FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KENLY KIYA KATO, Magistrate Judge.

This Final Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

SUMMARY OF RECOMMENDATION

Bryan E. Ransom ("Plaintiff"), proceeding pro se and in forma pauperis ("IFP"), filed a Third Amended Complaint ("TAC") in Bryan E. Ransom v. S. Lee, et al., No. 2:14-cv-600-DSF (KK) ("Ransom I") against numerous defendants asserting claims pursuant to 42 U.S.C. § 1983 ("Section 1983") and state law. The Court severed Claims Eighteen, Nineteen, Twenty, and Twenty-One from Ransom I and opened the instant action against defendants W. Alton, M. Reynoso, E. Valenzuela, S. Rutledge, G. Stoll, O. Reece, J. Core, R. Lowe, H. Switzer, and S. Silva ("Defendants"). Defendants filed a Motion for Summary Judgment ("Motion") arguing Plaintiff's IFP status should be revoked and that he failed to exhaust his administrative remedies prior to bringing his claims in this action.

For the reasons below, the Court recommends (1) DENYING Defendants' request to revoke Plaintiff's IFP status; and (2) GRANTING Defendants' Motion for Summary Judgment due to Plaintiff's failure to exhaust administrative remedies.

II.

PROCEDURAL HISTORY

A. PREVIOUS COMPLAINTS

On December 15, 2013, Plaintiff constructively filed1 a Complaint in Ransom I pursuant to Section 1983 alleging prison officials at California Men's Colony ("CMC") in San Luis Obispo denied him necessary medical treatment for Hepatitis C because of his participation in a "solid food" hunger strike. Ransom I, ECF Docket No. ("Dkt.") 5.

On July 16, 2014, Plaintiff constructively filed a First Amended Complaint ("FAC") in Ransom I naming additional defendants and raising additional claims, including the following Claims Eighteen through Twenty arising out of Plaintiff's gang validation hearing:

Ransom I, dkt. 12. On October 6, 2014, the Court dismissed the FAC with leave to amend. Id., dkt. 15.

On November 5, 2014, Plaintiff constructively filed a Second Amended Complaint ("SAC") in Ransom I wherein he re-alleged Claims Eighteen through Twenty, and added the following additional claim:

Ransom I, dkt. 17. On November 24, 2014, the Court dismissed the SAC with leave to amend. Id., dkt. 18.

B. THE OPERATIVE COMPLAINT

On December 10, 2014, Plaintiff constructively filed the TAC in Ransom I setting forth twenty-one claims against forty-seven defendants, including Claims Eighteen through Twenty-One as described in his FAC and SAC. Ransom I, dkt. 20.

On June 27, 2017, the Court severed Claims Eighteen through Twenty-One from Ransom I and opened the instant action against Defendants.2 Dkt.3 1, TAC.

On August 11, 2017, Plaintiff filed a request to proceed IFP in the instant action. Dkt. 6. On August 16, 2017, the Court granted Plaintiff's request to proceed IFP. Dkt. 7.

On October 6, 2017, Defendants filed a Motion to Revoke Plaintiff's IFP status because Plaintiff (1) had accumulated three "strikes" pursuant to 28 U.S.C. § 1915(g) ("Section 1915"), and (2) did not meet the imminent danger exception to the three "strikes" provision. Dkt. 11.

On December 13, 2017, the Court issued an order finding Plaintiff had accumulated three strikes under Section 1915, but could nonetheless proceed IFP under the imminent danger exception. Dkt 18. The Court, therefore, denied Defendants' Motion to Revoke Plaintiff's IFP status. Id.

C. MOTION FOR SUMMARY JUDGMENT

On January 12, 2018, Defendants filed the instant Motion arguing (a) Plaintiff's IFP status should be revoked because Plaintiff does not meet the imminent danger exception; and (b) Plaintiff failed to exhaust administrative remedies.4 Dkt. 19, Motion.

In support of their Motion, Defendants submit the following:

On January 16, 2018, the Court issued an Order notifying Plaintiff of the requirements for opposing a motion for summary judgment pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). Dkt. 21. Plaintiff was cautioned that "failure to timely file an opposition to the motion for summary judgment may result in granting of the motion in its entirety." Id. The time for filing an opposition has passed, and Plaintiff has not filed an opposition.6

On January 31, 2019, the Court issued a Report and Recommendation recommending the Motion be granted in part and denied in part. Dkt. 35. On February 4, 2019, the Court issued an Amended Report and Recommendation. Dkt. 37. The Court now issues the instant Final Report and Recommendation.7

III.

LEGAL STANDARD

Summary judgment is appropriate if there is no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986). The moving party has no burden, however, to negate or disprove matters on which the non-moving party will have the burden of proof at trial. Id. at 325. The moving party need only point out to the court that there is an absence of evidence to support the non-moving party's case. Id.

The burden then shifts to the non-moving party to "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(e)). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L. Ed. 2d 538 (1986) (citations omitted). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986). Evidence that "is merely colorable, or is not significantly probative," is not sufficient to avoid summary judgment. Id. at 249-50 (citations omitted).

An affidavit or declaration may be used to support or oppose a motion for summary judgment, provided it is "made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). In addition, pursuant to Central District Local Rule 56-3, the Court assumes the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy.8

Summary judgment cannot be granted where a genuine dispute exists as to any material fact. Fed. R. Civ. P. 56(c). A "material" fact is one which might affect the outcome of the case under the applicable law. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the non-moving party. Id. In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non-moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255.

IV.

REVOCATION OF IFP STATUS

A. APPLICABLE LAW

Under 28 U.S.C. § 1915(a)(2), litigants who meet specified criteria can proceed with civil litigation without the full prepayment of fees or costs (i.e. with IFP status). 28 U.S.C. § 1915(a)(2). However, Section 1915(g), commonly known as the "three strikes" provision, precludes prisoner litigants from proceeding IFP:

28 U.S.C. § 1915(g).

A plaintiff who has three strikes under Section 1915(g) may still proceed IFP by showing that he or she "is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). This exception only "applies if the complaint makes a plausible allegation that the prisoner faced imminent physical danger at the time of filing" the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). A plaintiff must show that (1) the imminent danger of serious physical injury is fairly traceable to the unlawful conduct asserted in the complaint and (2) a favorable judicial outcome would redress that injury. Pettus v. Morgenthau, 554 F.3d 293, 299 (2nd Cir. 2009).

"[T]he availability of the [imminent danger] exception turns on the conditions a prisoner faced at the time the complaint was filed, not some earlier or later time." Cervantes, 493 F.3d at 1053. There must be an "ongoing danger" for the imminent-danger exception to apply. Id. at 1056-57. The Court "should not make an overly detailed inquiry into whether the allegations [are serious enough to] qualify for the exception." Id. at 1055. Applying this standard, courts have found imminent danger may arise from allegations a plaintiff was denied medical treatment for serious or life-threatening diseases. See Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (withdrawal of medications for HIV and hepatitis); Ciapaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).

B. ANALYSIS

Here, Plaintiff appears to have accumulated three strikes under Section 1915(g). Dkts. 11, 18. However, in the Complaint filed in Ransom I, Plaintiff alleged defendants "have each pulled up Plaintiff's medical file confirming his chronic Hep-C and need for treatment, but have made no provision for Plaintiff to start the needed Hep-C treatment." Ransom I, dkt. 5 at ¶ 13. This allegation that defendants were denying him treatment for a serious or life-threatening disease at the time he filed the Complaint is a sufficient allegation for permitting Plaintiff to proceed IFP under the imminent danger exception. See, e.g., Brown, 387 F.3d at 1350; Ciapaglini, 352 F.3d at 330.

To the extent Defendants contend the imminent danger exception should be analyzed in relation to the timing and substance of Claims Eighteen through Twenty-One in the FAC and SAC in Ransom I, rather than at the time Plaintiff filed the original Complaint in Ransom I, Defendants offer no authority for that proposition. To the contrary, the Ninth Circuit has specifically stated courts must look to "the time of the filing of the complaint . . . for purposes of the `imminent danger' exception". See Cervantes, 493 F.3d at 1053. Additionally, at the time Claims Eighteen through Twenty-One were first presented in Ransom I, those claims were properly joined in that action9. Hence, Plaintiff should be permitted to pursue all of his claims IFP. See Cervantes, 493 F.3d at 1053-4 (concluding "that once a prisoner satisfies the exception to the three-strikes rule and otherwise qualifies for IFP status, the district court must docket the entire complaint and resolve all of its claims, without requiring the upfront payment of the filing fee").

Moreover, to the extent Defendants seek to have this Court consider declarations and other evidence to reconsider Plaintiff's IFP status, Defendants have offered no authority for revoking IFP status on the grounds that the allegations in a complaint may be contradicted by evidence regarding the merits of the claim, nor has the Court identified any binding authority providing for such relief. Instead, Section 1915(g) "merely establishes a threshold procedural question and does not ask the court to evaluate the merits of the suit." Cervantes, 493 F.3d at 1057 (finding defendants' evidence effectively rebutting the merits of plaintiff's allegations should not be considered at this "threshold stage" and plaintiff should have been granted IFP status to proceed with his entire complaint). Hence, Defendants' Motion to revoke Plaintiff's IFP status should be denied.

V.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

A. THE PRISON LITIGATION REFORM ACT OF 1996

1. PLRA's Administrative Exhaustion Requirement

Under the Prison Litigation Reform Act of 1996 ("PLRA"), "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) ("Section 1997e(a)"). The PLRA requires a prisoner to complete any prison administrative process capable of addressing the inmate's complaint, even if the prisoner seeks money damages and such relief is not available under the administrative process. See Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L. Ed. 2d 958 (2001).

In addition, Section "1997e(a) requires exhaustion before the filing of a complaint" and is not satisfied by exhaustion during the course of the litigation. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see also Woodford v. Ngo, 548 U.S. 81, 93-94, 126 S.Ct. 2378, 165 L. Ed. 2d 368 (2006). The Ninth Circuit has held this requires an inmate to exhaust his administrative remedies prior to first presenting a claim in federal court. Rhodes v. Robinson, 621 F.3d 1002, 1004, 1006-07 (9th Cir. 2010) (observing that whether a claim was exhausted prior to bringing suit in federal court is determined by when Plaintiff first presents the claim to the court). If a prisoner has not exhausted his available administrative remedies before filing his federal suit, the Court must dismiss the action without prejudice to allow plaintiff to file a new action after he has completed his administrative remedies. See McKinney, 311 F.3d at 1200-01.

2. The Parties' Burdens in Proving Exhaustion Or Failure To Exhaust

"[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L. Ed. 2d 798 (2007). Rather, Section 1997e(a) creates an affirmative defense that "should be decided, if feasible, before reaching the merits of a prisoner's claim." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). "[T]he defendant's burden is to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Id. (setting forth the respective burdens where a defendant contends a plaintiff failed to exhaust administrative remedies). If a defendant meets this burden, the burden shifts to the plaintiff to come forward with evidence showing his administrative remedies were "effectively unavailable." Id.; Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (finding a failure to exhaust may be excused if administrative remedies have been made "effectively unavailable").

B. CALIFORNIA'S INMATE GRIEVANCE PROCESS

The State of California provides its prisoners the right to appeal administratively "any policy, decision, action, condition, or omission by the department or its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or her health, safety, or welfare." Cal. Code Regs. tit. 15, § 3084.1(a).

At the time of the events giving rise to the present action, California prisoners were required to proceed through three separate levels of appeal to exhaust the administrative appeal process: (1) first level appeal to the institution's appeals coordinator; (2) second level appeal to the "hiring authority or designee;" and (3) third level appeal to the Secretary of the California Department of Corrections and Rehabilitation. See id. § 3084.7. A final decision from the Secretary's level of review — that is, the third level — exhausts the prisoner's administrative remedies. See id. § 3084.7(d)(3).

At all levels of the administrative process, prisoners must "use a CDCR Form 602 (Rev. 08/09), Inmate/Parolee Appeal, to describe the specific issue under appeal and the relief requested." Id. § 3084.2(a). "The inmate or parolee shall list all staff member(s) involved and shall describe their involvement in the issue" by including "any information that would assist the appeals coordinator in making a reasonable attempt to identify the staff member(s) in question." Id. § 3084.2(a)(3). "The inmate or parolee shall state all facts known and available to him/her regarding the issue being appealed at the time of submitting the [form and attachment]." Id. § 3084.2(a)(4).

Inmate grievances may be screened and rejected by prison officials without a decision if the grievances are improperly submitted. See id. §§ 3084.5, 3084.6. "When an appeal is not accepted, the inmate or parolee shall be notified of the specific reason(s) for the rejection or cancellation of the appeal and of the correction(s) needed for the rejected appeal to be accepted." Id. § 3084.5(b)(3).

C. ANALYSIS

1. Plaintiff Failed to Exhaust Claims Eighteen, Nineteen, and Twenty Prior To Presenting Those Claims In Federal Court

Claims Eighteen, Nineteen, and Twenty involve allegations concerning Plaintiff's gang validation hearing. In Claim Eighteen, Plaintiff alleges defendants Lowe and Silva refused to present Plaintiff's questions to witnesses in preparation for his hearing validating Plaintiff as a member of BGF. Ransom I, dkt. 12 at ¶¶ 211-35. In Claim Nineteen, Plaintiff alleges he did not have "fair and/or advanced warning" of what constituted gang activity for his gang validation hearing, and defendants Stoll, Switzer, Alton, Silva, and Reynoso refused to allow Plaintiff twenty-four hours to prepare for his hearing. Id. at ¶¶ 239-49. In Claim Twenty, Plaintiff contends defendants Stoll, Switzer, Alton, Silva, Reynoso, Valenzuela, Reece, and Rutledge validated Plaintiff as a member of BGF with insufficient evidence. Id. at ¶¶ 250-63.

a. Defendants' Evidence

Defendants' records reflect Plaintiff submitted three grievances regarding his gang validation hearing. See Voong Decl., ¶ 14, Ex. A; Cox Decl., ¶ 15, Exs. B, C. First, Plaintiff submitted Appeal Log No. CMC-14-00366 regarding Plaintiff's allegation he was improperly validated as an active member of BGF to the third level, where it was denied on September 15, 2014. Voong Decl., ¶ 14, Ex. A.

Second, Plaintiff submitted Appeal Log No. CMC-E-14-00640 regarding Plaintiff's allegation against defendant Reynoso and officers P. Robinson and A. Pennywell that they refused to issue Plaintiff a copy of the standards for validating inmates as gang members to the second level. Cox Decl., ¶ 15, Ex. C. The second level reviewer cancelled Appeal Log No. CMC-E-14-00640 as duplicative of Plaintiff's Appeal Log No. CMC-14-00366. Id. There is no record indicating Plaintiff submitted Appeal Log No. CMC-E-14-00640 to the third level. See Voong Decl., ¶ 17, Ex. B.

Third, Plaintiff submitted Appeal Log No. CMC-E-14-00710 regarding Plaintiff's allegation that defendants Switzer and Rutledge "foster[ed] a code of silence" by not reporting Plaintiff's complaint that he was validated as a member of BGF with insufficient evidence to the second level. Cox Decl., ¶ 15, Ex. B. The appeal coordinator rejected Appeal Log No. CMC-E-14-00710 at the second level. Id. There is no record indicating Plaintiff resubmitted Appeal Log No. CMC-E-14-00710. See Voong Decl., ¶ 17, Ex. B.

b. Discussion

The undisputed evidence demonstrates Appeal Log Nos. CMC-E-14-00640 and CMC-E-14-00710 were not submitted to the third level. Thus, these appeals did not exhaust Plaintiff's administrative remedies. See Estes v. Dotson, No. CV 16-09422-GW-KES, 2018 WL 3740619, at *3-4 (C.D. Cal. July 16, 2018) (finding California inmate failed to exhaust his administrative remedies as required under the PLRA where he did not appeal his grievance through the third level), report and recommendation adopted by 2018 WL 3738953, at *1 (C.D. Cal. Aug. 1, 2018).

In addition, while Appeal Log No. CMC-14-0036610 was submitted to the third level, it was not denied until September 15, 2014 — two months after Plaintiff first presented Claims Eighteen, Nineteen, and Twenty in the FAC in Ransom I on July 16, 2014. Thus, because a claim must be exhausted prior to a plaintiff first presenting the claim in federal court, Plaintiff failed to properly exhaust Claims Eighteen, Nineteen, and Twenty for purposes of the instant action. See McKinney, 311 F.3d at 1199; Ngo, 548 U.S. at 93-94; Rhodes, 621 F.3d at 1004, 1006-07.

Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion that Plaintiff did not exhaust his administrative remedies for Claims Eighteen, Nineteen, and Twenty. See Celotex, 477 U.S. at 325.

2. Plaintiff Failed to Exhaust His Administrative Remedies for Claim Twenty-One Prior To Presenting The Claim In Federal Court

In Claim Twenty-One, Plaintiff alleges defendants Valenzuela, Core, Switzer, Reece, and Rutledge "assessed Plaintiff with an indeterminate SHU term of four (4) years to life [which] constitute[d]" deliberate indifference in violation of the Eighth Amendment. Ransom I, dkt. 17 at ¶¶ 264-67.

a. Defendants' Evidence

Defendants' records reveal one grievance that relates to Plaintiff's SHU placement. Specifically, Plaintiff submitted a health grievance, Appeal Log No. COR HR 14057298, regarding his health ailments as a result of his confinement in SHU to the second level. See Gates Decl., ¶ 8, Ex. B. The grievance did not describe any wrongdoing by Defendants, and instead described only generalized allegations about Plaintiff's deteriorating health while confined in SHU. Id. On February 18, 2015, this grievance was partially granted at the second level. Id. There is no record indicating Plaintiff submitted Appeal Log No. COR HR 14057298 to the third level. See Id., Exs. A, B.

b. Discussion

First, there is nothing in Appeal Log No. COR HR 14057298 that points to any intentional wrongdoing by defendants Valenzuela, Core, Switzer, Reece, and Rutledge. See Gates Decl., ¶ 8, Ex. B. Therefore, Appeal Log No. COR HR 14057298 did not provide sufficient information to allow officials to take appropriate responsive measures against defendants Valenzuela, Core, Switzer, Reece, and Rutledge. See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) ("[A] grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.").

Additionally, although Plaintiff had no obligation to appeal the partial grant of Appeal Log No. COR HR 14057298 to the third level to exhaust his administrative remedies, the second level reviewer partially granted the appeal on February 18, 2015 — four months after Plaintiff first presented Claim Twenty-One in the SAC in Ransom I on November 5, 2014. See Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010) (observing that an inmate has no obligation to appeal from a grant of relief, or partial grant, to exhaust administrative remedies as required by PLRA). Thus, because a claim must be exhausted prior to a plaintiff first presenting the claim in federal court, Plaintiff failed to properly exhaust Claim Twenty-One for purposes of the instant action. See McKinney, 311 F.3d at 1199; Ngo, 548 U.S. at 93-94; Rhodes, 621 F.3d at 1004, 1006-07.

Accordingly, considering the evidence viewed in the light most favorable to Plaintiff, Defendants have met their burden of showing the absence of a genuine issue of material fact for their assertion Plaintiff has not exhausted his administrative remedies for Claim Twenty-One. See Celotex, 477 U.S. at 325.

VI.

RECOMMENDATION

IT IS THEREFORE RECOMMENDED the Court issue an Order: (1) accepting this Final Report and Recommendation; (2) DENYING Defendants' request to revoke Plaintiff's IFP status; (3) GRANTING Defendants' Motion for Summary Judgment due to Plaintiff's failure to exhaust administrative remedies; and (4) DISMISSING this action without prejudice and without leave to amend.