1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY W. MUNDY, No. 1:22-cv-00401-KES-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ 13 v. EXHAUSTION MOTION FOR SUMMARY JUDGMENT 14 SACRAMENTO COUNTY JAIL MEDICAL STAFF, et al., (ECF No. 79) 15 Defendants. 16 17 Plaintiff Stanley A. Mundy is proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to

. 19 Currently before the Court is Defendants’ exhaustion motion for summary judgment, 20 filed July 17, 2025. 21 I. 22 RELEVANT BACKGROUND 23 This action proceeds on Plaintiff’s Eighth Amendment official capacity claim regarding 24 plaintiff’s non-soy diet at CDCR against defendant Jeff Macomber, and on Plaintiff’s Eighth 25 Amendment deliberate indifference claim against defendants Long, Gomez Pimentel, Onyeje, 26 Logan, and Conanan. 27 Defendants filed an answer to the operative complaint on February 10, 2025. (ECF No. 28 69.) The discovery and scheduling order was issued on March 17, 2025. (ECF No. 74.) 1 On July 17, 2025, Defendants M. Logan, O. Onyeje, S. Long, M. Conanan, and K. Gomez 2 Pimentel filed a motion for summary judgment for failure to exhaust the administrative 3 remedies.1 (ECF No. 79.) 4 Plaintiff filed an opposition on August 11, 2025, and Defendants filed a reply on August 5 25, 2025. (ECF Nos. 84, 86.) 6 On August 22, 2025, Plaintiff filed a motion to add an addendum to his opposition. (ECF 7 No. 85.) On September 8, 2025, Plaintiff filed a motion to stay the proceedings pursuant to 8 Federal Rule of Civil Procedure 56. (ECF No. 87.) 9 On September 9, 2025, the Court granted Plaintiff’s motion to add an addendum to his 10 opposition, and denied Plaintiff’s motion to stay the proceedings. (ECF No. 88.) 11 On September 10, 2025, the Court denied Plaintiff’s motion to amend the complaint, 12 without prejudice. (ECF Nos. 82, 89.) 13 II. 14 LEGAL STANDARD 15 A. Statutory Exhaustion Requirement 16 The Prison Litigation Reform Act (PLRA) of 1995, requires that prisoners exhaust “such 17 administrative remedies as are available” before commencing a suit challenging prison 18 conditions.” 42 U.S.C. § 1997e(a); see also Ross v. Blake,

(2016) (“An 19 inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”). 20 Exhaustion is mandatory unless unavailable. “The obligation to exhaust ‘available’ remedies 21 persists as long as some remedy remains ‘available.’ Once that is no longer the case, then there 22 are no ‘remedies … available,’ and the prisoner need not further pursue the grievance.” Brown v. 23 Valoff,

(9th Cir. 2005) (emphasis in original) (citing Booth v. Churner, 532

, 739 (2001)). 25 This statutory exhaustion requirement applies to all inmate suits about prison life, Porter 26 v. Nussle,

(2002) (quotation marks omitted), regardless of the relief sought by 27 1 Defendants concede that Plaintiff exhausted his official capacity claim against Defendant Macomber. (ECF No. 79- 28 1, n.1.) 1 the prisoner or the relief offered by the process, Booth v. Churner, 532 U.S. at 741, and 2 unexhausted claims may not be brought to court, Jones v. Bock,

(2007) (citing

U.S. at 524). 4 The failure to exhaust is an affirmative defense, and the defendants bear the burden of 5 raising and proving the absence of exhaustion. Jones,

; Albino v. Baca,

(9th Cir. 2014). “In the rare event that a failure to exhaust is clear from the face of 7 the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Albino,

1166. Otherwise, the defendants must produce evidence proving the failure to exhaust, and they 9 are entitled to summary judgment under Rule 56 only if the undisputed evidence, viewed in the 10 light most favorable to the plaintiff, shows he failed to exhaust.

11 B. Summary Judgment Standard 12 Any party may move for summary judgment, and the Court shall grant summary judgment 13 if the movant shows that there is no genuine dispute as to any material fact and the movant is 14 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Albino, 15

; Washington Mut. Inc. v. U.S.,

, 1216 (9th Cir. 2011). Each 16 party’s position, whether it be that a fact is disputed or undisputed, must be supported by (1) 17 citing to particular parts of materials in the record, including but not limited to depositions, 18 documents, declarations, or discovery; or (2) showing that the materials cited do not establish the 19 presence or absence of a genuine dispute or that the opposing party cannot produce admissible 20 evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may 21 consider other materials in the record not cited to by the parties, although it is not required to do 22 so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist.,

, 1031 23 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz.,

(9th Cir. 2010). 24 The defendants bear the burden of proof in moving for summary judgment for failure to 25 exhaust, Albino,

, and they must “prove that there was an available 26 administrative remedy, and that the prisoner did not exhaust that available remedy,” id. at 1172. 27 If the defendants carry their burden, the burden of production shifts to the plaintiff “to come 28 forward with evidence showing that there is something in his particular case that made the 1 existing and generally available administrative remedies effectively unavailable to him.” Id. “If 2 the undisputed evidence viewed in the light most favorable to the prisoner shows a failure to 3 exhaust, a defendant is entitled to summary judgment under Rule 56.” Id. at 1166. However, 4 “[i]f material facts are disputed, summary judgment should be denied, and the district judge rather 5 than a jury should determine the facts.” Id. 6 In arriving at this Findings and Recommendation, the Court carefully reviewed and 7 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 8 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 9 reference to an argument, document, paper, or objection is not to be construed to the effect that 10 this court did not consider the argument, document, paper, or objection. This Court thoroughly 11 reviewed and considered the evidence it deemed admissible, material, and appropriate. 12 III. 13 DISCUSSION 14 A. Description of CDCR’s Administrative Remedy Process 15 California Correctional Health Care Services (“CCHCS”) has an administrative grievance 16 process governed by the California Code of Regulations. (UF No. 16.); Cal. Code Regs., tit. 15 §§ 17 3999.225-3999.237. Under these regulations, inmates can grieve issues related to health care 18 policies, decisions, actions, conditions, or omissions using a CDCR 602 HC, Health Care 19 Grievance form. (UF No. 17.) To be timely, a grievance must be submitted by the inmate patient 20 to the grievance office within thirty days of either the action or decision being grieved or upon 21 learning of the action or decision being grieved. (UF No. 18.) Health care grievances are subject 22 to two levels of review: grievances are first process at the institutional level by the Health 23 Care Grievance Offices at each institution. (UF No. 19.) If an inmate is dissatisfied with the 24 decision at the institutional level, he may appeal the grievance decision to the Health Care 25 Correspondence and Appeals Branch (“HCCAB”) at CCHCS headquarters. (Id.) Health care 26 grievances are subject to a headquarters level disposition before administrative remedies are 27 deemed exhausted. (UF No. 20.) An appeal of a healthcare grievance cannot include new issues 28 not discussed in the underlying grievance. (UF No. 21.) If an inmate raises new issues on appeal, 1 the HCCAB can, but is not required to, address those issues in the appeal. (Id.) 2 B. Complaint Allegations 3 On June 1, 2021, Plaintiff was transferred to Pelican Bay State Prison (PBSP). Plaintiff 4 was told by NKSP officials that he would receive the prescribed non-soy diet and medical treatment 5 at PBSP. 6 On June 1 and June 2, 2021, Plaintiff told registered nurse Lucero and primary Doctor 7 Pimentel that he was sent to PVSP to get a prescribed non-soy diet. Both Lucero and Pimentel 8 repeated the policy that the prison does not provide medically prescribed diets, and that CDCR will 9 not provide a non-soy diet. 10 On June 23 and June 24, 2021, Plaintiff reported to registered nurse Long and Doctor 11 Pimentel showing hives, rashes, severe abdominal pain, bleeding, severe head pain, dizziness, 12 confusion, low heart rate, and fatigue due to the lack of a non-soy diet. 13 On July 1 and July 8, 2021, Plaintiff reported more reactions and again requested a non-soy 14 diet. Long and Pimentel repeated the policy statement that CDCR does not provide a non-soy diet. 15 On July 17 and July 22, 2021, Plaintiff showed Long, Pimentel and Scheesley that he was 16 bleeding from foods containing soy. 17 On August 5, 2021, Plaintiff reported to Long and Pimentel that he was suffering from hives 18 and rashes which were infected. However, Long and Pimentel refused any treatment for those 19 needs. 20 From August 1 to August 30, 2021, Plaintiff reported to Long and Pimentel that he was 21 worried about severe bleeding, delay of treatment, and no treatment for hives, rashes and infections. 22 On August 23, 2021, Plaintiff reported to Long and Pimentel that his right leg was black 23 and very painful. He also was suffering from bleeding, fatigue, confusion, and weakness, but he 24 was not provided any medical treatment. 25 By September 1, 2021, Plaintiff had put in a number of grievances regarding Long, 26 Pimentel, and Onyeje who all denied a proper diet and medical treatment. 27 On September 1 and September 2, 2021, Long, Pimentel, Onyeje, and Mason all repeated 28 that they were aware of Plaintiff’s soy allergy, but CDCR did not provide a non-soy diet. 1 On September 15, September 20, September 23, and September 30, 2021, Plaintiff reported 2 to Long, Pimentel and other Defendants that multiple more attacks occurred and he was in need of 3 medical treatment and diet. 4 On October 8, October 11, October 21, October 25, and November 5, 2021, Plaintiff 5 reported the same concerns regarding his need for medical treatment and diet to Scheesley and 6 Casillas who always told him that only Long, Pimentel and Onyeje could help him. On every 7 occasion Plaintiff showed them his reactions to soy, but he was denied treatment and a non-soy 8 diet. 9 By November 15, 2021, Plaintiff suffered the same right leg abscess caused by hives, rashes, 10 and Defendants Long, Pimentel, and Onyeje refused any basic care even though the abscess was 11 black, swollen and painful. 12 Later in November 2021, Plaintiff’s right leg became worse and when he went to the 13 medical building, Long, Pimentel, Onyeje, and Conanan refused treatment. Plaintiff went “man 14 down” and Logan, Long, and Pimentel refused to send him to the TTA, and other medical officials 15 overruled the decision. Logan, Long, Pimentel and Conanan refused outside medical care and 16 treatment. 17 On December 1, 2021, Plaintiff went “man down” again and Clark overrode Logan, 18 Pimentel and Conanan and sent him to the TTA. 19 On December 2, 2021, Plaintiff’s cellmate notified staff of a medical emergency at 4:00 20 a.m. Logan, Pimentel, Long, and Conanan did not want to send Plaintiff to the TTA and refused 21 outside care. Plaintiff showed his leg to the transportation sergeant who rushed Plaintiff to the 22 emergency room in Bakersfield overruling the decision of Long, Logan, Conanan and Pimentel. 23 The emergency Doctor put Plaintiff on a non-soy diet and wanted to keep Plaintiff longer but 24 Conanan refused. 25 C. Statement of Undisputed Facts2 26 1. Plaintiff initiated this lawsuit on April 6, 2022. (ECF No. 1.) 27 2. Plaintiff filed the operative second amended complaint on March 29, 2023. (ECF

28 2 Referred to as “UF.” 1 No. 34.) 2 3. Plaintiff is an inmate in the custody of the California Department of Corrections 3 and Rehabilitation. During all relevant times, Plaintiff was housed at Pleasant 4 Valley State Prison. (ECF No. 34 at 21.) 5 4. Defendant Onyeje is employed as the Chief Medical Executive for California 6 Correctional Health Care Services (“CCHCS”) at PVSP. (ECF No. 34 at 7.) 7 5. Defendant Conanan is employed by CCHCS as the Chief Medical Executive and a 8 Medical Doctor at PVSP. (ECF No. 34 at 8.) 9 6. Defendant Long is employed by CCHCS as a Registered Nurse at PVSP. (ECF 10 No. 34 at 8.) 11 7. Defendant Gomez Pimentel is employed by CCHCS as a primary care physician at 12 PVSP. (ECF No. 34 at 8.) 13 8. Defendant Logan is employed by CCHCS as a Registered Nurse at PVSP. (ECF 14 No. 34 at 8.) 15 9. On June 1, 2021, Plaintiff, transferred from North Kern State Prison to PVSP. 16 (ECF No. 34 at 21.) 17 10. This case proceeds on an Eighth Amendment official capacity claim against 18 Defendant Macomber, CDCR’s secretary, based on CDCR’s alleged policy of not 19 permitting non-soy diets for inmates and not labeling foods to identify if they 20 contain soy. (ECF Nos. 34, 39, 51.) 21 11. The case also proceeds on an Eighth Amendment deliberate indifference claim 22 against Defendants Long, Gomez Pimentel, Onyeje, Logan, and Conanan for 23 failing to treat his injuries after being denied a non-soy diet. (ECF Nos. 34, 39, 24 51.) 25 12. Plaintiff alleges that between June 2021 and December 2021, Defendants Long, 26 Gomez Pimentel, Logan, Conanan, and Onyeje did not provide Plaintiff with 27 requested treatment for hives, rashes, and an abscess on his right leg, or complaints 28 of rectal bleeding that Plaintiff believes was caused by consumption of soy 1 products. (ECF No. 34 at 22-27.) 2 13. Plaintiff claims that in June and July 2021 he suffered from frequent bouts of 3 rectal bleeding that he attributes to consumption of soy products. Plaintiff reported 4 these bouts to Defendants Long and Gomez Pimentel and asked for their assistance 5 in identifying foods containing soy products as well as treatment. Defendants Long 6 and Gomez Pimentel did not provide assistance in identifying foods containing soy 7 products. (ECF No. 34 at 22-24.) 8 14. Plaintiff alleges that on July 1, and 8, 2021, Defendants Gomez Pimentel and Long 9 refused to provide him with any treatment for his rectal bleeding. (ECF No. 34 at 10 24.) 11 15. Plaintiff also claims that Defendants Gomez Pimentel, Long, Conanan, Logan, and 12 Onyeje refused to provide Plaintiff with a requested non-soy diet on multiple 13 occasions between June and December 2021. (ECF No. 34 at 22-27.) 14 16. California Correctional Health Care Services (“CCHCS”) has an administrative 15 grievance process governed by the California Code of Regulations. (Declaration 16 of K. Martin (“Martin Decl.”) at ¶ 3; Cal. Code Regs., tit. 15, §§ 3999.225- 17 3999.237.) 18 17. Under these regulations, inmates can grieve issues related to health care policies, 19 decisions, actions, conditions, or omissions using a CDCR 602 HC, Health Care 20 Grievance form. (Martin Decl. at ¶ 3;

, 21 3999.227(a).) 22 18. To be timely, a grievance must be submitted by the inmate patient to the grievance 23 office within thirty days of either the action or decision being grieved or upon 24 learning of the action or decision being grieved. (

3999.227(b).) 26 19. Health care grievances are subject to two levels of review: grievances are first 27 process at the institutional level by the Health Care Grievance Offices at each 28 institution. If an inmate is dissatisfied with the decision at the institutional level, he 1 may appeal the grievance decision to the Health Care Correspondence and Appeals 2 Branch (“HCCAB”) at CCHCS headquarters. (Martin Decl. at ¶ 3; Cal. Code 3 Regs. tit. 15, § 3999.226(a)(1).) 4 20. Health care grievances are subject to a headquarters level disposition before 5 administrative remedies are deemed exhausted. (Martin Decl. at ¶ 3; Cal. Code 6 Regs. tit. 15, § 3999.226(g).) 7 21. An appeal of a healthcare grievance cannot include new issues not discussed in the 8 underlying grievance. If an inmate raises new issues on appeal, the HCCAB can, 9 but is not required to, address those issues in the appeal. (Cal. Code Regs. tit. 15, 10 § 3999.229(a)(3), 3999.230(i), (j).) 11 22. While at PVSP, Plaintiff filed four health care grievances. (Martin Decl. at ¶ 6, 12 Ex. A [HCARTS tracking sheet].) 13 23. Of those grievances three were exhausted at the headquarters level of review: 14 PVSP HC 21000357, PVSP HC 22000032, and PVSP HC 21000435. (Martin 15 Decl. at ¶¶ 6-10, Ex. A, Ex. B. [Grievance No. PVSP HC 21000357], Ex. C 16 [Grievance No. PVSP HC 21000262], Ex. D [Grievance No. PVSP HC 17 22000032], Ex. E [Grievance No. PVSP HC 21000435].) 18 D. Analysis of Defendants’ Motion 19 Defendants argue that Plaintiff failed to exhaust his available administrative remedies 20 prior to bring suit.3 More specifically, Defendants argue that only one grievance submitted by 21 Plaintiff named a Defendant in this action and none of the grievances addressed his claims 22 regarding a non-soy diet or consumption of soy or concern claims of improper treatment for rectal 23 bleeding in June and July 2021. 24 In response, Plaintiff argues that he filed multiple grievances and accommodation requests 25 identifying Defendants and their misconduct. In addition, Defendants hindered Plaintiff’s 26 grievance process by using their power of office to deny him “a full grievance and exhaustion 27 3 Defendants concede that Plaintiff exhausted his official capacity claim against Defendant Macomber. (ECF No. 79- 28 1 fn. 1.) 1 system.” (ECF No. 83 at 2.) 2 In reply, Defendants argue that Plaintiff has failed to present evidence sufficient to create 3 a material fact regarding whether administrative remedies were unavailable. 4 1. Availability of Administrative Grievance Process 5 Here, Plaintiff concedes in the operative second amended complaint that the 6 administrative remedies were available at the time the events giving rise to the complaint 7 occurred. (ECF No. 34 at 9, 18, 30, 32.) While at PVSP, Plaintiff filed four health care 8 grievances. (UF 22.) It is undisputed that of those grievances three were exhausted at the 9 headquarters level of review: PVSP HC 21000357, PVSP HC 22000032, and PVSP HC 10 21000435. (UF 23.) In the operative second amended complaint, Plaintiff admits that the 11 administrative remedies were available at his institution. (ECF No. 34 at 9, 18, 30, 32.) In 12 addition, the exhibits attached to Plaintiff’s opposition reflect that Plaintiff filed several other 13 grievances in which he received final level decisions, including the grant of an appeal. (ECF No. 14 84 at 18-29, 30-42.) Nonetheless, Plaintiff continues to argue that the administrative remedies 15 were unavailable. 16 The Supreme Court has clarified that there are only “three kinds of circumstances in 17 which an administrative remedy, although officially on the books, is not capable of use to obtain 18 relief.” Ross v. Blake,

(2016). These circumstances are: (1) the 19 “administrative procedure . . . operates as a simple dead end – with officers unable or consistently 20 unwilling to provide any relief to aggrieved inmates;” (2) the “administrative scheme . . . [is] so 21 opaque that it becomes, practically speaking, incapable of use . . . so that no ordinary prisoner can 22 make sense of what it demands;” and (3) “prison administrators thwart inmates from taking 23 advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. 24 (citations omitted). Other than these circumstances, the mandatory language of

1997e(a) forecloses judicial discretion meaning that a court may not excuse a failure to exhaust, 26 even to take special circumstances into account.

. Plaintiff’s opposition does not 27 establish unavailability on any basis. 28 /// 1 As to the first and second circumstances, there is nothing to indicate the grievance system 2 “operates as a simple dead end – with officers unable or consistently unwilling to provide any 3 relief to aggrieved inmates,” that it is “so opaque that it becomes, practically speaking, incapable 4 of use,” or that prison officials “thwart inmates from taking advantage of a grievance process 5 through machination, misrepresentation, or intimidation.”

. To the contrary, it is 6 undisputed that Plaintiff exhausted three healthcare grievances during the relevant time. (UF 23.) 7 Thus, the process was not a “dead end” or so “opaque” that exhaustion was futile. 8 Plaintiff argues that exhaustion was futile because his grievances were not investigated. 9 However, the law is clear that in order to exhaust the administrative remedies, the prison’s 10 administrative rules must be followed. Woodford, 548 U.S. at 90. In this instance, Plaintiff was 11 required to file a health care grievance within thirty days of the challenged action, and if the 12 grievance was denied, he could appeal to the Health Care Correspondence and Appeals Branch, 13 which exhausts the administrative remedies. Plaintiff’s speculation that a grievance would be 14 denied or not investigated is not sufficient to excuse exhaustion. Id. at 85 (“[A] prisoner must 15 now exhaust administrative remedies even where the relief sought—monetary damages—cannot 16 be granted by the administrative process.”). 17 With regard to the third circumstance, Plaintiff claims that he was retaliated and 18 intimidated by officers destroying his grievances, legal mail, and property at three prisons. (ECF 19 No. 84 at 14:13-14.) In order to establish that exhaustion is excused due to threats of retaliation, 20 the plaintiff must show both that “(1) the threat of [retaliation] actually did deter the plaintiff 21 inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is 22 one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a 23 grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” 24 McBride v. Lopez,

(9th Cir. 2015) (quoting Turner v. Burnside,

(11th Cir. 2008)). Plaintiff fails to provide evidence to satisfy either prong. 26 Plaintiff fails to submit evidence to demonstrate that any Defendant communicated an 27 objective threat to intimidate Plaintiff to not use the administrative grievance process. McBride, 28

. Rather, Plaintiff alleges that Defendants failed to provide him with copies of his 1 medical records. (ECF No. 84 at 4-5.) Plaintiff attaches copies of requests to release medical 2 records, but there is no indication that any of the Defendants received those forms and there is no 3 other information regarding those requests. (Id. at 4-5, 66-70.) However, even if assuming the 4 validity of Plaintiff’s vague and conclusory allegations, there is insufficient evidence to establish 5 that any Defendant communicated an objective threat to Plaintiff to not use the administrative 6 grievance process. There is no connection between Plaintiff’s requests for medical records and 7 his fear of retaliation if he filed a grievance. Plaintiff’s vague statements related to his medical 8 records, cell searches, and destruction of property and grievances from nondefendants do not 9 provide an evidentiary basis to satisfy the objective prong. (ECF No. 84.) Mere generalized 10 allegations of fear or intimidation do not suffice to demonstrate that prison administrators 11 thwarted an inmate’s use of an available administrative remedy. McBride,

; see 12 also, Sealey v. Busichio,

(9th Cir. 2017) (affirming summary judgment 13 on failure to exhaust where plaintiff’s assertion that acts of correctional officers were objectively 14 retaliatory was based on speculation, without personal knowledge); Gaines v. Beasley,

5270539, at *7 (E.D. Cal. Oct. 22, 2018) (finding no objective deterrence or retaliation where 16 plaintiff continued to file complaints and appeals); Rodriguez v. Cnty. of Los Angeles,

(9th Cir. 2018) (allegations of “general and unsubstantiated fears of possible retaliation” 18 insufficient to satisfy inmate’s burden to produce evidence of something in the particular case that 19 rendered administrative remedies unavailable). 20 In addition, Plaintiff has failed to submit evidence to demonstrate that any Defendant’s 21 conduct actually deterred him from submitting grievances. (ECF No. 84.) Indeed, it is undisputed 22 that Plaintiff filed four healthcare grievances during the relevant time. (UF 22.) Plaintiff also 23 attached several requests for accommodation request to his opposition from when he was 24 incarcerated at PVSP. (ECF No. 84 at 114-16, 120-22.) He also attached grievances from MCSP 25 where he was assigned after PVSP (Id. at 44-46, 77-82), and non-healthcare related grievances 26 from PVSP and NKSP. (Id. at 18-42.) These documents show that the alleged conduct of 27 Defendants or any other staff from PVSP did not deter Plaintiff from submitting grievances. See 28 Chacon v. Deputy Casas, No. CV 17-6573 JAK(JC),

, at *12-14 (C.D. Cal. 1 Jan. 2, 2019) (inmate was not deterred from filing a grievance when he continuously complained 2 and asked for help numerous times and continued to confront the deputy he claimed was 3 retaliating against him.); Brown v. Rasley, No. 1:13-cv-02084-AWI BAM (PC),

4042822, at *4 (E.D. Cal. Aug. 23,l 2018) (rejecting plaintiff’s claim of fear of retaliation when 5 evidence showed that he filed numerous appeals and that he “made repeated statements to prison 6 officials that he was a whistleblower, that he was going to stand up for prisoner rights. . .”); 7 Woods v. Roddrick, Case No. 2:14-cv-2458 MCE AC P,

at *8 (E.D. Cal. July 8 29, 2016) (inmate was not deterred from filing a grievance when he filed a grievance a week 9 later.). 10 Further, the fact that Plaintiff’s grievances were denied does not establish that the 11 grievance process was unavailable at PVSP. Indeed, Plaintiff has no constitutional right to have 12 his grievances granted. See Jenkins v. Bernatene,

, at *5 (E.D. Cal. Aug. 29, 13 2012) (“Plaintiff has a First Amendment right to file prison grievances but does not have a right 14 to any particular response.”); Norman v. Walker,

, at *4 (E.D. Cal. Dec. 12, 15 2011) (“While plaintiff may have a constitutional right to access established prison grievance 16 procedures, that right protects his ability to file the grievance, but does not protect him as to how 17 prison officials process and/or decide the grievance.”). Thus, the fact that Plaintiff's grievances 18 have been denied does not establish that the grievance process was effectively unavailable to him. 19 Accordingly, Plaintiff has not submitted admissible evidence to demonstrate that the 20 administrative remedy process was not available to him. 21 2. Exhaustion of Administrative Grievance Process 22 As noted, Plaintiff filed four health care grievances at PVSP. (UF 22.) However, only 23 three were exhausted at the headquarters level of review: PVSP HC 21000357, PVSP HC 24 22000032, and PVSP HC 21000435.4 (UF 23.) 25 ///

26 4 Defendants’ motion also addressed unexhausted Grievance No. PVSP HC 21000262 concerning orthopedic shoes, priority legal user status, and medical records. (ECF No. 79-2.) However, because Plaintiff’s opposition does not 27 address this grievance (see ECF No. 84), it is not relevant to whether he exhausted the administrative remedies to the claims at issue in this action. 28 1 a. PVSP HC 21000357 2 Grievance No. PVSP HC 21000357, was received at the institutional level on September 3 30, 2021. (Martin Decl. Ex. C.) Therein, Plaintiff alleged that in mid-August 2021, Defendant 4 Gomez Pimentel refused to schedule a hospital recommended cauterization for rectal bleeding 5 following a colonoscopy in late July or early August 2021 and failed to provide results of a cancer 6 screening. (Id.) An Institutional Level Response was issued on December 7, 2021, with a 7 disposition of no intervention. (Id.) Plaintiff appealed the grievance to the headquarters level and 8 the appeal was received on January 24, 2022. (Id.) A Headquarters Level Response was issued on 9 April 14, 2022, with a disposition of no intervention. (Id.) 10 Contrary to Defendant’s argument, the Court finds that this grievance suffices to exhaust 11 Plaintiff’s deliberate indifference claim against Defendant Gomez Pimentel for the failure to 12 provide follow-up cauterization for his rectal bleeding following the colonoscopy in July/August 13 2021, as pled in the operative second amended complaint.5 (See ECF No. 34 at 30.) However, it 14 does not grieve any other instances of alleged deliberate indifference or the claim that he was 15 denied a proper non-soy diet. 16 b. PVSP HC 22000032 17 Grievance No. PVSP HC 22000032 was received at the institutional level on February 8, 18 2022. (Martin Decl. Ex. D.) In this grievance, Plaintiff requested the release of his health records 19 from the county jail. (Id.) The grievance was denied at the institutional level with no 20 intervention. (Id.) Plaintiff appealed the decision and added additional allegations stating, in 21 part: As I explained I asked for these records from the Doctor and staff because my basic 22 constitutional right to have proper food and nutrition were causing me significant internal 23 problems. The county knew I had vomiting diarrhea which was causing me depletion of vitamins A, C, D, resulting in me passing out twice resulting in facial and eye damage 24 requiring surgery, still ongoing. This diarrhea vomiting and constipation cause severe rectal bleeding which caused infections to my body for well over a year which also 25 CDCR, Doctors, staff knew about and failed to treat resulting in a severe infection which has damaged my right leg and knee permanently and severe ongoing pain also now has 26

27 5 Plaintiff has alleged no facts to suggest that Defendant Gomez Pimentel failure to provide him with the alleged cancer test results placed him at substantial risk of serious harm, let alone that Defendant drew such inference or was 28 deliberately indifferent to the same. Thus, such allegations do not give rise to a cognizable claim for relief. 1 effected my heart these are serious conditions, so Doctor Gomez tells me in Oct/Nov 2021 if I wanted my records I should request them so I could prove the need for a higher care of 2 service to my deteriorating health condition[.] Doctor Gomez and former CME Onyeje and staff failed to provide me, so in February 25, 2022 T. Jacob tells me she won’t get 3 records that Dr. Gomez told me to get, who obviously didn’t want me to have these 4 records which would prove I needed a soy diet it caused me vomiting, diarrhea, internal bleeding, fatigue, fainting, severe internal bleeding infections that at that time Doctor 5 Gomez refused to treat or delayed. 6 (Martin Decl. Ex. D.) 7 The appeal was denied at the headquarters level with no intervention. The new issues 8 raised for the first time at the appeal level were not addressed at the headquarters’ level of review. 9 (Id.) Indeed, the headquarters’ level decision specifically stated:

10 It is no appropriate to expand the health care grievance beyond the initial issue(s). The 11 Health Care Correspondence and Appeals Branch has the discretion whether to address new issues; it has been determined the new issue(s), nutritional concerns, and soy diet, 12 ongoing facial and eye concerns, infections and damage to the right leg and knee, and effects on heart, not included in the originally submitted CDCR 602 HC, Health Care 13 Grievance, will not be addressed at the headquarters’ level of review per California Code of Regulations, Title 15, Section 3999.230(j).” 14 (Id.) The law is clearly established that the requirements of the prison administrative system 15 determine proper exhaustion.

(i), (j); Smith v. Mendoza, No. 16 19-03750 BLF (PR),

, at *9 (N.D. Cal. Mar. 10, 2021) (finding that plaintiff did 17 not exhaust his claims as to Defendants who were mentioned in an “upper-level appeal,” but were 18 not named in the original CDCR 602 Form.); Brannon v. Covarrubias, No. 22-16728,

1253788, at *2 (9th Cir. Mar. 25, 2024) (affirming district court decision that plaintiff did not 20 exhaust claim against nurse that he only raised in the appeal to the headquarters-level of review 21 which did not address plaintiff’s new claim.); Jones,

. Because Plaintiff 22 improperly raised his allegations related to a non-soy diet for the first time at the appellate level, 23 he did not exhaust the administrative remedies as to those additional allegations. Accordingly, 24 the Court finds that grievance no. PBSP HC 22000032 failed to exhaust plaintiff's administrative 25 remedies because it did not give adequate notice that Plaintiff challenged any of the Defendants 26 alleged failure to provide him with a non-soy diet and adequate medical treatment while housed at 27 PVSP. 28 1 Contrary to Plaintiff’s contention that he will “show multiple other 602 and 2 Accommidation[sic] grievance” that put PVSP prison administrators on notice of all the 3 allegations, no additional healthcare grievances from PVSP were attached to his opposition. 4 (ECF No. 84 at 7:7-13.) 5 c. PVSP HC 21000435 6 In grievance no PVSP HC 21000435, the stated issues were disagreement with treatment 7 of bleeding from colon and disagreement with delay of surgery. (Martin Decl. Ex. E.) Plaintiff’s 8 grievance did not name any Defendant. (Id.) An institutional level response was issued on 9 February 14, 2022, with a disposition of no intervention. (Id.) Plaintiff appealed this grievance to 10 the headquarters level of review. (Id.) The grievance was received at the headquarters level of 11 review on March 10, 2022. (Id.) A headquarters level response was issued on June 2, 2022, with a 12 disposition of no intervention. (Id.) At the headquarters level, Plaintiff attempted to expand his 13 grievance to include a new issue, “non-soy or alternative diet,” that was not included in the 14 original grievance. (Id.) Plaintiff’s new concerns were not addressed at the headquarters level of 15 review. (Id.) 16 Because Plaintiff failed to name any Defendant in this grievance and attempted to 17 improperly raise a new issue regarding his non-soy diet at the second level of review, this 18 grievance failed to exhaust any of the claims at issue in this action. Harmon v. Lewandowski, 19 Case No. 2:20-cv-09437-VAP-MRWx,

, at *6 (C.D. Cal. Nov. 30, 2021) 20 (dismissing claims against defendants not named in original grievance), aff’d,

, 21 *3-4 (9th Cir. 2023); Toscano v. Adam, Case No. 16-cv-06800-EMC,

, *24 22 (N.D. Cal. May 29, 2019) (holding that grievance that did not identify another doctor did not 23 properly exhaust administrative remedies as to that doctor because the prison had no reason to 24 suspect that there was an issue with the other doctor.). 25 d. Failure to Name Defendants Long, Logan, Onyeje, and Conanan 26 To reiterate, none of the grievances name Defendants Long, Logan, Onyeje, and Conanan. 27 Under governing regulations, a grievance must provide any information known to the inmate 28 patient about the issue being grieved including the staff member’s “last name, first initial, title or 1 position, . . . .”

(g)(1). Plaintiff was required to follow these 2 administrative rules. Jones,

(holding that the amount of detail in an administrative 3 grievance necessary to properly exhaust a claim is determined by the prison’s applicable 4 grievance procedures.). The only defendant named in any of Plaintiff’s grievances is Defendant 5 Gomez Pimentel. Indeed, the grievances do not provide any information that would put officials 6 on notice that two nurses (Defendants Long and Logan) and chief medical executives (Defendants 7 Conanan and Onyeje) were involved in any of the allegations addressed by Plaintiff’s grievances. 8 There is no reference to nurses, where the nurses worked, specific appointments dates and times, 9 or any other information that would put officials on notice that specific medical staff could be 10 providing inadequate medical care. (ECF No. 79-2 at 24-28.) Unlike in Reyes v. Smith,

(9th Cir. 2016), where the grievance response indicated that prison officials had 12 identified the doctors who made the medical decision at issue, there is no indication in any 13 grievance response here that the institution was aware that any specific medical staff that had 14 made the decisions at issue in the grievance. (ECF No. 79-2 at 24-28.) Thus, these grievances 15 would not have put officials on notice of Plaintiff’s current claims against Defendants Long, 16 Logan, Conanan, or Onyeje and all claims against them must be dismissed. See Harmon v. 17 Lewandowski,

, at *6; Toscano v. Adam,

, at *24. 18 Plaintiff’s failure to follow prison regulations and name the medical staff at issue does not satisfy 19 the exhaustion requirements and Defendants Logan, Long, Conanan, and Onyeje are entitled to 20 summary judgment in their favor for Plaintiff’s failure to exhaust administrative remedies. 21 e. Submission of Reasonable Accommodation Requests and Other Exhibits 22 In his opposition, Plaintiff submitted several non-healthcare grievances involving issues 23 with his mail at North Kern State Prison. (ECF No. 84 at 18-42.) Plaintiff also submitted a 24 grievance from Mule Creek State Prison where he was transferred after PVSP involving delays in 25 receiving mail. (ECF No. 84 at 44-46, 77-86.) Plaintiff further submits documents related to 26 three reasonable accommodation requests. (ECF No. 84 at 114-116, 120-121, 136-137.) 27 /// 28 /// 1 More specifically, Plaintiff submitted request Log No. 164745671957 on March 14, 2022, 2 in which he requested a computer to perform legal work, a soy free, heart healthy diet, to be 3 referred to a specialist for infections, a lower tier, and a lower bunk. (ECF No. 84 at 114-116.) 4 Defendant Conanan was a member of the Reasonable Accommodation Panel that addressed his 5 concerns. (Id.) Defendant Conanan recommended a temporary low bunk chrono for Plaintiff. 6 (Id.) On March 28, 2022, Plaintiff submitted request Log No. 164926247632. (ECF No. 84 at 7 120.) Plaintiff requested that the infection of his right leg be examined, a surgery to stop the 8 bleeding, and a non-soy diet to stop allergic reactions. (Id. at 120-121.) Defendant Conanan was 9 a member of the Reasonable Accommodation Panel that addressed Plaintiff’s concerns. (Id.) 10 On April 11, 2022, Plaintiff submitted another reasonable accommodation request seeking a 11 non-soy, heart healthy diet consisting of specific foods. (Id. at 137.) Defendant Conanan was a 12 member of the Reasonable Accommodation Panel that addressed Plaintiff’s concerns. (Id. at 136- 13 37.) 14 The filing of a reasonable accommodation request does not satisfy the administrative 15 exhaustion requirement. Indeed, a reasonable accommodation request is an information request 16 for an American with Disabilities Act (ADA) accommodation that should be filed prior to 17 pursuing the formal grievance process. See, e.g., Acosta v. Servin, No. 20-CV-2225-MMA- 18 MSB,

, at *4 (S.D. Cal. Feb. 24, 2021) (“If an inmate is disabled and seeks 19 accommodations under the [‘Americans with Disabilities Act’], he may submit a Reasonable 20 Accommodation Request Form 1824 which is an informal request prior to pursuing formal 21 grievance proceedings using Form 602.”) If the inmate disagrees with the response he receives 22 from the Reasonable Accommodation Panel (“RAP”), he may submit a formal CDCR 602 23 grievance and/or a CDCR HC Grievance. See Harris v. Engels, No. CV 19-5590-PA (KK), 2022

, at *4 n.4 (C.D. Cal. July 6, 2022), report and recommendation adopted, No. CV 19- 25 5590-PA (KK),

(C.D. Cal. Aug. 23, 2022); see also Thompson v. Hill, No. 24- 26 cv-00357-MMS (DDL),

, at *3 n.2 (S.D. Cal. July 15, 2024); Warzek v. 27 Onyeje, No. 1:17-cv-01452-AWI-SAB PC,

, at *7 (E.D. Cal. Marc. 12, 2019); 28 Hampton v. Haynie, No. 2:15-cv-02038-TLJ-KJN,

, at *9 (E.D. Cal. Jan. 15, 1 2016). Thus, Plaintiff’s reasonable accommodation requests seeking a non-soy diet are not 2 sufficient to establish that Plaintiff exhausted his administrative remedies related to those claims. 3 In addition, the filing of a CDCR Form 22 does not serve to exhaust the administrative 4 remedies. A “Form 22” refers to the CDCR Form 22, Inmate/Parolee Request for Interview, 5 Item, or Service. See Cal. Code Regs. Tit. 15, § 3086 (repealed effective June 1, 2020). 6 Submitting a Form 22 is not the same as submitting a grievance to the appeals coordinator using a 7 CDCR Form 602. See Dillingham v. Scruggs, No. 16-CV-03267-YGR (PR),

, 8 at *11 (N.D. Cal. June 12, 2018) (finding that a plaintiff failed to establish evidence showing that 9 he submitted an administrative grievance, when the plaintiff only provided evidence showing that 10 he “submitted multiple requests inquiring about the status of his ... 602 appeal using a CDCR 11 Form 22 or ‘Inmate/Parolee Request for Interview, Item of Service,’ which is not the same as re- 12 submitting the actual 602 appeal form.”), aff’d,

(9th Cir. 2019). 13 IV. 14 RECOMMENDATIONS 15 Based on the foregoing, it is HEREBY RECOMMENDED that: 16 1. Defendants’ exhaustion motion for summary judgment be denied as to Plaintiff’s 17 deliberate indifference claim against Gomez Pimentel regarding for the failure to 18 provide follow-up cauterization for his rectal bleeding following the colonoscopy 19 in July/August 2021, and granted in all other respects; and 20 2. The deliberate indifference claims against Defendants Long, Logan, Onyeje, and 21 Conanan be dismissed, without prejudice, for failure to exhaust the administrative 22 remedies. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of

(b)(l). Within twenty- 25 one (21) days after being served with these Findings and Recommendations, the parties may file 26 written objections with the Court, limited to 15 pages in length, including exhibits. The 27 document should be captioned “Objections to Magistrate Judge’s Findings and 28 Recommendations.” The parties are advised that failure to file objections within the specified 1 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,

, 838-39 2 | (9th Cir. 2014) (citing Baxter v. Sullivan,

(9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. Se 5 | Dated: _ October 7, 2025 ; STANLEY A. BOONE 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20