralta, Sandoval, and 7 Melendrez related to a March 23, 2021, use-of-force incident. 8 16. Plaintiff filed Grievance Log No. 161515 on September 8, 2021. Therein, Plaintiff 9 complained about the denial of phone privileges. 10 17. The OOG denied Grievance Log No. 161515 on October 27, 2021, and Plaintiff 11 appealed the denial decision to the OOA on December 16, 2021. 12 18. The appeal of Grievance Log No. 161515 alleged that Plaintiff had lost his phone 13 privileges “because of a fight.” The appeal also alleged that Plaintiff was the “victim 14 in the case” and had fought in self-defense. 15 19. The OOA received the appeal of Grievance Log No. 161515 on December 20, 2021, 16 and rejected it as untimely on February 3, 2022. 17 20. During the Relevant Period, Plaintiff filed three (3) non-health care grievances with 18 the OOG that related to the March 23, 2021, incident at issue in this action: Grievance 19 Log No. KVSP 126205; Grievance Log No. KVSP 165121; and Grievance Log No. 20 KVSP 178196. 21 21. Plaintiff submitted Grievance Log No. KVSP 126205 on June 7, 2021, while he was 22 housed in the short-term restricted housing (STRH) unit at KVSP. 23 22. Grievance Log No. KVSP 126205 alleged that Plaintiff sought to follow up on a 24 request for legal assistance that he purportedly made “around the end of March, 25 regarding a matter of police brutality.” Plaintiff indicated that he had filed an “original 26 602 form multiple times” concerning alleged violations of his due process rights; 27 however, Plaintiff averred that he did not know if the 602 form was turned in because 1 had been “illegally set up” for battery on a peace officer during the “police brutality 2 incident.” 3 23. The KVSP OOG received Grievance Log No. KVSP 126205 on June 8, 2021, and 4 responded to the Plaintiff’s claims on June 11, 2021. 5 24. The OOG rejected the claim in Grievance Log No. KVSP 126205, specifically 6 pertaining the alleged use-of-force issue arising on March 23, 2021, as untimely. 7 25. The OOG response to Grievance Log No. KVSP 126205 indicated that, if Plaintiff 8 was dissatisfied with the June 11, 2021 response, he could appeal the rejection 9 decision to the OOA. 10 26. Plaintiff did not submit Grievance Log No. KVSP 126205 to the OOA for review. 11 27. There is no record that Plaintiff submitted any non-health care grievance(s) in March 12 or April of 2021. 13 28. Plaintiff submitted Grievance Log No. KVSP 165121 to the OOG on September 9, 14 2021. 15 29. Grievance Log No. KVSP 165121 contained allegations pertaining to the incident on 16 March 23, 2021, and the subsequent handling of Plaintiff’s personal property. Plaintiff 17 claimed that he wanted Officers Sandoval, Peralta, Melendrez, and others to be 18 charged with illegal search/seizure, aggravated assault, and the wrongful withholding 19 of Plaintiff’s property. Plaintiff also alleged that he was “brutalized” by numerous 20 officers on March 23, 2021, during a “set up incident.” 21 30. The OOG received Grievance Log No. KVSP 165121 on September 16, 2021, and 22 responded to the grievance on the same day. 23 31. The OOG determined that Grievance Log No. KVSP 165121 raised a claim regarding 24 the alleged use-of-force incident on March 23, 2021. Because the claim was not 25 submitted within the 30-day time frame required by the regulations and was 26 duplicative of Plaintiff’s prior use-of-force allegations raised in Grievance Log No. 27 KVSP 126205, the OOG rejected the claim. 1 dissatisfied with the response to Grievance Log No. KVSP 165121, he could appeal 2 the rejection decision to the OOA. 3 33. Plaintiff did not submit Grievance Log No. KVSP 165121 to the OOA for review. 4 34. Plaintiff submitted Grievance Log No. 178196 on October 20, 2021, while Plaintiff 5 was housed in the STRH unit at KVSP. 6 35. In Grievance Log No. 178196, Plaintiff requested a video recorded interview 7 regarding the March 23, 2021, incident. Plaintiff alleged that he had “incriminating 8 evidence” regarding the officers involved in the incident and wanted this information 9 placed on the record. 10 36. The OOG rejected the claim in Grievance Log No. 178196 as untimely on October 21, 11 2021, and indicated that Plaintiff could appeal the rejection decision to the OOA. 12 37. Plaintiff did not appeal Grievance Log No. KVSP 178196 to the OOA for review. 13 (See Doc. 32-2.) 14 VII. GRIEVANCES AND APPEALS DURING THE RELEVANT PERIOD 15 Here, the relevant period involves March 23, 2021 (the date of the incident giving rise to 16 Plaintiff’s claims) through February 8, 2023 (the date that Plaintiff filed the FAC). For ease of 17 reference, the Court will refer to the relevant grievances by their numerical portion only and to 18 the relevant appeals by the last six digits only. 19 Grievance Log Number 126205 20 Plaintiff signed this grievance June 7, 2021. (Doc. 32-4 at 9.) Plaintiff explains he is 21 following up on his “request to be appointed a civil rights advocate” and references filing an 22 “original 602 form [illegible] times informing the [illegible] system of the criminal justice system 23 violating” his due process rights. (Id.) He states he requested “due representation around end of 24 March regarding matter of police brutality.” (Id.) Plaintiff asserts he was “illegally set up for [an] 25 alleged battery on a peace officer during a police brutality incident,” that he “requested assistance 26 of counsel through a D.A. as the plaintiff in the matter,” and that his “demands of the criminal 27 justice system’s corrupt ways are being heard out.” (Id.) He asserts that he has “rights and they’re 1 [he was] placed in the ASU” and it had “been 3 months.” (Id.) 2 Plaintiff demands a fair and speedy trial, states his civil rights had been violated and he 3 wishes “to press serious charges against specific officers in the CDCR for their corruption,” states 4 he would “have to sue for damages … because the criminal justice system is being corruptly 5 manipulated against,” and that he does not the financial means to retain an attorney but had the 6 right to representation following false accusations. (Doc. 32-4 at 9.) The grievance was received 7 at the institutional level —by the OOG at KVSP—the following day. (Id.) 8 On June 11, 2021, the OOG responded. (Doc. 32-4 at 10.) Plaintiff was advised his 9 complaint “concerning Offender Services; Other Services – NOS” (Plaintiff’s complaints 10 involving state criminal proceedings) was reviewed and determined to be outside the OOG’s 11 jurisdiction. (Id.) Plaintiff was advised he could not resubmit that complaint because the OOG 12 “only addresses grievances that are against the Department or departmental staff.” (Id.) Regarding 13 Plaintiff’s use of force claim, it was rejected because he “did not submit the claim within the time 14 frame required,” or no later than April 22, 2021. (Id.) Plaintiff was further advised: “If you are 15 dissatisfied with this response, you may appeal the rejection decision to CDCR’s Office of 16 Appeals.” (Id.) 17 Plaintiff did not appeal the institutional level response to the Office of Appeals, or OOA. 18 (See Doc. 32-4 at 5:17-18.) 19 Grievance & Appeal Log Number 150182 20 Plaintiff grievance is signed August 7, 2021. (Doc. 32-5 at 16.) Plaintiff identifies the 21 subject as “Items that were lost in translation or stolen.” (Id.) He explains that he had “just left the 22 ASU” and discovered “practically half” of his property did not follow him to his new housing 23 unit. (Id.) He states there is “important valuable property listed in [his] personal property.” (Id.) 24 Plaintiff also states he wants “to sue and press charges on these corrupt officers who are doing 25 things of this nature all over the CDCR,” that such action had “gone on long enough” and that 26 those involved “need to be sentenced/incarcerated according to severity/nature of their crimes.” 27 (Id.) Plaintiff explains he did not attach supporting documents because the “computer system is 1 how, the reports are written, who, what, when, where, how & why, need to investigate internal 2 affairs.” (Id.) 3 In the institutional decision by the OOG, dated September 4, 2021, Plaintiff’s claim was 4 “Disapproved” based on interviews with staff and Plaintiff, and a signed CDCR 1083 Inmate 5 Property Inventory form was signed by Plaintiff, “acknowledging all his property was inventoried 6 and accounted for prior to” his release “to Facility ‘C’ from STRH/ASU1.” (Doc. 32-5 at 15.) 7 Plaintiff was advised: “If you are dissatisfied with the decision of this claim, you may file a 602- 8 2, appeal with the California Department of Corrections and Rehabilitation Office of Appeals.” 9 (Id.) 10 Plaintiff’s appeal is dated September 13, 2021. (Doc. 32-5 at 11-12.) Plaintiff explains he 11 is dissatisfied with the response he was given because the property referenced in his grievance 12 concerns property “moved into the ASU” rather than the property in his possession when he left 13 ASU, noting the “shit you stole from me before I was put in the hole. My guitar and shit like 14 that.” (Id.) Plaintiff states he was “suing so just know this is on the record.” (Id.) Plaintiff 15 identified the “3-23-21 RVR logs” written by “Pitchford and Melendrez & Sandoval” as 16 documents supporting his position that he was assaulted by staff. (Id.) 17 On December 6, 2021, the OOA responded indicating it received the claim on October 6, 18 2021, and that because “California Code of Regulations, title 15” provides the OOA has “60 19 calendar days to complete a response,” “this response … will be the only response” due to the 20 expiration of that period. It reads: “Decision: Time Expired.” (Doc. 32-5 at 10.) 21 Grievance & Appeal Log Number 161515 22 Plaintiff grievance is signed September 7, 2021. (Doc. 32-5 at 26.) Plaintiff identified the 23 subject as “Phone ‘Privileges’ being denied illegally.” (Id.) He explained he was “being illegally 24 retaliated against by uniformed public officials …” and generally asserted “illegal misconduct,” 25 “treason,” “surveillance, torture.” (Id.) Plaintiff asserted that “manipulation of the legal system as 26 uniformed police officials punishable by death, under penalty of perjury.” (Id.) 27 In an institutional decision by the OOG dated October 27, 2021, Plaintiff’s claim of 1 thorough review of all documents and evidence presented.” (Doc. 32-5 at 24.) The decision noted 2 Plaintiff received his allowed phone call for that month on September 5, 2021, at 10:45 a.m. (Id.) 3 Plaintiff was again advised: “If you are dissatisfied with the decision of this claim, you may file a 4 602-2, appeal with the California Department of Corrections and Rehabilitation Office of 5 Appeals.” (Id. at 25-26.) 6 Plaintiff’s related 602-2 form is not signed or dated. (Doc. 32-5 at 19-20.) Plaintiff states 7 he was “the victim in the case” and was “was attacked and fought in self-defense.” Plaintiff states 8 he should not have been “placed on L&P for any reason at all because” he was the “victim in 9 incident” and has the right to defend himself. (Id. at 19.) Plaintiff sets forth his dissatisfaction for 10 losing his phone privileges “because of a fight” in which he “fought in self defense so” he should 11 not have been denied his “phone opportunity.” (Id. at 20.) Plaintiff contends “RVR reports on 12 incident & even health records from that day” support his position. (Id.) 13 On February 3, 2022, the OOA responded stating Plaintiff’s “claim is being rejected.” It 14 reasoned that Plaintiff “did not submit the claim within the timeframe required … The date you 15 received a claim decision response from the Department was 10/27/2021; the date you submitted 16 this claim was 12/16/2021. You should have submitted your claim on or before 11/26/2021 to 17 meet the 30 calendar day requirement ….” (Doc. 32-5 at 18.) It reads: “Decision: Rejected.” (Id.) 18 Grievance Log Number 165121 19 Plaintiff signed this grievance September 12, 2021. (Doc. 32-4 at 13 [Ex. 2 to Redmon 20 Decl.].) Plaintiff explains he “was brutalized” by “Sandoval, Peralta, Pitchford, J. Gomez- 21 Betancourt and other nameless officials” on March 23, 2021. (Id.) He alleges he “was grouped up 22 on illegally” and “manipulated by Melendez” in a “fabricated, instigated, setup incident.” (Id.) 23 Plaintiff also contends his “property was illegally confiscated after police brutality incident … by 24 Greenwall officers, in a criminally derelict, treacherous act of negligent abuse of power & 25 treason.” (Id.) He states that false charges were “pending” and he needs the “culprits detained” 26 and his property returned. (Id.) Plaintiff contends the illegal seizure of his property became “a 27 strong arm robbery,” and that half of his property “was tampered with.” (Id.) 1 same date, Plaintiff’s use of force claim was rejected as untimely and duplicative of the claim in 2 log number 126205. (Id.) Plaintiff was advised: “If you are dissatisfied with this response, you 3 may appeal the rejection to CDCR’s Office of Appeals.” (Id.) His property claim was also 4 rejected as untimely and “substantially duplicative of a prior claim” and the advisement was 5 repeated. (Id.) 6 Plaintiff did not appeal the institutional level response to the Office of Appeals, or OOA. 7 (See Doc. 32-4 at 6:11-13.) 8 Grievance & Appeal Log Number 175770 9 Plaintiff grievance is signed October 13, 2021. (Doc. 32-5 at 32.) Plaintiff alleges issues 10 with his property “for the last 2 1/2 to 3 months,” that requests to be issued “a property 11 confiscation receipt” or “confiscation slip” so he could order new property and receive a “1-for-1 12 exchange.” (Id.) He states that “Bess & Castellanos” had his property, that it is “illegal as hell,” 13 and involves “dereliction,” “desertion of duty negligently” and “unproductive improper 14 improcedural [sic] protocol.” (Id.) Plaintiff states if he does not receive “confiscation receipts” he 15 will sue and is “pressing lawsuit charges already against Sandoval, Peralta, Melendrez & 16 Pitchford.” (Id.) He notes “items such as T.V., hot pot, Koss CL-205, C.D. player, electric shaver, 17 guitar & clothes items/canteen.” (Id.) 18 Plaintiff’s related 602-2 form was signed October 18, 2021. (Doc. 32-5 at 29.) Plaintiff 19 generally alleges he filed a grievance regarding the property issues “during last ASU term,” it was 20 “not the first time” he filed a grievance on the matter, and he was “just being played technical 21 games with though.” (Id.) He states he is “suing and this is on the record with separate log #s 22 too.” (Id.) Plaintiff states: “Either give me my property back give me property confiscation 23 receipt for the property you’re not giving me back, or take that off my personal property list so I 24 can have new property bought and administered to me without any complications.” (Id.) 25 In the decision by the OOA, dated January 1, 2022, Plaintiff’s claim was “Denied” as 26 untimely. (Doc. 32-5 at 28.) The decision noted that since Plaintiff “became aware of the issue” 27 giving rise to the claim on August 5, 2021, the claim should have been submitted no later than 1 see also Doc. 32-4 at 21 [Offender Grievances/Appeals; reflecting “OOA Decision – Denied”].) 2 Grievance Log Number 178196 3 Plaintiff signed this grievance on October 10, 2021. (Doc. 32-4 at 17.) Plaintiff states that 4 he needed “to report a video recorded statement regarding matter that occurred 3-23-21 alleged 5 battery on peace officer case.” (Id.) He alleges “incriminating evidence intel regarding criminally 6 active officers” exists and he is “suing for financial compensation & need the information on the 7 record for D.A. reference in prosecuting.” (Id.) The grievance was received at the institutional 8 level the following day. (Id.) 9 On October 21, 2021, the institutional response rejected Plaintiff’s use of force claim as 10 untimely, noting such a claim should have been submitted by April 22, 2021, following an 11 incident on March 23, 2021. (Doc. 32-4 at 18.) Plaintiff was again advised that if he was 12 “dissatisfied” he could appeal the response to the OOA. (Id.) Plaintiff did not appeal the 13 institutional level response to the OOA. (See Doc. 32-5 at 7.) 14 VIII. DISCUSSION 15 The Court must determine whether Plaintiff exhausted his administrative remedies 16 regarding his Eighth Amendment claims of excessive force against Defendants Peralta and 17 Sandoval and failure to protect claim against Defendant Melendez. 18 Plaintiff does not contend he exhausted his administrative remedies. Instead, he 19 acknowledges he did not do so because he did not understand the process, he cannot trust CDCR, 20 and that exhaustion is irrelevant. As such, Plaintiff has effectively admitted a failure to exhaust 21 his administrative remedies. Additionally, the Court is not persuaded by Plaintiff’s statement that 22 he did not understand the relevant process or that he could not trust CDCR, as discussed below. 23 Furthermore, contrary to Plaintiff’s argument that administrative exhaustion is irrelevant, 24 exhaustion of administrative remedies is a mandatory requirement of the PLRA. 42 U.S.C. § 25 1997e(a); see also Jones, 549 U.S. at 211; Woodford, 548 U.S. at 88, 93; Rhodes, 621 F.3d at 26 1005. 27 Despite Plaintiff’s admission that he failed to exhaust his administrative remedies, the 1 A. Plaintiff Has Failed to Exhaust His Administrative Remedies 2 Following review, the Court notes log numbers 150182, 161515, and 175770 do not 3 involve Plaintiff’s complaints regarding excessive force or a failure to protect. Rather, these 4 grievances and/or appeals relate to property issues that are not a subject of this action. Therefore, 5 although Plaintiff exhausted his administrative remedies as to log numbers 161515 and 175770, 6 none of these grievances or appeals exhaust his Eighth Amendment claims against Defendants. 7 Log numbers 126205, 165121, and 178196 relate to Plaintiff’s claims in this action, 8 alleging violations of the Eighth Amendment. Plaintiff failed to appeal the denial of log numbers 9 126205, 165121, and 178196 at the institutional level to the headquarters level or OOA. See UDF 10 15; see also Doc. 32-4 at 5:17-18, 6:11-13 & Doc. 32-5 at 7. Thus, Plaintiff’s claims in this action 11 are unexhausted. 42 U.S.C. § 1997e(a); Jones, 549 U.S. at 211 (exhaustion is mandatory). 12 B. Defendants Have Met Their Initial Burden 13 Based upon the foregoing, the Court finds Defendants have met their initial burden of 14 showing there is no genuine issue of material of fact because there exists an available 15 administrative remedy and Plaintiff failed to exhaust his administrative remedies regarding his 16 Eighth Amendment claims against Defendants Peralta, Sandoval, and Melendez. See In re Oracle 17 Corp. Sec. Litig., 627 F.3d at 387; Albino, 747 F.3d at 1172. 18 C. Plaintiff Has Failed to Meet His Burden of Production 19 Because Defendants have met their initial burden, the burden shifts to Plaintiff “to come 20 forward with evidence showing that there is something in his particular case that made the 21 existing and generally available administrative remedies effectively unavailable to him.” Albino, 22 747 F.3d at 1172. Plaintiff has not done so. 23 As an initial matter, Plaintiff admits he did not exhaust his administrative remedies, but 24 essentially argues his failure to do so is irrelevant. As noted above, exhaustion is mandatory, and 25 Plaintiff must exhaust his claims against any defendant before filing suit. 42 U.S.C. § 1997e(a); 26 see also Jones, 549 U.S. at 211; Woodford, 548 U.S. at 88, 93; Rhodes, 621 F.3d at 1005. 27 Second, Plaintiff makes no showing or assertion that administrative remedies were 1 the grievance procedure operates as a simple dead end or is incapable of use, or that prison 2 officials thwarted his attempts to use the grievance process through machination, 3 misrepresentation, or intimidation. Ross, 578 U.S. at 643-44; Sapp, 623 F.3d at 823-24. Plaintiff 4 has failed to “come forward with evidence showing that there is something in his particular case 5 that made the existing and generally available administrative remedies effectively unavailable to 6 him.” Albino, 747 F.3d at 1172. 7 To the extent Plaintiff contends he did not understand the grievance process, the record 8 establishes otherwise. Plaintiff was advised several times that if he was dissatisfied with the 9 institutional responses received from KVSP, he could appeal that outcome to the OOA, but failed 10 to appeal the denials. See Docs. 32-4 at 10, 14, 18 & 32-5 at 15, 24, 28; UDF 15. 11 D. Summary of Findings 12 In sum, Defendants met their initial burden to establish there is no genuine issue of 13 material fact in dispute. Plaintiff failed to set forth evidence showing his failure to exhaust 14 administrative remedies should be excused. In fact, Plaintiff admits his failure to exhaust. 15 Therefore, Defendants have met their ultimate burden to show Plaintiff failed to exhaust his 16 administrative remedies regarding his Eighth Amendment claims against Defendants Peralta, 17 Sandoval, and Melendez prior to filing suit. Thus, this Court will recommend Defendants’ motion 18 for summary judgment be granted. 19 V. CONCLUSION AND RECOMMENDATION 20 Based upon the foregoing, the Court HEREBY RECOMMENDS that: 21 1. Defendants’ motion for summary judgment regarding exhaustion (Doc. 32) be 22 GRANTED; 23 2. This action be DISMISSED, without prejudice, for failure to exhaust administrative 24 remedies; and 25 3. The Clerk of the Court be DIRECTED to enter judgment accordingly and to close 26 this case. 27 These Findings and Recommendations will be submitted to the United States District 1 after being served with a copy of these Findings and Recommendations, a party may file written 2 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 3 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 4 without leave of Court and good cause shown. The Court will not consider exhibits attached to 5 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 6 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 7 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 8 may be disregarded by the District Judge when reviewing these Findings and Recommendations 9 under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time 10 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 11 Cir. 2014). 12 IT IS SO ORDERED. 13 14 Dated: May 6, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27