For the purposes of summary judgment, the following material facts are either undisputed as stated by the parties, or they are undisputed as determined by the court. In light of the Ninth Circuit's decision in Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022), which is discussed below, the universe of material facts has significantly narrowed since the parties' submissions of the factual statements and supporting evidence.

There is a split among the circuit courts that have addressed the issue, which the Supreme Court has not yet resolved. Compare Garrett v. Wexford Health, 938 F.3d 69 (3d Cir. 2019) (holding that the PLRA's exhaustion requirement did not apply to a formerly incarcerated plaintiff's amended complaint), cert. denied — U.S. —, 140 S. Ct. 1611, 206 L.Ed.2d 955 (2020); Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022) (same); with Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc) (holding that release from prison after a lawsuit was filed was irrelevant to a different PLRA requirement, irrespective of a later amended complaint); Smith v. Terry, 491 F. App'x 81 (11th Cir. 2012) (summary order) (applying the holding in Harris to the PLRA's exhaustion requirement); May v. Segovia, 929 F.3d 1223 (10th Cir. 2019) (holding that PLRA exhaustion applied to any claims brought prior to a plaintiff's release from prison).

The second amended complaint is the operative complaint. See Saddozai v. Davis, 35 F.4th 705, 708-10 (9th Cir. 2022) (citations and internal quotation marks omitted).

During the pendency of the parties' motions, the United States Court of Appeals for the Ninth Circuit decided the case of Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022). The parties have not filed any briefs addressing the potential effect of Saddozai on the instant action, nor has the Court yet ordered briefing

(9th Cir. 2002) (per curiam); Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022).

Welch did not escalate his failure-to-protect grievance after receiving this remedy until February 2021, almost a year after he filed the operative amended complaint on March 26, 2020. See Saddozai v. Davis, 35 F.4th 705, 708 (9th Cir. 2022) (noting "[e]xhaustion requirements apply based on when a plaintiff files the operative complaint" (citation omitted)). Therefore, because Welch's failure-to-protect grievance was addressed, and he did not escalate his grievance before filing his amended complaint, he failed to exhaust his available administrative remedies.

Without such payment, the action cannot proceed before the Court. See Saddozai v. Davis, 35 F.4th 705, 709 (9th Cir. 2022).

Without such payment, the action cannot proceed before the Court. See Saddozai v. Davis, 35 F.4th 705, 709 (9th Cir. 2022).

The Ninth Circuit also reached similar conclusions in the majority of the other cases Judge Denney relies on in the pertinent section of the R&R. (ECF No. 116 at 10-11.) In Saddozai v. Davis, 35 F.4th 705, 710 (9th Cir. 2022) the Ninth Circuit found the district court “erred in dismissing [the plaintiff's operative complaint for lack of exhaustion[,]” because, while the plaintiff had indisputably filed his original complaint before he exhausted his administrative remedies, he had fully exhausted by the time he filed his operative third amended complaint, see id. at 708. Thus, while there is nothing inaccurate about the quotation Judge Denney used from Saddozai, the ultimate result of that case supports Brown's argument in his Objection in that the Ninth Circuit permitted the plaintiff to proceed with a case initiated before the deadlines related to his administrative grievances lapsed.

Without such payment, the action cannot proceed before the Court. See Saddozai v. Davis, 35 F.4th 705, 709 (9th Cir. 2022).