United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel in this action
brought pursuant to 42 U.S.C. § 1983. Defendants move
for summary judgment, arguing that plaintiff failed to
exhaust his available administrative remedies before filing
suit. ECF No. 46. For the reasons that follow, the court must
grant the motion in part and defer ruling on the remainder
pending additional filings by the parties.
who is incarcerated at R.J. Donovan Correctional Facility,
alleges Eighth Amendment claims against defendant
correctional officers at Mule Creek State Prison
(“MCSP”). ECF No. 1. Plaintiff claims that, on
various occasions in March and May 2016 defendants assaulted
him physically and sexually, gave him razor blades to
encourage him to kill himself, and repeatedly interfered with
his meals. Id. He seeks money damages and an order
that he be transferred out of MCSP, among other injunctive
relief. Id. at 15-16.
have submitted undisputed evidence of the following facts in
support of their argument that plaintiff did not exhaust his
available administrative remedies:
1. On May 8, 2016, plaintiff submitted an inmate grievance
(aka “602”), log no. MCSP-16-01365, alleging
that: (1) defendants Garcia and Watson battered and sexually
assaulted him on March 10, 2016; (2) defendants Winkfield and
Garcia battered and sexually assaulted him on March 11, 2016;
(3) defendants Winkfield and Garcia gave him razor blades on
May 5 and 6, 2016 to encourage him to kill himself; and (4)
correctional staff were refusing to provide him with meals.
ECF No. 46-3, Defs.' Statement of Undisputed Facts
(hereinafter “DUF”) Nos. 2-4; ECF No. 46-4, Decl.
of M. Voong, ¶¶ 4-5; ECF No. 46-4 at 7-9.
2. On May 10, 2016, plaintiff was interviewed regarding
grievance MCSP-16-01365. DUF No. 5; ECF No. 46-4 at 11-12.
3. On May 19, 2016, grievance MCSP-16-01365 was forwarded
directly to the second level of review to be addressed as a
staff complaint. DUF No. 6; ECF No. 46-4 at 7.
4. Plaintiff was again interviewed on June 7, 2016. DUF No.
7; ECF No. 46-4 at 12.
5. On June 12, 2016, plaintiff submitted another grievance,
log no. MCSP-16-01704, alleging that defendant Winkfield was
threatening and harassing him and interfering with his food.
DUF No. 8; ECF No. 46-4 at 33-34.
6. On June 22, 2016, grievance MCSP-16-01365 was denied at
the second level of review. DUF No. 9; ECF No. 46-4 at 5-6.
7. Plaintiff submitted grievance MCSP-16-01365 to the third
level of review on July 6, 2016. DUF No. 10; ECF No. 46-4 at
8. Plaintiff was interviewed in connection with MCSP-16-01704
on July 9, 2016. DUF No. 11; ECF No. 46-4 at 35.
9. MCSP-16-01704 was denied at the second level of review on
July 15, 2016. DUF No. 12; ECF No. 46-4 at 35-36.
10. Plaintiff submitted MCSP-16-01704 to the third level of
review on August 1, 2016. DUF No. 13; ECF No. 46-4 at 32.
11. Plaintiff prepared his complaint in this action on August
15, 2016, and the case was formally filed on August 22, 2016.
ECF No. 1 at 1, 13.
12. The third level of review rejected plaintiff's
grievance MCSP-16-01365 on September 7, 2016, because
plaintiff had not included a CDCR Form 1858 Rights and
Responsibilities Statement. DUF No. 15; ECF No. 46-4 at 8,
21. Plaintiff re-submitted the grievance on October 14, 2016,
but it was again rejected on December 20, 2016 for the same
reason. DUF Nos. 17, 18; ECF No. 46-4 at 25.
13. On October 13, 2016, plaintiff's grievance
MCSP-16-01704 was also rejected for lacking a Form 1858. DUF
No. 16; ECF No. 46-4 at 39. Documents filed by defendants
show that plaintiff had some difficulty obtaining the Form
1858 and made at least five requests for that form between
September 25, 2016 and October 6, 2016. ECF No. 46-4 at
14. Plaintiff resubmitted MCSP-16-01365 to the third level of
review with the Form 1858 on January 9, 2017. Voong Decl.
¶ 5. It was denied at that level on March 10, ...