Williams v. Buenrostro

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, Case No. 17cv2345-MMA (JLB)

12 Plaintiff, ORDER GRANTING DEFENDANTS’ 13 v. MOTION FOR SUMMARY JUDGMENT 14 BUENROSTRO, et al., 15 [Doc. No. 33] Defendants. 16 17 18 Plaintiff Lance Williams, a California prisoner currently incarcerated at California 19 Men’s Colony, located in San Luis Obispo, California, proceeding pro se, brings this 20 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges various violations of his 21 First, Eighth, and Fourteenth Amendment rights by correctional officers at R. J. Donovan 22 Correctional Facility in San Diego, California. Defendants Buenrostro, Steadman, and 23 Ashbury move for summary judgment as to all claims pursuant to 42 U.S.C. § 1997e(a). 24 See Doc. No. 33. Plaintiff filed a response in opposition to the motion, to which 25 Defendants replied. See Doc. Nos. 35, 36. The Court took the matter under submission 26 without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local 27 Rule 7.1.d.1. For the reasons set forth below, the Court GRANTS Defendants’ motion 28 for summary judgment. 1 I. Procedural Background 2 Plaintiff initially filed his civil rights complaint pursuant to 42 U.S.C. § 1983 on 3 November 18, 2017, quickly followed by an amended complaint on December 11, 2017. 4 See Doc. Nos. 1, 7. Plaintiff did not prepay the civil filing fee required to commence a 5 civil action at the time he filed his complaint; instead, he moved for leave to proceed in 6 forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. 7 On January 31, 2018, this Court reviewed Plaintiff’s amended complaint, as well 8 as his litigation history, and denied his motion to proceed IFP pursuant to 28 U.S.C. § 9 1915(g).1 See Doc. No. 11. The Court identified seven prior federal civil actions and 10 appeals filed by Plaintiff in federal court while he was incarcerated that had been 11 dismissed as frivolous or for failing to state a plausible claim for relief. The Court further 12 found that Plaintiff did not plausibly allege that he faced “imminent danger of serious 13 physical injury” at the time he instituted this action. See Doc. No. 11 at 4-6.2 In addition, 14 the Court noted that even if Plaintiff were entitled to proceed IFP, he plainly admitted 15 that he failed to exhaust his administrative remedies prior to filing suit, as required by 42 16 U.S.C. § 1997e(a). Id. at 9-10. Accordingly, the Court dismissed the action without 17 prejudice based on Plaintiff’s failure to prepay the filing fees required by 28 U.S.C. § 18 1914(a). Id. at 11. 19 Plaintiff appealed. See Doc. No. 12. On March 18, 2019, the Ninth Circuit 20 reversed this Court’s IFP determination in an unpublished memorandum and remanded 21 22 1 Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner may not proceed IFP: 23 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 24 facility, brought an action or appeal in a court of the United States that was dismissed on 25 the grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 26 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews 27 v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).

28 1 the case for further proceedings. See Williams v. Buenostrome, et al., No. 18-55191, slip 2 op. at 2 (March 18, 2019) (Doc. No. 16). Specifically, the circuit court found Plaintiff’s 3 allegations that Defendant Buenrostro “repeatedly assaulted him without justification, 4 encouraged other inmates to attack him, and threatened his life,” were sufficient to 5 plausibly allege imminent danger despite the fact that Plaintiff had been moved to a 6 different building by the time he filed his amended complaint. Id. The circuit court 7 further acknowledged that while this Court “correctly point[ed] out that Williams’ failure 8 to exhaust is clear from the face of the complaint,” it was not also clear at this “early 9 stage of the proceedings, before defendants have appeared, that administrative remedies 10 were in fact available to Williams.” Id. at 3. Therefore, the panel remanded the case so 11 that “the parties may litigate whether administrative remedies were available.” Id. 12 On April 9, 2019, the Ninth Circuit issued its mandate pursuant to Federal Rule of 13 Appellate Procedure 41(a). See Doc. No. 18. Thereafter, this Court spread the mandate 14 and re-opened the case for further proceedings consistent with the Ninth Circuit’s 15 judgment. See Doc. No. 17. The Court screened Plaintiff’s amended complaint pursuant 16 to 28 U.S.C. § 1915(e)(2) and § 1915A and determined that Plaintiff’s claims were 17 nonfrivolous. The Court directed the United States Marshal to effectuate service of the 18 amended complaint pursuant to 28 U.S.C. § 1915(d) and Federal Rule of Civil Procedure 19 4(c)(3) as to Defendants Buenrostro,3 Steadman, and Ashbury. See Doc. No. 19. 20 II. Plaintiff’s Allegations 21 B. Factual Allegations 22 Plaintiff claims that on October 18, 2017, Defendant Correctional Officer 23 Buenrostro “defame[d]” him “by yelling to the entire dorm” that he was “SNY,” gay, and 24 a snitch. Doc. No. 7 at 3. Plaintiff claims Buenrostro further said “[Y]ou guys know 25 what to do to snitches[:] cut him up and get him off the yard.” Id. After Plaintiff 26 27 3 Plaintiff erroneously sued Defendant Buenrostro as “Buenostrome.” See Doc. No. 7. 28 1 reported Buenrostro to a sergeant, he claims Buenrostro approached him, and “ma[de] 2 threats saying he was going to have his C.I. (confidential informant) inmates attack 3 [him].” Id. at 4. Plaintiff further claims Buenrostro told him he would “plant a knife in 4 [his] cell and send him to Corcoran Prison SHU program,” and “jammed [his] shoulder 5 and elbow into [his] sternum.” Id. 6 According to Plaintiff, Buenrostro repeatedly searched his cell during the months 7 of October and November 2017, after which legal paperwork and other personal items 8 “came up missing.” Id. at 5. Plaintiff claims that Buenrostro “made another threat on 9 [Plaintiff’s] life in front of everyone.” Id. On November 7, 2017, after he complained to 10 a sergeant that Buenrostro had failed to supply him with a cell search receipt, Plaintiff 11 claims he “found a makeshift weapon tape[d] to the bottom of [his] bed,” but he removed 12 it, and “threw it in the trash.” Id. 13 Two days later, on November 9, 2017, Plaintiff claims Buenrostro “made another 14 threat,” and “call[ed] him a snitch for a previous appeal.” Id. at 6. Plaintiff contends 15 Buenrostro told him he had “better withdraw it or he w[ould] make [H]annibal [L]ector 16 look like a bitch when it comes to what he [would] do to [Williams].” Id. Later the same 17 day, Plaintiff claims Buenrostro closed a cell door on him from the control booth, which 18 caused “severe injuries to [his] groin, back, chest, right hip, and right ankle.” Id. 19 On November 14, 2017, Plaintiff was called to medical for the injuries he sustained 20 on November 9, 2017. Id. at 7. When he explained that Buenrostro had closed a cell 21 door on him and described his injuries to Defendant Steadman, a Registered Nurse, 22 Plaintiff contends that she accused him of lying, said that Buenrostro was her friend, 23 questioned Plaintiff’s placement in the “EOP,” threatened to “call [his] clinician,” and 24 “kicked [him] out without attending to [his] injuries.” Id. Afterward, Plaintiff claims 25 Steadman falsified a medical report related to the November 9, 2017 incident. Id. at 8. 26 Finally, on November 26, 2017, Plaintiff was interviewed by Defendant Lieutenant 27 Ashbury regarding his “602 appeal on Defendant Officer Buenrostro.” Id. at 9. Plaintiff 28 reported that he was a “victim of [Buenrostro’s] multiple acts of harassment, threats, 1 [and] assaults,” but he objected when Ashbury authorized his transfer to Building 2 on 2 grounds that it would be retaliatory and “endanger [his] safety because [he] had issues 3 with 2 officers in Building 2.” Id. at 9-10. Plaintiff was “moved [to Building 2] against 4 [his] will the next day.” Id. at 10. 5 III. Defendants’ Motion for Summary Judgment 6 Defendants move for summary judgment on two grounds. First, with respect to 7 Plaintiff’s claims against Buenrostro and Steadman, Defendants argue that Plaintiff did 8 not exhaust his administrative remedies prior to filing his amended complaint in this 9 action as required by the PLRA. Second, Defendants argue that Plaintiff never exhausted 10 his administrative remedies with respect to his claim against Defendant Ashbury. In 11 response, Plaintiff contends that the administrative grievance process was not available to 12 him due to Defendant Buenrostro’s repeated threats.4 13 A. Legal Standard 14 “The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate 15 exhaust ‘such administrative remedies as are available’ before bringing suit to challenge 16 prison conditions.” Ross v. Blake, __ U.S. __, 136 S. Ct. 1850, 1854-55 (2016) (quoting 17 42 U.S.C. § 1997e(a)); see also Porter v. Nussle, 534 U.S. 516, 524 (2002) (“exhaustion 18 is mandatory . . . unexhausted claims cannot be brought in court”). “There is no question 19 that exhaustion is mandatory under the PLRA[.]” Jones v. Block, 549 U.S. 199, 211 20 (2007) (citation omitted). “[T]he exhaustion question in PLRA cases should be decided 21 as early as feasible.” Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). 22 The exhaustion requirement is based on the important policy concern that prison 23 officials should have “an opportunity to resolve disputes concerning the exercise of their 24 25 26 4 Plaintiff also claims that he thought the Ninth Circuit had excused him from the exhaustion requirement “because he was [] in imminent danger of serious physical injury.” Doc. No. 35 at 1. The 27 Ninth Circuit did nothing of the sort. Rather, the Ninth Circuit found that it was “not clear” from the face of Plaintiff’s complaint whether “administrative remedies were in fact available” Plaintiff. Doc. 28 1 responsibilities before being haled into court.” Jones, 549 U.S. at 204. The “exhaustion 2 requirement does not allow a prisoner to file a complaint addressing non-exhausted 3 claims.” Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). Therefore, regardless 4 of the relief sought, a prisoner must pursue an appeal through all levels of a prison’s 5 grievance process if that process remains available to him. “The obligation to exhaust 6 ‘available’ remedies persists as long as some remedy remains ‘available.’ Once that is no 7 longer the case, then there are no ‘remedies ... available,’ and the prisoner need not 8 further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) 9 (original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). “The only limit 10 to § 1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only such 11 administrative remedies as are ‘available.’” Ross, 136 S. Ct. at 1862; see also Nunez v. 12 Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010) (PLRA does not require exhaustion when 13 circumstances render administrative remedies “effectively unavailable.”). Grievance 14 procedures are available if they are “‘capable of use’ to obtain ‘some relief for the action 15 complained of.’” Ross, 136 S. Ct. at 1859 (quoting Booth, 532 U.S. at 738); see also 16 Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (“To be available, a remedy 17 must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’”) (quoting 18 Albino, 747 F.3d at 1171). Importantly, the PLRA requires that prisoners, when grieving 19 their appeal, adhere to the prison’s “critical procedural rules.” Woodford v. Ngo, 548 20 U.S. 81, 91 (2006). 21 In the Ninth Circuit, a motion for summary judgment is generally the appropriate 22 vehicle for raising the plaintiff’s failure to exhaust administrative remedies because 23 “failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not 24 required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 25 U.S. at 216; see also Albino, 747 F.3d at 1170 (“[A] motion for summary judgment, as 26 opposed to an unenumerated Rule 12(b) motion, [is the proper procedural device] to 27 decide exhaustion”). The burden is on the defendant to prove that there was an available 28 administrative remedy that the plaintiff failed to exhaust. See Albino, 747 F.3d at 1172. 1 If the defendant meets that burden, the burden shifts to the prisoner to present evidence 2 showing that there is something in his case that made the existing and generally available 3 administrative remedies effectively unavailable to him. See id. 4 The Court must draw all inferences in the light most favorable to the nonmoving 5 party and determine whether a genuine issue of material fact precludes entry of judgment. 6 See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 7 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S. Ct. 1566 8 (2012). The Court determines only whether there is a genuine issue for trial and, in doing 9 so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. See 10 Thomas v. Ponder, 611 F3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations 11 omitted). 12 B. CDCR’s Exhaustion Requirements 13 The California Department of Corrections and Rehabilitation (“CDCR”) has a 14 procedure by which a prisoner may appeal “any policy, decision, action, condition, or 15 omission by the department or its staff that [he] can demonstrate as having a material 16 adverse effect upon his ... health, safety, or welfare.” Cal Code Regs., tit. 15 § 3084.1(a). 17 Since January 28, 2011, and at the time of the events in question, Title 15 of the 18 California Code of Regulations requires three formal levels of appeal review. Thus, in 19 order to properly exhaust, a California prisoner must, within 30 calendar days of the 20 decision or action being appealed, or “upon first having knowledge of the action or 21 decision being appealed,” Cal. Code Regs., tit. 15 § 3084.8(b), “use a CDCR Form 602 22 (Rev. 08/09), Inmate/Parolee Appeal, to describe the specific issue under appeal and the 23 relief requested.” Id. § 3084.2(a). 24 The CDCR Form 602 “shall be submitted to the appeals coordinator at the 25 institution.” Id. § 3084.2(c), § 3084.7(a). If the first level CDCR Form 602 appeal is 26 “denied or not otherwise resolved to the appellant’s satisfaction at the first level,” id. § 27 3084.7(b), the prisoner must “within 30 calendar days ... upon receiving [the] 28 unsatisfactory departmental response,” id. § 3084.8(b)(3), seek a second level of 1 administrative review, which is “conducted by the hiring authority or designee at a level 2 no lower than Chief Deputy Warden, Deputy Regional Parole Administrator, or the 3 equivalent.” Id. § 3084.7(b), (d)(2). 4 “The third level is for review of appeals not resolved at the second level.” Id. § 5 3084.7(c). “The third level review constitutes the decision of the Secretary of the CDCR 6 on an appeal and shall be conducted by a designated representative under the supervision 7 of the third level Appeals Chief or equivalent. The third level of review exhausts 8 administrative remedies,” id. § 3084.7(d)(3), “unless otherwise stated.”5 Id. § 3084.1(b); 9 see also CDCR Operations Manual § 541100.13 (“Because the appeal process provides 10 for a systematic review of inmate and parolee grievances and is intended to afford a 11 remedy at each level of review, administrative remedies shall not be considered 12 exhausted until each required level of review has been completed.”). 13 C. Analysis 14 Defendants Buenrostro and Steadman argue that Plaintiff did not properly exhaust 15 his available administrative remedies prior to filing his amended complaint. In addition, 16 Defendant Ashbury argues that Plaintiff never exhausted his grievance as to Plaintiff’s 17 claims against him. In support of their arguments, Defendants submit the declarations of 18 J. Vila (“Vila Decl.), Litigation Coordinator for the Office of Appeals (OOA), E. Frijas 19 (“Frijas Decl.”), Correctional Counselor II Appeals Coordinator at RJD, and S. Gates 20 (“Gates Decl.”), Custodian of Records for California Correctional Health Care Services 21 (CCHCS). See Doc. Nos. 33-5, 33-6, 33-7. Defendants argue that the testimony of these 22 three individuals and the supporting evidence submitted with their declarations establish 23 without dispute that the prison administrative grievance process was available to 24 25 26 5 For example, “[a] second level of review shall constitute the department’s final action on appeals of disciplinary actions classified as ‘administrative’ as described in section 3314, or minor disciplinary 27 infractions documented on CDC[R] Form 128-A (rev. 4-74), Custodial Counseling Chrono, pursuant to 28 section 3312(a)(2), and shall exhaust administrative remedy on these matters.” CAL. CODE REGS., tit. 15 1 Plaintiff; Plaintiff filed multiple grievances against Defendants Buenrostro, Steadman, 2 and Ashbury; Plaintiff did not exhaust the grievance process as to Defendant Ashbury; 3 and while Plaintiff exhausted fully as to Buenrostro and Steadman, he did not do so until 4 after he had filed his amended complaint. 5 The Court considers Plaintiff’s use of the prison grievance process with respect to 6 his claims against each Defendant in turn. 7 1. Claims against Defendant Buenrostro 8 As set forth above, Plaintiff’s claims against Defendant Buenrostro arise out of 9 events that initially occurred on October 18, 2017, with the last interaction between 10 Plaintiff and Buenrostro occurring on November 9, 2017. See Doc. No. 7 at 3-6. 11 a. Grievance Log No. RJD-A-17-06550 12 On November 7, 2017, Plaintiff submitted a grievance, assigned Log. No. RJD-A- 13 17-6550, in which he claimed to have been “continuously being harassed by Officer 14 Buenrostro after he was counseled to stop his activity against” Plaintiff. See Vila Decl. at 15 ¶ 7, Ex. B at 18. Plaintiff alleged that Buenrostro “made a threat” on his life, searched his 16 cell, took items from his cell, and left a “makeshift weapon” taped to the bottom of his 17 bed.” Id. at 20. Plaintiff claims Buenrostro was “letting inmates in [his] cell to steal and 18 plant items when [he is] gone.” Id. 19 This grievance was “partially granted” at the Second Level of review on November 20 22, 2017. Id. at 19, 21-22. Plaintiff was informed that if he was “dissatisfied with the 21 Second Level response” he could submit his grievance to the Third Level of review and 22 was given instructions as how he could proceed. Id. at 19, 22. Plaintiff marked on the 23 form that he was “dissatisfied” with the decision as to his claim that “staff did not violate 24 CDCR polices.” Id. at 19. On March 19, 2018, approximately three months after 25 Plaintiff filed his amended complaint in this action, a “Third Level Appeal Decision” was 26 issued denying Plaintiff’s appeal. Id. at 25-26. Plaintiff was informed that “[t]his 27 decision exhausts the administrative remedy available to the appellant within the CDCR.” 28 Id. at 26. 1 b. Grievance Log No. RJD-A-17-06583 2 On November 12, 2017, Plaintiff filed a grievance, assigned Log. No. RJD-A-17- 3 06583, in which he claimed that Buenrostro “continued with his threats, harassment” and 4 committed “assault & battery” on Plaintiff. See Vila Decl. at ¶ 7, Ex. C at 28. Plaintiff 5 alleged that Buenrostro told him to withdraw his previous grievance or Buenrostro would 6 “make Hannibal Lector look like a bitch when it comes to what he would do to 7 [Plaintiff].” Id. at 30. Plaintiff further claimed that Buenrostro told the tower officer to 8 close Plaintiff’s cell door, while he was standing next to the door, causing Plaintiff to be 9 injured. See id. 10 This grievance was “partially granted” on November 29, 2017 at the Second Level 11 of review, but it was determined that staff “did not violate CDCR policy.” Id. at 32. 12 Plaintiff was informed that if he “wish[ed] to appeal the decision and/or exhaust 13 administrative remedies, [he] must submit [his] staff complaint through all levels of 14 appeal review up to, and including the Secretary’s/Third Level of Review.” Id. Plaintiff 15 appealed this response and a Third Level Appeal decision was issued on April 24, 2018, 16 approximately four months after Plaintiff filed his amended complaint in this action. See 17 id. at 34-35. Plaintiff’s appeal was denied, and he was informed that the “decision 18 exhausts the administrative remedy available to the appellant within the CDCR.” Id. 19 c. Grievance Log No. RJD-A-17-06680 20 On November 16, 2017, Plaintiff filed a grievance, assigned Log No. RJD-A-17- 21 06680, in which he claimed that from August 13, 2017 to the time he filed the grievance, 22 he was “antagonized, threatened, harassed, had sexual comments made towards [him], 23 retaliated against, victim of excessive cell searches, had [his] character defamed with 24 inappropriate comments to third parties (i.e. inmates), denied access to courts, to 25 shower,” and denied “access to mental health treatment” by Buenrostro. See Vila Decl. 26 at ¶ 7, Ex. E at 49-51. Plaintiff alleged that he “made multiple requests, verbal and in 27 writing, for [Buenrostro] to ‘STOP’.” Id. at 51. Plaintiff further claimed that he 28 1 informed Buenrostro’s supervisors, who “all said they will talk to him and tell him to 2 stop.” Id. at 51. 3 This grievance was “partially granted” on November 27, 2017 at the Second Level 4 of review, but it was determined that staff did not “violate CDCR policy with respect to 5 one or more of the issues appealed.” Id. at 53. Plaintiff was informed that if he wished to 6 “appeal the decision and/or exhaust administrative remedies, [he] must submit [his] staff 7 complaint through all levels of appeal review up to, and including, the Secretary’s/Third 8 Level of Review.” Id. Plaintiff appealed this decision and it was initially rejected on 9 January 31, 2018 because it was determined his appeal was missing the “CDCR Form 10 1858, Rights and Responsibilities Statement.” Id. at 54. Plaintiff cured this defect and a 11 Third Level Appeal decision was ultimately issued on May 1, 2018, approximately four 12 and a half months after Plaintiff filed his amended complaint in this action. See id. at 55- 13 56. Plaintiff’s appeal was denied, and he was informed that the “decision exhausts the 14 administrative remedy available to the appellate within CDCR.” Id. 15 2. Claims against Defendant Steadman 16 Plaintiff’s claims against Defendant Steadman arise out of events occurring on 17 November 14, 2017, when he was called to medical for the injuries he sustained on 18 November 9, 2017. See FAC at 7. Plaintiff told Steadman, a Registered Nurse, that 19 Buenrostro had closed a cell door on him which caused his injuries. See id. Plaintiff 20 alleges Steadman accused him of lying and told him that Buenrostro was her friend, 21 questioned his placement in the “EOP,” threated to “call [his] clinician,” and “kicked 22 [him] out without attending to [his] injuries.” Id. Afterward, Plaintiff claims Steadman 23 falsified a medical report related to the November 9, 2017 incident. See id. at 8. 24 On November 15, 2017, Plaintiff filed a grievance, assigned Log No. RJD-SC- 25 17000018, in which he alleged that he was “called to medical” for “injuries [he] sustained 26 due to Officer Buenrostro closing [his] cell door on [him].” See Gates Decl., Ex. D at 37. 27 Plaintiff was “seen by R.N. Steadman” and explained what happened on November 9, 28 2017. Id. Plaintiff explained to Steadman he had “serious metal issues” and claims 1 Steadman “started antagonizing” him. Id. at 39. Plaintiff alleges Steadman told him 2 Buenrostro was her friend and she thought Plaintiff was “lying because he wouldn’t do 3 that.” Id. Plaintiff claims Steadman “kicked [him] out without attending to [his] 4 injuries.” Id. 5 Plaintiff received a “Health Care Staff Complaint Response” from the CCHCS on 6 January 26, 2016. Id. at 42. It was found that “no further intervention of [Plaintiff’s] 7 health care staff complaint is warranted” and staff did not “violate CDCR policy with 8 respect to one or more of the issues grieved.” Id. Plaintiff was informed that if he 9 “wish[ed] to appeal the decision and/or exhaust administrative remedies, Plaintiff] must 10 submit [his] health care staff complaint for a headquarters’ level review.” Id. at 43. 11 Moreover, he was informed that “[o]nce a decision has been rendered at the headquarters’ 12 level, administrative remedies will be considered exhausted.” Id. 13 On April 27, 2018, approximately four months after he filed his amended 14 complaint in this action, Plaintiff received a response by the “Health Care 15 Correspondence and Appeals Branch staff on behalf of the Deputy Director, Policy and 16 Risk Management Services.” Id. at 44. In this response it was stated “[a]fter review, 17 there is no compelling evidence that warrants intervention at the Headquarters’ Level of 18 Review as [Plaintiff’s] health care staff complaint was processed in accordance” with 19 CDCR policy. Id. 20 3. Claims against Defendant Ashbury 21 Plaintiff’s claims against Defendant Ashbury arise out of an interview Ashbury 22 conducted with Plaintiff regarding his “602 appeal on Defendant Officer [Buenrostro].” 23 Doc. No. 7 at 9. Plaintiff claims that he objected when Ashbury authorized his transfer to 24 Building 2 on grounds that it would be too retaliatory and would “endanger [his] safety 25 because [he] had issues with 2 officers in Building 2.” Id. at 9-10. 26 On December 4, 2017, Plaintiff filed a grievance, assigned Log No. RJD-A-17- 27 06640, in which Plaintiff alleged “retaliation by Lieutenant Ashbury.” See Frijas Decl., 28 Ex. F at 58. Plaintiff claimed that on November 26, 2017, he was “escorted to program 1 office for a second time to speak with Lieutenant Ashbury.” Id. Ashbury was 2 interviewing Plaintiff regarding the appeals that he filed against Buenrostro. See id. at 3 60. Ashbury told Plaintiff “he was going to move [Plaintiff] and that [Plaintiff] could 4 write an appeal about him on it, so here it is.” Id. at 60. 5 This grievance was rejected at the First Level of review on January 11, 2018 6 because Plaintiff had “exceeded the allowable number of appeals filed in a 14-calendar 7 day period.” Id. Plaintiff was informed he could “re-submit after 1/25/18.” Id. Plaintiff 8 appears to have resubmitted his appeal on February 6, 2018. See id. at 65. This appeal 9 was again rejected on the grounds that Plaintiff “may not submit a new appeal within 14 10 calendar days of the previously filed appeal.” Id. Plaintiff was also cautioned that 11 “continuous submittal of 602’s prior to the 14-day period may result in an appeal 12 restriction.” Id. Plaintiff did resubmit this appeal, but it was rejected once again because 13 Plaintiff “failed to demonstrate a material adverse effect upon [his] welfare.” Id. at 66. 14 Plaintiff wrote an appeal to this latest decision stating “rules limiting prisoners to a 15 certain number of grievances make remedies unavailable for prisoners over the limit.” 16 Id. 17 On March 8, 2018, Plaintiff’s appeal was rejected on the ground that it “makes a 18 general allegation but fails to state facts or specify an act or decision consistent with the 19 allegation.” Id. Even though his previous attempts had been rejected, on September 10, 20 2018, approximately ten months after he filed his amended complaint in this action, a 21 First Level Appeal Response was issued “partially granting” Plaintiff’s grievance and 22 advising him that the issue “may be submitted to the Second Level of Review.” Id. at 69. 23 4. Analysis 24 As noted above, “[D]efendant[s]’ burden is to prove that there was an available 25 administrative remedy, and that the prisoner did not exhaust that available remedy.” 26 Albino, 747 F.3d at 1172. The burden then shifts to Plaintiff “who must show that there 27 is something particular in his case that made the existing and generally available 28 administrative remedies effectively unavailable to him.” Williams, 775 F.3d at 1191; 1 Albino, 747 F.3d at 1172; Jones, 549 U.S. at 218. He may do so by “showing the local 2 remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously 3 futile.” Albino, 747 F.3d at 1172 (citation omitted); see also Ngo v. Woodford, 539 F.3d 4 1108, 1110 (9th Cir. 2008) (noting potential “unavailability” of administrative remedies 5 if officials “obstruct[ed] [the prisoner’s] attempt to exhaust,” or “prevented [him] from 6 exhausting because procedures for processing grievances weren’t followed.”). “Under § 7 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]’ of administrative 8 remedies: An inmate, that is, must exhaust available remedies, but need not exhaust 9 unavailable ones.” Ross, 136 S. Ct. at 1858. 10 Plaintiff was initially incarcerated in 2013 and has since filed “close to 500” 11 administrative grievances. See Crenshaw Decl. ¶ 2, Ex. A. Pl.’s Dep. 9:10-11; 108:3-5. 12 Nonetheless, Plaintiff opposes Defendants’ motion on the grounds that the prison 13 grievance process was not available to him. According to Plaintiff, Defendant 14 Buenrostro “committed numerous acts and made numerous threats on [Plaintiff’s] life 15 and well-being and safety and made good on the threats that had placed Plaintiff in great 16 perpetual fear of his safety that [caused] him to feel he would be killed at any moment 17 especially if he complained about it administratively.” Doc. No. 35 at 1.6 18 Plaintiff’s assertion is belied by the uncontroverted evidence that Plaintiff did, in 19 fact, file multiple administrative grievances against Defendants, including three separate 20 grievances against Buenrostro which he actively pursued to the third and final level of 21 review. The record before the Court is devoid of any evidence to demonstrate that the 22 prison’s administrative grievance process was unavailable to Plaintiff. The Court finds 23 that the evidence presented by Defendants attached to their sworn declarations “meets 24 25 26 27 6 Plaintiff did not verify his response in opposition to Defendants’ motion under penalty of perjury. As such, the Court may not treat it as an affidavit in opposition to summary judgment. See Keenan v. Hall, 28 1 [Defendants’] burden of demonstrating a system of available administrative remedies at 2 the initial step of the Albino burden-shifting inquiry.” Williams, 775 F.3d at 1192. 3 With respect to his grievance against Defendant Ashbury, Plaintiff argues that he 4 was “prevented from exhausting the Ashbury grievance because of [Defendants] repeated 5 rejections and frivolous reasoning for not accepting it.” Doc. No. 35 at 3; Ross, 136 S. 6 Ct. at 1860 (noting unavailability may be shown when “prison officials devise procedural 7 systems (including … blind alleys and quagmires …) in order to ‘trip[] up all but the 8 most skillful prisoners.’”) (quoting Woodford, 548 U.S. at 102). 9 The evidence in the record demonstrates that Plaintiff’s grievance as to Ashbury 10 was subjected to several rejections based on CDCR regulations. See Frijas Decl., Ex. F at 11 62-67. However, Plaintiff does not address the fact that Plaintiff’s grievance regarding 12 the claims against Ashbury was, ultimately, addressed at the First Level of review. See 13 id. at 68-69. Moreover, in his sworn deposition, Plaintiff testifies that he “did not” 14 exhaust this grievance to the Third Level of review. Pl.’s Dep. at 95:23-25. Plaintiff may 15 show that his remedies were “unavailable” by “showing the local remedies were 16 ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.” Albino, 747 17 F.3d at 1172 (citation omitted). However, that is not the case before this Court. Plaintiff 18 was clearly very familiar with the CDCR grievance process, having testified that he filed 19 at least five hundred such grievances over a five-year period. 20 Plaintiff’s own sworn testimony, even viewed in the light most favorable to 21 Plaintiff, does not satisfy Plaintiff’s burden of production under Albino and Williams as it 22 does not demonstrate that administrative remedies were not “available” to him because 23 RJD officials “thwarted the effective invocation of the administrative process through 24 threats, game-playing, or misrepresentations, … in [his] individual case.” Ross, 136 S. 25 Ct. at 1862. Thus, the Court finds that Defendant Ashbury is entitled to summary 26 judgment on the ground that Plaintiff failed to exhaust his administrative remedies as to 27 the claims against him. 28 1 As for the claims against Buenrostro and Steadman, it is undisputed that Plaintiff 2 ultimately exhausted his administrative remedies against Buenrostro and Steadman. 3 However, Plaintiff only exhausted his administrative remedies after he filed his amended 4 complaint. 5 Plaintiff filed three grievances7 against Buenrostro approximately a week before 6 his filed his original complaint initiating this action. Plaintiff filed his grievance8 against 7 Steadman two days before his filed his original complaint. Prisoners are required to 8 exhaust administrative remedies prior to filing suit. Jones, 549 U.S. at 211; McKinney v. 9 Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). And while a plaintiff may bring new 10 claims in an amended pleading if those claims are exhausted before the filing of the 11 amended pleading, see Rhodes v. Robinson, 621 F.3d 1002, 1006-07 (9th Cir. 2010), 12 Plaintiff did not exhaust his claims before filing his original complaint and he did not 13 exhaust his claims, or any new claims, before he filed his amended complaint. The 14 evidence in the record before the Court shows that Plaintiff exhausted his claims against 15 Defendants Buenrostro and Steadman between March and April 2018 – well over a year 16 after he filed his amended complaint in this action. 17 Plaintiff does not offer any admissible evidence to dispute Defendant Buenrostro 18 and Steadman’s showing that Plaintiff did not exhaust his administrative grievances until 19 months after he filed his original and amended complaints. It is well-settled that a 20 plaintiff may “initiate litigation in federal court only after the administrative process ends 21 and leaves his grievances unredressed.” Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th 22 Cir. 2006). 23 In sum, Plaintiff’s claims against Defendant Ashbury are subject to dismissal 24 without prejudice based on Plaintiff’s failure to exhaust the administrative grievance 25 26 27 7 See Vila Decl. ¶ 7, Ex. B, C, E.

28 1 || process. Plaintiff's claims against Defendants Buenrostro and Steadman are subject to 2 || dismissal without prejudice based on Plaintiff’s failure to exhaust his administrative 3 ||remedies prior to initiating this action or filing his amended complaint. Accordingly, 4 || judgment in favor of Defendants is appropriate. 5 Conclusion 6 Based on the foregoing, the Court GRANTS Defendants’ motion for summary 7 ||judgment pursuant to 42 U.S.C. § 1997e(a). The Court DIRECTS the Clerk of Court to 8 |/enter judgment in favor of Defendants and close the case. 9 IT IS SO ORDERED. 10 11 || DATED: March 24, 2020 thle Tu - é ltr 12 HON. MICHAEL M. ANELLO B United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28