(PC) Ochoa v. Joelson

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 JESSE OCHOA, Case No. 1:21-cv-00011-HBK

11 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION

TO DISMISS WITH PREJUDICE1

12 v.

(Doc. No. 24)

13 EDDY JOELSON,

14 Defendant.

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17 Pending before the Court is Defendant Eddy Joelson’s Motion to Dismiss filed on

18 February 12, 2024. (Doc. No. 24, “Motion”). Plaintiff did not file any opposition and the time to

19 do so has expired. Local Rule 230(c). The Court grants Defendant’s Motion.

20 BACKGROUND

21 Plaintiff initiated this action by filing a prisoner civil rights Complaint pursuant to 42

22 U.S.C. § 1983. (Doc. No. 1). Plaintiff is proceeding on his First Amended Complaint filed on

23 August 23, 2023, which alleges an Eighth Amendment claim for deliberate medical indifference

24 stemming from Defendant Joelson placing a medical hold on Plaintiff despite “knowing that the

25 environment at Corcoran State Prison was detrimental” to Plaintiff’s health because of the risk of

26 continued exposure to Valley Fever. (Doc. No. 16 at 4).

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1 Both parties have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c)(1). (Doc.

28 No. 28).

1 Defendant’s pending Motion seeks dismissal of Plaintiff’s First Amended Complaint

2 under Rule 12(b)(6) on two grounds: (1) Defendant Joelson is entitled to qualified immunity

3 because there was no clearly established right to be free from exposure to Valley Fever at the time

4 of the incident; and (2) Plaintiff failed to exhaust his administrative remedies as is apparent from

5 the face of the First Amended Complaint. (Doc. No. 24 at 2). After Plaintiff failed to file a

6 timely response to Defendant’s Motion and noting Plaintiff pro se status, the Court further

7 afforded him a further extension of time. (See Doc. No. 29). The Court further warned Plaintiff

8 that under Local Rule 230(c) the failure to file a response would be construed by the Court as a

9 non-opposition. (Doc. No. 29 at 2, ¶2). As of the date of this Order, Plaintiff did not file any

10 response and the time to do so has expired.2

11 APPLICABLE LAW

12 A. Plaintiff’s Failure to Oppose the Motion

13 The Local Rules in this District provide that in prisoner civil rights cases, “[f]ailure of the

14 responding party to file an opposition or to file a statement of no opposition may be deemed a

15 waiver of any opposition to the granting of the motion and may result in the imposition of

16 sanctions.” E.D. Cal. R. 230(l) (2023). Failure to follow a district court’s local rules is a proper

17 grounds for dismissal. U.S. v. Warren, 601 F.2d 471, 474 (9th Cir.1979). Thus, a court may

18 dismiss an action for plaintiff's failure to oppose a motion to dismiss, where the applicable local

19 rule determines that failure to oppose a motion will be deemed a waiver of opposition. See

20 Ghazali v.Moran, 46 F.3d 52 (9th Cir.1995), cert. denied 116 S.Ct. 119 (1995) (dismissal upheld

21 even where plaintiff contends he did not receive motion to dismiss, where plaintiff had adequate

22 notice, pursuant to F.R.C.P. 5(b), and time to file opposition); see also Bury v. Adams, 2006 WL

23 1085083, at *1 (E.D. Cal. Apr. 25, 2006) (recommending district court grant motion to dismiss on

24 exhaustion grounds), report and recommendation adopted, 2006 WL 1832447 (E.D. Cal. June 27,

25 2006); cf. Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995); Henry v. Gill Industries, Inc., 983 F.2d

26 943, 949-50 (9th Cir.1993) (motion for summary judgment cannot be granted simply as a

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2 The Court directed Plaintiff to deliver any response to correctional officials for mailing no later than April 15, 2024

28 and waited seven (7) days to account for mailing before entering this Order.

1 sanction for a local rules violation, without an appropriate exercise of discretion).

2 Here, the Court deems Plaintiff’s failure to oppose Defendant’s Motion as a waiver of any

3 opposition, but nevertheless analyzes Defendant’s Motion to determine whether dismissal is

4 warranted.

5 B. Rule 12(b)(6)

6 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure “tests the

7 legal sufficiency of a claim.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.

8 2011). Dismissal for failure to state a claim is proper if there is a “lack of a cognizable legal

9 theory or the absence of sufficient facts alleged under a cognizable legal theory.” Id.; see also

10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (to survive a motion to dismiss, the

11 complaint must have sufficient facts to state a facially plausible claim to relief). In deciding a

12 motion under Rule 12(b)(6), the court accepts as true all well-pled factual allegations in the

13 complaint and determines whether the factual allegations are sufficient to state a right to relief

14 above the speculative level. Ashcroft v. Iqbal, 556 U.S. 662 (2009); see also Nw. Envtl. Def. Ctr.

15 v. Brown, 640 F.3d 1063, 1070 (9th Cir. 2011) (court accepts as true all material allegations in the

16 complaint, as well as any reasonable inferences to be drawn from them).

17 Where a motion to dismiss is granted, a district court must decide whether to grant leave

18 to amend. Courts are instructed to apply Rule 15 with extreme liberality. Eminence Capital, LLC

19 v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted); Winebarger v.

20 Pennsylvania Higher Educ. Assistance Agency, 411 F. Supp. 3d 1070, 1082 (C.D. Cal. 2019).

21 Only where leave to amend would be futile, because “the allegation of other facts consistent with

22 the challenged pleading could not possibly cure the deficiency,” should leave to amend be denied.

23 DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

24 C. Qualified Immunity

25 A government official is entitled to qualified immunity under Section 1983 unless (1) the

26 official “violated a federal statutory or constitutional right, and (2) the unlawfulness of his

27 conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589

28 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)); Harlow v. Fitzgerald, 457 U.S.

1 800, 817 (1982). To demonstrate that a right was “clearly established” requires a showing that

2 the statutory or constitutional question was “beyond debate,” such that every reasonable official

3 would understand that what he is doing is unlawful. Wesby, 138 S. Ct. at 589; Vos v. City of

4 Newport Beach, 892 F.3d 1024, 1035 (9th Cir. 2018). This standard is “demanding” and protects

5 “all but the plainly incompetent or those who knowingly violate the law.” Wesby, 138 S. Ct. at

6 589 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). “[A] court typically should identify a

7 case where an officer acting under similar circumstances as [the defendant] was held to have

8 violated the constitutional right at issue.” S.B v. County of San Diego, 864 F.3d 1010, 1015 (9th

9 Cir. 2017)). “Even when no case is ‘directly on point,’ courts may compare relevant factors to

10 determine whether every reasonable officer should have known the conduct in question was

11 unlawful.” Anderson v. Virga, 2018 WL 1556806, *2 (E.D. Cal. Mar. 30, 2018) (citing Isayeva v.

12 Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946-47 (9th Cir. 2017). The plaintiff bears the burden

13 of establishing that the right alleged was clearly established. Moran v. Washington, 47 F.3d 839,

14 844 (9th Cir. 1998).

15 D. Exhaustion of Administrative Remedies

16 The Prison Litigation Reform Act (“PLRA”) of 1995, requires that prisoners exhaust

17 “such administrative remedies as are available” before commencing a suit challenging prison

18 conditions. 42 U.S.C. § 1997e(a); see Ross v. Blake, 578 U.S. 632, 648 (June 6, 2016) (“An

19 inmate need exhaust only such administrative remedies that are ‘available.’”). Exhaustion is

20 mandatory unless unavailable. “The obligation to exhaust ‘available’ remedies persists as long as

21 some remedy remains ‘available.’ Once that is no longer the case, then there are no ‘remedies . . .

22 available,’ and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d

23 926, 935 (9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532 U.S. 731, 739

24 (2001)).

25 This statutory exhaustion requirement applies to all inmate suits about prison life, Porter

26 v. Nussle, 534 U.S. 516, 532 (2002) (quotation marks omitted), regardless of the relief sought by

27 the prisoner or the relief offered by the process, Booth, 532 U.S. at 741, and unexhausted claims

28 may not be brought to court, Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at

1 524).

2 The failure to exhaust is an affirmative defense, and the defendants bear the burden of

3 raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Albino v. Baca, 747 F.3d

4 1162, 1166 (9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the face of the

5 complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino, 747 F.3d at 1166.

6 Otherwise, the defendants must produce evidence proving the failure to exhaust, and they are

7 entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the light

8 most favorable to the plaintiff, shows he failed to exhaust. Id.

9 E. CDCR Health Grievance Process

10 During the applicable time, CDCR’s health grievance process involved a two-step

11 procedure for addressing an inmate’s health care concerns. See Cal. Code Regs. tit. 15,

12 § 3999.225, et seq. First, “[t]he grievant shall complete Section A of the CDCR 602 HC and

13 submit to the HCGO [Health Care Grievance Office] where the grievant is housed within 30

14 calendar days of: (1) The action or decision being grieved, or; (2) Initial knowledge of the action

15 or decision being grieved.” Cal. Code Regs. tit. 15, § 3999.227(b); see also id., § 3999.225(n)

16 (defining HCGO). “The grievant shall document clearly and coherently all information known

17 and available to him or her regarding the issue … includ[ing] any involved staff member’s last

18 name, first initial, title or position, and the date(s) and description of their involvement. If the

19 grievant does not have information to identify involved staff member(s), the grievant shall

20 provide any other available information that may assist in processing the health care grievance.”

21 Id., § 3999.227(g); see also, e.g., Robinson v. Cryer, 2023 WL 3007344, at *6–7 (E.D. Cal. Apr.

22 19, 2023), report and recommendation adopted, 2023 WL 3625266 (E.D. Cal. May 24, 2023)

23 (finding medical grievance that did not identify certain defendants did not exhaust plaintiff’s

24 administrative remedies with respect to those defendants).

25 Second, “[i]f dissatisfied with the institutional level health care grievance disposition, the

26 grievant may appeal the disposition … to HCCAB [Health Care Correspondence and Appeals

27 Branch] … within 30 calendar days plus five calendar days for mailing . . . .” Cal. Code Regs. tit.

28 15, § 3999.229(a); see also id., § 3999.225(l) (defining HCCAB). “The headquarters’ level

1 review constitutes the final disposition on a health care grievance and exhausts administrative

2 remedies . . ..” Id., § 3999.230(h), see also id. § 3999.226(g) (“Health care grievances are subject

3 to a headquarters’ level disposition before administrative remedies are deemed exhausted

4 pursuant to section 3999.230. A health care grievance or health care grievance appeal rejection or

5 withdrawal does not exhaust administrative remedies.”) (emphasis added).

6 DISCUSSION

7 A. Qualified Immunity

8 Defendant argues dismissal is warranted because under binding Ninth Circuit case law,

9 Plaintiff’s claims against Defendant are barred by qualified immunity. (Doc. No. 24 at 7).

10 Plaintiff’s Eighth Amendment claim is based on his assertion that sometime after he began

11 experiencing respiratory failure in later December 2018, Defendant Joelson entered a medical

12 hold preventing him from being transferred out of Corcoran State Prison, despite knowing that

13 Plaintiff was at “high risk” for exposure to Valley Fever and further health complications. (Doc.

14 No. 16 at 4).

15 In Hines v. Youseff, 914 F.3d 1218 (9th Cir. 2019), the Ninth Circuit determined that

16 similar claims are barred by qualified immunity. In the four consolidated cases before the court,

17 prison officials at three Central Valley prisons, including Corcoran State Prison (“CSP”), faced

18 Eighth Amendment claims of exposing inmates to a heightened risk of Valley Fever. However,

19 the Ninth Circuit, reviewing the prevalence and health impacts of Valley Fever on society at large

20 and in the California prison population specifically, found “no evidence that society’s attitude had

21 evolved to the point that involuntary exposure to [a heightened risk of Valley Fever] violated

22 current standards of decency, especially given that millions of free individuals tolerate a

23 heightened risk of Valley Fever by voluntarily living in California’s Central Valley and

24 elsewhere.” Id. at 1231 (internal quotation marks omitted); see also Shaheed v. Mitchell, 2020

25 WL 7759460, at *5 (finding an Eighth Amendment claim based on heightened exposure to Valley

26 Fever barred by qualified immunity, and noting that the court’s reasoning in Hines is only

27 bolstered by the subsequent population growth in the Central Valley and Southwestern U.S.).

28 Thus, “a reasonable official could have concluded that the risk [of heightened exposure to Valley

1 Fever] was not so grave that it violates contemporary standards of decency to expose anyone

2 unwillingly to such risk, or that exposure to the risk was lawful.” Hines, 914 F.3d at 1229.

3 In the instant case, Plaintiff claims that in 2018 he suffered from severe respiratory failure

4 and was eventually hospitalized. (Doc. No. 16 at 3). Three months later, Plaintiff learned that he

5 had contracted Valley Fever. (Id. at 3-4). Plaintiff’s counselor had ordered him to be transferred

6 to another prison due to the fact that he had been labeled “high risk” for Valley Fever. (Id. at 4).

7 Despite knowing this, Defendant Joelson placed a medical hold that prevented Plaintiff from

8 being transferred. (Id.). Plaintiff’s FAC contends that Joelson’s placing a medical hold on

9 Plaintiff demonstrated deliberate medical indifference in violation of the Eighth Amendment.

10 However, as Hines makes clear, “no societal consensus has emerged” that the risk of

11 heightened exposure to Valley Fever is “intolerably grave” such that a reasonable official would

12 not permit a prisoner to continue to be involuntarily exposed to it. Hines, 914 F.3d at 1232. The

13 Hines court noted that, after recognizing the extent of the Valley Fever problem, CDCR officials

14 treated the inmates who were “most susceptible to developing severe or disseminated cocci”

15 differently by either transferring them out of the Central Valley prisons or not placing them there

16 in the first place. In 2007 CDCR began using six clinical criteria to identify these high-risk

17 individuals: “All identified HIV infected inmate patients; (b) History of lymphoma; (c) Status

18 post solid organ transplant; (d) Chronic immunosuppressive therapy (e.g. severe rheumatoid

19 arthritis); (e) Moderate to severe Chronic Obstructive Pulmonary Disease (COPD) requiring

20 ongoing intermittent or continuous oxygen therapy; [and] (f) Inmate-patients with cancer on

21 chemotherapy.” Id. at 1225. After these measures failed to reduce the incidence of infection in

22 the Central Valley prison population, CDCR was forced by an appointed Receiver and the District

23 Court to expand this exclusion policy by effectively suspending the transfer of African-American

24 and diabetic inmates to Central Valley prisons. Id.

25 Plaintiff here does not contend that he was transferred to Corcoran State Prison or kept

26 there in contravention of CDCR’s exclusion policies. The Court is unaware of any policy

27 requiring those exposed to Valley Fever or having suffered a severe case of Valley Fever to be

28 subsequently transferred out of the Central Valley. To the contrary, the court in Hines noted that

1 those exposed to Valley Fever typically develop immunity, suggesting that after contracting the

2 disease an individual would eventually see their health less affected by remaining in the Central

3 Valley. Id. at 1226. Because Plaintiff was not among those to whom CDCR’s exclusion policy

4 applied and has not otherwise shown that a right to be free from heightened exposure to Valley

5 Fever was clearly established at the time of the incident, the Court finds that Defendant Joelson is

6 entitled to qualified immunity for placing a hold on Plaintiff that kept him at Corcoran State

7 Prison. Accordingly, the Court finds Defendant is entitled to qualified immunity and will grant

8 Defendant’s Motion to Dismiss under Rule 12(b)(6).

9 B. Exhaustion of Administrative Remedies

10 In the alternative, Defendant asserts it is clear from the face of the First Amended

11 Complaint and attachments thereto that Plaintiff did not properly exhaust his Eighth Amendment

12 deliberate medical indifference claim because Defendant Joelson is not mentioned in Plaintiff’s

13 grievances, nor do they discuss a medical hold or a proposed transfer. (Doc. No. 24 at 4). The

14 Court agrees.

15 Plaintiff’s initial health care grievance, HC 19000807 (“Grievance 807”), filed July 21,

16 2019, complains of the delay in diagnosing him with Valley Fever by “RN and Dr. DOES 1-3”

17 but does not identify Dr. Joelson by name or describe the conduct that is the subject of this

18 lawsuit, namely the placement of a medical hold that prevented Plaintiff from being transferred

19 out of Corcoran State Prison. (See Doc. No. 16 at 8-10). The September 16, 2019 Institutional

20 Level Response also does not reflect that CDCR was aware of the complaint that forms the basis

21 of this suit; rather, it documents his medical treatment at CSP beginning on November 19, 2018

22 and continuing through his diagnosis with Valley Fever on March 7, 2019 and subsequent

23 treatment. (Id. at 17-19). As of August 22, 2019, the Response notes, Plaintiff’s

24 “coccidioidomycosis was stable” and he remained on oral fluconazole with another follow-up

25 scheduled in six weeks. (Id. at 19). Nor does Plaintiff’s appeal or the headquarters level response

26 mention the allegations that are at issue in this case. Rather, Plaintiff’s appeal, filed October 7,

27 2019, complains that he was never interviewed regarding the issues cited in his grievance,

28 contends that the failure to diagnose him sooner with Valley Fever reflected staff misconduct or

1 deliberate indifference, and argues that certain facts regarding his symptoms and medical care

2 were improperly omitted from the institutional level response. (Id. at 13-14). The appeal again

3 does not mention a medical hold or Dr. Joelson. Likewise, the January 8, 2020 headquarters level

4 response does not reflect any awareness by CDCR officials that Plaintiff objected to a medical

5 hold being placed on him that prevented his transfer. Instead, it responds to his concerns

6 regarding the lack of an interview, the alleged misconduct by staff, and deficiencies in the

7 institutional level response. (See id. at 21-23).

8 In certain circumstances, a Plaintiff’s failure to name an individual in a grievance may not

9 be fatal. For example, in Reyes v. Smith, plaintiff filed a health care grievance regarding his

10 institution’s gradual termination of his access to morphine for pain management. 810 F.3d 654

11 (9th Cir. 2016). The institution denied Plaintiff’s grievance and appeals and noted in its

12 responses that the prison’s Pain Management Committee (“PMC”) had “recommended against

13 narcotics.” Id. at 656. After Reyes filed suit against two members of the prison’s PMC and other

14 prison officials, the district court granted an exhaustion-based motion for summary judgment as

15 to the two PMC members because they had never been named in Reyes’ health care grievances,

16 contrary to Cal. Code Regs. tit. 15 § 3084.2(a) (2015). Id. at 656-57. The Ninth Circuit reversed,

17 noting the explicit reference to the PMC in the institution’s responses in finding that Plaintiff’s

18 grievance “plainly put prison officials on notice of the nature of the wrong alleged in his federal

19 suit—denial of pain medication by the defendant doctors [because] [p]rison officials . . . plainly

20 knew that the Pain Management Committee, of which Drs. Smith and Heatley and Smith were

21 members, had decided Reyes should not receive the medication . . .” Reyes, 810 F.3d at 659.

22 Thus, even though Reyes had not named the specific defendants in his grievance and appeals, the

23 Court found that the prison and those defendants were on notice of the nature of Reyes’ claims.

24 The Court also held that where the prison did not enforce a procedural rule, such as the

25 requirement of naming all involved individuals, but instead addressed a grievance on the merits, it

26 could not later enforce that rule so long as it was on notice of the claim. Id. at 658.

27 Here, Plaintiff cannot credibly argue that Grievance 807 put prison officials or Defendant

28 Joelson on notice that he would bring the instant claims against Defendant Joelson. The PLRA

1 requires “proper exhaustion,” which “demands compliance with a prison’s deadlines and other

2 critical procedural rules.” Merchant v. Corizon Health, Inc., 993 F.3d 733, 742 (9th Cir. 2021).

3 And, at a minimum, inmates are required to provide notice of the wrongdoing at issue to “put

4 prison officials on notice of [their] complaint.” Morton v. Hall, 599 F.3d 942, 946 (9th Cir.

5 2010). That means Plaintiff was required to identify Dr. Joelson as a party responsible for the

6 alleged wrongdoing or otherwise notify prison officials that he took issue with actions taken by

7 Defendant Joelson. See, e.g., Cal. Code Regs. tit. 15, § 3084.2(a)(3) (2019) (requiring inmates to

8 “list all staff member(s) involved and describe their involvement in the issue”); Cal. Code Regs.

9 tit. 15, § 3482(c)(2) (same). Plaintiff did neither.

10 Instead, Plaintiff’s grievance exclusively focused on the delayed diagnosis of Valley

11 Fever and resulting delay in treating him. (See Doc. No. 16 at 8-10). It offers no clue that

12 Plaintiff objected to a medical hold being placed on him or that Dr. Joelson was responsible for

13 the medical hold. Nor did the institution’s responses to his grievance and appeal reflect that the

14 institution or Defendant Joelson was on notice that Grievance 807 concerned Dr. Joelson’s

15 placement of a medical hold or any actions involving interference with Plaintiff’s transfer from

16 CSP. Accordingly, the Court finds Health Care Grievance No. 19000807 failed to exhaust

17 Plaintiff’s administrative remedies as to his instant claims against Dr. Joelson. Thus, it appears

18 from the face of the First Amendment Complaint and attachments thereto, that Plaintiff failed to

19 exhaust his administrative grievances regarding the claim raised in the First Amended Complaint.

20 Thus, in the alternative, the Court grants the Motion to Dismiss on that basis.

21 C. Whether Leave to Amend Should be Granted

22 If a motion to dismiss is granted, “[the] district court should grant leave to amend even if

23 no request to amend the pleading was made . . .” Henry A. v. Willden, 678 F.3d 991, 1005 (9th

24 Cir.2012). However, leave to amend need not be granted if amendment would be futile or if the

25 plaintiff has failed to cure deficiencies despite repeated opportunities. See Mueller v. Aulker, 700

26 F.3d 1180, 1191 (9th Cir. 2012); Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir.

27 2010).

28 As discussed above, the Court finds dismissal is warranted on two grounds—qualified

1 | immunity and failure to exhaust administrative remedies. While a court may grant leave to

2 | amend after 12(b)(6) dismissal on qualified immunity grounds, see, e.g., Chamndany v. Harding,

3 2022 WL 19263348, at *17 (C.D. Cal. Oct. 4, 2022), there are no facts that Plaintiff could plead

4 | in an amended complaint that would avoid dismissal on exhaustion grounds. See, e.g., Cruz v.

5 | Jeffreys, 2018 WL 1193045, at *4 (S.D. Cal. Mar. 7, 2018) (“Because Plaintiff had not exhausted

6 | his remedies prior to filing this case, further amendment would be futile”). Thus, the Court finds

7 | that further leave to amend would be futile.

8 Accordingly, it is ORDERED:

9 1. Defendant’s Motion to Dismiss (Doc. No. 24) is GRANTED under Rule 12(b)(6) on

10 the grounds of qualified immunity and, in the alternative, for Plaintiffs failure to

11 exhaust his administrative remedies.

12 2. Plaintiffs First Amended Complaint (Doc. No. 16) is dismissed with prejudice.

13 3. The Clerk of Court shall issue judgment and close this case.

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| Dated: __April 23, 2024 Wh fareh Zaskth

16 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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