ORDER

KIMBERLY J. MUELLER, District Judge.

Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief under 42 U.S.C. § 1983 alleging excessive force against correctional officers for taking him to the ground during an escort. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On February 28, 2017, the magistrate judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within seven days. (ECF No. 45.) Plaintiff has filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court declines to adopt the findings and recommendations and refers the matter back to the assigned magistrate judge for further proceedings.

This action is proceeding on plaintiff's third amended complaint (TAC), which raises an Eighth Amendment excessive force claim against defendant Burciaga based on an alleged incident on April 28, 2015. ECF No. 45 at 2. Defendant Burciaga has moved for summary judgment based on failure to exhaust administrative remedies, ECF No. 29, and the magistrate judge recommends the motion be granted, ECF No. 45. In support of the motion, defendant presents evidence that the Appeals Coordinator at California State Prison-Sacramento only accepted one inmate grievance from plaintiff for review between April 28, 2015, when the incident occurred, and October 13, 2015, when this action was filed. See ECF No. 29-2 and evidence cited therein. In opposition to the motion, plaintiff submitted evidence that he had filed another inmate appeal on June 2, 2015. ECF No. 34 at 5. Plaintiff styled the appeal as an "Emergency Appeal"; at the top, on June 17, 2015, someone other than plaintiff wrote: "Non-emergency, in CTC 1 on suicide precaution." Id. Plaintiff contends he was granted all the relief requested at this level of appeal and therefore was not required to pursue administrative remedies further. ECF No. 34 at 3. The magistrate judge finds this grievance did not "specifically complain that excessive force was used, nor does it seek to hold defendant Burciaga or the other correctional officer accountable for the incident." ECF No. 45 at 2.

The grievance appended by plaintiff to his opposition reads as follows:

ECF No. 34 at 5-6. Plaintiff requested the following relief:

Id. at 6.

In his objections, plaintiff states "when I file my complaint against Officer Burciaga on 4/28/15 I clearly explain the one grievance against Officer Burciaga it was addressed to custody not medical; but custody send it to medical and I was placed in sucidal [sic] watch every time I try to complaint [sic] about racial mistreatment or other prison condition the Department of Correction prison staff send me to a mental hospital . . . When before I file my 602 J Cervantes sent a 22 form is inmate request to see Sgt. Williamson; up to this day no response then I send another 602 to Captain Cannary supervicing [sic] the whole yard never got no interview or never response. . . ." ECF No. 46 at 1.

Review of the record shows that the 115 referred to in the inmate appeal attached to plaintiff's opposition is appended to plaintiff's original complaint. ECF No. 1 at 6-7. That rules violation report is written by defendant Burciaga, and states that as Burciaga was escorting plaintiff from a medical examination plaintiff "became very aggressive by yelling, screaming and kicking and moving in an aggressive manner during the escort, in an attempt to break free of my grasp. I utilized immediate force to overcome the resistance and to stop the threat of CERVANTES kicking me or other Staff members. Specifically, I maintained my grasp of CERVANTES's upper left arm grasping the jumpsuit I spun CERVANTES to my left causing him to lose his balance and fall to the floor laying on his stomach. . ." Id. at 6. Plaintiff pleaded guilty to the rules violation and told the hearing officer that he "was most likely defending [him]self." Id. at 7. Plaintiff also appended to the original complaint a screening form for Inmate Appeal Log Number: SAC-P-15-02951, rejecting the appeal as incomplete. Id. at 10. This is a different appeal log number from either the grievance submitted by defendant in support of the motion for summary judgment or the appeal appended to plaintiff's opposition. See ECF No. 29-2 at 2; ECF No. 45 at 5. That grievance includes an allegation that plaintiff "was hit by staff member, C/O Burciaga, and was forced to deffend [sic] myself." ECF No. 1 at 14. Also appended to the original complaint is a mental health assessment of plaintiff performed in connection with the rules violation report, that includes a finding that plaintiff "was psychotic at the time of this incident." Id. at 20.

The foregoing shows that there have been more administrative proceedings in connection with the April 28, 2015 incident than were presented to the court by defendant in support of his motion for summary judgment. In particular, defendant did not present the court with Inmate Appeal Log Number: SAC-P-15-02951, even though that appeal was received and rejected during the same time frame as the other grievance filed by defendant with his motion for summary judgment. In addition, plaintiff contends in his objections that his mental health hospitalizations have interfered with his ability to pursue administrative remedies. ECF No. 46 at 1. As the magistrate judge correctly noted, defendant is required to plead and prove that plaintiff failed to exhaust administrative remedies, and the exhaustion requirement may be excused if an inmate "establishes that the existing administrative remedies were unavailable to him." ECF No. 45 at 4.

After de novo review of the record in this action, the court concludes that defendant has failed to meet his burden of proving that plaintiff failed to exhaust administrative remedies. Further, the court concludes that, while the record is not clear, there is at least some evidence to suggest the exhaustion requirement might be excused in this case. For these reasons, defendant's motion for summary judgment will be denied without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed February 28, 2017 (ECF No. 45) are not adopted;

2. Defendant Burciaga's motion for summary judgment for failure to exhaust administrative remedies is denied without prejudice; and

3. This matter is referred back to the assigned magistrate judge for further proceedings.