Opinion
Case No. CV 14-600-DSF (KK)
03-18-2019
BRYAN E. RANSOM, Plaintiff, v. S. LEE, ET AL., Defendants.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
SUMMARY OF RECOMMENDATION
Bryan E. Ransom ("Plaintiff"), proceeding pro se and in forma pauperis, filed a Third Amended Complaint ("TAC") against numerous defendants asserting claims pursuant to 42 U.S.C. § 1983 ("Section 1983") and state law. The remaining claims in the TAC are Claims One, Five, Seven, Eight, Ten, Twelve, Fourteen, and Fifteen each alleging deliberate indifference under the Eighth Amendment and various state law claims against defendants Lee, Gallagher, Duncan, Tomasini, Mangrubang, Day, Valenzuela, Phillips, Cota, Taylor, Lake, Siordia, Busby, Hill, Nurse Jane Doe, Merrill, and Ramirez-Quan ("Defendants"). Defendants filed a Motion for Summary Judgment ("Motion") arguing Plaintiff's in forma pauperis status should be revoked and that he failed to exhaust his administrative remedies as to all claims except Claim Fifteen against defendants Mangrubang and Siordia.
For the reasons below, the Court recommends (1) DENYING Defendants' request to revoke Plaintiff's in forma pauperis status; and (2) GRANTING Defendants' Motion for Summary Judgment due to Plaintiff's failure to exhaust administrative remedies as to (a) Claims One, Five, Seven, Eight, Ten, Twelve, and Fourteen; and (b) Claim Fifteen against defendants Ramirez-Quan and Merrill. Hence, the Court recommends Plaintiff should be permitted to proceed in this action on Claim Fifteen against defendants Mangrubang and Siordia.
II.
PROCEDURAL HISTORY
A. PREVIOUS COMPLAINTS
On December 15, 2013, Plaintiff constructively filed a complaint pursuant to Section 1983 alleging prison officials at California Men's Colony ("CMC") in San Luis Obispo denied him necessary medical treatment for Hepatitis C because of his participation in a "solid food" hunger strike in 2013. ECF Docket No. ("Dkt.") 5.
Under the "mailbox rule," when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively "filed" on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the "mailbox rule applies to § 1983 suits filed by pro se prisoners").
On March 17, 2014, the Court granted Plaintiff's request to proceed in forma pauperis ("IFP"). Dkt. 3.
On July 23, 2014, the Court received a First Amended Complaint, which named additional defendants, raised additional claims, and alleged additional incidents relating to Plaintiff's 2013 hunger strike at CMC. Dkt. 12. On October 6, 2014, the Court dismissed the First Amended Complaint with leave to amend. Dkt. 15.
On July 1, 2014, this case was reassigned and transferred to the undersigned United States Magistrate Judge.
On November 13, 2014, Plaintiff lodged a Second Amended Complaint. Dkt. 17. On November 24, 2014, the Court dismissed the Second Amended Complaint with leave to amend. Dkt. 18.
B. THE OPERATIVE COMPLAINT
On December 15, 2014, Plaintiff filed the TAC setting forth twenty-one "claims" against forty-seven defendants. Dkt. 20. Each "claim" raises multiple causes of action under state and federal law arising out of incidents related to Plaintiff's 2013 hunger strike at CMC and validation as a member of the Black Guerrilla Family ("BGF") gang. Id. After two motions to dismiss and an order dismissing unserved defendants, the claims remaining in the TAC are Claims One, Five, Seven, Eight, Ten, Twelve, Fourteen, and Fifteen each alleging deliberate indifference under the Eighth Amendment and various state law claims against the seventeen remaining Defendants. See Dkt. 154. More specifically, the claims remaining in the instant action are:
On November 6, 2015, the Court issued an order granting defendant Barton's Motion to Dismiss and dismissing all claims against defendant Barton without leave to amend. Dkt. 124. On March 15, 2017, the Court dismissed without prejudice all claims against seven defendants — Escobar, Smith, Downey, Galvan, Scef, Cabrera, and Siebert — because they were never served. Dkt. 150. On June 27, 2017, the Court granted in part and denied in part defendants' Motion to Dismiss the TAC and severed the claims arising out of Plaintiff's gang validation into a separate action. Dkt. 154.
• Claim One alleging deliberate indifference under the Eighth Amendment and medical malpractice, negligence, and intentional infliction of emotional distress against defendants Lee, Gallagher, and Duncan based on their alleged failure to treat Plaintiff's Hepatitis C;
• Claim Five alleging deliberate indifference under the Eighth Amendment and negligence and intentional infliction of emotional distress against
defendants Tomasini, Mangrubang, Day, Valenzuela, and Phillips based on their alleged withholding of Plaintiff's food trays;See Dkt. 20.
• Claim Seven alleging deliberate indifference under the Eighth Amendment and negligence and intentional infliction of emotional distress against defendants Valenzuela, Phillips, and Cota based on their alleged failure to intervene in the withholding of Plaintiff's food trays;
• Claim Eight alleging deliberate indifference under the Eighth Amendment and medical malpractice, negligence, and intentional infliction of emotional distress against defendants Lee, Gallagher, and Duncan based on their alleged refusal to prescribe a substitute liquid diet;
• Claim Ten alleging deliberate indifference under the Eighth Amendment against defendant Nurse Jane Doe based on her alleged denial of motion sickness medication;
• Claim Twelve alleging deliberate indifference under the Eighth Amendment and medical malpractice, negligence, and intentional infliction of emotional distress against defendants Lake, Taylor, Lee, Gallagher, and Duncan based on their alleged refusal to increase the calories in Plaintiff's prescribed liquid diet;
• Claim Fourteen alleging deliberate indifference under the Eighth Amendment and negligence and intentional infliction of emotional distress against defendants Tomasini, Mangrubang, Siordia, Busby, and Hill based on their alleged delay or withholding of Plaintiff's liquid diet from October 3 to 7, 2013; and,
• Claim Fifteen alleging deliberate indifference under the Eighth Amendment and negligence and intentional infliction of emotional distress against defendants Mangrubang and Siordia based on their alleged refusal to open Plaintiff's food port for defendants Ramirez-Quan and Merrill, and against Ramirez-Quan and Merrill for their alleged failure to intervene.
On August 24, 2017, Defendants filed an Answer to the TAC. Dkt. 161.
C. MOTION FOR SUMMARY JUDGMENT
On May 11, 2018, Defendants filed the instant Motion arguing (a) Plaintiff's IFP status should be revoked because Plaintiff was not in imminent danger at the time he filed the Complaint; and (b) Plaintiff failed to exhaust administrative remedies for all claims except Claim Fifteen against defendants Mangrubang and Siordia. Dkt. 181, Motion; Dkt. 182, Ramirez-Quan Joinder.
On March 6, 2018, the Court granted Defendants leave to file a motion to revoke Plaintiff's IFP status and for summary judgment on the procedural issue of failure to exhaust administrative remedies and continued the deposition and substantive motion cut-offs until after the Court's ruling on the procedural summary judgment motion. Dkt. 171.
In support of their Motion, Defendants submit the following:
• Statement of Uncontroverted Facts, Dkt. 181-1 • Proposed Order, Dkt. 181-2 • Declaration of M. Voong, Chief of the Office of Appeal for California Department of Corrections and Rehabilitation ("CDCR") ("Voong Decl."), Dkt. 181-3, attaching the following exhibits: ? Exhibit A - Appeal No. CMC-13-02852 ? Exhibit B - Inmate/Parolee Appeals Tracking System - Level III, Appellant Appeal History for Plaintiff • Declaration of S. Gates, Chief of the Health Care Correspondence and Appeals Branch ("HCCAB") ("Gates Decl."), Dkt. 181-4, attaching the following exhibits: ? Exhibit C - Health Care Appeals and Risk Tracking System ("HCARTS") health care appeal history printout for Plaintiff ? Exhibit D - Appeal No. CMC HC 13-047539 6 ? Exhibit E - Appeal No. CMC HC 13-047512 ? Exhibit F - Appeal No. CMC HC 13-47066 • Declaration of K. Cox, Associate Governmental Program Analyst and Assistant Appeals Coordinator at CMC ("Cox Decl."), Dkt. 181-5, attaching the following exhibits: ? Exhibit G - Appeal No. CMC-E-13-02854 ? Exhibit H - Appeal No. CMC-E-13-02093 ? Exhibit I - Appeal No. CMC-E-13-02799 ? Exhibit J - Appeal No. CMC-E-13-03141 ? Exhibit K - CMC appeal history log for Plaintiff • Declaration of Dr. D. Ralston ("Ralston Decl."), Dkt. 181-6, attaching the following exhibits: ? Exhibit A - relevant section of the CDCR "Hunger Strike, Fasting, and Refeeding Care Guide", including the guidelines for medication adjustment ? Exhibit B - January 11, 2013 medical progress note ? Exhibit C - July 30, 2013 medical progress note ? Exhibit D - August 13, 2013 and August 23, 2013 medical progress notes ? Exhibit E - November 13, 2013 laboratory test results ? Exhibit F - December 13, 2013 physician's orders ? Exhibit G - April 15, 2014 ultrasound report • Declaration of Dr. O. Beregovskaya ("Beregovskaya Decl."), Dkt. 181-7, attaching the following exhibits: ? Exhibit H - December 17, 2014 physician's orders ? Exhibit I - August 6, 2015 Hepatitis C Treatment/Consent Agreement signed by Plaintiff 7 ? Exhibit J - June 13, 2016 and September 15, 2016 medical progress
On May 14, 2018, the Court issued an Order notifying Plaintiff of the requirements for opposing a motion for summary judgment pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Dkt. 183.
On September 17, 2018, Plaintiff filed an Opposition to the Motion. Dkt. 192. In support of his Opposition, Plaintiff submits a Statement of Genuine Disputes, Dkt. 192-2, and a declaration ("Ransom Decl."), Dkts. 192-3, 192-4, attaching the following exhibits:
• Exhibit A - September 28, 2011 Office of the Inspector General Special Report "CDCR's Revised Inmate Appeals Process Leaves Key Problems Unaddressed"
• Exhibit B - June 2011 San Francisco Bayview Newspaper article setting out the "5 Core Demands, Pelican Bay Human Rights Movement"
• Exhibit C - July 8, 2013 California Prisoner Hunger Strike: 40 Supplemental Demands
• Exhibit D - July 7, 2013 Form 22 Inmate/Parolee Request putting custody and medical staff on notice of Plaintiff's participation in a "solid food hunger strike"
• Exhibit E - July 18, 2013 Administrative Segregation Unit Placement Notice
• Exhibit F - April 6, 2006 laboratory test results of Plaintiff
• Exhibit G - August 28, 2013 Daily Hunger Strike Nursing Assessment Form
• Exhibit H - December 26, 2013 Memorandum from defendant Ramirez-Quan Re: Appeal Log CMC-E-13-02852
• Exhibit I - March 2, 2018 Form 22 Inmate/Parolee Request re: "falsifying documents"
• Exhibit J - March 9, 2018 CDCR 128B Threat Assessment Response Team Chrono
• Exhibit K - March 5, 2018 Rules Violation Report Log No. 4579351
• Exhibit L - March 2, 2018 Administrative Segregation Unit Placement Notice
• Exhibit M - March 2, 2018 Inmate Property Inventory
• Exhibit N - March 16, 2018 Inmate Property Inventory
• Exhibit O - April 6, 2018 Inmate Property Inventory
• Exhibit P - Appeal No. CMC-E-18-01264 regarding lost property
On November 16, 2018, Defendants filed a reply and defendant Ramirez-Quan joined in the reply. Dkt. 196, Reply; Dkt. 197, Joinder.
On January 28, 2019, the Court issued a Report and Recommendation recommending Defendants' Motion be granted in part and denied in part. Dkt. 198. On February 4, 2019, the Court issued an Amended Report and Recommendation. Dkt. 200. The Court now issues the instant Final Report and Recommendation.
The Final Report and Recommendation is issued to correct clerical errors.
III.
LEGAL STANDARD
Summary judgment is appropriate if there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party has no burden, however, to negate or disprove matters on which the non-moving party will have the burden of proof at trial. Id. at 325. 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. Id.
The burden then shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citations omitted). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Evidence that "is merely colorable, or is not significantly probative," is not sufficient to avoid summary judgment. Id. at 249-50 (citations omitted).
An affidavit or declaration may be used to support or oppose a motion for summary judgment, provided it is "made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). In addition, pursuant to Central District Local Rule 56-3, the Court assumes the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy.
Central District Local Rule 56-3 provides:
In determining any motion for summary judgment or partial summary judgment, the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent that such material facts are (a) included in the "Statement of Genuine Disputes" and (b) controverted by declaration or other written evidence filed in opposition to the motion.
Summary judgment cannot be granted where a genuine dispute exists as to any material fact. Fed. R. Civ. P. 56(c). A "material" fact is one which might affect the outcome of the case under the applicable law. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the non- moving party. Id. In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255.
IV.
REVOCATION OF IFP STATUS
A. APPLICABLE LAW
Under 28 U.S.C. § 1915(a)(2), litigants who meet specified criteria can proceed with civil litigation without the full prepayment of fees or costs (i.e. with IFP status). 28 U.S.C. § 1915(a)(2). However, Section 1915(g), commonly known as the "three strikes" provision, precludes prisoner litigants from proceeding IFP:
[I]f the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon relief can be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
A plaintiff who has three strikes under Section 1915(g) may still proceed IFP by showing that he or she "is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). This exception only "applies if the complaint makes a plausible allegation that the prisoner faced imminent physical danger at the time of filing" the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). A plaintiff must show that (1) the imminent danger of serious physical injury is fairly traceable to the unlawful conduct asserted in the complaint and (2) a favorable judicial outcome would redress that injury. Pettus v. Morgenthau, 554 F.3d 293, 299 (2nd Cir. 2009).
"[T]he availability of the [imminent danger] exception turns on the conditions a prisoner faced at the time the complaint was filed, not some earlier or later time." Cervantes, 493 F.3d at 1053. There must be an "ongoing danger" in order for the imminent-danger exception to apply. Id. at 1056-57. The "common definition of 'imminent' . . . does not refer only to events that are already taking place, but to those events 'ready to take place' or 'hanging threateningly over one's head.'" Id. at 1056. The Court "should not make an overly detailed inquiry into whether the allegations [are serious enough to] qualify for the exception." Id. at 1055. Applying this standard, courts have found imminent danger may arise from the denial of medical treatment for serious or life-threatening diseases. See Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (withdrawal of medications for HIV and hepatitis); Ciapaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) (denial of medication for psychiatric disorders caused plaintiff heart palpitations, chest pains and paralysis).
B. ANALYSIS
Here, Plaintiff does not appear to dispute he has incurred three or more strikes under Section 1915(g) and instead claims he qualifies for IFP status under the imminent danger exception. Dkt. 192 at 10-16. Specifically, in the Complaint, Plaintiff alleged defendants Lee, Gallagher, and Duncan "have each pulled up Plaintiff's medical file confirming his chronic Hep-C and need for treatment, but have made no provision for Plaintiff to start the needed Hep-C treatment." Compl. at ¶ 13.
Plaintiff's allegation in the Complaint that defendants were denying him treatment for a serious or life-threatening disease at the time he filed the Complaint is a sufficient allegation for permitting Plaintiff to proceed IFP under the imminent danger exception. See, e.g., Brown, 387 F.3d at 1350; Ciapaglini, 352 F.3d at 330.
Defendants have filed the declarations of Drs. Ralston and Beregovskaya to prove that despite Plaintiff's allegations, Plaintiff's Hepatitis C was being monitored, Plaintiff was being evaluated for treatment, and Plaintiff was not in imminent danger from his Hepatitis C at the time he filed the Complaint. However, Defendants have offered no authority for revoking IFP status on the grounds that the allegations in a complaint may be contradicted by evidence regarding the merits of the claim, nor has the Court identified any binding authority providing for such relief. Moreover, Section 1915(g) "merely establishes a threshold procedural question and does not ask the court to evaluate the merits of the suit." Cervantes, 493 F.3d at 1057 (finding defendants' evidence effectively rebutting the merits of plaintiff's allegations should not be considered at this "threshold stage" and plaintiff should have been granted IFP status to proceed with his entire complaint). Hence, Defendants' Motion to revoke Plaintiff's IFP status should be denied.
V.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
A. THE PRISON LITIGATION REFORM ACT OF 1996
1. PLRA's Administrative Exhaustion Requirement
Under the Prison Litigation Reform Act of 1996 ("PLRA"), "No action shall be brought with respect to prison conditions under section 1983 of this title, 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) ("Section 1997e(a)"). The PLRA requires a prisoner to complete any prison administrative process capable of addressing the inmate's complaint, even if the prisoner seeks money damages and such relief is not available under the administrative process. See Booth v. Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001).
Plaintiff's state claims are subject to the same exhaustion requirements under California law. 15 Cal. Code Regs. § 3084.1(b) ("[a]ll appeals are subject to a third level of review, . . . before administrative remedies are exhausted"); see also Wright v. State of California, 122 Cal. App. 4th 659, 667 (Cal. Ct. App. 2004) ("An inmate who has not completed the [third-level] review process provided under section 3084.1, subdivision (a) has not exhausted administrative remedies.").
In addition, Section "1997e(a) requires exhaustion before the filing of a complaint" and is not satisfied by exhaustion during the course of the litigation. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see also Woodford v. Ngo, 548 U.S. 81, 93-94, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). "[P]roper exhaustion" under the PLRA requires that a prisoner comply with the prison's "deadlines and other critical procedural rules" as a precondition to bringing suit in federal court. See Ngo, 548 U.S. at 90. If a prisoner has not exhausted his available administrative remedies before filing his federal suit, the Court must dismiss the action without prejudice to allow plaintiff to file a new action after he has completed his administrative remedies. See McKinney, 311 F.3d at 1200-01.
2. The Parties' Burdens in Proving Exhaustion Or Failure To Exhaust
"[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). Rather, Section 1997e(a) creates an affirmative defense that "should be decided, if feasible, before reaching the merits of a prisoner's claim." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). "[T]he defendant's burden is to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Id. (setting forth the respective burdens where a defendant contends a plaintiff failed to exhaust administrative remedies). If a defendant meets this burden, the burden shifts to the plaintiff to come forward with evidence showing his administrative remedies were "effectively unavailable." Id.; Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (finding a failure to exhaust may be excused if administrative remedies have been made "effectively unavailable").
3. Improper Screening of Administrative Grievances
"[I]mproper screening of an inmate's administrative grievances renders administrative remedies 'effectively unavailable' such that exhaustion is not required under the PLRA." Sapp, 623 F.3d at 823. The rationale for this exception is straightforward: if prison officials screen out an inmate's appeals for improper reasons, the inmate cannot pursue the necessary sequence of appeals, and, as a result, his administrative remedies become unavailable. Id. To fall within this exception, the inmate must establish: (1) he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court; and (2) prison officials screened his grievance or grievances for reasons inconsistent with or unsupported by applicable regulations. Id. at 823-24.
B. CALIFORNIA'S INMATE GRIEVANCE PROCESS
The State of California provides its prisoners 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).
At the time of the events giving rise to the present action, California prisoners were required to proceed through three separate levels of appeal to exhaust the administrative appeal process: (1) first level appeal to the institution's appeals coordinator; (2) second level appeal to the "hiring authority or designee"; and (3) third level appeal to the Secretary of the California Department of Corrections and Rehabilitation. See id. § 3084.7. A final decision from the Secretary's level of review — that is, the third level — exhausts the prisoner's administrative remedies. See id. § 3084.7(d)(3).
At all levels of the administrative process, prisoners must "use a CDCR Form 602 (Rev. 08/09), Inmate/Parolee Appeal, to describe the specific issue under appeal and the relief requested." Id. § 3084.2(a). "The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue" by including "any information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question." Id. § 3084.2(a)(3). "The inmate or parolee shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the [form and attachment]." Id. § 3084.2(a)(4).
Inmate grievances may be screened and rejected by prison officials without a decision if the grievances are improperly submitted. See id. §§ 3084.5, 3084.6. "When an appeal is not accepted, the inmate or parolee shall be notified of the specific reason(s) for the rejection or cancellation of the appeal and of the correction(s) needed for the rejected appeal to be accepted." Id. § 3084.5(b)(3).
C. ANALYSIS
1. Plaintiff Has Not Exhausted His Administrative Remedies or Shown His Administrative Remedies Were Effectively Unavailable for Claim One
In Claim One, Plaintiff alleges defendants Lee, Gallagher, and Duncan were on notice of Plaintiff's chronic Hepatitis C diagnosis, but refused to treat his Hepatitis C. TAC at ¶¶ 27-29.
a. The Parties' Evidence
Defendants' records do not reflect any grievances mentioning that defendants Lee, Gallagher, or Duncan refused to provide Plaintiff with treatment for his chronic Hepatitis C. See Voong Decl., ¶¶ 14-15, Ex. B; Gates Decl., ¶¶ 8-9, Ex. C; Cox Decl., ¶¶ 17-19, Ex. K.
Plaintiff states he "submitted a CDCR 602 against Defendant[s] S. Lee, P. Gallagher, and D. Duncan and requested the [Plaintiff] receive treatment for said Hep C 'Stage 3'." Ransom Decl., ¶ 9. Plaintiff also states: "After 30 working days of not getting a response to the CDCR 602 [Plaintiff] submitted a CDCR Form 22 enquiry [sic], but still got no response." Id. ¶ 10.
b. Discussion
While Plaintiff claims he filed a CDCR 602 related to Claim One, the undisputed evidence establishes Plaintiff did not appeal this grievance to the third level of review. Thus, Plaintiff failed to exhaust his administrative remedies as required under the PLRA. See Estes v. Dotson, No. CV 16-09422-GW-KES, 2018 WL 3740619, at *3-4 (C.D. Cal. July 16, 2018) (finding California inmate failed to exhaust his administrative remedies as required under the PLRA where he did not appeal his grievance through the third level), report and recommendation adopted by 2018 WL 3738953, at *1 (C.D. Cal. Aug. 1, 2018).
In addition, Plaintiff's general allegation that he is "inclined to believe, and even contend" that Defendants "in all probability intercepted and/or destroyed the aforementioned CDCR 602's and Form 22's as well" is insufficient to create a genuine factual dispute regarding exhaustion of administrative remedies. See Ransom Decl., ¶ 20; Jeffries v. Fields, No. CV 12-1351 R (JC), 2014 WL 994908, at *18 (C.D. Cal. Mar. 10, 2014) ("[C]onclusory assertions . . . are insufficient to demonstrate that any failure to exhaust was excused due to misconduct by prison officials that rendered further administrative remedies unavailable."); Crayton v. Hedgpeth, No. C 08-00621 WHA (PR), 2011 WL 1988450, at *7 (E.D. Cal. May 20, 2011) ("Plaintiff's allegations of lost, stolen, and destroyed grievances are too vague to effectively rebut defendants' claim that plaintiff has failed to exhaust his administrative remedies[.]"); Rodgers v. Reynaga, No. CV 1-06-1083-JAT, 2009 WL 2985731, at *3 (E.D. Cal. Sept. 16, 2009) ("To grant Plaintiff an exception to PLRA's demand for exhaustion based solely on Plaintiff's self-serving testimony that his grievance was surreptitiously destroyed by prison officials would completely undermine the rule."). Moreover, Plaintiff's general allegations of lost or destroyed grievances fails to explain why he did not appeal to the third level of review.
Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion Plaintiff has not exhausted his administrative remedies for Claim One. See Celotex, 477 U.S. at 325.
2. Plaintiff Has Not Exhausted His Administrative Remedies or Shown His Administrative Remedies Were Effectively Unavailable for Claims Five and Seven
In Claim Five, Plaintiff alleges defendants Tomasini, Mangrubang, Day, Valenzuela, and Phillips withheld his food trays, which included non-solid food items, during Plaintiff's "solid food" hunger strike. TAC at ¶¶ 72-79. In Claim Seven, Plaintiff alleges defendants Valenzuela, Phillips, and Cota failed to intervene in the withholding of Plaintiff's food trays. TAC at ¶¶ 103-104.
a. The Parties' Evidence
Defendants' records do not reflect any grievances mentioning defendants Tomasini, Mangrubang, Day, Valenzuela, or Phillips withheld Plaintiff's food trays or defendants Valenzuela, Phillips, or Cota failed to intervene in the withholding of Plaintiff's food trays. See Voong Decl., ¶¶ 14-15, Ex. B; Gates Decl., ¶¶ 8-9, Ex. C; Cox Decl., ¶¶ 17-19, Ex. K.
Defendants identify Appeal No. CMC-E-13-02093, dated August 4, 2013, as "tangentially related" to claims Five and Seven. Dkt. 181 at 16. In Appeal No. CMC-E-13-02093, Plaintiff alleges the "Warden, CEO, and their staff" have devised and enforced a "policy/practice" that requires prisoners to eat no food (liquid or solid) in order to be recognized as participating in a hunger strike, which accelerated the onset of Plaintiff's starvation and dehydration and caused Plaintiff unnecessary pain. Cox Decl., Ex. H. On August 29, 2013 and September 17, 2013, Appeal No. CMC-E-13-02093 was rejected at the first level of review pursuant to CCR, Title 15, § 3084.6(b)(2) because Plaintiff "failed to demonstrate a material adverse effect [upon his welfare] or how staff violated policy and procedure." Id. ¶ 18(a), Ex. H.
Plaintiff states that "[b]etween July 18-21, 2013, [Plaintiff] submitted a CDCR 602 alleging that Ad Seg Defendants (Officers) were withholding [Plaintiff's] daily state issued food trays and deliberately would not make the distinction between [Plaintiff's] 'solid food' hunger strike from the traditional hunger strike of not eating anything at all . . . ." Ransom Decl., ¶ 31. Plaintiff states: "After 30 working days [Plaintiff] submitted a CDCR Form enquiring [sic] about the aforementioned CDCR 602, but got no response from either." Id. ¶ 31.
Plaintiff also states that "[a]round or about August 23, 2013, [Plaintiff] submitted a CDCR 602 alleging that Defendants Warden Valenzuela and other supervisory staff had failed to intervene in Ad Seg custody officers (Defendants) withholding [Plaintiff's] daily state issued food trays." Ransom Decl., ¶ 34. Plaintiff then states: "After 30 working days [Plaintiff] had not received a response from the aforementioned CDCR 602 nor the subsequent CDCR Form 22 enquiring [sic] about the CDCR 602." Id. ¶ 35.
b. Discussion
Once again, the undisputed evidence establishes Plaintiff did not appeal grievances regarding Claims Five and Seven to the third level of review. Thus, Plaintiff failed to exhaust his administrative remedies as required under the PLRA. See Estes, 2018 WL 3740619, at *3-4.
In addition, Plaintiff's general allegation that he is "inclined to believe, and even contend" that Defendants "in all probability intercepted and/or destroyed the aforementioned CDCR 602's and Form 22's as well" is insufficient to create a genuine factual dispute regarding exhaustion of administrative remedies. See Ransom Decl., ¶ 20; Jeffries, 2014 WL 994908, at *18; Crayton, 2011 WL 1988450, at *7; Rodgers, 2009 WL 2985731, at *3. Moreover, Plaintiff's general allegations of lost or destroyed grievances fails to explain why he did not appeal to the third level of review.
Lastly, Plaintiff argues the reference in Appeal No. CMC-E-13-02093 to "a local policy/practice" "incorporate[es] the entire gamut of Plaintiff's claims of Defendants (Ad. Seg.) withholding his daily state issued food trays for 93 days". Dkt. 192-1 at 29-30. "[A] grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). However, there is no mention anywhere in Appeal No. CMC-E-13-02093 that Plaintiff was not receiving food trays. See Cox Decl., Ex. H. Therefore, this grievance failed to provide sufficient information to allow prison officials to take appropriate responsive measures. See Griffin, 557 F.3d at 1121 (finding plaintiff failed to exhaust administrative remedies because plaintiff "did not provide notice of the prison staff's alleged disregard of his lower bunk assignments" when he repeatedly demanded a ladder). Hence, Appeal No. CMC-E-13-02093 would not have sufficed to exhaust Claims Five and Seven.
To the extent Plaintiff also argues the reference in Appeal No. CMC-E-13-02093 to "a local policy/practice" would have incorporated his claims against "the Doctor Defendants S. Lee, P. Gallagher, and D. Duncan's [for] delaying and/or denying Plaintiff's Hep-C treatment under the guise of CMC's hunger strike policy and 'PRACTICES'", dkt. 192-1 at 29-30, the appeal is similarly insufficient to exhaust Claim One.
Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion Plaintiff has not exhausted his administrative remedies for Claims Five and Seven. See Celotex, 477 U.S. at 325.
3. Plaintiff Has Not Exhausted His Administrative Remedies or Shown His Administrative Remedies Were Effectively Unavailable for Claim Eight
In Claim Eight, Plaintiff alleges from July 18, 2013 through August 23, 2013, defendants Lee, Gallagher, and Duncan refused to prescribe a medically substituted liquid diet for Plaintiff during his solid food hunger strike. TAC at ¶¶ 107-08.
a. The Parties' Evidence
Defendants' records do not reflect any grievances mentioning defendants Lee, Gallagher, or Duncan refused to prescribe a medically substituted liquid diet for Plaintiff at any time between July 18, 2013 and August 23, 2013. See Voong Decl., ¶¶ 14-15, Ex. B; Gates Decl., ¶¶ 8-9, Ex. C; Cox Decl., ¶¶ 17-19, Ex. K.
Plaintiff's only statement in his declaration that could possibly be construed as relating to exhausting Claim Eight is the general statement that "[o]n many more occasions [Plaintiff] would submit and/or respond to [Plaintiff's] CDCR 602's, but would not receive any responses from the CDCR 602's nor the subsequent CDCR Form 22 enquiries [sic] that [Plaintiff] would submit." Ransom Decl., ¶ 19. /// ///
b. Discussion
The undisputed evidence establishes Plaintiff did not submit any grievances regarding Claim Eight. Thus, Plaintiff failed to exhaust his administrative remedies as required under the PLRA. See Washington v. Guerra, No. CV 15-06919-VAP-DTB, 2017 WL 1197861, at *5-6 (C.D. Cal. Jan. 31, 2017) (finding plaintiff did not exhaust his administrative remedies for a failure to intervene claim as required under the PLRA where he did not submit any grievances related to his claim) report and recommendation adopted by 2017 WL 1197667, at *1 (C.D. Cal. Mar. 29, 2017).
Plaintiff's general allegation that he is "inclined to believe, and even contend" that Defendants "in all probability intercepted and/or destroyed the aforementioned CDCR 602's and Form 22's as well" is insufficient to create a genuine factual dispute regarding exhaustion of administrative remedies. See Ransom Decl., ¶ 20; Jeffries, 2014 WL 994908, at *18; Crayton, 2011 WL 1988450, at *7; Rodgers, 2009 WL 2985731, at *3. Moreover, Plaintiff's general allegations of lost or destroyed grievances fails to explain why he did not submit a grievance at any level of review.
Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion Plaintiff has not exhausted his administrative remedies for Claim Eight. See Celotex, 477 U.S. at 325.
4. Plaintiff Has Not Exhausted His Administrative Remedies or Shown His Administrative Remedies Were Effectively Unavailable for Claim Ten
In Claim Ten, Plaintiff alleges on July 28, 2013, defendant Nurse Jane Doe denied Plaintiff motion sickness medication during transport from CMC in San Luis Obispo to Corcoran State Prison for a court appearance. TAC at ¶¶ 121-27. /// /// ///
a. The Parties' Evidence
Defendants' records do not reflect any grievances mentioning a nurse refusing motion sickness medication to Plaintiff on or about July 28, 2013. See Voong Decl., ¶¶ 14-15, Ex. B; Gates Decl., ¶¶ 8-9, Ex. C; Cox Decl., ¶¶ 17-19, Ex. K.
Plaintiff states "[a]s soon as [Plaintiff] returned to the prison [Plaintiff] submitted a CDCR 602 regarding Defendant Jane Doe refusing to provide [Plaintiff] with [his] prescribed motion sickness medication before travel, but got no response from the CDCR 602 nor the subsequent Form 22 enquiry [sic]." Ransom Decl., ¶ 49.
b. Discussion
While Plaintiff claims he filed a CDCR 602 related to Claim Ten, the undisputed evidence establishes Plaintiff did not appeal this grievance to the third level of review. Thus, Plaintiff failed to exhaust his administrative remedies as required under the PLRA. See Estes, 2018 WL 3740619, at *3-4.
In addition, Plaintiff's general allegation that he is "inclined to believe, and even contend" that Defendants "in all probability intercepted and/or destroyed the aforementioned CDCR 602's and Form 22's as well" is insufficient to create a genuine factual dispute regarding exhaustion of administrative remedies. See Ransom Decl., ¶ 20; Jeffries, 2014 WL 994908, at *18; Crayton, 2011 WL 1988450, at *7; Rodgers, 2009 WL 2985731, at *3. Moreover, Plaintiff's general allegations of lost or destroyed grievances fails to explain why he did not appeal to the third level of review.
Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion Plaintiff has not exhausted his administrative remedies for Claim Ten. See Celotex, 477 U.S. at 325. /// /// /// ///
5. Plaintiff Has Not Exhausted His Administrative Remedies or Shown His Administrative Remedies Were Effectively Unavailable for Claim Twelve
In Claim Twelve, Plaintiff alleges defendants Lake, Taylor, Lee, Gallagher, and Duncan refused to increase his liquid diet from 750 to 1,500 calories per day during his hunger strike. TAC at ¶¶ 143-44. Plaintiff also alleges defendant Lee "completely discontinued Plaintiff's liquid diet" on October 8, 2013. TAC at ¶ 153.
a. The Parties' Evidence
Defendants' records do not reflect any grievances mentioning defendants Lake, Taylor, Lee, Gallagher, or Duncan refused to increase the calories of Plaintiff's liquid diet during his solid food hunger strike. See Voong Decl., ¶¶ 14-15, Ex. B; Gates Decl., ¶¶ 8-9, Ex. C; Cox Decl., ¶¶ 17-19, Ex. K.
On July 21, 2013, Plaintiff submitted Appeal No. CMC-HC-13-47066 requesting a double tray order pursuant to his doctor's recommendation that he decrease his carbohydrate intake due to his diabetes. Gates Decl., Ex. F. On November 1, 2013, Plaintiff submitted Appeal No. CMC-HC-13-47539 requesting reinstatement of his "diabetic double tray after his hunger strike. Id., Ex. D. Neither of these appeals appear to relate to any remaining claims raised in the TAC.
On October 8, 2013, Plaintiff submitted Appeal No. CMC HC 13-047512 in which Plaintiff alleged that on October 8, 2013, Dr. Lee discontinued Plaintiff's Pedialyte and Ensure without any prior examination. Gates Decl., Ex. E. On November 20, 2013, Appeal No. CMC HC 13-047512 was granted at the first level of review in that the discontinuation of Pedialyte and Ensure was reviewed and it was determined that Plaintiff's medical condition was carefully managed and Plaintiff was treated in accordance with CDCR guidelines during his hunger strike. Id. ¶ 8(b), Ex. E. Defendants' records do not reflect any further submissions from Plaintiff regarding Appeal No. CMC HC 13-047512 to the second or third levels of appeal. See Voong Decl., ¶¶ 14-15, Ex. B; Gates Decl., ¶¶ 8-9, Ex. C; Cox Decl., ¶¶ 17-19, Ex. K.
Plaintiff states: "During the course of [his] 93 [sic] day 'solid food' hunger strike . . . [Plaintiff] filed several CDCR 602's regarding defendants S. Lee, P. Gallagher, D. Duncan, Lake and Taylor not increasing the caloric intake of [Plaintiff's] liquid diet, but got no responses from the CDCR 602's or the subsequent CDCR Form 22 enquiries [sic]." Ransom Decl., ¶ 41. In addition, Plaintiff states: "With regards to CDCR 602, Log No. 13047512, [Plaintiff] was not satisfied with the first level response, so [Plaintiff] resubmitted it for a second level review." Id. ¶ 46. Plaintiff states: "After 30 working days [he] submitted a CDCR Form 22 enquiry [sic] about CDCR 602, Log No. 13-047512 but got no response from CDCR 602 for CDCR Form 22." Id. ¶ 47.
b. Discussion
The undisputed evidence establishes Plaintiff did not appeal any grievance regarding Claim Twelve to the third level of review. Thus, Plaintiff failed to exhaust his administrative remedies as required under the PLRA. See Estes, 2018 WL 3740619, at *3-4.
In addition, Plaintiff's general allegation that he is "inclined to believe, and even contend" that Defendants "in all probability intercepted and/or destroyed the aforementioned CDCR 602's and Form 22's as well" is insufficient to create a genuine factual dispute regarding exhaustion of administrative remedies. See Ransom Decl., ¶ 20; Jeffries, 2014 WL 994908, at *18; Crayton, 2011 WL 1988450, at *7; Rodgers, 2009 WL 2985731, at *3. Moreover, Plaintiff's general allegations of lost or destroyed grievances fails to explain why he did not appeal to the third level of review.
Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion Plaintiff has not exhausted his administrative remedies for Claim Twelve. See Celotex, 477 U.S. at 325.
6. Plaintiff Has Not Exhausted His Administrative Remedies or Shown His Administrative Remedies Were Effectively Unavailable for Claim Fourteen
In Claim Fourteen, Plaintiff alleges defendants Tomasini, Mangrubang, Siorida, Busby, and Hill delayed or withheld Plaintiff's liquid diet on "numerous occasions" for one to four days at a time. TAC at ¶¶ 166-70.
a. The Parties' Evidence
On October 7, 2013, Plaintiff submitted Appeal No. CMC E 13-02854 in which Plaintiff alleged defendants Mangrubang, Tomasini, Siordia, and Busby were "withholding [Plaintiff's] daily issues of 'Ensure' for the last four (4) days . . . ." Cox Decl., Ex. G. On December 26, 2013, Appeal No. CMC E 13-02854 was granted in part at the first level of review and Plaintiff was advised that if he was dissatisfied with the appeal decision, he may request further review. Id. ¶ 8(a), Ex. E. Defendants' records do not reflect any further submissions from Plaintiff regarding Appeal No. CMC E 13-02854 to the second or third levels of appeal. See Voong Decl., ¶¶ 14-15, Ex. B; Gates Decl., ¶¶ 8-9, Ex. C; Cox Decl., ¶¶ 17-19, Ex. K.
Plaintiff acknowledges receipt of the first level review of Appeal No. CMC E 13-02854 and states he "was dissatisfied with this 'partial grant' of CDCR 602, Log No. CMC-13-02854 and resubmitted it for a second level review." Ransom Decl., ¶¶ 37-38. Plaintiff states: "After 30 working days [Plaintiff] submitted a CDCR Form 22 enquiring about CDCR 602, Loc No. CMC-13-02854 but got no response from CDCR 302 nor Form 22 enquiry [sic]." Id. ¶ 39.
b. Discussion
The undisputed evidence establishes Plaintiff did not appeal any grievance regarding Claim Fourteen to the third level of review. Thus, Plaintiff failed to exhaust his administrative remedies as required under the PLRA. See Estes, 2018 WL 3740619, at *3-4.
In addition, Plaintiff's general allegation that he is "inclined to believe, and even contend" that Defendants "in all probability intercepted and/or destroyed the aforementioned CDCR 602's and Form 22's as well" is insufficient to create a genuine factual dispute regarding exhaustion of administrative remedies. See Ransom Decl., ¶ 20; Jeffries, 2014 WL 994908, at *18; Crayton, 2011 WL 1988450, at *7; Rodgers, 2009 WL 2985731, at *3. Moreover, Plaintiff's general allegations of lost or destroyed grievances fails to explain why he did not appeal to the third level of review.
Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion Plaintiff has not exhausted his administrative remedies for Claim Fourteen. See Celotex, 477 U.S. at 325.
7. Plaintiff Has Not Exhausted His Administrative Remedies or Shown His Administrative Remedies Were Effectively Unavailable for Claim Fifteen Against Defendants Ramirez-Quan and Merrill
In Claim Fifteen, Plaintiff alleges on October 7, 2013, defendants Mangrubang and Siordia refused to open his food port to allow defendants Ramirez-Quan and Merrill to give him his prescribed Ensure and Pedialyte. TAC at ¶¶ 174-93. Plaintiff also alleges defendants Ramirez-Quan and Merrill failed to intervene. Id.
a. The Parties' Evidence
On October 7, 2013, Plaintiff submitted Appeal No. CMC-E-13-02852 in which Plaintiff alleged defendants Mangrubang and Siordia refused to open Plaintiff's food port to permit defendant Ramirez-Quan to give Plaintiff Pedialyte. Voong Decl., Ex. A. On December 19, 2013, Appeal No. CMC-E-13-02852 was partially granted at the first level review. Id. On December 27, 2013, Plaintiff submitted a request for further review specifically seeking an "investigation against c/o Mangrubang and Sgt. Siordia as [Plaintiff] had initially requested." Id. Plaintiff attached a December 26, 2013 Memorandum from defendant Ramirez-Quan to the request for review. Id.; Ransom Decl., ¶¶ 44-45, Ex. H. In the December 26, 2013 Memorandum, defendant Ramirez-Quan apologized for not timely reporting what occurred on October 7, 2013. See Ransom Decl., Ex. H. On January 31, 2014, Appeal No. CMC-E-13-02852 was partially granted at the second level of review. Voong Decl., Ex. A. On March 6, 2014, Plaintiff submitted a request for further review. Id. On May 20, 2014, Appeal No. CMC-13-02852 was denied at the third level of review. Id. ¶ 13, Ex. A.
In addition, Plaintiff submitted Appeal No. CMC-E-13-02799 alleging defendant Siordia was attempting to cover up the refusal to open the food port by fabricating defendant Ramirez-Quan's interview testimony. Cox Decl., Ex. I. On November 27, 2013, Appeal No. CMC-E-13-02799 was cancelled at the second level of review as duplicative of Appeal No. CMC-E-13-02852. Id. Plaintiff also submitted Appeal No. CMC-E-13-03141 alleging Apppeal No. CMC-E-13-02799 was improperly cancelled. Id., Ex. J. Appeal No. CMC-E-13-03141 was rejected at the second level of review for failure to state facts or specify and act or decision consistent with the allegation. Id. Neither of these appeals appears relevant to whether the claim against defendants Ramirez-Quan or Merrill have been exhausted.
b. Discussion
Here, Appeal No. CMC-13-02852 was pursued to the third level of review. It is undisputed that the appeal only alleged misconduct by defendants Mangrubang and Siordia. Nonetheless, Plaintiff argues that by attaching the December 26, 2013 Memorandum from defendant Ramirez-Quan to his request for second level review of Appeal No. CMC-E-13-02852 he exhausted his claim that defendants Ramirez-Quan and Merrill failed to intervene when defendants Mangrubang and Siordia refused to open Plaintiff's food port. However, there is nothing in Appeal No. CMC-E-13-02852 or the December 26, 2013 Memorandum that points to any intentional wrongdoing by defendant Ramirez-Quan and neither makes any mention of defendant Merrill. In fact, Plaintiff reiterates in his request for second level review that he is specifically seeking an "investigation against c/o Mangrubang and Sgt. Siordia as [Plaintiff] had initially requested." See Voong Decl., Ex. A. Therefore, Appeal No. CMC-E-13-02852 did not provide sufficient information to allow prison officials to take appropriate responsive measures against defendants Ramirez-Quan or Merrill. See Griffin, 557 F.3d at 1121; see also Brown v. Gardner, No. 15-CV-1212- JAM-EFB P, 2017 WL 3394114, at *4 (E.D. Cal. Aug. 8, 2017) (finding unexhausted plaintiff's claim where the plaintiff did not identify in his grievance "the responsible parties or at least provide some information to help officials identify them"); Cal. Code Regs., tit. § 3084.2(a)(3) (requiring grievances to include all staff members involved in the alleged issue).
Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion Plaintiff has not exhausted his administrative remedies Claim Fifteen against defendants Ramirez-Quan or Merrill. See Celotex, 477 U.S. at 325.
VI.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED the Court issue an Order: (1) accepting this Final Report and Recommendation; (2) DENYING Defendants' request to revoke Plaintiff's IFP status; (3) GRANTING Defendants' Motion for Summary Judgment due to Plaintiff's failure to exhaust administrative remedies as to (a) Claims One, Five, Seven, Eight, Ten, Twelve, and Fourteen; and (b) Claim Fifteen against defendants Ramirez-Quan and Merrill; and (4) DISMISSING without prejudice and without leave to amend (a) Claims One, Five, Seven, Eight, Ten, Twelve, and Fourteen; and (b) Claim Fifteen as to defendants Ramirez-Quan and Merrill.
Accordingly, upon acceptance of this Final Report and Recommendation, the action will proceed on Claim Fifteen against defendants Mangrubang and Siordia. Dated: March 18, 2019
/s/_________
HONORABLE KENLY KIYA KATO
United States Magistrate Judge