# (PC) Fregia v. Chen

> District Court, E.D. California · July 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10045619

## Case

- **Court:** District Court, E.D. California
- **Decided:** July 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10045619

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 MARK A. FREGIA, Case No. 1:20-cv-01024-DAD-EPG
12 Plaintiff, FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT DEFENDANTS’
13 v. MOTION FOR SUMMARY JUDGMENT BE
GRANTED
14 YUCUI CHEN, et al.,
(ECF No. 40)
15 Defendants.
OBJECTIONS, IF ANY, DUE WITHIN
16 TWENTY-ONE DAYS
17
Plaintiff Mark A. Fregia (“Plaintiff”) is a state prisoner proceeding pro se and in forma
18
pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983.
19
Before the Court is Defendants Gosso and Johnson’s1 (“Defendants”) motion for summary
20
judgment based on Plaintiff’s failure to exhaust administrative remedies as required by the Prison
21
Litigation Reform Act. (ECF No. 56.) The matter was referred to the undersigned pursuant to 28
22 U.S.C. § 636 and Local Rule 302(c)(17). For the following reasons, the Court recommends that
23 Defendants’ motion for judgment be granted.
24 ///
25 ///
26 ///
27
1 The motion was not brought on behalf of Defendant Chen and does not address any claims brought against this
28 defendant. (See ECF No. 44.)
1 I. BACKGROUND
2 A. Plaintiff’s Claims
3 Plaintiff’s operative First Amended Complaint (“FAC”) alleges, in relevant part, that
4 Defendant Gosso withheld Plaintiff’s Effexor on or about January 25, 2018, causing Plaintiff to
suffer severe withdrawal symptoms. (ECF No. 16.) Withholding Effexor was against the
5
California Department of Corrections and Rehabilitation’s (“CDCR”) and the manufacturer’s
6
protocols, and Defendant Gosso was aware that Plaintiff would suffer withdrawal symptoms if he
7
was not slowly weaned from the prescription. (Id.) Plaintiff alleges that Defendant Gosso
8
withheld his Effexor because Plaintiff had filed a complaint against her. (Id.)
9
The FAC also alleges that Defendant Johnson knew Plaintiff was experiencing withdrawal
10
symptoms, including suicidal thoughts, due to Defendant Gosso withholding his Effexor. (ECF
11
No. 16.) Plaintiff asked to receive a refill and, contrary to protocol, Defendant Johnson neither
12
permitted Plaintiff to see a psychiatrist nor ordered him into crisis management. (Id.) Defendant
13
Chen also knew that Effexor’s protocol required weaning Plaintiff off of his medication and she
14
improperly ordered that his prescriptions be withheld, causing Plaintiff to suffer withdrawal
15
symptoms. (Id.)
16 The Court screened the FAC and found that it stated cognizable claims for deliberate
17 indifference to serious medical needs in violation of the Eighth Amendment against Defendants
18 Gosso, Chen, and Johnson, and for retaliation in violation of the First Amendment against
19 Defendant Gosso. (ECF Nos. 17-18.)
20 B. Motion for Summary Judgment
21 Defendants’ Motion
22 On February 18, 2022, Defendants filed their motion for summary judgment based on
23 Plaintiff’s failure to exhaust administrative remedies. (ECF No. 40.) Defendants concede that
Plaintiff submitted a grievance, SATF HC 1800000647, related to his Effexor being suspended on
24
or about January 25, 2018. (ECF No. 40-3 at 4; see also ECF No. 40-4 at Ex. C.) However,
25
Defendants argue that this grievance was insufficient to exhaust Plaintiff’s Eighth Amendment
26
claim against Defendant Johnson or his First Amendment claim against Defendant Gosso because
27
it did not contain any allegations involving these claims. (ECF No. 40-3 at 8-11.)
28
1 Plaintiff’s Opposition
2 On April 21, 2022, after timely requesting an extension, Plaintiff filed his opposition to
3 the motion for summary judgment. (ECF Nos. 41-43.) Plaintiff argues that he expected to have
4 three levels of appeal to explain his issues, rather than two levels, and planned to add facts
regarding Defendant Johnson’s name after the second level of review. (ECF No. 43 at 2.)
5
However, the document he received back was “altered” and this confused him. (Id.) Further,
6
Plaintiff did not receive notice of the 2019 changes in grievance procedures, and the forms were
7
only recently changed to hard copy. (Id. at 3.) Defendants should have screened Plaintiff’s initial
8
submission and given him instructions on how to fix the issue. (Id.)
9
As to the retaliation claim against Defendant Gosso, Plaintiff argues that this claim was
10
“clearly described” in his grievance. (ECF No. 43 at 9.) Additionally, there was a typo in the FAC
11
stating that Defendant Gosso retaliated against him based on a complaint Plaintiff made several
12
months earlier, but in reality Defendant Gosso’s retaliation was based on verbal complaints he
13
made during a telehealth consultation with Doctor Chen on January 24, 2018. (Id. at 9-11.)
14
Defendants’ Reply
15
Defendants filed a reply on May 2, 2022. (ECF No. 44.) Defendants argue that Plaintiff’s
16 confusion regarding the grievance process does not excuse him from failing to exhaust his claim
17 against Defendant Johnson. (Id. at 2.) Plaintiff’s argument that he intended to add facts regarding
18 Defendant Johnson is unconvincing because neither the prior three-level process nor the current
19 two-level process allow prisoners to include new information on appeal that was not included on
20 the original form. (Id. at 3.) The fact that Plaintiff did file and exhaust the grievance at issue also
21 shows that he knew about the health care grievance procedure. (Id. at 3-4.) Additionally,
22 Plaintiff’s grievance did not put prison officials on notice of any retaliation claim against
23 Defendant Gosso as it did not indicate Defendant Gosso suspended Plaintiff’s medication because
of any complaints Plaintiff made. (Id. at 5.)
24
The motion was deemed submitted on the record without oral argument following
25
submission of the reply. E.D. Cal. L.R. 230(l).
26
///
27
///
28
1 II. LEGAL STANDARDS
2 A. Summary Judgment
3 Summary judgment in favor of a party is appropriate when there “is no genuine dispute as
4 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Albino v. Baca (“Albino II”), 747 F.3d 1162, 1169 (9th Cir. 2014) (en banc) (“If there is a
5
genuine dispute about material facts, summary judgment will not be granted.”). A party asserting
6
that a fact cannot be disputed must support the assertion by “citing to particular parts of materials
7
in the record, including depositions, documents, electronically stored information, affidavits or
8
declarations, stipulations (including those made for purposes of the motion only), admissions,
9
interrogatory answers, or other materials, or showing that the materials cited do not establish the
10
absence or presence of a genuine dispute, or that an adverse party cannot produce admissible
11
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
12
A party moving for summary judgment “bears the initial responsibility of informing the
13
district court of the basis for its motion, and identifying those portions of ‘the pleadings,
14
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
15
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
16 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). If the moving party
17 moves for summary judgment on the basis that a material fact lacks any proof, the Court must
18 determine whether a fair-minded jury could reasonably find for the non-moving party. Anderson
19 v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in
20 support of the plaintiff’s position will be insufficient; there must be evidence on which the jury
21 could reasonably find for the plaintiff.”). “[A] complete failure of proof concerning an essential
22 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex,
23 477 U.S. at 322. Additionally, “[a] summary judgment motion cannot be defeated by relying
solely on conclusory allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045
24
(9th Cir. 1989).
25
In reviewing the evidence at the summary judgment stage, the Court “must draw all
26
reasonable inferences in the light most favorable to the nonmoving party.” Comite de Jornaleros
27
de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011). It need only
28
1 draw inferences, however, where there is “evidence in the record . . . from which a reasonable
2 inference . . . may be drawn . . .”; the court need not entertain inferences that are unsupported by
3 fact. Celotex, 477 U.S. at 330 n.2 (citation omitted). Additionally, “[t]he evidence of the non-
4 movant is to be believed . . . .” Anderson, 477 U.S. at 255.
In reviewing a summary judgment motion, the Court may consider other materials in the
5
record not cited to by the parties but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v.
6
San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001).
7
In a summary judgment motion for failure to exhaust, the defendants have the initial
8
burden to prove “that there was an available administrative remedy, and that the prisoner did not
9
exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the defendants carry that burden,
10
“the burden shifts to the prisoner to come forward with evidence showing that there is something
11
in his particular case that made the existing and generally available administrative remedies
12
effectively unavailable to him.” Id. However, “the ultimate burden of proof remains with the
13
defendant.” Id. “If material facts are disputed, summary judgment should be denied, and the
14
district judge rather than a jury should determine the facts.” Id. at 1166.
15
B. Exhaustion
16 CDCR employs an administrative process for health care grievances for “applied health
17 care policies, decisions, actions, conditions or omissions that have a material adverse effect on
18 [a prisoner's] health or welfare” Cal. Code Regs. tit. 15 § 3999.226(a) (2018). To initiate a health
19 care grievance, a prisoner submits CDCR Form 602 HC within thirty calendar days and must
20 “clearly and coherently” include “all information known and available to him or her regarding the
21 issue.” Id. at § 3999.227(b), (g). Moreover, “[t]he grievant shall include any involved staff
22 member's last name, first initial, title or position, and the date(s) and description of their
23 involvement.” Id. § 3999.227(g)(1). Health care grievances are screened to identify whether they
should be rejected and to ascertain whether they should be addressed as a health care staff
24
complaint. Id. at §§ 39999.228, 3999.231(b). Health care grievances are subject to two levels of
25
review: (1) an institutional level of review, and (2) a headquarters’ level of review,
26
which exhausts administrative remedies. Id. at § 3999.226(a)(1), (g). Rejection or withdrawal of a
27
healthcare grievance does not exhaust administrative remedies. Id. at § 3999.226(g).
28
1 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”) provides that
2 “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any
3 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
4 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Prisoners are required to exhaust the available administrative remedies prior to filing suit.
5
Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199–1201 (9th
6
Cir. 2002) (per curiam). The exhaustion requirement applies to all prisoner suits relating to prison
7
life. Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required regardless of the relief
8
sought by the prisoner and regardless of the relief offered by the process, unless “the relevant
9
administrative procedure lacks authority to provide any relief or to take any action whatsoever in
10
response to a complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001); Ross v. Blake, 578
11
U.S. 632, 640, 642 (2016).
12
“Under the PLRA, a grievance suffices if it alerts the prison to the nature of the wrong for
13
which redress is sought. The grievance need not include legal terminology or legal theories,
14
because [t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its
15
resolution, not to lay groundwork for litigation. The grievance process is only required to alert
16 prison officials to a problem, not to provide personal notice to a particular official that he may be
17 sued.” Reyes, 810 F.3d at 659 (alteration in original) (citations and internal quotation marks
18 omitted).
19 There are no “special circumstances” exceptions to the exhaustion requirement. Ross, 578
20 U.S. 648. The one significant qualifier is that “the remedies must indeed be ‘available’ to the
21 prisoner.” Id. at 639. The Ross Court described this qualification as follows:

22 [A]n administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates as a
23 simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates. See 532 U.S., at 736, 738,
24 121 S.Ct. 1819. . . .

25 Next, an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. . . .
26
And finally, the same is true when prison administrators thwart
27 inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation. . . . As all those
28 courts have recognized, such interference with an inmate’s pursuit
1 of relief renders the administrative process unavailable. And then,
once again, § 1997e(a) poses no bar.
2
3 Ross, 578 U.S. 643–44. “When prison officials improperly fail to process a prisoner’s grievance,
4 the prisoner is deemed to have exhausted available administrative remedies.” Andres v. Marshall,
867 F.3d 1076, 1079 (9th Cir. 2017).
5
If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal
6
without prejudice of the portions of the complaint barred by section 1997e(a). Jones, 549 U.S. at
7
223–24; Lira v. Herrera, 427 F.3d 1164, 1175–76 (9th Cir. 2005).
8
III. DISCUSSION
9
A. Undisputed Facts2
10
Plaintiff was housed at the California Substance Abuse Treatment Facility, Corcoran
11
(“SATF”) at all times relevant to the FAC. (Undisputed Material Fact “UMF” No. 1, ECF No. 40-
12
2.) SATF has a health care grievance process for inmates to grieve issues relating to their health
13
care. (UMF 19.) Health care grievances and appeals involving inmate medical, dental, and mental
14
health care issues are processed by California Correctional Health Care Services (“CCHCS”).
15 (UMF 8.) The Health Care Correspondence and Appeals Branch (“HCCAB”) receives, reviews,
16 and maintains all health care grievances and appeals accepted for the final headquarters level
17 review in the inmate health care grievance and appeal process, and renders decisions on those
18 grievances and appeals. (UMF 9.) All levels of health care grievances and appeals, including the
19 institutional and headquarters levels of review, are tracked through a computer database known as
20 the Health Care Appeals and Risk Tracking System (“HCARTS”). (UMF 10.) HCARTS also
21 tracks health care grievances and appeals that were received and ultimately rejected, including the
22

23 2 Plaintiff did not respond to Defendants’ itemized Statement of Undisputed Facts as required under the Local Rules.
See E.D. Cal. L.R. 260(b). Plaintiff was provided with a Rand warning informing him of the summary judgment
24 requirements of and of the Local Rules’ directive that, “[f]or each of the facts listed in the defendant’s Statement of
Undisputed Facts, you must admit the facts that are undisputed, and deny the facts that are disputed.” (ECF No. 40-
25 2.) Thus, the Court has taken facts set forth in Defendants’ statement as undisputed. However, Plaintiff did attach
evidence to his opposition. (See ECF No. 43.) Additionally, the FAC is verified. (ECF No. 16.) See Jones v. Blanas,
393 F.3d 918, 922-23 (9th Cir. 2004) (nothing that, where the plaintiff was proceeding pro se, the court was required
26
to “consider as evidence in his opposition to summary judgment all of [his] contentions offered in motions and
pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in
27
evidence, and where [he] attested under penalty of perjury that the contents of the motions or pleadings are true and
correct”). The Court has thus considered this evidence in determining whether the undisputed facts entitle Defendants
28 to summary judgment under the applicable legal standards.
1 reason for the rejection. (UMF 11.)
2 According to a review of Plaintiff’s HCARTS, Plaintiff submitted four inmate health care
3 grievances in 2018 after January 24, 2018. (UMF 22.) Of the four grievances, only one, SATF
4 HC 180000647, relates to the events that allegedly transpired on or about January 25, 2018, as
described in the FAC.3 (UMF 23.) SATF HC 180000647 was received by the Health Care
5
Grievance Office on January 30, 2018, and states:
6

7 On or around 1-24-18, I was forced into consulting w/ my Pschyatrist Dr. Chen, in
the company of a 3x’s obese recorder (perhaps a nurse or tech) and her trainee.
8 This violated my right to dr./patient confidentiality. I don’t know the ‘recorder’s’
name, but am sure you can pinpoint her based on my description. Dr. Chen
9 changed and replaced meds that I requested, then renewed them on this day. The
following day she suspended my meds (all) because I exercised title 15 3351(e)
10 ‘right to refuse meds’ including labs. This was done on 1-25-18, after I refused to
give blood due to my religious beliefs. I recognized the obese nurse as the women
11 that informed me ‘I wont get my psych. meds if I don’t do labs.’ That day, her
threat was affirmed and I was forced to go ‘man down suicidal’ because Dr. Chen
12 put, in her order to suspend my meds, that she would take issues up w/ me at my
next M.H. Committee. I knew committee wouldn’t be held for several days, and
13 that most likely I’d be suffering painful withdraws during that time. I was also
transferred to CTC, basically naked and it was less than 50 including windchill
14 factors, while on the ‘golf cart.’ The next morning I went against my religious
belief, gave labs to aviod withdraws.
15
(ECF No. 40-4 at 30-32.) (Errors in original.) Plaintiff’s grievance requested the following action:
16
To be removed from Dr. Chen’s caseload because of the conflicting interest that
17 became present, due to her illegal actions which range from illegally suspending
my psych meds to violating my civil rights (ie religious practice and ‘right to
18 refuse medication (labs). Since I was forced to give blood inspite of my religious
belief, I want $500,000. Included in this amount is my fee for dehumanization,
19 pain and suffering (while inside the cage in e-medical, for approx. 4 hrs) and on
the way to C.T.C. (basically naked). Lastly, in terms of monetary compensation,
20 my fee of 50k per medications missed during this time, comes to approx. 100k as
result of continuous days that my meds were suspended and not given. Also, I
21 would like Dr. Chen fired for her abuse of her authority/position. I know that this
pattern has been ongoing and long going, as a result of my investigation. Also the
22 obese Nurse/Tech should be fired as well for her parts, of which I’ve already
explained on this document.
23 (Id.) (Errors in original.)
24 On March 14, 2018, SATF reviewed Plaintiff’s treatment and changed Plaintiff’s
25 psychiatrist from Dr. Chen to Dr. Gill, which was the only intervention by SATF. (UMF 28.)

26
3 In SATF HC 1800816, Plaintiff requests to receive his night medication at 4:45 in the diabetic line instead of
coming back to receive it at 8:00 p.m. (UMF 32.) In SATF HC 1800996, Plaintiff requests “medical assistant Gozlo’s
27
first initial and last name (correct spelling) in order to send a complaint to consumer affairs and headquarters.” (UMF
33.) In MCSP HC 18002123, Plaintiff describes a disagreement with treatment concerning Dr. Weiss and a
28 medication change from Keep on Person to Direct Observation Therapy. (UMF 34.)
1 Plaintiff appealed SATF’s institutional-level decision to HCCAB for headquarters-level review.
2 (UMF 29.) When asked to identify the reason why he was dissatisfied with the institutional level
3 response, Plaintiff stated:

4 If a thyroid test was the issue, why were test I’ve refused for years included i.e.
A1C, etc.)? The magnitude of what’s transpired is being ignored. I’m asking for
5 terminations and compensation for what I was put through on that day. Medical
Assistant Gozlo purposely changed the content of what I expressed about my
6 religious belief, preference, and the right to refuse labs (giving blood). Dr. Chen
couldn’t have legally, abruptly stopped these meds., even if the request had come
7 from my own mouth. The fact that she did, based on a 3rd party, that’s not even a
nurse, should be grounds for both their terminations. I had to spend the night in
8 ‘suicide watch,’ begging for my meds because of her. In fact, the psych, doctor’s
in C.T.C, illegally sent me home w/ enough Effexor and Visteryl to last me the
9 weekend. They were attempting to cover up Dr. Chen’s obvious illegal activity,
w/o signing their names to any attached orders.
10
(ECF No. 40-4 at 35.) (Errors in original.) On July 27, 2018, HCCAB issued its headquarters-
11
level response, exhausting administrative remedies. (UMF 31.)
12
B. Analysis
13 Here, it is undisputed that SATF has a process in place for administrative grievances
14 related to health care issues, and that an inmate must process his grievance through the second
15 level of review in order to exhaust administrative remedies. It is also undisputed that Plaintiff
16 submitted grievance SATF HC 180000647, the first level of review changed Plaintiff’s
17 psychiatrist from Dr. Chen to Dr. Gill, Plaintiff appealed the first level of review decision, and the
18 second level of review provided no further intervention.
19 Plaintiff does not dispute that SATF HC 180000647 did not contain facts related to his
20 claim against Defendant Johnson, and instead argues that he was excused from failing to include
these facts in his grievance as discussed further below. (See ECF No. 43.) However, Plaintiff
21
argues that SATF HC 180000647 did include facts related to Defendant Gosso’s retaliation
22
against him, and he therefore properly exhausted administrative remedies as to this claim. (See
23
id.) Specifically, Plaintiff describes a verbal complaint he made to Defendant Gosso on January
24
24, 2018 while she recorded his telemed consultation with Defendant Chen, as well his
25
suggestion that Defendant Gosso introduce her trainee next time to make her patients feel more
26
comfortable. (Id. at 9.)
27
///
28
1 The undersigned finds that SATF HC 180000647 “failed to ‘alert[ ] the prison to the
2 nature of the wrong for which redress is sought’ and provide sufficient information ‘to allow
3 prison officials to take appropriate responsive measures’” with respect to the facts underling
4 Plaintiff’s medical deliberate indifference claim against Defendant Johnson and his retaliation
claim against Defendant Gosso. Reyes, 810 F.3d at 658 (alteration in original) (quoting Griffin v.
5
Arpaio, 557 F.3d 1117, 1120, 1121 (9th Cir. 2009)). The submitted grievance complained of
6
Defendant Chen and Defendant Gosso’s involvement in changing Plaintiff’s medications after he
7
refused a blood draw due to religious reasons. The grievance did not set forth any facts indicating
8
that Defendant Gosso acted in response to any complaints Plaintiff made about her or for a reason
9
other than Plaintiff’s refusal to submit to labs. Likewise, the grievance did not contain any facts
10
indicating Defendant Johnson knew Plaintiff was experiencing withdrawal symptoms, refused to
11
help him, ordered that his prescriptions be withheld, or was otherwise involved in the events
12
described in the grievance. While a grievance “need not include legal terminology or legal
13
theories,” there is nothing in the grievance that would alert prison officials to the factual basis for
14
Plaintiff’s theories, i.e. that Defendant Gosso acted because of complaints Plaintiff made about
15 her,4 or that Defendant Johnson, or any unnamed individual other than Defendant Gosso and
16 Defendant Chen, was involved in the denial of Plaintiff’s prescriptions. See Reyes, 810 F.3d at
17 659.
18 Therefore, the Court finds that SATF HC 180000647 did not exhaust Plaintiff’s
19 administrative remedies regarding his retaliation claim against Defendant Gosso or his medical

20 4 Plaintiff contends that there is a material dispute of fact that precludes summary judgment as to the retaliation claim
against Defendant Gosso because there was a typo in the FAC:
21
The portion of that document that mistakenly read ‘Defendant Gosso was not authorised to cancel
22 the Plaintiff’s medications. She was angry at him for filing a complaint against her ‘several months
earlier’ can be found at the bottom of page 5 (SEE Exibit D)
23
That portion of the complaint, based on Claim III against Dr. Chen is the only time that misprint
24 occurred. Throughout both complaints plaintiff always referred to MA Gosso’s retaliation on him,
stemmed from ‘a prior or recent complaint.’
25
(Id. at 11.) (Errors in original.) The error Plaintiff describes does not create a material dispute of fact precluding
26 summary judgment because SATF HC 180000647 did not contain any description of any complaints at all, recent or
otherwise, or any facts indicating that Defendant Gosso acted because of those complaints. Therefore, this error does
27 not alter the Court’s finding that Plaintiff failed to exhaust administrative remedies regarding his retaliation claim
against Defendant Gosso.
28
1 deliberate indifference claim against Defendant Johnson. Further, it is undisputed that Plaintiff
2 did not submit any other grievances regarding the facts supporting these claims. As Defendants
3 have carried their burden to show that there was an available administrative remedy and that
4 Plaintiff did not exhaust that available remedy as to his claims against Defendant Johnson or his
retaliation claim against Defendant Gosso prior to commencement of the instant lawsuit, “the
5
burden shifts to the prisoner to come forward with evidence showing that there is something in
6
his particular case that made the existing and generally available administrative remedies
7
effectively unavailable to him.” Albino II, 747 F.3d at 1172. However, “the ultimate burden of
8
proof remains with the defendant.” Id.
9
Plaintiff first argues that the administrative exhaustion procedure was unavailable to him
10
because he expected to have three levels of appeal to explain his issues, rather than two levels.
11
(ECF No. 43 at 2.) Specifically, Plaintiff’s grievance was returned to him after the second level of
12
review and “[i]t had been altered, by X’ing out the section he intended to place the deliberate
13
indifference claim on Dr. Johnson.” (Id.) Because the document was altered, Plaintiff could not
14
put Defendant Johnson’s name on the form. (Id. at 6.) Plaintiff’s name was also “forged” on the
15
health care grievance appeal form, which confused him. (Id. at 2, 23.)
16 However, as Defendants note, neither the current two-level nor the previous three-level
17 process of review allowed Plaintiff to add new facts to his grievance on appeal. (See ECF No. 44
18 at 3.) Plaintiff’s assumption that he could add additional facts concerning Defendant Johnson on
19 appeal was accordingly not reasonable. Thus, prison officials did not interfere with Plaintiff’s
20 ability to take advantage of the grievance process or otherwise make administrative remedies
21 unavailable to Plaintiff by altering the health care grievance appeal form. See Stowers v. Hrabko,
22 2020 WL 6075654, at *6 (E.D. Cal. Oct. 15, 2020) (“A reasonable but mistaken belief is not, as
23 plaintiff contends, an exception to the exhaustion requirement.”).
Plaintiff next argues that the administrative grievance process was unavailable to him
24
because he did not receive notice of the 2019 changes in grievance procedures. (ECF No. 43 at 3.)
25
Additionally, the forms have “only recently been changed to a hard copy, of which is now official
26
and can be understood.” (Id.) This “glitch” has “spanned for years” and “resulted in thousands of
27
prisoners suffering because of a prejudice that has also violated their due process[.]” (Id. at 4.)
28
1 Defendants’ policy was unlawful and unreasonable and they should have screened Plaintiff’s
2 initial submission and given him instructions on how to fix the issue. (Id.)
3 Plaintiff’s argument is conclusory and does not address how changes in procedure in 2019
4 made the administrative grievance procedure unavailable to him in 2018 when he submitted
SATF HC 180000647 and exhausted his appeal. As Defendants note, Plaintiff successfully filed
5
and exhausted SATF HC 180000647, as well as many other grievances, indicating that he had
6
notice of the administrative grievance procedures and they were effectively available to him. (See
7
ECF No. 44 at 4.) Likewise, Plaintiff’s has not established that the prior versions of the grievance
8
forms were so opaque that the administrative procedure became, practically speaking, incapable
9
of use. See Ross, 578 U.S. at 643-44. Indeed, having reviewed SATF HC 180000647, there is
10
nothing on the face of these documents indicating that they cannot be understood as Plaintiff
11
contends, and Plaintiff does not explain what is confusing about these forms. Further, although
12
prison officials are obligated to screen grievances to identify whether they should be rejected or
13
addressed as a staff complaint, Plaintiff does not identify any basis for an obligation to screen
14
grievances for additional facts that may be included. Nor is it clear how prison officials could
15
have instructed Plaintiff to include these additional facts when there was nothing in the grievance
16 putting them on notice of their existence.
17 In light of the foregoing, the Court finds that Defendants have established that there is no
18 genuine dispute that Plaintiff failed to exhaust his Eighth Amendment medical deliberate
19 indifference claim against Defendant Johnson and his First Amendment retaliation claim against
20 Defendant Gosso. Therefore, the undersigned will recommend that Defendants’ motion for
21 summary judgment be granted and that only these claims be dismissed without prejudice for
22 failure to exhaust.
23 IV. CONCLUSION AND RECOMMENDATION
Accordingly, IT IS HEREBY RECOMMENDED that:
24
1. Defendants’ motion for summary judgment (ECF No. 40) be GRANTED; and
25
2. Plaintiff’s claim for deliberate indifference to serious medical needs in violation of
26
the First Amendment against Defendant Johnson and for retaliation in violation of
27
the First Amendment against Defendant Gosso be dismissed without prejudice
28
1 because Plaintiff failed to exhaust his available administrative remedies before
2 filing this action.
3 These findings and recommendations are submitted to the United States District Judge
4 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one
5 (21) days after being served with these findings and recommendations, any party may file written
6 objections with the Court. Such a document should be captioned “Objections to Magistrate
7 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed
8 within fourteen (14) days after service of the objections. The parties are advised that failure to file

9 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.
Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991)).
11
12 | ITIS ORDERED.
pated: _ June 30, 2022 [Jee ey
14 UNITED STATES MAGISTRATE JUDGE
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10045619. Public record. Not legal advice.