1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 Case No. 1:19-cv-01368-JLT-CDB (PC) 11 RICHARD A. MATLOCK, ORDER DECLINING TO ADOPT FINDINGS 12 Plaintiff, AND RECOMMENDATIONS AND DENYING DEFENDANTS’ MOTION FOR 13 v. SUMMARY JUDGMENT

14 DONNY YOUNGBLOOD, et al., (Docs. 54, 64)

15 Defendants. ORDER REQUIRING PARTIES TO FILE JOINT SCHEDULING REPORT 16 30-DAY DEADLINE 17 18 Richard A. Matlock filed this action under

, seeking to hold Defendants 19 liable for failure to protect him from an assault by another inmate in violation of the Fourteenth 20 Amendment. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 21 § 636(b)(1)(B) and Local Rule 302. 22 I. PROCEDURAL HISTORY 23 On August 1, 2022, Defendants filed a motion for summary judgment based on Plaintiff’s 24 failure to exhaust administrative remedies. (Doc. 54.) Plaintiff failed to respond despite multiple 25 opportunities to do so. On April 10, 2023, the assigned magistrate judge entered findings and 26 recommendations deeming Defendants’ motion for summary judgment unopposed and 27 recommending the Court grant the motion. (Doc. 64.) 28 On May 4, 2023, Plaintiff filed objections to the magistrate judge’s findings and 1 recommendations. (Doc. 65.) In his objections, Plaintiff admits he never filed an administrative 2 complaint, but he argues the administrative remedies were effectively unavailable to him. (Id.) 3 The Court determined the information contained in Plaintiff’s objections may be material to the 4 exhaustion analysis. (Doc. 66.) However, because the objections were not signed under perjury, 5 they did not constitute evidence the Court could consider on summary judgment. Therefore, the 6 Court held the findings and recommendations in abeyance and granted Plaintiff leave to 7 supplement the record with a sworn declaration. The Court further granted Defendants leave to 8 respond to any declaration filed by Plaintiff. (Id.) 9 Plaintiff timely filed a sworn declaration in opposition to Defendants’ motion for 10 summary judgment. (Doc. 67.) Plaintiff indicates he signed an acknowledgement of grievance 11 procedure upon his arrival at Lerdo Max-Medium Facility. Following the attack by another 12 inmate, Plaintiff requested an administrative remedy1 from Deputy Woosely, who responded that 13 someone should have already talked to Plaintiff. However, Woosely did not provide Plaintiff 14 with the administrative remedy requested. (Id. at 2.) Plaintiff asserts he asked other deputies for 15 I-200 grievance forms. (Id. at 3.) They also stated they would send someone to talk to Plaintiff 16 about it, but none of these deputies or any other staff provided the I-200 forms. Thus, Plaintiff 17 argues prison staff intentionally and deliberately thwarted Plaintiff’s efforts through 18 misrepresentations and making it physically impossible for Plaintiff to take advantage of the 19 grievance process. Id. 20 Plaintiff further asserts the grievance process would not have prevented the attack 21 anyway because the I-200 form states: “Grievable conditions of confinement may include, but 22 are not limited to: Medical and or [sic] mental health care, classification action, disciplinary 23 actions, food, clothing and bedding.” (Id.) From this, Plaintiff believed that nothing in the form 24 states he could “grieve after the fact of an assault,” that there were no cameras monitoring the 25 pods, and no staff was on the pod during the assault. Plaintiff also determined that the grievance 26 policy could not have prevented the attack. (Id.) 27 In their response, Defendants argue Plaintiff’s declaration is self-defeating and fails to 28 1 effectively oppose their motion for summary judgment. (Doc. 68 at 2.) Defendants maintain that 2 the form’s language (i.e., the form’s indication that grievable conditions of confinement “include 3 but are not limited to” certain subjects) undercuts Plaintiff’s assertion of futility and does not 4 raise a triable issue of fact to defeat summary judgment. (Doc. 67.) Defendants argue they have 5 met their burden to show (1) the existence of an available remedy and (2) Plaintiff’s failure to 6 exhaust that remedy. (Id.) Therefore, the grievance process was available, and Plaintiff’s 7 submission of a grievance would not have been futile. Defendants argue: “It does not matter 8 whether Plaintiff believes filling out the grievance form would have changed the situation, the 9 requirement is that he simply fill out the form and let the administrative process finish, prior to 10 filing a lawsuit.” (Id.) However, Defendants do not address Plaintiff’s allegation that he 11 requested a grievance form from deputies and staff but was never provided one. 12 II. DISCUSSION 13 The failure to exhaust administrative remedies is an affirmative defense that the 14 defendant must plead and prove. Jones v. Bock,

(2007). The defendant 15 bears the burden of producing evidence that proves a failure to exhaust. Albino v. Baca,

1162, 1166 (9th Cir. 2014). On a motion for summary judgment, the defendant bears the initial 17 burden of proving (1) the existence of an available administrative remedy, and (2) the plaintiff 18 failed to exhaust that remedy.

. If the defendant makes this showing, the burden shifts 19 to the prisoner to present “evidence showing that there is something in his particular case that 20 made the existing and generally available administrative remedies effectively unavailable to 21 him.”

(citing Hilao v. Estate of Marcos,

, 778 n.5 (9th Cir. 1996)). 22 A remedy is available if it “capable of use for the accomplishment of a purpose” or “is 23 accessible or may be obtained.” Eaton v. Blewett,

, 1245 (9th Cir. 2022) (quoting 24 Ross v. Blake,

(2016)). The Supreme Court has recognized three circumstances 25 in which administrative remedies are effectively unavailable: (1) when the grievance system 26 “operates as a simple dead end—with officers unable or consistently unwilling to provide any 27 relief to aggrieved inmates”; (2) when the system is “so opaque that it becomes, practically 28 speaking, incapable of use”; and (3) “when prison administrators thwart inmates from taking 1 advantage of a grievance process through machination, misrepresentation, or intimidation.”

2 Where a prisoner does not have access to necessary forms to file a grievance and does not have 3 the ability to complete them during the filing period, no remedy is available to exhaust. Marella v. 4 Terhune,

(9th Cir. 2009); Albino, 747 F.3d at 1177 (concluding 5 administrative remedy was unavailable where he repeatedly requested inmate complaint forms, 6 but they were never provided, nor was the plaintiff informed he could simply write his complaint 7 on a piece of paper); Nunez v. Duncan,

(9th Cir. 2010) (holding an inmate 8 was excused from the exhaustion requirement where he was misinformed by the Warden about 9 needing a Program Statement to exhaust administrative remedies, and inmate took reasonable and 10 appropriate steps to obtain it). 11 Plaintiff has submitted his sworn statement indicating that he repeatedly asked for 12 grievance forms to complain about the conditions of confinement, which allowed the violent 13 attack to occur. He was repeatedly informed that someone would talk about his grievance and 14 bring him the forms, but this never occurred. Under these circumstances, Plaintiff has met his 15 burden to show the existing remedies were effectively unavailable. Defendants have not 16 provided evidence to refute this testimony or, even, addressed this evidence in argument. 17 Therefore, Defendant is not entitled to summary judgment based on non-exhaustion of 18 administrative remedies. 19 III. JOINT SCHEDULING REPORT 20 The discovery and dispositive motion deadlines established by the Court’s scheduling 21 order of May 3, 2022, have lapsed. (Doc. 50.) The parties’ previously filed scheduling and 22 discovery statements indicate they are willing to participate in a settlement conference; Plaintiff 23 has propounded requests for production of documents but received no responses from 24 Defendants; and Defendants intend to file a motion for summary judgment based qualified 25 immunity. (Docs. 48, 49.) 26 The parties are ordered to meet and confer and to file a joint scheduling report within 30 27 days from the date of service of this order. The parties’ report shall include proposed dates for a 28 settlement conference, discovery and dispositive motion deadlines, and proposed dates for 1 | pretrial conference and trial. The parties may also report any other issues or matters they wish to 2 | bring to the Court’s attention. 3 | IV. CONCLUSION 4 In accordance with the provisions of

(b)(1)(©), this Court has conducted 5 | ade novo review of this case. Having carefully reviewed the entire file, including Plaintiff's 6 | objections, the Court finds the findings and recommendations to be supported by the record and 7 || proper analysis. Thus, the Court ORDERS: 8 1. The Court DECLINES TO ADOPT the findings and recommendations filed on 9 April 10, 2023, (Doc. 64). 10 2. Defendants’ motion for summary judgment, (Doc. 54), is DENIED. 11 3. The parties shall meet and confer and file a joint scheduling report within 30 days 12 from the date of service of this Order. 13 4. This case is referred to the assigned magistrate judge for further proceedings. 14 15 IT IS SO ORDERED. 16 | Dated: _ August 29, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28