United States District Court, E.D. California
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 21
RALPH R. BEISTLINE, District Judge.
Plaintiff Anthony Gaston, a state prisoner appearing pro se, filed a Complaint under 42 U.S.C. § 1983. At Docket 21 Defendant E. Morales filed a Motion for Summary Judgment contending Gaston has failed to exhaust his administrative remedies. Gaston has opposed the motion and Morales has replied. Morales has also responded to Gaston's opposition to Morales' statement of facts in support of his motion for summary judgment. The Court being fully advised in the matter, it is submitted for decision on the briefs without oral argument.
In his Complaint Gaston raised five claims. After screening, the Court permitted Gaston to proceed solely on his Eighth Amendment "excessive force" claim against Defendant Morales. All other claims and defendants were dismissed. In lieu of filing an answer Defendant moved for judgment on the pleadings,  which this Court denied without prejudice to moving for summary judgment. Defendant has so moved.
II. STANDARD OF REVIEW
Summary judgment is appropriate if, when viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment in its favor as a matter of law. Support and opposition to a motion for summary judgment is made by affidavit made on personal knowledge of the affiant, depositions, answers to interrogatories, setting forth such facts as may be admissible in evidence. In response to a properly supported motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue for trial. The issue of material fact required to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial. In order to show that a genuine issue of material fact exists a nonmoving plaintiff must introduce probative evidence that establishes the elements of the complaint. Material facts are those which may affect the outcome of the case. A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment." The evidence of the non-moving party is to be believed and all justifiable inferences are drawn in his favor. The moving party has the burden of showing there is no genuine issue of material fact; therefore, he bears the burden of both production and persuasion. The moving party, however, has no burden to negate or disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non-moving party's case. There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion.
In general, in ruling on a motion for summary judgment, a court may not weigh the evidence or judge the credibility of witnesses. Instead, it generally accepts as true statements made under oath. However, this rule does not apply to conclusory statements unsupported by underlying facts,  nor may the court draw unreasonable inferences from the evidence.
As relevant to the pending motion, the underlying facts are well known to the parties and are repeated here only to the extent required to understand the decision of this Court. The following summarizes the events underlying the complaint in chronological order:
January 19, 2010 - While incarcerated at Kern Valley State Prison ("KVSP") the incident giving rise to Gaston's Complaint against Morales occurred.
January 22, 2010 - Gaston was transferred to the California Medical Facility ("CMF").
March 15, 2010 - Gaston was transferred to the Salinas Valley State Prison ("SVSP").
May 13, 2010 - Gaston, submitted a CDCR 602 Inmate/Parolee Appeal Form styled as a "citizen's complaint" raising his excessive force claim. In that document the sole relief Gaston requested was that he be provided the names of each correctional officer involved in the forced extraction.
May 28, 2010 - Gaston's CDCR 602 "citizen's complaint" was screened out as untimely citing 15 CCR 3084.6(c),  and advising Gaston that if he "would like to pursue the matter further, you must submit an explanation and supporting documentation explaining why you did not or could not file your appeal timely." The response further stated: "[h]owever, due to the nature of the ...