United States District Court, E.D. California
KAVASIO K. HALL, Plaintiff,
VASQUEZ, et.al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND DISMISSING
ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EXHAUST THE
ADMINISTRATIVE REMEDIES [ECF NOS. 36, 37]
Kavasio K. Hall is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
The matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
September 13, 2019, the Magistrate Judge issued Findings and
Recommendations recommending that Defendants' motion for
summary judgment be granted. The Findings and Recommendations
were served on the parties and contained notice that
objections were due within twenty-one (21) days. (ECF No.
37.) Plaintiff filed objections on October 4, 2019, and
Defendants filed a response on October 10, 2019. (ECF Nos.
objections, Plaintiff contends that that prison officials at
the second level of review failed to communicate to him and
explain the appeal process during the screening process of
Appeal Log No. KVSP-O-17-01637. Plaintiff argues that as a
result of prison officials' failure to effectively
communicate with him, he “did not understand and/or was
unaware of the prison administrative grievance procedures,
” rendering the process effectively unavailable to him.
(ECF No. 38 at 1.) Plaintiff's objection is without merit
as it is undisputed that Appeal Log No. KVSP-O-17-01637 was
submitted on May 16, 2017, forty-nine days after the alleged
incident with Defendants on March 27, 2017. Therefore, the
appeal was properly screened out and cancelled as untimely.
(ECF No. 36-4 at 52; Cal. Code Regs. tit. 15, §§
3084.8(b), 3084.6(c)(4). Even if prison officials failed to
effectively communicate with Plaintiff during the screening
process, Plaintiff still failed to submit the appeal within
the required timeframe. In addition, contrary to
Plaintiff's claim, the California Code of Regulations
does not require prison officials to interview inmates during
the appeal screening process. See Cal. Code Regs.
tit. 15, § 3084.7(e). The regulations further provide that
“[w]hen an appeal indicates the inmate or parolee has
difficulty describing the problem in writing or has a primary
language other than English, the appeals coordinator shall
ensure that the inmate or parolee receives assistance in
completing and/or clarifying the appeal.” Cal. Code
Regs. tit. 15, § 3084.5(b)(1). In this case, the
undisputed evidence demonstrates that Plaintiff Appeal Log
No. KVSP-O-17-01637 in well-written English, and Plaintiff
never expressed that assistance was necessary. (ECF No. 36-4
at 53-54.) Furthermore, Plaintiff was provided a written
decision which explained why Appeal Log No. KVSP-O-17-01637
was cancelled and Plaintiff was specifically advised that he
could file a separate appeal regarding the cancellation.
(Id. at 52.)
Plaintiff's allegation that he was unaware of the prison
administrative process is belied by the undisputed evidence
and Plaintiff's own allegations. The undisputed evidence
shows that Plaintiff filed and successfully exhausted one
non-medical appeal between March 28, 2017 and June 7, 2018,
regarding issues unrelated to this case. (Ramos Decl. ¶
10, ECF No. 36-5 at 3; Ramos Decl. Exs. A & B.) The
undisputed evidence also shows that Plaintiff filed and
exhausted two other appeals prior to the events of March 27,
2017-the incident at issue here. (Ramos Decl. Ex. A, ECF No.
36-5 at 6 (showing Plaintiff exhausted appeals in November
2015 and December 2016).) Indeed, on the original complaint
form, Plaintiff affirmatively acknowledged that the
administrative remedy process was available at his
institution and that he filed and completed the process at
the third level of review. (ECF No. 1 at 3.) Accordingly,
Plaintiffs objections are overruled.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the Court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, the Court finds the Findings and Recommendations to be
supported by the record and by proper analysis.
IT IS HEREBY ORDERED that:
Findings and Recommendations, filed on September 13, 2019,
are adopted in full;
Defendants motion for summary judgment is granted;
instant action is dismissed, without prejudice, for failure
to exhaust the administrative remedies; and
Clerk shall CLOSE this case.
 Section 3084.7(e) only requires prison
officials to interview an inmate at least once during the
first or second levels of review. Cal. Code Regs. tit. 15,
§ 3084.7(e). However, there is no requirement that an
interview take place during the initial screening process,
which occurs prior to a determination on the merits of the
appeal. See Cal. Code Regs. tit. 15, § 3084.6