(PC) Hunt v. Lewis

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 TYRONE HUNT, No. 2:18-cv-2130 MCE AC P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 C.J. LEWIS, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983 . Currently before the court is defendants’ motion for summary judgment. ECF 19 No. 64. 20 I. Procedural History 21 This case proceeds on the second amended complaint. ECF No. 45. On screening, the 22 court found that plaintiff had stated a claim against defendant Clain for retaliation only, and all 23 other claims against Clain and all claims against defendants Lewis, Cimino, Ramsey, Sharp, and 24 Mossman were dismissed. ECF Nos. 45, 49. After the close of discovery, defendant Clain filed a 25 motion for summary judgment (ECF No. 64), which plaintiff opposes (ECF No. 68). 26 II. Plaintiff’s Allegations 27 The second amended complaint alleges that defendant D. Clain, formerly D. Smith, 28 retaliated against plaintiff for submitting a complaint. ECF No. 44. Specifically, plaintiff alleges 1 that he saw Clain on August 3, 2017, regarding the restoration of points from a five-year-old rules 2 violation report (RVR) that was supposed to have been reissued and reheard but never was. Id. at 3 9-10. He explained to Clain why he should receive his points back and then submitted a CDCR 4 22 form with the applicable rules quoted. Id. at 10 . Clain took the form and then threated 5 plaintiff that she and her supervisor would pull strings to get the RVR reissued and reheard so that 6 plaintiff would be found guilty and she would not have to restore his points. Id. Approximately 7 one week later, Clain asked plaintiff if he had received the reissued RVR. Id. at 12 . When he 8 responded in the negative, she told him that she had gotten the associate warden involved and that 9 another officer would issue him the RVR. Id. When plaintiff questioned the other officer about 10 reissuing the RVR, the officer responded “it wasn’t my ideal [sic] to bring it into the back door,” 11 which meant that the RVR was issued illegally. Id. at 13 . Plaintiff was eventually found guilty of 12 the charges in the reissued RVR. Id. at 18 . 13 III. Motion for Summary Judgment 14 A. Defendants’ Arguments 15 Defendant moves for summary judgment on the grounds that plaintiff cannot establish the 16 essential elements of retaliation, that he did not exhaust his administrative remedies prior to filing 17 suit, and that she is entitled to qualified immunity. ECF No. 64-2. 18 B. Plaintiff’s Response 19 At the outset, the court notes that plaintiff has failed to file a separate document in 20 response to defendant’s statement of undisputed facts that identifies which facts are admitted and 21 which are disputed, as required by Local Rule 260(b). 22 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 23 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted), overruled on other grounds, 24 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). However, it is well25 established that district courts are to “construe liberally motion papers and pleadings filed by pro 26 se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 27 F.3d 1144, 1150 (9th Cir. 2010). The unrepresented prisoner’s choice to proceed without counsel 28 “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily imposes 1 upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 2 Jacobsen v. Filler, 790 F.2d 1362 , 1364 n.4 (9th Cir. 1986) (alteration in original) (citations and 3 internal quotation marks omitted). Inmate litigants, therefore, should not be held to a standard of 4 “strict literalness” with respect to the requirements of the summary judgment rule. Id. (citation 5 omitted). 6 Accordingly, the court considers the record before it in its entirety despite plaintiff’s 7 failure to be in strict compliance with the applicable rules. However, only those assertions in the 8 opposition which have evidentiary support in the record will be considered. 9 Plaintiff argues that Clain did retaliate against him and is not entitled to qualified 10 immunity, and that he exhausted his administrative remedies. ECF No. 68 at 1-12. 11 IV. Legal Standards for Summary Judgment 12 Summary judgment is appropriate when the moving party “shows that there is no genuine 13 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 14 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 15 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 16 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 17 moving party may accomplish this by “citing to particular parts of materials in the record, 18 including depositions, documents, electronically stored information, affidavits or declarations, 19 stipulations (including those made for purposes of the motion only), admissions, interrogatory 20 answers, or other materials” or by showing that such materials “do not establish the absence or 21 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 22 support the fact.” Fed. R. Civ. P. 56(c)(1). 23 “Where the non-moving party bears the burden of proof at trial, the moving party need 24 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 25 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325 ); see also Fed. R. Civ. P. 56(c)(1)(B). 26 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 27 motion, against a party who fails to make a showing sufficient to establish the existence of an 28 element essential to that party’s case, and on which that party will bear the burden of proof at 1 trial.” Celotex, 477 U.S. at 322 . “[A] complete failure of proof concerning an essential element 2 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323 . In such 3 a circumstance, summary judgment should “be granted so long as whatever is before the district 4 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 5 56(c), is satisfied.” Id. 6 If the moving party meets its initial responsibility, the burden then shifts to the opposing 7 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 8 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 9 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 10 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 11 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 12 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 13 fact “that might affect the outcome of the suit under the governing law,” and that the dispute is 14 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving 15 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 16 In the endeavor to establish the existence of a factual dispute, the opposing party need not 17 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 18 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 19 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 20 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the 21 “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see 22 whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal 23 quotation marks omitted). 24 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 25 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 26 v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the 27 opposing party’s obligation to produce a factual predicate from which the inference may be 28 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898 , 902 (9th Cir. 1987). Finally, to 1 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 2 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 3 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 4 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 5 U.S. at 289). 6 Defendants simultaneously served plaintiff with notice of the requirements for opposing a 7 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure along with their motion for 8 summary judgment. ECF No. 64-1; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 9 1988) (pro se prisoners must be provided with notice of the requirements for summary judgment); 10 Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide notice). 11 V. Undisputed Material Facts 12 Plaintiff did not separately respond to Defendant’s Statement of Undisputed Facts 13 (DSUF), and the facts are therefore deemed undisputed except as otherwise discussed. Additional 14 facts have been taken from the record as appropriate. 15 A. The Parties 16 At all times relevant to the complaint, plaintiff was a prisoner in the custody of the 17 California Department of Corrections and Rehabilitation (CDCR) and housed at High Desert 18 State Prison (HDSP). DSUF (ECF No. 64-3) ¶ 1. At all relevant times, defendant Clain, who at 19 the time also went by D. Smith, was a Correctional Counsel I at HDSP and plaintiff was assigned 20 to her caseload. DSUF ¶ 3. 21 B. Plaintiff’s RVR 22 In 2013, plaintiff received an RVR for fighting. He was found guilty, and he had six 23 points added to his classification score as a result. DSUF ¶¶ 11-13; Plaintiff’s Opposition (PO) 24 (ECF No. 68 at 1-12) ¶¶ 2, 26. The RVR was appealed and was ordered reissued and reheard but 25 was not immediately reissued or reheard due to an administrative error. DSUF ¶¶ 15-16; PO ¶¶ 26 3-4. On August 3, 2017, plaintiff brought the issue to defendant’s attention and requested that the 27 six points be voided because the RVR had not been reissued or reheard. DSUF ¶¶ 5-6; PO ¶ 5. 28 Defendant then discussed the issue with her supervisor. DSUF ¶ 17. 1 On September 14, 2017, the chief disciplinary officer issued a memo ordering the 2013 2 RVR reissued and reheard as originally ordered in the appeal decision. DSUF ¶ 20. The RVR 3 was reissued the same day and a hearing took place on October 25, 2017, where plaintiff was 4 once again found guilty. DSUF ¶ 21. On appeal of the rehearing, the RVR was dismissed and 5 plaintiff’s points were corrected. DSUF ¶ 25. 6 C. Plaintiff’s Grievances 7 Plaintiff submitted two grievances that address conduct alleged in the second amended 8 complaint: Appeal Nos. HDSP-18-00649 and HDSP-18-00807.1 DSUF ¶ 27; PO ¶¶ 27-28. 9 Appeal No. HDSP-18-00649 alleged that “on 09-14-2017, C/O C.J. Lewis ordered an 10 illegal CDCR 115 RVR (Log #C13-04-005) that was almost a half-decade old to be issued on 11 plaintiff,” and that he was found guilty of the RVR on October 25, 2017. ECF No. 64-6 at 13, 15. 12 Plaintiff further alleged that it had been four months since the RVR was finalized but he still had 13 not received a final copy of the RVR—which he needed to appeal the decision—because Lewis, 14 D. Jodoin, and Lt. B. Sharp were withholding it to prevent him from appealing. Id. at 15. He 15 stated that he wanted to make a citizen’s complaint against Lewis and that his rights to due 16 process and to be free from cruel and unusual punishment were being violated. Id. The appeal 17 bypassed the first level of review and was partially granted at the second level. DSUF ¶ 29; ECF 18 No. 64-6 at 13, 17-18. 19 Plaintiff appealed the decision and wrote: 20 Dissatisfied totally! C.J. Lewis bypassed SOMS and the ERMS. It is unheard of anyone being given a RVR almost 5 years later. I had 21 my glasses on when th[e] SHO ordered this RVR reissue/rehear. I had my glasses for years, so C.J. Lewis was not working in my best 22 interest. Matter fact he has did me great harm. I want to exhaust my institutional remedies at the third level; for every conceivable due 23 process right I had was intentionally violated. The 8th and 14th Amendment of the U.S. Constitution is gauranteed to me. C.J. Lewis 24 had D. Clain, CCI; C. Cimin, CCII; C. Mossman, C/O; Lt. L. Sharp; 25 1 Plaintiff also filed three related appeals claiming that he did not receive a final copy of the RVR 26 after the rehearing, that C.J. Lewis ordered O. Oliver to take an additional ninety days taken from plaintiff in retaliation for filing Appeal No. HDSP-18-00649, and that the appeals coordinator was 27 trying to help C.J. Lewis by withholding the appeal in Appeal No. HDSP-18-00807 to prevent it from being exhausted. See ECF No. 64-6 at 155-215, 237-241. The appeals all relate to conduct 28 that occurred after that alleged in the complaint and do not mention defendant. 1 Lt. J. Ramsey; Capt. K. Grether; S. Mey, C/O; D. Jodoin, C/O; E. Smith, C/O; O. Oliver, CRA; and N. Spearman the warden to help 2 and assist him in violating my rights. Please allow me to exhaust my remedies for I can get the courts help. I’m tired of C.J. Lewis telling 3 me I have no rights; when the court says I have lots of rights to protect me. I can prove that C.J. Lewis and the forementioned 4 defendants whole intentions was to cause me physical, emotional, psychiatric, and spiritual injury. And I wish that the NAACP or 5 ACLU would do a full investigation. I can easily prove this case, if someone cared to look. [6] 7 ECF No. 64-6 at 14, 16. The appeal was cancelled at the third level as duplicative of Appeal No. 8 HDSP-18-00807. DSUF ¶ 31; ECF No. 64-6 at 12. 9 Appeal No. HDSP-18-00807 alleged that on April 2, 2013, plaintiff was issued RVR Log 10 #SAC-13-04-005 at California State Prison-Sacramento and that after being found guilty, he had 11 ninety days taken and six points added by the classification committee. ECF No. 64-6 at 85, 87. 12 The RVR was ordered reissued and reheard on July 19, 2013, but it was not reissued until almost 13 five years later at HDSP because the original facility did not want to pursue it. Id. at 87. Plaintiff 14 further asserted that C.J. Lewis ordered C/O Mossman to reissue and rehear the RVR, and 15 Mossman later became plaintiff’s investigative employee, which violated his due process rights. 16 Id. Lt. Sharp and Lt. Ramsey heard the RVR, found plaintiff guilty, and took another ninety days 17 from him, violating his rights and subjecting him to double jeopardy because he had already had 18 to work to have the original ninety days restored. Id. Plaintiff claimed that the reissued RVR 19 violated his rights and that he still had six points from the original RVR, which was another due 20 process violation. Id. The appeal bypassed the first level of review and was partially granted at 21 the second level. DSUF ¶ 33; ECF No. 64-6 at 85, 89-91. 22 Plaintiff appealed the decision, stating that his time and points had not been corrected and 23 that he needed the incident fully investigated because it was intentional misconduct to reissue the 24 RVR. ECF No. 64-6 at 86. The Office of Appeals, which acted as the third level of review, 25 found that the appeal had been exhausted at the second level and there were no unresolved issues 26 to be reviewed. DSUF ¶ 34; ECF No. 64-6 at 84. 27 //// 28 //// 1 VI. Discussion 2 Since a failure to exhaust administrative remedies will bar plaintiff’s claim regardless of 3 its merits, the court will address exhaustion first. 4 A. Legal Standard for Exhaustion 5 Because plaintiff is a prisoner suing over the conditions of his confinement, his claims are 6 subject to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Under the PLRA, 7 “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or 8 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 9 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); Porter v. 10 Nussle, 534 U.S. 516, 520 (2002) (“§ 1997e(a)’s exhaustion requirement applies to all prisoners 11 seeking redress for prison circumstances or occurrences”). “[T]hat language is ‘mandatory’: An 12 inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent 13 exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) 14 (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). 15 Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones 16 v. Bock, 549 U.S. 199, 204, 216 (2007). “[T]he defendant’s burden is to prove that there was an 17 available administrative remedy, and that the prisoner did not exhaust that available remedy.” 18 Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc) (citing Hilao v. Estate of Marcos, [19] 103 F.3d 767 , 778 n.5 (9th Cir. 1996)). “[T]here can be no ‘absence of exhaustion’ unless some 20 relief remains ‘available.’” Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005) (emphasis in 21 original). Therefore, the defendant must produce evidence showing that a remedy is available “as 22 a practical matter,” that is, “it must be capable of use; at hand.” Albino, 747 F.3d at 1171 23 (citation and internal quotations marks omitted). “[A]side from [the unavailability] exception, the 24 PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special 25 circumstances.’” Ross, 578 U.S. at 639 . “[M]andatory exhaustion statutes like the PLRA 26 establish mandatory exhaustion regimes, foreclosing judicial discretion.” Id. (citation omitted). 27 For exhaustion to be “proper,” a prisoner must comply with the prison’s procedural rules, 28 including deadlines, as a precondition to bringing suit in federal court. Woodford, 548 U.S. at 90 1 (“Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural 2 rules.”). “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of 3 proper exhaustion.” Jones, 549 U.S. at 218 ; see also Marella v. Terhune, 568 F.3d 1024 , 1027 4 (9th Cir. 2009) (“The California prison system’s requirements ‘define the boundaries of proper 5 exhaustion’” (quoting Jones, 549 U.S. at 218 )). 6 As long as some potential remedy remained available through the administrative appeals 7 process, even if it was not the remedy he sought, plaintiff was required to exhaust his remedies. 8 Booth v. Churner, 532 U.S. 731 , 741 & n.6 (2001) (“Congress has provided in § 1997e(a) that an 9 inmate must exhaust irrespective of the forms of relief sought and offered through administrative 10 avenues.”). The Supreme Court has identified “three kinds of circumstances in which an 11 administrative remedy, although officially on the books, is not capable of use to obtain relief.” 12 Ross, 578 U.S. at 643 . “First, . . . an administrative procedure is unavailable when (despite what 13 regulations or guidance materials may promise) it operates as a simple dead end—with officers 14 unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. (citing Booth, [15] 532 U.S. at 736 ). “Next, an administrative scheme might be so opaque that it becomes, 16 practically speaking, incapable of use.” Id. Finally, administrative remedies are unavailable 17 “when prison administrators thwart inmates from taking advantage of a grievance process through 18 machination, misrepresentation, or intimidation.” Id. at 644. 19 When the district court concludes that the prisoner has not exhausted administrative 20 remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Wyatt v. 21 Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003) (citation omitted), overruled on other grounds by 22 Albino, 747 F.3d at 1168 . 23 B. California Regulations Governing Exhaustion of Administrative Remedies 24 Exhaustion requires that the prisoner complete the administrative review process in 25 accordance with all applicable procedural rules. Woodford, 548 U.S. at 90 . This review process 26 is set forth in the California Code of Regulations. At the time relevant to this complaint, those 27 regulations allowed prisoners to “appeal any policy, decision, action, condition, or omission by 28 the department or its staff that the inmate or parolee can demonstrate as having a material adverse 1 effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1 (a) (2018). 2 At the time plaintiff was proceeding through the appeals process, it was comprised of 3 three levels of review for most types of appeals. Id. § 3084.7. In most cases, an appeal was 4 required to go through all three levels of review to be deemed exhausted. Id. § 3084.1(b). The 5 appeal was required to “list all staff member(s) involved and shall describe their involvement in 6 the issue” and if the inmate did not have identifying information, they were to “provide any other 7 available information that would assist the appeals coordinator in making a reasonable attempt to 8 identify the staff member(s) in question.” Id., § 3084.2(a)(3). 9 An appeal coordinator could refuse to accept an appeal, in which case “the inmate or 10 parolee [would] be notified of the specific reason(s) for the rejection or cancellation of the appeal 11 and of the correction(s) needed for the rejected appeal to be accepted.” Id. § 3084.5(b)(3). An 12 appeal could be cancelled if it “duplicate[d] an inmate or parolee’s previous appeal upon which a 13 decision [had] been rendered or [was] pending” Id. § 3084.6(c)(2). A cancelled appeal could not 14 be accepted unless it was determined that the cancellation was in error or new information made 15 the appeal eligible for further review. Id. § 3084.6(a)(3), (e). However, the cancellation of the 16 appeal could be separately appealed. Id. § 3084.6(e). “[A] cancellation or rejection decision 17 [did] not exhaust administrative remedies.” Id. § 3084.1(b). 18 C. Analysis 19 The parties are in agreement that plaintiff filed two appeals regarding the allegations in 20 the second amended complaint. ECF No. 64-2 at 19-20; ECF No. 68 at 5, 10. However, they 21 dispute whether these appeals were sufficient to exhaust plaintiff’s administrative remedies as to 22 the remaining retaliation claim against defendant Clain. ECF No. 64-2 at 21-22; ECF No. 68 at 5, 23 10. 24 Review of Appeal No. HDSP-18-00649 shows that plaintiff did identify Clain in his third25 level appeal. ECF No. 64-6 at 16. However, his only claim against defendant is that she assisted 26 C.J. Lewis in “violating my rights,” and neither level of the appeal alleges that defendant, or any 27 other individual, had the grievance reissued and reheard because plaintiff filed a complaint or 28 participated in some other kind of protected conduct. Id. at 13-16. Appeal No. HDSP 18-00807 1 also fails to make any claim that plaintiff’s RVR was reissued and reheard because he filed a 2 complaint, and there is no mention of defendant—as either D. Clain or D. Smith—at any level of 3 the appeal. Id. at 85-87. 4 Assuming both appeals were properly exhausted,2 neither is sufficient to constitute 5 exhaustion of administrative remedies as to the retaliation claim against defendant. “A grievance 6 suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the 7 prisoner seeks redress.” Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010). However, neither 8 appeal alleges facts showing that plaintiff participated in protected conduct, let alone that such 9 conduct was what motivated the decision, by any individual, to have the RVR reissued and 10 reheard. 11 VII. Conclusion 12 As set forth above, plaintiff failed to exhaust his administrative remedies as to the single 13 retaliation claim remaining against defendant Clain, and defendant’s motion for summary 14 judgment should be granted on this ground. Because the claim is unexhausted, the court declines 15 address the motion for summary judgment as to its merits. The court therefore need not address 16 defendant’s assertion of qualified immunity. 17 VIII. Plain Language Summary of this Order for a Pro Se Litigant 18 You did not exhaust your administrative remedies for your retaliation claim against 19 defendant Clain prior to filing the complaint. Neither of your grievances exhausted 20 administrative remedies because they did not include information that would have put the prison 21 on notice that defendant, or any other individual, had your RVR reissued and reheard because you 22 made a complaint. 23 Accordingly, IT IS HEREBY RECOMMENDED that: 24 1. Defendant Clain’s motion for summary judgment (ECF No. 64) be granted on the 25 ground that plaintiff did not exhaust his administrative remedies; and 26 2. Judgment be entered for defendant. [27] 2 Defendant argues that Appeal No. HDSP-18-00649 was not properly exhausted (ECF No. 64-2 28 at 21), while plaintiff asserts that it was (ECF No. 68 at 5). ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1).. Within twenty-one days 3 || after being served with these findings and recommendations, any party may file written 4 || objections with the court and serve a copy on all parties. Such a document should be captioned 5 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 6 || objections shall be served and filed within fourteen days after service of the objections. The 7 || parties are advised that failure to file objections within the specified time may waive the right to 8 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 9 || DATED: March 21, 2023 ~ 10 Chthion— Chore ALLISON CLAIRE 11 UNITED STATES MAGISTRATE JUDGE