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Smith v. Gonzales

United States District Court, E.D. California

November 14, 2019

LARRY SMITH, Plaintiff,
v.
SERGEANT J. GONZALES, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN PART (ECF No. 36.) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS

          GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         I. PROCEDURAL HISTORY

         Larry Smith (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff's First Amended Complaint filed on June 23, 2017, against defendants Sergeant Gonzales, Correctional Officer (C/O) Johnson, C/O Castro, C/O Miner, C/O Florez, and C/O Potzernitz for use of excessive force in violation of the Eighth Amendment; against defendants C/O Fritz and C/O Scaife for failure to protect Plaintiff in violation of the Eighth Amendment; and against defendant Sergeant Gonzales for retaliation in violation of the First Amendment.[1] (ECF No. 12.)

         On April 30, 2019, Defendants filed a motion for summary judgment based on Plaintiff's failure to exhaust administrative remedies. (ECF No. 36.) On July 1, 2019, Plaintiff filed an opposition to the motion. (ECF No. 39.) On July 19, 2019, Defendants filed a reply to Plaintiff's opposition. (ECF No. 44.) Defendants' motion for summary judgment has been submitted upon the record without oral argument pursuant to Local Rule 230(l), and for the reasons that follow, the court finds that Defendants' motion for summary judgment should be granted in part and denied in part.

         II. PLAINTIFF'S ALLEGATIONS IN THE FIRST AMENDED COMPLAINT[2]

         At the time of the events at issue in this case, Plaintiff was incarcerated at Corcoran State Prison (CSP) in Corcoran, California.

         Plaintiff's allegations follow:

         On September 12, 2013, Plaintiff arrived at CSP. Plaintiff was diagnosed with a urinary infection which caused him severe pain, he was prescribed Tylenol with Codeine and antibiotics. On September 23, 2013, while defendant C/O Johnson was escorting Plaintiff to get his pain medications, Plaintiff doubled up in pain. Defendant Johnson asked, “Hey old timer are you alright, ” and Plaintiff told him about the infection that was causing him severe pain. (ECF No. 12 at 12:13-14.)[3]

         On September 24, 2013, at 7:00 a.m., defendants C/O Johnson and C/O Fritz (female) came to conduct a random search of Plaintiff's cell. C/O Johnson instructed C/O Gonzales (control booth officer - not a defendant) to open Plaintiff's cell. Plaintiff's cell mate was sitting on the top bunk. Defendant Johnson opened the cell door and instructed Plaintiff to remove all of his clothing, turn around, bend forward at the waist, and pull his buttocks apart and hold them open so that defendant Johnson could examine Plaintiff's rectal area. Other inmates were being released for breakfast and witnessed this strip search in the presence of the female C/O. Per CDCR policy, Plaintiff squatted and coughed. Johnson stated that if Plaintiff didn't allow him to “look up my butt, ” he would have Plaintiff placed on potty watch. (ECF No. 12 at 5.) Plaintiff requested potty watch. Defendant Johnson gave Plaintiff his boxer shorts and as soon as Plaintiff put them on defendant Johnson grabbed Plaintiff by the arm and the back of his head and slammed his face into the wall busting Plaintiff's mouth, and then handcuffed him. C/O Gonzales also witnessed the incident by C/O Johnson. When C/O Johnson slammed Plaintiff's face into the wall, C/O Gonzales stuck his gun out of the control booth and pointed it at Plaintiff. Defendant Johnson told C/O Fritz to watch Plaintiff's cell mate and to spray him if he moved. C/O Johnson locked Plaintiff in the shower and went back to search Plaintiff's cell. C/O Johnson returned to the shower and asked if Plaintiff was going to follow his instructions. Plaintiff just looked at him. C/O Johnson instructed C/O Gonzales to open the shower door and told Plaintiff to exit. As Plaintiff came out, C/O Johnson grabbed him by the hand, still handcuffed, bent his wrist very aggressively, escorted Plaintiff to the program office and placed him into a holding cage.

         A short time later, defendants Sgt. Gonzales, C/O Johnson, C/O Castro, C/O Miner, C/O Florez, C/O Potzernitz, and C/O Scaife came into the holding area. C/O Scaife stood by the door and observed. Sgt. Gonzales stated that C/O Johnson believed Plaintiff had contraband secreted in his rectal cavity. Plaintiff informed Sgt. Gonzales about his urinary infection that was causing him severe pain and told Sgt. Gonzales that he could verify this information at the clinic. Sgt. Gonzales said that wasn't necessary, he just needed to check Plaintiff for contraband. Sgt. Gonzales instructed Plaintiff to remove his boxers, raise his hands up, open his mouth, and run his fingers through his hair, which Plaintiff did. Sgt. Gonzales then unlocked the holding cage and instructed him to exit, which Plaintiff did. Sgt. Gonzales told Plaintiff to turn his back to him, bend forward at the waist and grab his buttocks and spread them open so he could “see up my butt.” (ECF No. 12 at 6:15.) Plaintiff told Sgt. Gonzales that CDCR policy was to squat and cough. Plaintiff squatted and coughed five times. Sgt. Gonzales told Plaintiff he needed to follow his instructions or he would place Plaintiff on potty watch. Plaintiff said he would rather be on potty watch than hold his butt open for a bunch of homosexual correctional officers. Sgt. Gonzales then stated, “I'm not going to waste everybody's time placing you on potty watch, ” then grabbed Plaintiff and instructed the other C/Os to take Plaintiff down. (ECF No. 12 at 6:19-20.) Defendants Johnson, Castro, Miner, Florez, and Potzernitz all attacked Plaintiff, forcing him to the ground naked. Plaintiff was kicked and stomped in the head, shoulders, back, and legs. C/O Castro and C/O Potzernitz stood on Plaintiff's upper back pinning him to the ground. C/O Miner and C/O Florez grabbed Plaintiff's ankles and forced his legs apart. Defendant C/O Scaife stood by and watched the assault. Then C/O Johnson got on the ground, grabbed Plaintiff's buttocks, and spread them apart. Sgt. Gonzales stood between Plaintiff's legs and instructed C/O Miner and C/O Florez to lift his legs up. Sgt. Gonzales then checked Plaintiff's rectal area, Plaintiff was cleared and the officers let him go. Sgt. Gonzales instructed Plaintiff to go back into the holding cage and returned his boxer shorts to him. All of the officers stepped out into the hallway. Plaintiff was humiliated and embarrassed.

         A short time later, Plaintiff overheard C/O Johnson and Sgt. Gonzales conspiring in the hallway. C/O Johnson said, “Inmate Smith has a history of filing staff misconduct complaints.” (ECF No. 12 at 7:4-5.) Sgt. Gonzales responded, “Let him go back to his cell and if he says anything we'll say he got into a fight with his cell mate.” (ECF No. 12 at 7:6-7.)

         Sgt. Gonzales returned to the holding cage and instructed Plaintiff to return to his cell. Plaintiff informed Sgt. Gonzales that he needed medical attention and was in great pain from being kicked and stomped. Sgt. Gonzales told Plaintiff to return to his cell and he would notify medical staff. At this point, Sgt. Gonzales picked up a towel and started to wipe the boot prints off of Plaintiff's back. Plaintiff told him not to touch him and started walking out of the program office. Plaintiff turned left towards medical instead of right toward 3A05 (his cell). Sgt. Gonzales came running out of the program office, stopped Plaintiff and told him to return to his cell. Plaintiff sat on the ground and told Sgt. Gonzales he was in pain and needed medical attention. Sgt. Gonzales instructed C/O Castro and C/O Potzernitz to pick Plaintiff up and return him to his cell. Castro and Potzernitz each grabbed Plaintiff under his arm and started to half carry and half drag him across the yard. Plaintiff started yelling, the yard tower activated an alarm and Sgt. Gonzales instructed the officers to put him down. Nurse Levan (not a defendant) arrived and asked what the matter was. Plaintiff told the nurse that Sgt. Gonzales and six C/Os had assaulted him. Sgt. Gonzales told the nurse that they didn't assault Plaintiff, and Plaintiff's back was dirty because he had lain on the ground. The nurse asked Sgt. Gonzales how Plaintiff's mouth got busted and his shoulder got bruised. Sgt. Gonzales told the nurse to medically clear Plaintiff so they could put him back in his cell. The nurse told Sgt. Gonzales to use a wheelchair to return him to his cell and she would have Plaintiff seen by the doctor later.

         Nurse Levan filled out a CDCR-7219 medical report of Plaintiff's injuries, noting redness and dried blood on his mouth and abrasions on his shoulders, back, and legs.

         C/O Johnson confiscated Plaintiff's 602 form from his pocket at the clinic window at noon when Plaintiff informed Nurse Levan that he was suicidal. Sgt. Gonzales then read the 602 out loud to other C/Os at the program office while Plaintiff was waiting to see his clinician Dr. Stokes (not a defendant).

         Sgt. Gonzales issued Plaintiff RVR #3-A-13-09-034 for willfully delaying a peace officer as a way to justify his actions, using creative writing to say he ordered C/Os Castro and Potzernitz to pick Plaintiff up and return him to his cell because when Plaintiff sat down and requested medical attention, he was blocking the doorway to the program office which was a hazard. Sgt. Gonzales also said that the 7219 medical report by Nurse Levan only listed a busted lip. Initially, the RVR was written by C/O Johnson. But Sgt. Gonzales altered it from saying Plaintiff squatted and coughed to say that Plaintiff had not followed his instructions to bend forward at the waist and spread his buttocks. He said that after five minutes of speaking to Plaintiff, Plaintiff complied and the search was concluded with negative results. But the five-minute conversation actually consisted of Sgt. Gonzales ordering his staff to use force on Plaintiff, pinning him down, kicking and stomping him, and forcibly spreading his buttocks apart. There were also other errors written on the RVR, which is why Plaintiff requested as witnesses C/O Gonzales, C/O Fritz, and Plaintiff's cell mate. (ECF No. 12 at 9 ¶3.)

         At the RVR hearing, Nurse Levan told Hearing Officer Lt. Marmolejo (not a defendant) that Sgt. Gonzales told her (nurse) to turn the report over to Sgt. Gonzales, who claimed he misplaced it and never found it. However, Lt. Marmolejo did not record this statement at the RVR hearing. Plaintiff had two other medical reports done by Dr. Barnett (not a defendant) on September 25, 2013, and Nurse Grisweld (not a defendant) on September 24, 2013, to document Plaintiff's injuries showing the injuries Plaintiff received from the assault on September 24, 2013. At the hearing, Plaintiff was not allowed to question Nurse Levan. Hearing Officer Lt. Marmolejo asked Sgt. Gonzales if Plaintiff informed him of his medical condition and that he needed to see the nurse. Sgt. Gonzales answered that he didn't remember, but he contradicted himself by saying Plaintiff sat on his butt claiming he needed medical. Lt. Marmolejo did not allow Plaintiff's requested witnesses. Also, Plaintiff should have been assigned an Investigative Employee but was not. Plaintiff was found guilty of a rules violation and forfeited 90 days of credits and lost 90 days of privileges. Also, as a result of the disciplinary proceeding, Plaintiff's privilege group was changed from A-1 to B-2 status.

         At noon, Sgt. Gonzales instructed C/O Johnson to roll up Plaintiff's property and bring it up to the program office because if Plaintiff was going to file a 602 grievance for staff misconduct and use of force, then Sgt. Gonzales would have Plaintiff placed in Administrative Segregation (Ad-Seg) for three to six months without his property. Plaintiff was then placed in a mental health crisis bed on suicide watch for a few days. When he returned to 3A yard all of his property was missing. On October 16, 2013, some of Plaintiff's property was returned by C/O Florez.

         On October 16, 2013, Plaintiff filed a 602 grievance, #CSP-C-2-13-07568, concerning the use of excessive force and not reporting it, which was partially granted on December 31, 2013. Plaintiff submitted it to the third level on January 15, 2014, where it was rejected on February 25, 2014. Plaintiff re-submitted it on April 10, 2014, and it was rejected again on July 28, 2014. Plaintiff submitted it again on August 4, 2014, and it was rejected a third time on October 15, 2014. Plaintiff wrote a letter to Attorney General Kamala Harris on January 11, 2015, and a letter to the Inspector General on February 22, 2015.

         On November 11, 2013, Plaintiff was placed on suicide watch again. During this time, Plaintiff's property was rolled up and never issued back to him. When Plaintiff returned back to 3A yard on November 12, 2013, he refused to be housed with a gang member. Custody attempted to move Plaintiff into a cell which was already occupied by an inmate in the lower bunk who was a gang member. Custody had written on Plaintiff's bed card that he was a Crip gang member, which is not true. The inmate had already made plans to move a friend in with him, so Plaintiff refused to move in because Plaintiff is not a gang member, and because Plaintiff also had a lower bunk chrono. This upset Sgt. Gonzales because Plaintiff had three cell moves in one month.

         Plaintiff informed floor staff that he was suicidal and wanted to return to the mental health crisis bed, so he was taken to the program office and placed into a holding cage. Sgt. Gonzales stated that he was tired of Plaintiff “going suicidal, ” so he was going to move Plaintiff off 3A yard. (ECF No. 12 at 15:12.) Sgt. Gonzales told Plaintiff's clinician, Dr. Stokes, that he was placing Plaintiff in Ad-Seg for safety concerns because Plaintiff had told him (Gonzales) that Plaintiff was being beaten up by the black inmates for no reason. Sgt. Gonzales issued Plaintiff a fictitious lock-up order for safety concerns and had him placed in Ad-Seg. Plaintiff alleges that he never told Sgt. Gonzales he was being beaten up and that Sgt. Gonzales made up a fictitious story to suit his purpose for the lock up order and RVR.

         Plaintiff's clinician Dr. Stokes told Plaintiff that Sgt. Gonzales said he was having Plaintiff placed in Ad-Seg for safety concerns, but she (Stokes) was sending him to the mental health crisis bed. When Plaintiff returned on November 15, 2013, he was placed in Ad-Seg.

         On November 13, 2013, Sgt. Gonzales issued a chrono for safety concerns which said that housing unit staff informed Plaintiff that he would be housed with a compatible cell mate. Sgt. Gonzales doesn't identify the cell mate or the housing unit staff who said that Plaintiff stated, “I'm not going to get beat up again. The last cell mate I was with beat me up so I said I'd kill him if I stayed in the cell with him.” (ECF No. 12 at 15:24-25.) Plaintiff alleges that none of this is true. Plaintiff did not tell Sgt. Gonzales that he had been assaulted multiple times on Facility 3A by a black inmate. Plaintiff alleges that he would have filed a 602 appeal if he had been assaulted. Sgt. Gonzales never interviewed Plaintiff about safety concerns. The document stating Plaintiff was claiming safety concerns endangered Plaintiff's life on the general population. Plaintiff never said that inmates Johnson or Law were on his enemy list. Plaintiff contends that Sgt. Gonzales issued the safety concerns order to get back at Plaintiff for filing the 602 use of force appeal. Sgt. Gonzales labeled him as a “snitch” and pressured Plaintiff into being placed on a sensitive needs yard, both which placed Plaintiff in danger when released back to the yard or transferred to another prison. (ECF No. 12 at 17:19.)

         Under CDCR 3315, other employees cannot issue write-ups on other staff's behavior. The staff who witnessed the infraction must write the RVR. Plaintiff contends that therefore, 3A02 housing staff, and not Sgt. Gonzales, should have issued him an RVR for refusing a cell mate.

         Plaintiff submitted a 602 appeal concerning his missing property and it was assigned to Sgt. Gonzales at the first level of review. On January 15, 2014, Sgt. Gonzales denied the appeal, stating that Plaintiff never had any property while he was at CSP. This was not true. Plaintiff had four boxes of property when he arrived at CSP. The 602 was denied at the second and third levels of review.

         On November 23, 2013, Plaintiff was scheduled for transfer to Lancaster State Prison due to Sgt. Gonzales' safety concerns. On January 5, 2014, Plaintiff filed a 602 appeal concerning his transfer and another appeal concerning Sgt. Gonzales falsifying state documents. On March 3, 2014, Plaintiff was transferred to Pelican Bay Supermax State Prison for no reason, where all of his chronos were cancelled.

         Plaintiff alleges he was retaliated against by Sgt. Gonzales for exercising his right to file a grievance against Sgt. Gonzales and his staff for using excessive force against Plaintiff during a random cell search, and the retaliatory actions did not advance any legitimate penological goals. Plaintiff alleges that all of the following actions were retaliatory: issuing the RVR and lock up order and placing Plaintiff in Ad-Seg on November 12, 2013; recommending that Plaintiff be transferred; and, confiscating Plaintiff's personal property on November 12, 2013.

         III. SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST

         A. Legal Standards

         1. Statutory Exhaustion Requirement

         Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002).

         “[T]o properly exhaust administrative remedies prisoners ‘must complete the administrative review process in accordance with the applicable procedural rules,' []-rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison system's requirements ‘define the boundaries of proper exhaustion.'”). An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion requirement. Woodford, 548 U.S. at 90. However, the Ninth Circuit has made clear: A grievance need not include legal terminology or legal theories unless they are in some way needed to provide notice of the harm being grieved. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). A grievance also need not contain every fact necessary to prove each element of an eventual legal claim. Id.

         Moreover, the Ninth Circuit has recognized that a grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To provide adequate notice, the prisoner need only provide the level of detail required by the prison's regulations. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing Jones, 549 U.S. at 218). The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for litigation. Id; Griffin, 557 F.3d at 1120; see also Jones, 549 U.S. at 219 (citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance process is not a summons and complaint that initiates adversarial litigation.”). Thus, in this case “[t]he California prison system's requirements define the boundaries of proper exhaustion.” Marella, 568 F.3d at 1027).

         A prisoner may be excused from complying with the PLRA's exhaustion requirement if he establishes that the existing administrative remedies were effectively unavailable to him. See Albino v. Baca (“Albino II”), 747 F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate's administrative grievance is improperly rejected on procedural grounds, exhaustion may be excused as “effectively unavailable.” Sapp, 623 F.3d at 823; see also Nunez v. Duncan, 591 F.3d 1217, 1224-26 (9th Cir. 2010) (warden's mistake rendered prisoner's administrative remedies “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012) (exhaustion excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required to proceed to third level where appeal granted at second level and no further relief was available); Marella, 568 F.3d 1024 (excusing an inmate's failure to exhaust because he did not have access to the necessary grievance forms to timely file his grievance). In such a case, “the inmate cannot pursue the necessary sequence of appeals.” Sapp, 623 F.3d at 823.

         A California prisoner is required to submit an inmate appeal at the appropriate level and proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002); see also Cal. Code Regs. tit. 15, § 3084.1(b) (explaining that a cancellation or rejection of an inmate's appeal “does not exhaust administrative remedies”). However, a prisoner need not “press on to exhaust further levels of review once he has received all ‘available' remedies at an intermediate level of review or has been reliably informed by an administrator that no remedies are available.” Brown, 422 F.3d at 936 (citing Booth, 532 U.S. at 736-739; see also Finley v. Skolnik, 616 Fed.Appx. 263, 264 (9th Cir. 2012) (Reversing dismissal for failure to exhaust).

         In submitting an inmate grievance, California regulations require a prisoner to “list all staff members involved” and to “describe their involvement in the issue.” Cal. Code Regs. tit. 15, § 3084.2(3). However, the Ninth Circuit has held that “a prisoner exhausts such administrative remedies as are available . . . under the PLRA despite failing to comply with a procedural rule if prison officials ignore the procedural problem and render a decision on the merits of the grievance at each available step of the administrative process.” Reyes v. Smith, 810 F.3d 654, 658 (9th Cir. 2016); see also Franklin v. Foulk, 2017 WL 784894, at *4-5 (E.D. Cal. Mar. 1, 2017); Franklin v. Lewis, 2016 WL 4761081, at *6 (N.D. Cal. Sept. 13, 2016). Thus, a prisoner's failure to list all staff members involved in an incident in his inmate grievance, or to fully describe the involvement of staff members in the incident, will not necessarily preclude his exhaustion of administrative remedies. Reyes, 810 F.3d at 958; Foulk, 2017 WL 784894, at *4 (“[T]he court in Reyes found that even though the plaintiff's grievance failed to name two physicians on the prison's three-person pain committee, prison officials were put on notice of the nature of the wrong alleged in the suit-that the plaintiff was wrongfully denied pain medication.”); Lewis, 2016 WL 4761081, at *6 (“[T]o the extent Defendants argue that Plaintiff failed to comply with a procedural requirement by not naming Defendants in [his appeal], this deficiency is not necessarily fatal to Plaintiff's claim pursuant to Reyes”); Grigsby v. Munguia, No. 2:14-cv-0789 GAB AC P, 2016 WL 900197, at *11-12 (E.D. Cal. Mar. 9, 2016); see also Bulkin v. Ochoa, 2016 WL 1267265, at *1-2 (E.D. Cal. Mar. 31, 2016); see also McClure v. Chen, 246 F.Supp.3d 1286, 1292-94 (E.D. Cal. Mar. 28, 2017).

         Nonetheless, for administrative remedies to be exhausted by California prisoners as to defendants who were not identified in the inmate grievance, there must be a “sufficient connection” between the claim in the appeal and the unidentified defendants such that prison officials can be said to have had “notice of the alleged deprivation” and an “opportunity to resolve it.” Reyes, 810 F.3d at 959 (finding that plaintiff had satisfied PLRA exhaustion requirements as to two prison doctors despite not having identified them in his inmate appeals because there was a sufficient connection between plaintiff's appeal based on inadequate pain management, and the doctors, who served on the prison committee that had denied plaintiff medication); McClure, 246 F.Supp 3d at 1293-94 (remedies exhausted even though doctors not named in appeal; prison was placed on notice).

         2. California Department of Corrections and Rehabilitation (CDCR) Administrative Grievance System

         The court takes judicial notice of the fact that the State of California provides its prisoners and parolees the right to appeal administratively “any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). The process is initiated by submitting a CDCR form 602. Id. at § 3084.2(a).

         California prisoners are required to submit appeals within thirty calendar days of the event being appealed, and the process is initiated by submission of the appeal at the first level. Id. at §§ 3084.7(a), 3084.8(c). Three levels of appeal are involved, including the first level, second level, and third level. Id. at § 3084.7. The third level of review exhausts administrative remedies. Id. at § 3084.7(d)(3). A final decision at the third level[4] of review satisfies the exhaustion requirement under 42 U.S.C. § 1997e(a). Lira v. Herrera, 427 F.3d 1164, 1166 (9th Cir. 2005). In order to satisfy § 1997e(a), California state prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford, 548 U.S. at 85 (2006); McKinney, 311 F.3d. at 1199-1201.

         3. Motion for Summary Judgment for Failure to Exhaust

         The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the Ninth Circuit issued a decision overruling Wyatt with respect to the proper procedural device for raising the affirmative defense of exhaustion under § 1997e(a). Albino II, 747 F.3d at 1168-69. Following the decision in Albino II, defendants may raise exhaustion deficiencies as an affirmative defense under § 1997e(a) in either (1) a motion to dismiss pursuant to Rule 12(b)(6)[5]or (2) a motion for summary judgment under Rule 56. Id. If the court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice of the portions of the complaint barred by § 1997e(e). Jones, 549 U.S. at 223-24; Lira, 427 F.3d at 1175-76.

         Summary judgment is appropriate when it is demonstrated that there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts, summary judgment will not be granted.”) A party asserting that a fact cannot be disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). In judging the evidence at the summary judgment stage, the court “must draw all reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). The court must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

         In a summary judgment motion for failure to exhaust administrative remedies, the defendants have the initial burden to prove “that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id. The ultimate burden of proof remains with defendants, however. Id. “If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.” Id. at 1166.

         In arriving at these findings and recommendations, this court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this court did not consider the argument, document, paper, or objection. This court has thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.

         B. Undisputed Facts

         Unless otherwise noted, the following facts submitted by Defendants are undisputed by the parties or as determined by the court ...


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