(PC) Darbouze v. Malet

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JEAN-MAX DARBOUZE,
Plaintiff,
v.
DR. GREG MALET,
Defendant.
No. 2:23-cv-3055 CSK P
ORDER AND FINDINGS AND
RECOMMENDATIONS
I. INTRODUCTION
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant
to 42 U.S.C. § 1983. Pending before this Court is defendant Malet’s motion for summary
judgment on the grounds that plaintiff failed to exhaust administrative remedies. (ECF No. 41.)
As discussed below, defendant’s summary judgment motion addresses two of the three claims
raised in the amended complaint. For this reason, this Court construes defendant’s summary
judgment motion as a motion for partial summary judgment. For the following reasons, this
Court recommends that defendant’s motion for partial summary judgment be granted.
II. LEGAL STANDARDS FOR SUMMARY JUDGMENT
Summary judgment is appropriate when it is demonstrated that the standard set forth in
Federal Rule of Civil Procedure 56 is met. “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Under summary judgment practice, the moving party always bears
the initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,” which it believes demonstrate
the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P.
56(c).) “Where the nonmoving party bears the burden of proof at trial, the moving party need
only prove that there is an absence of evidence to support the non-moving party’s case.” Nursing
Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376,
387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory
committee notes to 2010 amendments (recognizing that “a party who does not have the trial
burden of production may rely on a showing that a party who does have the trial burden cannot
produce admissible evidence to carry its burden as to the fact”). Indeed, summary judgment
should be entered, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322.
“[A] complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. at 323.
Consequently, if the moving party meets its initial responsibility, the burden then shifts to
the opposing party to establish that a genuine issue as to any material fact actually exists. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to
establish the existence of such a factual dispute, the opposing party may not rely upon the
allegations or denials of its pleadings but is required to tender evidence of specific facts in the
form of affidavits, and/or admissible discovery material in support of its contention that such a
dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party
must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome
of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

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1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return
a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436
(9th Cir. 1987), overruled on other grounds as stated in Flood v. Miller, 35 F. App’x 701, 703 n.3
(9th Cir. 2002).
In the endeavor to establish the existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual
dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce
the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”
Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s notes to 1963
amendments).
In resolving a summary judgment motion, the court examines the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R.
Civ. P. 56(c). A verified complaint may be considered as evidence at the summary judgment
stage “if it is based on personal knowledge and if it sets forth the requisite facts with specificity.”
Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000) (en banc). The evidence of the
opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that
may be drawn from the facts placed before the court must be drawn in favor of the opposing
party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and
it is the opposing party’s obligation to produce a factual predicate from which the inference may
be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),
aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing
party “must do more than simply show that there is some metaphysical doubt as to the material
facts. . . . 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, 475 U.S. at 586 (citation
omitted).
By notice filed on October 2, 2025, plaintiff was advised of the requirements for opposing
a motion brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 41-1.)

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III. BACKGROUND
In the original complaint, plaintiff named Dr. Hla as the defendant. (ECF No. 1.) On
February 9, 2024, the Court ordered service of defendant Hla. (ECF No. 5.) On December 2,
2024, plaintiff filed a motion to file an amended complaint and a proposed amended complaint.
(ECF Nos. 26, 27.) In the motion to amend, plaintiff stated that he sought leave to amend his
complaint to add defendant Dr. Malet as a defendant and to remove defendant Hla as a defendant.
(ECF No. 26 at 1) Plaintiff claimed that he inadvertently named defendant Hla as a defendant
and recently discovered that defendant Malet was the correct defendant. (Id. at 2.) In the
amended complaint, plaintiff claimed that defendant Malet violated the Eighth Amendment by
1) failing to renew plaintiff’s prescription for Linzess to treat plaintiff’s chronic and painful
constipation; 2) failing to treat the cyst on plaintiff’s liver, including failing to prescribe pain
medication; and 3) failing to prescribe a CPAP machine for plaintiff and/or to grant plaintiff
single cell status. (ECF No. 27 at 8-15.)
In the orders filed January 13, 2025, granting plaintiff’s motion to amend and directing
service of defendant Malet, this Court identified plaintiff’s Eighth Amendment claims against
defendant Malet as 1) failing to renew plaintiff’s prescription for Linzess to treat plaintiff’s
chronic and painful constipation; 2) failing to treat the cyst on plaintiff’s liver, including
prescribing pain medication; and 3) failing to prescribe a CPAP machine for plaintiff and/or to
grant plaintiff single cell status. (ECF No. 29 at 2; ECF No. 30 at 1.)
IV. LEGAL STANDARDS RE: EXHAUSTION OF ADMINISTRATIVE REMEDIES
A. Legal Standard re: Prison Litigation Reform Act
It is well established that the Prison Litigation Reform Act (“PLRA”) requires that a
prisoner exhaust available administrative remedies before bringing a federal civil rights action.
See 42 U.S.C. § 1997e(a); Ross v. Blake, 578 U.S. 632, 638-39 (2016); Jones v. Bock, 549 U.S.
199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.”). “[T]he PLRA’s exhaustion requirement
applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.” Bennett v.

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King, 293 F.3d 1096, 1098 (9th Cir. 2002) (internal quotation marks omitted) (citing Porter v.
Nussle, 534 U.S. 516, 532 (2002) (exhaustion requirement applies to all prisoner suits relating to
prison life).). “[A] prisoner must ‘complete the administrative review process in accordance with
the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal
court.’” Harvey v. Jordan, 605 F.3d 681, 683 (9th Cir. 2010) (quoting Marella v. Terhune, 568
F.3d 1024, 1027 (9th Cir. 2009)). Exhaustion is required regardless of the relief sought by the
prisoner and regardless of the relief offered by the process, unless “the relevant administrative
procedure lacks authority to provide any relief or to take any action whatsoever in response to a
complaint.” Booth v. Churner, 568 F.3d 1024, 736, 741 (2001); Ross, 578 U.S. at 640, 642-43.
An untimely or otherwise procedurally defective appeal will not satisfy the exhaustion
requirement. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“Nonexhaustion” is an affirmative defense, and the defendant has the burden of “prov[ing]
that there was an available administrative remedy, and that the prisoner did not exhaust that
available remedy.” Albino v. Baca, 747 F.3d 1162, 1171-72 (9th Cir. 2014). A remedy is
“available” where it is “capable of use; at hand.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th
Cir. 2015) (quoting Albino, 747 F.3d at 1171). Grievance procedures that do not allow for all
types of relief sought are still “available” as long as the procedures may afford “some relief.”
Booth, 532 U.S. at 738. If a defendant meets the initial burden, a plaintiff then must “come
forward with evidence showing that there is something in his particular case that made the
existing and generally available administrative remedies effectively unavailable to him.” Albino,
747 F.3d at 1172. The Supreme Court identified three circumstances where administrative
remedies are effectively unavailable:
(1) when (despite what regulations or guidance materials may
promise) it operates as a simple dead end -- with officers unable or
consistently unwilling to provide any relief to aggrieved inmates;
(2) if it is “so opaque that it becomes, practically speaking, incapable
of use; and (3) when prison administrators thwart inmates from
taking advantage of a grievance process through machination,
misrepresentation, or intimidation.
Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021) (internal quotation marks omitted) (citing
Ross, 578 U.S. at 642-44). “[T]he ultimate burden of proof,” remains with the defendants.

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Albino, 747 F.3d at 1172-73. Only “[i]f the undisputed evidence viewed in the light most
favorable to the prisoner shows a failure to exhaust, [is] a defendant is entitled to summary
judgment under Rule 56.” Id. at 1166.
B. California’s Inmate Appeal Process
“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016) (quoting Jones, 549 U.S. at 218).
In order to exhaust, the prisoner is required to complete the administrative review process in
accordance with the prison’s procedures. Woodford, 548 U.S. at 90.
During the applicable time, the California Department of Corrections and Rehabilitation’s
(“CDCR”) health grievance process involved a two-step procedure for addressing an inmate’s
health care concerns. See Cal. Code Regs. tit. 15, § 3999.225, et seq. First, “[t]he grievant shall
complete Section A of the CDCR 602 HC and submit to the HCGO [Health Care Grievance
Office] where the grievant is housed within 30 calendar days of: (1) The action or decision being
grieved, or; (2) Initial knowledge of the action or decision being grieved.” Cal. Code Regs. tit.
15, § 3999.227(b); see also id., § 3999.225(n) (defining HCGO). “The grievant shall document
clearly and coherently all information known and available to him or her regarding the issue ...
includ[ing] any involved staff member’s last name, first initial, title or position, and the date(s)
and description of their involvement. If the grievant does not have information to identify
involved staff member(s), the grievant shall provide any other available information that may
assist in processing the health care grievance.” Id., § 3999.227(g).
Second, “[i]f dissatisfied with the institutional level health care grievance disposition, the
grievant may appeal the disposition ... to HCCAB [Health Care Correspondence and Appeals
Branch] ... within 30 calendar days plus five calendar days for mailing ....” Cal. Code Regs. tit.
15, § 3999.229(a); see also id., § 3999.225(l) (defining HCCAB). “The headquarters’ level
review constitutes the final disposition on a health care grievance and exhausts administrative
remedies ....” Id., § 3999.230(h), see also id. § 3999.226(g) (“Health care grievances are subject
to a headquarters’ level disposition before administrative remedies are deemed exhausted
pursuant to section 3999.230. A health care grievance or health care grievance appeal rejection or

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withdrawal does not exhaust administrative remedies.”) (emphasis added).
V. DISCUSSION RE: DEFENDANT’S MOTION FOR PARTIAL SUMMARY
A. Defendant’s Argument
Defendant’s motion for partial summary judgment addresses only two of plaintiff’s three
Eighth Amendment claims, i.e., defendant allegedly failed to renew plaintiff’s prescription for
Linzess and allegedly failed to prescribe a CPAP machine and/or grant plaintiff single cell status.
(ECF No. 41-2 at 2.) Accordingly, this Court considers only whether plaintiff exhausted
administrative remedies as to the two Eighth Amendment claims addressed in defendant’s motion
for partial summary judgment. Defendant argues that plaintiff filed two grievances raising the
two claims addressed in the motion for partial summary judgment. Defendant argues that these
two grievances did not exhaust plaintiff’s administrative remedies because these grievances failed
to name defendant Malet and because plaintiff did not appeal these grievances to the final level of
review, i.e., the headquarters’ level of review.
In support of the summary judgment motion, defendant refers to the declaration of K.
Martin, the Associate Director of HCCAB, which is the branch responsible for statewide
oversight of health care grievances submitted by the incarcerated adult population. (ECF No. 41-
4 at 1.) At the request of the Attorney General’s Office, HCCAB conducted a review of the
health care grievance records in the Health Care Appeals and Risk Tracking System
(“HCARTS”) database for plaintiff. (Id.) Attached to K. Martin’s declaration as Exhibit A is a
copy of the HCARTS grievance history printout for plaintiff. (Id.) Exhibit A reflects 13 health
care grievances filed by plaintiff. (Id. at 6-17.) K. Martin states that the Attorney General’s
Office identified the following six health care grievances submitted by plaintiff that are
potentially relevant to this action: MCSP HC 22000226, MCSP HC 22000495, MCSP HC
22001259, MCSP HC 23000527, MCSP HC 23000729 and MCSP HC 24000004.1 (Id. at 2-3.)
1 This Court reviewed plaintiff’s HCARTS grievance history, including the description of the
seven grievances deemed not relevant by the Attorney General’s Office, i.e., grievances MCSP
HC 25001623, MCSP HC 25001352, HDSP HC 21000450, HDSP HC 20000734, HDSP HC
20000011, HDSP HC 19000697 and HDSP HC 20001092. (ECF No. 41-4 at 7, 8, 13-17.) This
Court agrees that these seven grievances are not relevant to the two claims addressed in the
motion for partial summary judgment.

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Defendant claims that four of the six grievances identified as potentially relevant are not
actually relevant to plaintiff’s claims addressed in the motion for partial summary judgment:
MCSP HC 22001259, MCSP HC 23000527, MCSP HC 23000729 and MCSP HC 24000004. In
MCSP HC 22001259, plaintiff claimed that defendant Malet denied plaintiff all medications. (Id.
at 39.) In grievance MCSP HC 22001259, plaintiff made the following specific requests and
complaints: 1) requested to see a neurologist; 2) complained of a swelling bump in his head and a
headache; 3) complained that his right nipple was bigger and painful; 4) complained that he had
bad arthritis in both shoulders, neck, back and knees; 5) complained of a colon infection, liver
issue, hemorrhoids and a bad infection in both feet; 6) complained of no mental health
counseling; and 7) claimed that defendant Malet denied plaintiff medications for his ulcer,
including Prilosec, and that defendant Malet denied plaintiff wipes for hemorrhoids. (Id. at 39-
40.) In grievance MCSP HC 23000527, plaintiff claimed that Dr. Hla denied plaintiff’s request
for shoulder surgery and failed to provide pain medication for shoulder pain. (Id. at 48.) In
grievance MCSP HC 23000729, plaintiff requested reinstatement of Boost nutritional
supplement. (Id. at 54.) In grievance MCSP HC 24000004, plaintiff complained that after
contracting COVID-19, he had major medical issues such as a serious and untreatable colon
infection. (Id. at 66.) In grievance MCSP HC 24000004, plaintiff complained that he now had
diverticulitis and was not receiving the special diet that was requested by his primary care
physician. (Id.) Plaintiff also claimed that during the past month he had bleeding in his mouth
for which he received no medical attention. (Id.) In grievance MCSP HC 24000004, plaintiff
also requested a compassionate release from prison. (Id.) This Court finds that grievances MCSP
HC 22001259, MCSP HC 23000527, MCSP HC 23000729 and MCSP HC 24000004 did not
raise the claims in this case: plaintiff’s claims regarding defendant’s alleged failure to renew
plaintiff’s prescription for Linzess and alleged failure to prescribe plaintiff a CPAP machine
and/or single cell status.
Defendant argues that grievances MCSP HC 22000226 and MCSP HC 22000495 raise the

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at-issue claims, but that plaintiff failed to name defendant Malet in these grievances and failed to
exhaust these grievances to the headquarters’ level. In grievance MCSP HC 22000226, plaintiff
stated that he had been taking Linzess for bad constipation for over 2 years. (Id. at 21.) Plaintiff
complained (in part) that his prescription for Linzess had not been refilled. (Id. at 21.) The
institutional level response found no intervention was needed. (Id. at 19.) The grievance form
submitted by defendant reflects that plaintiff did not appeal the institutional level response to the
headquarters’ level. (Id. at 22.) This grievance form also contains no notation reflecting that it
was received for headquarters’ level review. (Id.) Based on plaintiff’s failure to name defendant
Malet in the grievance and to appeal to the headquarters’ level, defendant argues that grievance
MCSP HC 22000226 did not exhaust plaintiff’s claim regarding defendant’s alleged failure to
refill plaintiff’s Linzess prescription.
In grievance MCSP HC 22000495, plaintiff claimed that his doctor denied his request for
a breathing machine, i.e. CPAP machine, and single cell status. (Id. at 30.) The institutional level
response found no intervention was needed. (Id. at 25.) The grievance form submitted by
defendant reflects that plaintiff did not appeal the institutional level response to the headquarters’
level. (Id. at 29.) This grievance form also contains no notation reflecting that it was received for
headquarters’ level review. (Id.) Based on plaintiff’s failure to name defendant Malet in the
grievance and to appeal to the headquarters’ level, defendant argues that grievance MCSP HC
22000495 did not exhaust plaintiff’s claim regarding defendant’s alleged failure to prescribe
plaintiff a CPAP machine and/or single cell status.
B. Plaintiff’s Opposition
In his unverified opposition, plaintiff argues that he did exhaust administrative remedies.
Plaintiff claims that on February 7, 2022 he filed grievance MCSP HC 22000226. (ECF No. 46
at 2.) Plaintiff claims that he sent grievance MCSP HC 22000226 to the institutional level and
headquarters’ level, but the headquarters’ level failed to respond. (Id.) Plaintiff claims that he
filed another emergency grievance, MCSP HC 22001259. (Id.) Plaintiff claims that the
headquarters’ level failed to respond to his headquarters’ level appeal of grievance MCSP HC
22001259. (Id.) As discussed above, MCSP HC 22001259 did not raise plaintiff’s claims

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regarding defendant’s alleged failure to refill plaintiff’s Linzess prescription or defendant’s
alleged failure to prescribe plaintiff a CPAP machine and/or single cell status.
This Court next addresses plaintiff’s exhibits. Attached to plaintiff’s opposition are 503
pages of exhibits. (Id. at 5-508.) Plaintiff separately filed a packet of 403 pages of exhibits.
(ECF No. 47.) Most of plaintiff’s exhibits, many of which are medical records, are not relevant to
the pending motion for partial summary judgment. (ECF No. 46 at 5-292, 294-384, 427-444,
454-479, 508; ECF No. 47 at 4-430.) This Court below addresses plaintiff’s exhibits related to
administrative exhaustion.
Plaintiff attaches a document titled Health Care Services Grievance History listing some
of plaintiff’s health care grievances. (ECF No. 46 at 292-93.) This documents lists grievances
MCSP HC 24000004, MCSP HC 23000729, MCSP HC 23000527, MCSP HC 22001259 and
MCSP HC 22000495. (Id.) Plaintiff also attaches copies of documents related to grievances
MCSP HC 24000004 (id. at 385-96), MCSP HC 22001259 (id. at 399, 445-51), MCSP HC
23000729 (id. at 400-08), MCSP HC 23000527 (id. at 411-16), MCSP HC 22000226 (id. at 491-
94), and MCSP HC 22000495 (id. at 497-503). As discussed above, only grievances MCSP HC
22000226 and MCSP HC 22000495 raise the claims addressed in the motion for partial summary
judgment. This Court will discuss these two grievances attached to plaintiff’s opposition further
below.
Plaintiff also attaches to his opposition grievances not directly addressed in defendant’s
motion for partial summary judgment: MCSP HC 25001623 (id. at 419-24, 452-53), MCSP HC
25001352 (id. at 481-88), and grievance no. 0000000279765 (id. at 506-07). Grievance MCSP
HC 25001623 concerns bleeding from plaintiff’s head causing severe headache and tests for
plaintiff’s lungs and ear. (Id. at 419-24, 452-53.) Grievance MCSP HC 25001352 concerns the
following claims: 1) Dr. Malota refused to treat a lump/cyst on plaintiff’s head, 2) plaintiff suffers
from lack of sleep, memory loss, severe headaches and low energy, and 3) plaintiff suffers post-
traumatic stress disorder and anxiety. (Id. at 481-88.) Grievance no. 0000000279765 is not a
healthcare grievance and appears to concern the temperature in plaintiff’s cell. (Id. at 506-07.)
This Court finds that grievances MCSP HC 25001623, MCSP HC 25001352 and grievance no.

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0000000279765 are not relevant to the claims addressed in defendant’s motion for partial
summary judgment.
This Court now discusses the exhibits submitted by plaintiff regarding grievances MCSP
HC 22000226 and MCSP HC 22000495. As discussed above, defendant argues, in part, that
grievance MCSP HC 22000226 did not exhaust plaintiff’s claims because plaintiff did not pursue
this grievance to the headquarters’ level of review. In the copy of grievance MCSP HC 22000226
submitted by defendant, the section of the grievance form for plaintiff to write his appeal to the
headquarters’ level of review is blank. (ECF No. 41-4 at 22.) In contrast, in the copy of
grievance MCSP HC 22000226 submitted by plaintiff, the section of the form for plaintiff to
write his appeal to the headquarters’ level of review is completed by plaintiff. (ECF No. 46 at
491.) Plaintiff’s signature in this section of the form is dated April 18, 2022. (Id.) The
institutional level response is dated April 8, 2022. (Id. at 493.) Plaintiff’s copy of grievance
MCSP HC 22000226 does not reflect that it was received for headquarters’ level of review. (Id.
at 491.)
As discussed above, defendant argues, in part, that grievance MCSP HC 22000495 did not
exhaust plaintiff’s claims because plaintiff did not pursue this grievance to the headquarters’ level
of review. In the copy of grievance MCSP HC 22000495 submitted by defendant, the section of
the grievance form for plaintiff to write his appeal to the headquarters’ level of review is blank.
(ECF No. 41-4 at 29.) In contrast, in the copy of MCSP HC 22000495 submitted by plaintiff, the
section of the grievance form for plaintiff to write his appeal to headquarters’ level of review is
completed by plaintiff. (ECF No. 46 at 497.) Plaintiff’s signature in this section of the form is
dated June 2, 2022. (Id.) The institutional level response is dated May 17, 2022. (Id. at 499.)
Plaintiff’s copy of grievance MCSP HC 22000495 does not reflect that it was received for
headquarters’ level of review. (Id. at 497.)
C. Defendant’s Reply
In the reply, defendant first argues that plaintiff’s opposition should be disregarded
because plaintiff failed to comply with Federal Rule of Civil Procedure 56(c) by failing to support
the factual assertions in the opposition with citations to particular parts of materials in the record.

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(ECF No. 48 at 2.) Defendant also argues that plaintiff failed to comply with Local Rule 230(b)
by failing to respond to defendant’s statement of undisputed facts. (Id.) The Court is obligated to
liberally construe the pleadings of pro se litigants. See Estelle v. Gamble, 429 U.S. 97, 106
(1976) (a document filed pro se is “to be liberally construed”); Haines v. Kerner, 404 U.S. 519,
520 (1972) (stating pro se pleadings are held to less stringent standards than those drafted by
lawyers); Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”). Accordingly,
this Court considers plaintiff’s opposition despite the deficiencies noted by defendant in the reply.
In the reply, defendant does not directly address the copies of grievances MCSP HC
22000495 and MCSP HC 22000226 attached to plaintiff’s opposition with the sections of the
grievance forms for an appeal to headquarters’ level of review filled out by plaintiff. Addressing
plaintiff’s assertion on the exhibit cover pages that plaintiff submitted his grievances to the
headquarters’ level of review but received no response, defendant argues that plaintiff does not
address when and how plaintiff submitted his grievances to the headquarters’ level of review.
(ECF No. 48 at 3-4.) Defendant argues that plaintiff did not attach his outgoing mail records or
any other proof that he actually submitted his relevant grievances to the headquarters’ level of
review. (Id.)
D. Discussion
As discussed above, this Court finds that grievances MCSP HC 22000226 and MCSP HC
22000495 raise the claims addressed in defendant’s motion for partial summary judgment. This
Court first considers defendant’s argument that plaintiff failed to submit these grievances to the
headquarters’ level of review.
As discussed above, the grievance forms submitted by defendant for grievances MCSP
HC 22000495 and MCSP HC 22000226 reflect that plaintiff did not submit these grievances to
headquarters’ level of review because the section of these grievances for headquarters’ level of
review are not completed by plaintiff. In addition, these grievance forms contain no notation
reflecting that they were received for headquarters’ level review. This Court also observes that in
their verified declaration, K. Martin states that there is no record that grievances MCSP HC
22000495 and MCSP HC 22000226 were received for headquarters’ level review. (ECF No. 41-

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4 at 3.) Based on this evidence, this Court finds that defendant met his initial summary judgment
burden of demonstrating that plaintiff failed to exhaust these grievances to the final level of
review.
As discussed above, in his opposition, plaintiff claims that he submitted grievances MCSP
HC 22000495 and MCSP HC 22000226 for headquarters’ level of review but received no
response. The Ninth Circuit has held that “[w]hen prison officials improperly fail to process a
prisoner’s grievance, the prisoner is deemed to have exhausted available administrative remedies”
because prison officials have “thwart[ed] inmates from taking advantage of [the] grievance
process, making that process unavailable.” Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir.
2017) (internal quotation marks and citations omitted). For the following reasons, this Court
finds that plaintiff’s evidence does not create a genuine dispute of material fact regarding whether
plaintiff submitted grievances MCSP HC 22000495 and MCSP HC 22000226 for headquarters’
level review.
In his unverified opposition, plaintiff claims that he sent grievance MCSP HC 22000226
to the headquarters’ level: “On February 7, 2022, Mr. Darbouze filed an emergency grievance
(22000226) while the prison was under lockdown due to Covid -19 pandemic. He sent copies to
both Mule Creek State Prison and headquarters, however the headquarters failed to respond.”
(ECF No. 46 at 2.) While plaintiff claims that he submitted MCSP HC 22000226 for institutional
level review on February 7, 2022, plaintiff’s unverified statement fails to identify the date he
allegedly mailed this grievance to HCCAB for headquarters’ level review or describe any other
relevant circumstances of his alleged submission of this grievance for headquarters’ level review.
Plaintiff also submits no evidence, such as mail logs, corroborating plaintiff’s claim that he
mailed grievance MCSP HC 22000226 to HCCAB for headquarters’ level review. For these
reasons, and assuming this Court could consider plaintiff’s unverified statement that he sent
grievance MCSP 22000226 to the headquarters’ level,2 this Court finds that plaintiff’s unverified
2 District courts in this Circuit take different approaches as to whether a district court may
consider statements in an unverified complaint or an unsworn brief. See Wiseman v. Williams,
2024 WL 5458870, at *4 (C.D. Cal. Oct. 31, 2024).

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statement does not create a genuine dispute regarding whether plaintiff mailed grievance MCSP
HC 22000226 to HCCAB for headquarters’ level review. See FTC v. Neovi, Inc., 604 F.3d 1150,
1159 (9th Cir. 2010) (“[A court] need not find a genuine issue of fact if, in its determination, the
particular declaration was uncorroborated and self-serving.”).
In the opposition, plaintiff also submitted copies of grievances MCSP HC 22000495 and
MCSP HC 22000226 with the section of the forms for headquarters’ level review completed by
plaintiff but containing no notation that these grievances were actually received by HCCAB for
headquarters’ level review. Plaintiff also failed to submit mail logs or other evidence
demonstrating that plaintiff actually mailed these grievances to HCCAB for headquarters’ level
review. This Court finds that plaintiff’s copy of his grievances containing only his request for
headquarters’ level review are not sufficient to create a genuine dispute of material fact regarding
whether plaintiff actually mailed these grievances to HCCAB for headquarters’ level review.
(See ECF No. 46 at 491, 497 (containing instructions regarding where to mail headquarters’ level
grievance).) To find otherwise would mean that a prisoner who failed to mail a grievance to
HCCAB for headquarters’ level review need only complete the section of the grievance form
requesting headquarters’ level review after the fact to create a genuine dispute regarding whether
he mailed the grievance to HCCAB. Accordingly, for the reasons discussed above, this Court
finds that defendant’s motion for partial summary judgment should be granted on the grounds that
plaintiff failed to administratively exhaust the at-issue claims because plaintiff failed to submit
grievances MCSP HC 22000495 and MCSP HC 22000226 to HCCAB for headquarters’ level
review.3
Because this Court finds that defendant should be granted partial summary judgment on
the grounds that plaintiff failed to submit grievances MCSP HC 22000495 and MCSP HC
22000226 to HCCAB for headquarters’ level review, this Court need not address defendant’s
3 	Had this Court found disputed material facts regarding whether plaintiff submitted grievances
HC 22000495 and MCSP HC 22000226 to HCCAB for headquarters’ level review, this Court
may have ordered an evidentiary hearing. See Howell v. Lidell, 2021 WL 392774, at *7 (E.D.
Cal. Feb. 4, 2021) (evidentiary hearing is warranted when there is a material factual dispute
concerning exhaustion of administrative remedies).

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argument that plaintiff failed to exhaust administrative remedies by failing to name defendant
Malet in these grievances.
VI. REMAINING CLAIM
As discussed above, defendant’s motion for partial summary judgment motion does not
address plaintiff’s Eighth Amendment claim based on defendant’s alleged failure to treat the cyst
on plaintiff’s liver, including failing to prescribe pain medication. On October 16, 2025, this
Court vacated the discovery and pretrial motion deadline based on the filing of defendant’s
summary judgment motion on administrative exhaustion grounds. (ECF No. 43.) This Court
ordered that if defendant’s summary judgment motion was denied, the Court would set a deadline
for defendant to file a motion to reopen discovery and the Court would also reset the pretrial
motion deadline. (Id.) Following the district court’s adoption of these findings and
recommendations, this Court will set the deadline for defendant to file a motion to reopen
discovery as to plaintiff’s Eighth Amendment claim based on defendant’s alleged failure to treat
the cyst on plaintiff’s liver, including failing to prescribe pain medication. This Court will also
reset the pretrial motion deadline for this remaining claim.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district
judge to this action; and
IT IS HEREBY RECOMMENDED that defendant’s motion for partial summary
judgment (ECF No. 41) be granted.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
objections shall be filed and served within fourteen days after service of the objections. The
parties are advised that failure to file objections within the specified time may waive the right to
///
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: December 11, 2025
Darb3055.sj(2)/2