FINDINGS AND RECOMMENDATION

STACIE F. BECKERMAN, Magistrate Judge.

Plaintiff G. Pena Carrillo ("Carrillo"), an individual formerly in custody at Snake River Correctional Institution ("SRCI"), filed this civil rights action against SRCI Food Service Coordinator Moore ("Moore"), alleging that Moore violated his rights under the Eighth Amendment by requiring him to lift pots and pans weighing more than ten pounds while working in the SRCI kitchen despite a medical restriction that he not lift more than ten pounds. (ECF No. 17.) Pending before the Court is Moore's motion for summary judgment for failure to exhaust administrative remedies. (ECF No. 30.) The Court has jurisdiction over this case under 42 U.S.C. § 1983 and 28 U.S.C. § 1331. For the following reasons, the Court recommends that the district judge deny Moore's motion for summary judgment.

BACKGROUND

Pena-Carrillo alleges that following prostrate cancer surgery in 2013 while in custody at SRCI, his doctor restricted him from lifting more than ten pounds. (Am. Compl. at 2.) He alleges that the lifting restriction was entered into the SRCI computer database, and therefore SRCI officials should have been aware of the restriction. (Id.) Pena-Carrillo was assigned to work in SRCI's kitchen, and although he informed defendant Moore (SRCI's Food Service Coordinator) about his lifting restriction, she ignored his request and required Pena-Carrillo to clean and lift pots and pans over ten pounds. (Id.) Lifting pots and pans over ten pounds caused Pena-Carrillo to suffer physical injury. (Id.)

Pena-Carrillo alleges that he filed a grievance against Moore relating to her requirement that he lift objects weighing more than ten pounds, that he appealed the response to his grievance, and that he filed a second-level appeal. (Decl. of Guadalupe Pena-Carrillo ("Pena-Carrillo Decl."), ¶¶ 12-20.) Moore acknowledges that Pena-Carrillo filed a grievance in July or August 2013 and appealed Moore's response to the grievance, but asserts that he never filed a second-level appeal. SRCI did not retain records relating to Pena-Carrillo's grievance because of its three-year records retention policy. (Mot. for Summ. J. at 7.) The only relevant document SRCI retained was Superintendent Mark Nooth's response to Pena-Carrillo's first-level appeal, which found that Pena-Carrillo did not have any medical restrictions in place and therefore there was no reason why he could not work in the kitchen. (Decl. of James Taylor ("Taylor Decl.") ¶¶ 23-25.)

ANALYSIS

I. STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party, and all reasonable inferences must be drawn in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations and citation omitted).

II. DISCUSSION

A. Exhaustion Requirement

The Prison Litigation Reform Act ("PLRA"), amended 42 U.S.C. § 1997e, requires that prisoners exhaust "such administrative remedies as are available" before filing suit challenging prison conditions in federal court. 42 U.S.C. § 1997e(a). "If a prisoner had full opportunity and ability to file a grievance timely, but failed to do so, he has not properly exhausted his administrative remedies." Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009). Under the PLRA, "the defendant's burden is to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). Once a defendant shows there was an available administrative remedy and the prisoner did not exhaust that available remedy, the prisoner has the burden of production to come forward with evidence showing there is something in his case "that made the existing and generally available administrative remedies effectively unavailable to him." Id.

B. Analysis

The Court finds that Moore cannot meet her burden of demonstrating that Pena-Carrillo failed to exhaust his administrative remedies because SRCI did not retain records relating to the grievance. See Kimbro v. Miranda, 735 F. App'x 275, 278 (9th Cir. 2018) ("Where prison officials fail to retain records relating to the filing or processing of an inmate's grievance, the prisoner should be deemed to have exhausted administrative remedies."); Albino, 747 F.3d at 1166 ("[D]efendants must produce evidence proving failure to exhaust in order to carry their burden.").

Although Moore acknowledges that Pena-Carrillo filed a grievance and a first-level appeal, she asserts that he did not submit a second-level appeal. (Mot. at 8.) The only support for Moore's assertion is the declaration of James Taylor, SRCI's grievance coordinator, who asserts without any evidence that "Inmate Pena did not appeal the response by Superintendent Nooth." (Taylor Decl. ¶ 25.) SRCI did not retain a copy of Pena-Carrillo's grievance, nor his first-level appeal, and therefore the absence of documentation relating to a second-level appeal is not probative regarding whether Pena-Carrillo submitted the second-level appeal. Based on the materials presented to the Court, Moore has no way of knowing if Pena-Carrillo filed a second-level appeal because SRCI has not retained Pena-Carrillo's grievance materials.

In her reply, Moore attacks Pena-Carrillo's statement in his declaration that he filed "grievances and appeals," arguing he did not state that he filed both an appeal and a second-level appeal. (Reply at 1.) On the contrary, Pena-Carrillo stated clearly in his declaration that he "submitted my grievance," "received a response," "was dissatisfied with the initial response," "timely submitted a level-one grievance appeal," and "was dissatisfied with the level-one response and I submitted a second-level grievance labeling it 2nd appeal." (Pena-Carrillo Decl. ¶¶ 14-19.)

In light of Pena-Carrillo's testimony that he filed a second-level appeal, and SRCI's failure to retain relevant records relating to the grievance, the Court finds that Moore cannot sustain her burden of proving that Pena-Carrillo failed to exhaust his administration remedies. Accordingly, the Court recommends that the district judge deny Moore's motion for summary judgment.1

CONCLUSION

For the reasons stated, the Court recommends that the district judge DENY Moore's motion for summary judgment for failure to exhaust administrative remedies. (ECF No. 30.)

SCHEDULING ORDER

The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.