Opinion
Case No. CV 19-169-VAP (KK)
06-08-2020
TRACYE BENARD WASHINGTON, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., Defendants.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Virginia A. Phillips, 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
Plaintiff Tracye Benard Washington ("Plaintiff") proceeding pro se and in forma pauperis, filed a First Amended Complaint ("FAC") pursuant to 42 U.S.C. § 1983 ("Section 1983") alleging correctional officers at California State Prison — Los Angeles County in Lancaster, California ("CSP-LAC") violated his Eighth Amendment rights during incidents on July 25, 2018 and November 14, 2018. Defendants Hanks, Romo-Munoz, Lizama, Hernandez, Wingfield, Rosales, and Pressnell ("Defendants") filed a Motion for Summary Judgment ("Motion") on the grounds Plaintiff failed to exhaust his administrative remedies. For the reasons below, the Court recommends Defendants' Motion be GRANTED IN PART and DENIED IN PART.
II.
PROCEDURAL HISTORY
On January 8, 2019, Plaintiff constructively filed a civil rights complaint ("Complaint") pursuant to Section 1983, Title II of the Americans with Disabilities Act ("ADA"), and Section 504 of the Rehabilitation Act against California Department of Corrections and Rehabilitation ("CDCR"), the warden of CSP-LAC, and various correctional officers at CSP-LAC where Plaintiff was housed at the time of the allegations giving rise to the Complaint. See ECF Docket No. ("Dkt.") 1, Complaint. The Complaint alleged claims stemming from two incidents in July and November of 2018. Id. On March 13, 2019, the Court dismissed the Complaint with leave to amend. Dkt. 9.
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 April 1, 2019, Plaintiff constructively filed the FAC setting forth the following remaining claims:
On June 14, 2019, the Court issued an Order dismissing with prejudice Plaintiff's claims against defendants Hanks and Romo-Munoz in their official capacity. Dkt. 19.
(1) defendants Hanks, Romo-Munoz, Lizama, Hernandez, Wingfield, and Pressnell violated Plaintiff's Eighth Amendment rights by using excessive force against him on July 25, 2018 ("Claim One"); and
(2) defendants Rosales, Lizama, Hernandez, Wingfield, and Pressnell violated Plaintiff's Eighth Amendment rights by using excessive force against him on November 14, 2018 ("Claim Two"). Dkt. 12 at 5.
On December 11, 2019, Defendants filed the instant Motion arguing Plaintiff failed to exhaust his administrative remedies and Defendants are entitled to judgment as a matter of law. Dkt. 49, Motion.
In support of the Motion, Defendants submit:
• Statement of Uncontroverted Facts and Conclusions of Law, dkt. 51 ("SUF");
• Request for Judicial Notice, dkt. 52;
• Declaration of H. Liu, Acting Chief of Office of Appeals ("OOA") for the California Department of Corrections and Rehabilitation ("CDCR"), dkt. 53 ("Liu Decl."); and
• Declaration of A. Ojeda, Correctional Counselor and Appeals Coordinator for CSP-LAC, dkt. 54 ("Ojeda Decl.")
Defendants request the Court take judicial notice of CDCR inmate appeal regulations, set forth in Title 15 of the California Code of Regulations, Sections 3084 through 3086, updated through June 1, 2018. Dkt. 52. Defendants' Request for Judicial Notice is GRANTED.
The Court notes both the Liu and Ojeda Declarations refer to exhibits which do not appear to be attached or filed with the Court. Nevertheless, as set forth below, the declarations alone appear to be sufficient evidence of the dates each grievance was filed and responded to and Plaintiff does not dispute the accuracy of the dates or the contents of the documents.
On December 11, 2019, 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. 55.
On March 2, 2020, Plaintiff constructively filed an Opposition attaching various documents, including copies of his grievances and the OOA's third level decisions regarding the July and November 2018 incidents. Dkt. 61, Opp. In his Opposition, Plaintiff (1) claims the OOA failed to respond to his third level appeal regarding the July 2018 incident in a timely manner, thus rendering his administrative remedies "effectively unavailable"; and (2) concedes administrative remedies regarding the November 2018 incident had not been exhausted at the time of filing the Complaint, but argues the Court should allow his claim to proceed for the sake of "judicial economy". Id. at 3-5.
The Court refers to the pages of the Opposition and its supporting documents as though they were consecutively paginated.
On March 16, 2020, Defendants filed a Reply arguing Plaintiff's claims were unexhausted until he received the third level decisions on July 9, 2019, and August 1, 2019, respectively. Dkt. 62, Reply at 3.
On April 21, 2020, the Court issued a Report and Recommendation that Defendants' Motion be granted in part and denied in part, dismissing Claim Two and defendant Rosales without prejudice. Dkt. 63.
On May 21, 2020, Defendants filed Objections to the original Report and Recommendation. Dkt. 66.
The Motion thus stands submitted and ready for decision. The Court issues the instant Final Report and Recommendation addressing Defendants' Objections in footnotes 8, 11, 13, and 14 below. / / / / / / / / /
Plaintiff also contends Defendants did not respond to his request for discovery regarding exhaustion of his claims. Dkt. 61, Opp. at 1-2. In support of the Reply, Defendants submit the Declaration of Deputy Attorney General K. Jung, stating she received and responded to Plaintiff's discovery request. Dkt. 62, Reply at 2; Declaration of K. Jung. While it appears Plaintiff has not received Defendants' responses, Plaintiff was previously granted an opportunity to conduct discovery, dkt. 58, and filed his Opposition without requesting a further extension of time to complete such discovery. Hence, to the extent Plaintiff is now opposing the Motion on the grounds he has not received discovery responses, Plaintiff cannot assert missed discovery opportunities in light of his failure to file a motion pursuant to Federal Rule of Civil Procedure 56(d) "identify[ing] by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment." Hupp v. San Diego Cty., No. 3:12-CV-00492-GPC, 2014 WL 347472, at *4 (S.D. Cal. Jan. 30, 2014) "(citing Tatum v. City and Cty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006)).
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). A "material" fact is one which might affect the outcome of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute about a material fact is genuine if a reasonable jury could return a verdict for the non-moving party. Id.
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 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)). The non-moving party can "no longer can rely on allegations alone, however plausible they may be." Lopez v. Pac. Mar. Ass'n, 657 F.3d 762, 768 (9th Cir. 2011) (citation omitted); see also Estate of Tucker ex rel. Tucker v. Interscope Records, 515 F.3d 1019, 1033 (9th Cir. 2008); Nelson v. Pima Community Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996). Rather, a "party opposing summary judgment must present some significant probative evidence tending to support the complaint." Bias v. Moynihan, 508 F.3d 1212, 1222 (9th Cir. 2007) (citation and internal quotation marks omitted). If a plaintiff fails "to present any evidence to support" a claim, summary judgment in favor of the defendant is appropriate. Id.
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.
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. Anderson, 477 U.S. at 255. Moreover, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when] he [or she] is ruling on a motion for summary judgment." Id.; see Berry v. Baca, 379 F.3d 764, 769 (9th Cir. 2004).
IV.
DISCUSSION
A. THE PRISON LITIGATION REFORM ACT OF 1996
As part of the Prison Litigation Reform Act of 1996 ("PLRA"), Congress amended and strengthened the requirement that prisoners pursuing claims under Section 1983 and other federal statutes must first exhaust administrative remedies. Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006). As amended, 42 U.S.C. § 1997e(a) ("Section 1997e(a)") provides: "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).
1. PLRA's Administrative Exhaustion Requirement
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). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002); see also Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.").
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 Ngo, 548 U.S. at 93-94. "[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; see also Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (holding a claim involving conduct after the date of the original complaint and alleged for the first time in an amended complaint is exhausted if the administrative remedies are exhausted before the filing of the amended complaint).
2. The Parties' Burdens in Proving Exhaustion Or Failure To Exhaust
Section 1997e(a) creates an affirmative defense and, therefore, "inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216. Rather, the issue of non-exhaustion is properly raised in a motion for summary judgment. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). A defendant has the burden of raising and proving a plaintiff's failure to exhaust. Id. If a defendant meets this burden, the burden shifts to the plaintiff to come forward with evidence showing administrative remedies were "effectively unavailable." Id.; Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010).
3. When Administrative Remedies Are "Effectively Unavailable"
The United States Supreme Court has held administrative remedies are "effectively unavailable" when prison administrators "thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross v. Blake, 136 S. Ct. 1850, 1860, 195 L. Ed. 2d 117 (2016). Prison administrators "thwart inmates from taking advantage of a grievance process," thus rendering administrative remedies "effectively unavailable," when they improperly fail to process an inmate's grievance within required deadlines. Andres v. Marshall, 867 F.3d 1076, 1078-79 (9th Cir. 2017) (discussing consensus among circuits that failure to respond to a grievance within time limits renders administrative remedies "effectively unavailable"); see also Mills v. Mitchell, 792 F. App'x 511, 512 (9th Cir. 2020) ("[Prison administrators'] repeated failure to meet the statutorily required deadlines . . . made remedies effectively unavailable . . .").
In their Objections, Defendants argue the "Ninth Circuit has refused to excuse the exhaustion requirement for an untimely response to an Appeal." Dkt. 66 at 7-8. Defendants' only citation to the Ninth Circuit, however, is an unpublished case from 2002. Id. (citing Baird v. Terhune, 43 F. App'x 132 (9th Cir. 2002)). Unpublished cases issued before January 1, 2007 are not persuasive. See U.S. Ct. App. 9th Cir. R. 36-3(b); Fed. R. App. P. 32.1(a).
The Court may cite to unpublished Ninth Circuit opinions issued on or after January 1, 2007. U.S. Ct. App. 9th Cir. R. 36-3(b); Fed. R. App. P. 32.1(a).
B. CALIFORNIA'S INMATE GRIEVANCE PROCESS
The State of California provides its prisoners and parolees the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a) (2019) (as revised in 2016).
Sections 3084.1-3084.9 were ordered repealed on March 25, 2020. See Cal. Code Regs. tit. 15, §§ 3084.1-3084.9. These sections, however, remain effective through June 1, 2020, and thus govern here. Id.
1. California's Three Levels of Appeal
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 prison's appeals coordinator; (2) second level appeal to the "hiring authority or designee;" and (3) third level appeal to the Secretary of the CDCR. 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) (2019) (as revised in 2016).
2. Time Limit For Administrative Response To Third Level Appeal
The Secretary is required to respond to third level appeals within 60 working days. Cal. Code Regs. tit. 15, § 3084.8(c) (2019) (as revised in 2016). Responses to third level appeals are exempt from this time limit only in exceptional circumstances. See id. § 3084.8(d) (2019) (as revised in 2016).
C. ANALYSIS
1. Plaintiff Has Shown His Administrative Remedies Were Effectively Unavailable For Claim One Related To The July 2018 Incident
In Claim One, Plaintiff alleges that in July 2018, after a cell door closed on his left leg, defendant Lizama struck Plaintiff in the face, defendants Hanks and Romo Munoz slammed Plaintiff's head onto the concrete, and defendants Pressnell, Hernandez, and Wingfield kicked Plaintiff's back and legs, thereby violating his Eighth Amendment rights by use of excessive force. SUF 3-4; Dkt. 12, FAC at 1, 3-5. As a result, Plaintiff required hospitalization and was left confined to a wheelchair, partially paralyzed. Id.
a. Additional Background
The undisputed evidence establishes that on July 30, 2018, Plaintiff filed a grievance regarding Claim One, which bypassed the first level of review and proceeded directly to the second level appeal. SUF 7; Ojeda Decl. ¶ 13. On September 11, 2018, the CSP-LAC appeals office issued a second level response finding CSP-LAC staff did not violate policy. Ojeda Decl. ¶ 13. Plaintiff submitted his third level appeal which was received by the OOA on October 1, 2018. Liu Decl. ¶ 7.
On January 8, 2019, Plaintiff filed the Complaint. SUF 2; Dkt. 1. On February 22, 2019, the OOA issued a letter to Plaintiff notifying him that his appeal had been routed back to the CSP-LAC appeals office for further action. Liu Decl. ¶ 7. On March 20, 2019, the CSP-LAC appeals office issued an amended second level response finding staff did not violate CDCR policy. Ojeda Decl. ¶ 13. Plaintiff resubmitted his third level appeal and received a third level decision on July 9, 2019. Liu Decl. ¶ 7.
b. Analysis
Here, Plaintiff filed the Complaint on January 8, 2019, 65 working days after the OOA received his initial third level appeal on October 1, 2018. See SUF 2; Dkt. 1. At the time Plaintiff filed his Complaint, Defendants had not responded or rejected his initial third level appeal. In fact, Plaintiff did not receive a response to his initial third level appeal until 31 working days after he filed his Complaint and did not receive a third level decision until 126 working days after he filed his Complaint. This failure of Defendants to respond or reject Plaintiff's initial third level appeal within the 60-day time limit set forth in section 3084.8(c) rendered Plaintiff's administrative remedies "effectively unavailable." See Mills, 792 F. App'x at 512.
In their Objections, Defendants argue "[i]t is not reasonable to conclude that prison officials thwarted administrative remedies when they complied with the appeal regulations and kept the inmate reasonably informed of the status of his administrative remedies." Dkt. 66 at 10. Plaintiff, however, did not receive any response to his third level appeal until after he filed the original Complaint. Defendants appear to disregard the fact that the February 22, 2018 notice to Plaintiff was issued 31 working days after he filed the Complaint and 36 working days after a response was due (i.e. December 31, 2018, 60 working days after October 1, 2018). Hence, at the time Plaintiff filed the Complaint, he had no way of knowing the OOA intended to respond. Moreover, Plaintiff was under no obligation to dismiss his Complaint and re-file it based on Defendants' belated response as Defendants suggest in footnote 2 of their Objections. See Andres, 867 F.3d at 1079 (holding exhaustion is measured at the time the action is filed).
All future code section references are to Title 15 of the California Code of Regulations.
In their Objections, Defendants argue this case is distinguishable from Mills because here, the OOA sent Plaintiff a "proper notice" advising him the OOA had received the third level appeal and was a "form of response . . . demonstrating the availability of administrative remedies." Dkt. 66 at 5. This argument, however, once again disregards the fact that the February 22, 2018 notice to Plaintiff was not issued until after he filed the Complaint.
Defendants do not dispute that the OOA failed to provide Plaintiff with a response to his initial third level appeal within sixty days. Defendants nonetheless argue Plaintiff has not exhausted his administrative remedies because he filed the Complaint before receiving the third level decision. Dkt. 49, Motion at 8. In support of this argument, Defendants claim Plaintiff improperly relied on sections 3084.9(a)(5)(A)(6) and 3084.8(e) in assuming a lack of timely response was equivalent to a denial of his third level appeal. Dkt. 62, Reply at 3 (citing Opp. at 5). Section 3084.9(a)(5)(A)(6) explicitly allows inmates who have submitted grievances related to sexual misconduct to treat an absence of a timely response, at any level, as a denial. Section 3084.9(a)(5) (A)(6) (2019) (as revised in 2016). Section 3084.8(e) requires that inmates be provided with an explanation if they are not provided with a timely response to their appeal, but explicitly exempts third level appeals. Cal. Code Regs. tit. 15, § 3084.8(e) (2019) (as revised in 2016).
The appeal at issue is a third level appeal which does not contain any allegations of sexual misconduct. Section 3084.9(a)(5)(A)(6) is, therefore, not applicable. In addition, while section 3084.8(e) exempts Defendants from providing an explanation of the reasons for delay at the third level of review, it does not explicitly exempt Defendants from complying with the 60-day time limit set forth in section 3084.8(c), nor do Defendants cite any regulation or case law to support their assertion that they are otherwise exempt. See Cal. Code Regs. tit. 15, § 3084.8(c) (2019) (as revised in 2016).
Hence, Plaintiff's administrative remedies were "effectively unavailable" once the OOA failed to either respond or reject Defendant's third level appeal within the 60-day time limit set forth in section 3084.8(c), regardless of the fact that the OOA eventually explained the delay and responded. See Mills, 792 F. App'x at 512. To conclude otherwise could allow exploitation of the exhaustion requirement by prison officials who indefinitely delay their response to grievances. See Andres, 867 F.3d at 1078-79 ; see also Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) ("[W]e refuse to interpret the PLRA so narrowly as to permit prison officials to exploit the exhaustion requirement through indefinite delay in responding to grievances." (alterations and quotation marks omitted)).
In their Objections, Defendants argue this case is distinguishable from Andres because "[i]n the present matter, prison officials actually processed the Appeal . . . albeit after sixty (60) days of initial receipt at the Third Level of Review." Dkt. 66 at 6. Defendants appear to focus on the fact that in Andres the plaintiff had filed a separate state habeas action in which the state court found the defendants improperly failed to timely process the plaintiff's grievance. Id. Defendants' argument, however, relies on their inaccurate claim that the grievance in the instant case was timely processed, which it was not. In the instant case and Andres, the grievances were ultimately "processed" and fully exhausted after the plaintiffs had filed the operative complaints. Regardless of whether the grievances were ultimately processed, the Ninth Circuit in Andres held exhaustion must be measured at the time the action is filed. Andres, 867 F.3d at 1079. In both Andres and the instant case, on the date plaintiffs filed their respective complaints, their administrative remedies were unavailable because the time to respond to their grievances had passed and there was no indication they were being processed.
Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have not met their burden of showing the absence of a genuine issue of material fact regarding Plaintiff's failure to exhaust his administrative remedies for his claim regarding the July 2018 incident. See Celotex, 477 U.S. at 325. / / / / / / / / / / / /
2. Plaintiff Has Not Exhausted His Administrative Remedies Or Shown His Administrative Remedies Were Effectively Unavailable For Claim Two Related To The November 2018 Incident
In Claim Two, Plaintiff alleges that in November 2018, Defendants Rosales, Pressnell, Hernandez, Lizama, and Wingfield each grabbed Plaintiff out of his wheelchair by the chains attached to his handcuffs and held Plaintiff, with his arms through the cell door and the full weight of his body bearing on his handcuffs, for at least thirty seconds before pushing Plaintiff back into his wheelchair, thereby violating his Eighth Amendment rights by use of excessive force. SUF 5; Dkt. 12, FAC at 5.
a. Additional Background
The undisputed evidence establishes Plaintiff filed a grievance regarding Claim Two on November 20, 2018, which bypassed the first level of review and proceeded directly to the second level appeal. SUF 10; Ojeda Decl. ¶ 14. On December 21, 2018, the CSP-LAC appeals office issued a second level response. Ojeda Decl. ¶ 14. On January 22, 2019, the OOA received Plaintiff's third level appeal. Liu Decl. ¶ 8; SUF 1. On August 1, 2019, Plaintiff received a third level decision. SUF 11; Liu Decl. ¶ 8.
b. Analysis
Here, Plaintiff admits he had not yet submitted his grievance regarding this claim for third level review at this time he filed the Complaint. See dkt. 61, Opp. at 7. Plaintiff, therefore, concedes he failed to exhaust his administrative remedies for Claim Two prior to filing the Complaint on January 8, 2019. Id.; McKinney, 311 F.3d at 1199; cf. Rhodes, 621 F.3d at 1004.
Plaintiff argues, however, that the Court should deny Defendants' Motion and allow Claim Two to proceed because it "relates" back to his other claim and for the sake of "judicial economy". Dkt. 61, Opp. At 7. Plaintiff does not cite, nor has the Court found, any authority applying the concept of "relation back" to other claims in the context of the PLRA's exhaustion requirement. Rather, where a plaintiff has filed a "mixed complaint," consisting of both unexhausted and exhausted claims, the unexhausted claims must be dismissed. Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005) (holding unexhausted claims "can be treated independently"). Moreover, the Ninth Circuit has contemplated this exhaustion requirement will result in "the expenditure of additional resources on part of the parties and the court," but nonetheless concluded Congress "made a policy judgment that this concern is outweighed by the advantages of requiring exhaustion prior to the filing of suit." McKinney, 311 F.3d at 1199-1200. The Court, therefore, lacks discretion to consider Claim Two in this action because it was not exhausted at the time the Complaint was filed. See McKinney, 311 F.3d at 1199 (noting the PLRA's "exhaustion requirement is mandatory").
While the concept of "relation back" does not appear to apply to exhaustion, the Court notes it recently denied Defendants' Motion to Sever, finding Claim Two was properly, permissively joined pursuant to Federal Rules of Civil Procedure 18 and 20. See dkt. 48. Claim Two, however, involves an independent claim of excessive force on a distinct date involving at least one distinct defendant such that ordinary rules of claim preclusion would not prevent Plaintiff from bringing the claim regarding the November 2018 incident in a separate action. See Lira, 427 F.3d at 1174 (noting the "PLRA causes of action joined in a single action may concern entirely independent underlying factual circumstances, so that ordinary rules of claim preclusion would not apply later").
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 regarding Plaintiff's failure to exhaust his administrative remedies for his claim regarding the November 2018 incident. See Celotex, 477 U.S. at 325.
V.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED the Court issue an Order: (1) accepting this Final Report and Recommendation; (2) DENYING Defendants' Motion for Summary Judgment on Claim One; (3) GRANTING Defendants' Motion for Summary Judgment on Claim Two; and (4) DISMISSING Claim Two without prejudice. Dated: June 08, 2020
Accordingly, defendant Rosales should be dismissed from the action.
/s/_________
HONORABLE KENLY KIYA KATO
United States Magistrate Judge