EBERT v. COUNTY OF SAN BERNARDINO 10 (2026)

ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF No. 107] AND PLAINTIFF'S MOTION FOR IMPOSITION OF SANCTIONS FOR SPOLIATION [ECF No. 110]

Before the Court are two motions:

• the motion of Plaintiff Michael Ebert for sanctions for spoliation of evidence;1 and

• the motion of Defendants County of San Bernardino, Deputy Kyle Poulter, and Deputy Jordan Jewsbury for summary judgment on all of Ebert's claims.2

The Court concludes that these matters are appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15.

After considering the papers filed in support and in opposition,³ the Court GRANTS in part and DENIES in part both Motions, for the reasons set forth below.

I. PROCEDURAL BACKGROUND

The parties are familiar with the long history of this case, which Ebert commenced in December 2021. As relevant here, Ebert filed his Third Amended Complaint—the operative complaint—in August 2022.⁴ In October 2022 Defendants moved to dismiss Ebert's Third Amended Complaint.⁵ The Court granted Defendants’ motion to dismiss with respect to Ebert's Monell-styled 42 U.S.C. § 1983 claim for ratification but denied it as to all other claims.⁶ See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court appointed Ebert's current counsel in July 2024,⁷ and it set an updated case schedule in September 2024.⁸ According to that case schedule, all-discovery cutoff was September 26, 2025, and the deadline to hear dispositive motions was October 24, 2025.

On September 26, 2025, Defendants filed the instant Motion for Summary Judgment, and Ebert filed the instant Motion for Sanctions. The Court then vacated the remaining case schedule, pending its decision on the pending Motions.⁹

II. FACTUAL BACKGROUND

The material facts set forth below are sufficiently supported by admissible evidence and are uncontroverted. They are “admitted to exist without controversy” for the purpose of summary judgment. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3. The Court deems a fact undisputed when the parties’ “disputes” of that fact are merely restatements of the same fact, they do not actually contradict the substance of a fact, or they argue the relevancy and materiality of an otherwise undisputed fact. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3.

A. Ebert's Evidentiary Objections 10

In the Joint Statement and in his Opposition, Ebert contends that Defendants may not rely on the declarations of non-parties Lieutenant Greg Winegar or vocational nurse Quinita Jackson because they were absent from the information that Defendants disclosed under Rule 26 of the Federal Rules of Civil Procedure. Rule 37(c)(1) “forbid[s] the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed” unless the party's failure to comply was substantially justified or harmless. “Among the factors that may properly guide a district court in determining whether a violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not timely disclosing the evidence.” Lanard Toys Ltd. v. Novelty, Inc., 375 F. App'x 705, 713 (9th Cir. 2010).

Defendants argue that Winegar's absence from their initial disclosure is substantially justified and harmless under Rule 37(c) because Defendants served a Rule 26(a) supplemental disclosure identifying Winegar and because any prejudice has been cured by Ebert's opportunity to depose Winegar before the November 5, 2025, discovery cutoff.¹¹ With regard to Jackson, Defendants assert that their failure to include her in their disclosures was harmless because she was identified on Ebert's medical records, so Ebert had notice of Jackson's existence and relevance.¹²

There is no evidence of bad faith or of a likelihood that Defendants’ failure to disclose information pertaining to Winegar or Jackson will disrupt trial. Defendants have therefore carried their burden to show that their failure to include Winegar and Jackson in their initial disclosure was harmless, and Ebert does not articulate specific ways that Defendants’ failure to disclose those witnesses has caused him prejudice.¹³ Accordingly, the Court concludes that Defendants’ noncompliance does not warrant the exclusion of the challenged testimony under Rule 37(c). However, going forward, Defendants are admonished to supplement their disclosures and other discovery responses in a timely manner and to comply assiduously with the Federal Rules of Civil Procedure.

The parties raise other objections regarding the inadmissibility of some facts in the Joint Statement. The Court has considered all evidentiary objections to material facts, and, to the extent not addressed in this Order, the Court has determined that all facts set forth below can be presented in a form that would be admissible in evidence. Therefore, any objections based upon admissibility are OVERRULED. See Fed. R. Civ. P. 56(c)(2).

B. Ebert's Arrest and Detention

Following his arrest on the charges of attempted murder, assault with a firearm, and discharging a firearm inside a dwelling,¹⁴ Ebert was classified as a Protective Custody 2 (“PC-2”) inmate and was booked at the County's Central Detention Center.¹⁵ Ultimately Ebert was transferred to the West Valley Detention Center, where he would be housed in Housing Unit 11, Segment D (“Unit 11-D”) from June 25, 2020, to January 9, 2021—the date of the incident with non-party inmate Alex Garcia.¹⁶

Garcia, also a PC-2 inmate, was housed in Unit 11-D from July 11, 2019, to January 9, 2021.¹⁷ Garcia was charged and convicted of one count of felony assault likely to produce great bodily injury for a December 31, 2018, beating of an inmate.¹⁸ Along with Garcia, a former San Bernardino Sheriff's Department Deputy, non-party Luke Van Ginkle, was charged and convicted of conspiring with Garcia to have the inmate attacked.¹⁹ From June 25, 2020, to January 9, 2021—the period during which Ebert and Garcia were both housed in Unit 11-D—they did not engage in any physical altercation or verbal argument.²⁰ Nor did Ebert submit any formal grievance referencing any safety concerns related to Garcia.²¹ Ebert testified that about two weeks before January 9, 2021, he made a request to Defendant Poulter and non-party Deputy Sandoval to transfer him to a different cell, but they ignored his request.²² Ebert does not connect that request to Garcia.

C. The Incident

On the day of the incident—January 9, 2021—Ebert was housed in Cell 4 of Unit 11-D, and Garcia was housed in the adjacent cell, Cell 5.²³ At approximately 1:35 p.m., non-party Juan Arrellano, the Sherriff's Custody Specialist assigned to Unit 11, unlocked the doors of Cells 15 and 16 for the inmates’ daily tier-time.²⁴ “Tier-time” is period for inmates to be outside their cells and in the dayroom area of the housing segment for recreational and other activities, including taking showers, making phone calls, and using the kiosk for requesting jail services and amenities.²⁵ On January 9, 2021, Unit 11-D was observing an “eighth tier-time system” based upon COVID-19 protocols, which allowed for up to two cells to be open for tier-time.²⁶ According to Ebert, Cells 3 and 4 were grouped for tier-time and Cells 5 and 6 were also grouped.²⁷ Thus, Ebert and Garcia—housed in Cells 4 and 5, respectively—did not ordinarily have tier-time together.²⁸

At approximately 1:44 p.m., Defendant Jewsbury who, along with Defendant Poulter, was a housing deputy assigned to Unit 11 that day,²⁹ began to escort vocational nurse Jackson through Unit 11 to distribute medications to inmates.³⁰ At approximately 1:45 p.m., Ebert's cell door was unlocked by an unknown inmate, and Ebert exited his cell and approached Garcia who was in his cell.³¹ Ebert spoke with Garcia through Garcia's cell door, and Ebert gestured with his arms.³² The parties dispute what occurred during that interaction. Garcia testified that he interpreted Ebert's actions as a desire to fight,³³ but Ebert contends that he approached Garcia to calm him down in response to a “kite”—a note—that Garcia caused to be slipped under Ebert's door that read: “Get Ready.”³⁴ Ebert then returned to his cell, joining his cellmate, non-party Kevin White.³⁵

At approximately 1:47 p.m., Garcia exited his cell and entered Ebert's cell, partially closing the cell door behind him.³⁶ The position of the cell door and the presence of other inmates prevented the video camera from recording what occurred inside the cell, but Ebert claims that Garcia assaulted him for the first time.³⁷ Thirty-seven seconds later, Ebert and Garcia exited Ebert's cell,³⁸ and Garcia returned to his cell while Ebert spoke to Garcia and intermittently gestured with his arms.³⁹ At approximately 1:48 p.m., Ebert returned to his cell and closed the cell door.⁴⁰

Just over 10 minutes later, at approximately 1:59 p.m., Jackson and Defendant Jewsbury entered Unit 11-D and delivered several medications to the inmates, including Ebert.⁴¹ Neither Jackson nor Jewsbury noted any injuries to Ebert at that time, nor did Ebert express that an incident had occurred.⁴² At approximately 2:03 p.m., Jackson and Jewsbury exited Unit 11-D.

After Jackson and Jewsbury departed, Garcia approached Ebert's cell and appeared to speak with Ebert through the cell door.⁴³ At approximately 2:05 p.m., Garcia exited his cell again and entered Ebert's cell shortly after White, Ebert's cellmate, had exited.⁴⁴ A group of inmates, including White, observed from outside of Ebert's cell while Ebert and Garcia were inside.⁴⁵ Ebert alleges that while he and Garcia were in his cell, Garcia assaulted him a second time, inflicting serious injuries, including a broken nose and a fractured arm.⁴⁶ Approximately 38 seconds later, Garcia exited Ebert's cell and returned to his own.⁴⁷

Ebert asserts that Defendants Poulter and Jewsbury watched from outside Unit 11-D as Garcia entered Ebert's cell and assaulted him.⁴⁸ Ebert testified that Poulter and Jewsbury did not intervene to stop the assault, despite having a reasonable opportunity to do so.⁴⁹ But Ebert does not explain how he could have known of Poulter and Jewsbury's location at that time. In fact, Ebert offers no evidence to support his otherwise conclusory assertions. Poulter and Jewsbury dispute Ebert's testimony and assert that they did not observe any fight between Ebert and Garcia.⁵⁰

D. Post-Incident Conduct

At some point after the alleged assaults, non-party Specialist Arellano informed Poulter that the door in Cell 4—Ebert's cell—had been opened.⁵¹ In response, Poulter activated the intercom to Cell 4 and instructed Ebert and White to refrain from opening the cell door and threated that they would face discipline if they did so.⁵² During that intercom call, White apologized for opening the cell door, and Ebert informed Poulter that he was covered in blood.⁵³ After the intercom call, Poulter contacted Jewsbury, and they entered Unit 11-D at approximately 2:11 p.m.⁵⁴ The parties dispute whether Ebert was covered in blood when Poulter and Jewsbury arrived at his cell. Poulter and Jewsbury testified that they observed no blood on Ebert,⁵⁵ while Ebert testified that his injuries and blood were obvious to a layperson and that Poulter and Jewsbury observed him washing his face and cleaning up the blood when they arrived at his cell.⁵⁶

Ebert donned his green uniform on over his white shirt, and Poulter and Jewsbury restrained Ebert and escorted him out of Unit 11-D and into the “G-Room” of Unit 11, an area that includes an interview room.⁵⁷ Poulter and Jewsbury then interviewed Ebert. The parties dispute whether, during the walk to the G-Room or the interview, Ebert reported any injuries or requested medical attention.⁵⁸ Ebert, in his declaration, maintains that he informed Poulter and Jewsbury of his injuries.⁵⁹ Poulter and Jewsbury present audio evidence that Ebert mentioned no injuries during that time.

At approximately 6:03 p.m., Ebert was transferred to Housing Unit 12, Segment C, where, at approximately 10:38 p.m., he was seen by medical staff and was provided with his nightly medication.⁶⁰ From January 10 to 27, 2021, Ebert was seen by medical staff at least four times per day, and he did not report any injuries related to the January 9, 2021, incident during that time.⁶¹ During a January 26, 2021, trip to Arrowhead Regional Medical Center for unrelated medical conditions, Ebert did not report any injuries related to the January 9, 2021, incident.⁶²

E. Administrative Grievance Process

At all relevant times, the County had in place an operative administrative grievance process for inmates to submit grievances with respect to any prison condition.⁶³ The San Bernardino County Sheriff's Department Detention & Corrections Bureau Inmate Rules and Regulations, which are ordinarily provided to all inmates during the booking process, describe the grievance process.⁶⁴ While Ebert disputes that he was provided with the Inmate Rules and Regulations when he was booked, he admits that he received them before January 9, 2021.⁶⁵ The grievance process requires an inmate to file a grievance within 10 days of an incident,⁶⁶ but Ebert did not submit a grievance related to the January 9, 2021, incident within 10 days of its occurrence.⁶⁷

Ebert testified that Unit 12-C—the unit to which he was transferred after the January 9, 2021, incident—was a post-booking orientation and COVID-19 quarantine housing unit in which his movement was restricted to one shower every other day for at least the 14 days after the incident.⁶⁸ Ebert maintains that his housing assignment prevented him from accessing the kiosk and from presenting a grievance within 10 days of January 9, 2021.⁶⁹ Defendants dispute Ebert's testimony, pointing to Ebert's submission of health service requests on January 13 and 20, 2021, and his appearance in court on January 20, 2021, as evidence of his ability to leave his cell and to have access the kiosk.⁷⁰ Defendants also refer to a January 13, 2021, grievance submitted in Ebert's name—related to access to his Bible—as evidence that Ebert had access to the kiosk,⁷¹ but Ebert contends that his cellmate, White, submitted the grievance on Ebert's behalf.⁷²

F. Missing Video Footage

A camera in Unit 11-D captured video footage of the January 9, 2021, incident and the moments immediately before and after. However, Defendants lost the footage from the cameras in the G-Room and the sallyport—the room between Unit 11-D and the control room—at some point between January 9 and December 16, 2021.⁷³ Defendants assert that “[s]ometime after January 9, 2021, more than five of the County's hard drives/servers malfunctioned,” resulting in an error that “prevent[ed] the retrieval of some video footage that ha[d] been stored in the archivers.”⁷⁴ “An audit of the video storage system was conducted in March 2022, which confirmed the malfunction and inability to retrieve certain video footage,” and “[t]he County was unable to fix the error because the system was no longer supported by the third-party vendor.”⁷⁵

On or about July 7, 2021, the County was served with a timely tort claim notice that included the assertion that “Deputies intentionally opened claimants [sic] cell allowing for claimant to be beaten by numerous other inmates, causing substantial and severe injuries. The West Valley Detention Center Correctional Deputies were deliberately indifferent to Claimant's health and safety.”⁷⁶ After Ebert filed the instant action, the Lieutenant in charge of the Civil Liabilities Division of the Sheriff's Department transmitted an email asking to see any video associated with Unit 11-D on January 9, 2021, around the time of the incident.⁷⁷ However, by that time, the only retrievable video was the footage that Defendants ultimately produced to Ebert.⁷⁸

III. LEGAL STANDARD

A. Motion for Sanctions

The Federal Rules of Civil Procedure authorize a district court to impose sanctions for a party's failure to cooperate in discovery, including its failure to preserve electronically stored information (i.e., spoliation). See generally Fed. R. Civ. P. 37(e). When “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery,” the court may order measures to cure any prejudice suffered by another party from the loss of that information. See id. If the court finds that the party who failed to preserve the information did so “with the intent to deprive another party of the information's use,” it may presume that the lost information was unfavorable to the party; instruct the jury that it may or must presume the information was unfavorable to the party; or dismiss the action or enter default judgment. See id.

B. Summary judgment

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, the court construes the evidence in the light most favorable to the non-moving party. See Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). However, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505 (emphasis in original). The substantive law determines the facts that are material. See id. at 248, 106 S.Ct. 2505. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. Factual disputes that are “irrelevant or unnecessary” are not counted. Id. A dispute about a material fact is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

Under that standard, the moving party has the initial burden of informing the court of the basis for its motion and identifying the portions of the pleadings and the record that it believes demonstrate the absence of an issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the non-moving party bears the burden of proof at trial, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. See id. at 325, 106 S.Ct. 2548. Instead, the moving party need prove only that there is an absence of evidence to support the nonmoving party's case. See id.; In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). The party seeking summary judgment must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

If the moving party sustains its burden, the non-moving party must then show that there is a genuine issue of material fact that must be resolved at trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence.” Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). The non-moving party must make that showing on all matters placed at issue by the motion as to which it has the burden of proof at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

Furthermore, a party “may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). “The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Advisory Committee Notes, 2010 Amendment, to Fed. R. Civ. P. 56. Reports and declarations in support of an opposition to summary judgment may be considered only if they comply with Rule 56(c) of the Federal Rules of Civil Procedure, which requires that they “be made on personal knowledge, set forth facts that would be admissible evidence, and show affirmatively that the declarant is competent to testify to the matters stated therein.” Nadler v. Nature's Way Prod., LLC, 2015 WL 12791504, at *1 (C.D. Cal. Jan. 30, 2015); see also Loomis v. Cornish, 836 F.3d 991, 996–97 (9th Cir. 2016) (noting that hearsay statements do not enter into the analysis on summary judgment).

IV. ANALYSIS

A. Ebert's Motion for Sanctions

Ebert contends that the County intentionally failed to preserve the missing video footage from Unit 11, despite knowing that such evidence was relevant to reasonably anticipated litigation. Based upon that contention, Ebert seeks sanctions under Rule 37(e).

1. Timeliness of Ebert's Motion for Sanctions

Defendants contend that Ebert's motion is untimely. Defendants assert that a motion for sanctions based upon spoliation is a discovery motion that must be made during the discovery period. The Scheduling Order set the deadline for hearing discovery motions as September 26, 2025 ⁷⁹ —the date that Ebert filed his Motion for Sanctions. Thus, Ebert's Motion for Sanctions would be untimely if the discovery cutoff applies.

Ebert responds that his motion is a request for sanctions, not a discovery motion asking the court to resolve a discovery dispute.⁸⁰ The Court agrees with Ebert that his Motion for Sanctions is not a discovery motion bound by the discovery motion cutoff date.

The cases that Defendants cite in support of their argument that Ebert's motion is untimely deal with alleged discovery disputes or grossly untimely motions for sanctions—neither of which describes Ebert's Motion. See Sigler v. Gonzalez, 2025 WL 643795, at *4 (C.D. Cal. Jan. 22, 2025) (dealing with various “discovery shortcomings” including an alleged failure to respond to discovery requests and tampering with evidence), report and recommendation adopted, 2025 WL 638348 (C.D. Cal. Feb. 25, 2025); Salzman v. Cnty. of Los Angeles, 2022 WL 17078108 (C.D. Cal. Oct. 18, 2022), aff'd, 2024 WL 977663 (9th Cir. Mar. 7, 2024) (not involving a motion for sanctions); Muhammad v. Jenkins, 2022 WL 4292341, at *8 (C.D. Cal. Aug. 26, 2022), report and recommendation adopted, 2022 WL 4292308 (C.D. Cal. Sept. 15, 2022) (denying as “grossly untimely” a plaintiff's motion for sanctions when the plaintiff waited “nearly a year after filing her first motion ․ to renew her sanctions request, without curing the primary procedural defects that had prompted her to withdraw her [first] sanctions motion in the first place”); Gault v. United States, 2022 WL 4292340, at *7 (C.D. Cal. Aug. 23, 2022), report and recommendation adopted, 2022 WL 4291320 (C.D. Cal. Sept. 15, 2022) (noting that the court could deny the plaintiff's motion as untimely because the plaintiff did not diligently pursue spoliation sanctions, but ultimately declining to deny it on procedural grounds).

Ebert does not address Defendants’ argument that he could have filed his Motion for Sanctions as early as July 2025 and delayed unreasonably by waiting until September 26, 2025. But even if that is true, the Court concludes that the delay is not unreasonable, and, thus, it does not warrant the denial of Ebert's motion.

2. Spoliation

It is undisputed that the missing footage is electronically stored information and that it is lost and cannot be restored. The first issue, therefore, is whether the missing footage is evidence that Defendants should have preserved; in other words, whether the evidence is potentially relevant to Ebert's claim and whether Defendants had notice of that potential relevance. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) (“Defendants engage in spoliation of documents as a matter of law only if they had ‘some notice that the documents were potentially relevant’ to the litigation before they were destroyed.”). Ebert argues that the missing footage is potentially relevant to his claims because Poulter and Jewsbury “plead ignorance as a defense in this case”⁸¹ and the missing footage would likely show Poulter and Jewsbury's actions immediately before and after the incident.⁸² The Court agrees that the missing footage is potentially relevant.

The second issue is whether the County was under a duty to preserve the evidence at the time that it was lost. “As soon as a potential claim is identified, a litigant is under a duty to preserve evidence which he or she knows or reasonably should know is relevant to the action or may be relevant to future litigation.” Colonies Partners, L.P. v. Cnty. of San Bernardino, 2020 WL 1496444, at *6 (C.D. Cal. Feb. 27, 2020), report and recommendation adopted 2020 WL 1491339 (C.D. Cal. Mar. 27, 2020). Unless the County reasonably knew or should have known that the footage was potentially relevant to a potential claim, it cannot be liable for spoliation.

Ebert argues that he identified a potential claim to Defendants when Defendants received his tort claim notice in July 2021.⁸³ Defendants respond that the tort claim notice did not put them on notice that all video footage from Unit 11 was relevant to Ebert's claim and that they preserved the relevant footage.⁸⁴ Defendants’ argument is that the tort claim notice obligated them only to preserve video evidence of Ebert's specific housing segment because that notice stated that “Deputies intentionally opened [Ebert's] cell allowing for [Ebert] to be beaten by numerous other inmates, causing substantial and severe injuries. The West Valley Detention Center Correctional Deputies were deliberately indifferent to [Ebert's] health and safety.”⁸⁵ In other words, Defendants do not dispute that the tort claim notice identified potential litigation; rather, they contend that the missing footage was not relevant to that potential litigation.

Defendants’ view of relevance is too narrow. The standard is “potentially relevant,” and, just as the missing footage is potentially relevant to Ebert's instant claims, it is potentially relevant to the tort claims identified in Ebert's tort claim notice. Thus, the Court concludes that Defendants were under a duty to preserve the missing footage at the time that it was destroyed.

Even though the County lost relevant evidence that it was under a duty to preserve, sanctions would be inappropriate if the County took reasonable steps to preserve that evidence. Defendants argue that the County did just that when on December 16, 2021, in response to Ebert's commencement of this case, the Lieutenant in charge of the Civil Liabilities Division of the Sheriff's Department sent an email stating that he wanted to see any video associated with Unit 11, Segment D, on January 9, 2021, around the time of the incident.⁸⁶ However, Defendants premise that argument on the conclusion that the County was not notified of potential litigation until Ebert filed the instant action. As discussed above, the County was on notice of potential litigation when it received Ebert's tort claim notice. Therefore, because Defendants do not identify any actions that the County took to preserve the missing footage in response to the tort claim notice, the Court concludes that the County did not take reasonable steps to preserve the missing footage. Thus, the Court concludes that spoliation of the missing footage occurred, and sanctions are available under Rule 37(e).

3. Appropriate Sanctions

Because Defendants spoliated the footage, the Court must consider which sanctions, if any, are warranted. “In considering what spoliation sanction to impose, if any, courts generally consider three factors: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” Apple Inc. v. Samsung Electronics Co., Ltd., 888 F. Supp. 2d 976, 992 (N.D. Cal. 2012) (internal quotations omitted). Ebert requests that the Court impose an adverse inference sanction, allow Ebert to present evidence of spoliation to the jury, strike Defendants’ Motion for Summary Judgment, award attorneys’ fees, and impose any other sanctions that the Court deems appropriate.

As a preliminary matter, Rule 37(e)(1) requires the court to find that there is “prejudice to another party from loss of the information” before it “may order measures no greater than necessary to cure the prejudice.” “[P]rejudice[ ] looks to whether the [spoliation] actions impaired [the moving party's] ability to go to trial or threatened to interfere with the rightful decision of the case.” U.S. for Use & Ben. of Wiltec Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 604 (9th Cir. 1988).

Ebert contends that the lost footage—which would have “shown the movements and activities of the defendants during the period before and after the two attacks on Plaintiff”—prejudiced him because “[i]t would have corroborated Plaintiff's assertions that the defendants witnessed the activities of Garcia and his co-conspirators and Garcia's attacks on Plaintiff.”⁸⁷ Defendants respond that Ebert was not prejudiced because (1) the existing footage is sufficient to establish whether Poulter or Jewsbury was ignorant of Ebert's injuries; and (2) the only footage that could show Poulter and Jewsbury's whereabouts before the incident is video from the sallyport, which would, at most, demonstrate that Poulter and Jewsbury had the same view as the Unit 11-D camera.

With regard to Defendants’ first argument, the Court concludes that Ebert did not suffer prejudice from the lost footage showing Poulter and Jewsbury's actions after the incident. Because the Court concludes below that Ebert may not assert a negligence claim based upon Defendants’ failure to provide prompt medical care, the loss of footage allegedly depicting Poulter and Jewsbury's apprehension of Ebert's injuries after the incident is not prejudicial.

With regard to Defendants’ second argument, the Court concludes that the loss of footage depicting Poulter and Jewsbury's whereabouts before and during the incident is prejudicial to Ebert because it makes it more difficult to prove that Poulter and Jewsbury breached a duty to Ebert. Thus, the Court concludes that Defendants’ arguments do not establish a lack of prejudice, but they are relevant to the degree of prejudice that Ebert suffered.

Having concluded that the lost evidence prejudiced Ebert, the Court must assess the degree of that prejudice. While it is true that sallyport video from the day of the incident may show Poulter or Jewsbury observing the incident, Ebert makes no allegations and points to no evidence that Poulter or Jewsbury was in the sallyport during the incident. Even if Poulter or Jewsbury was in the sallyport, Ebert makes no argument regarding how that evidence would strengthen his claims. Thus, the Court concludes that the degree of prejudice to Ebert is low. Additionally, Defendants have a low degree of fault in destroying the evidence—which was lost due to a malfunction. In view of the low degree of prejudice and low degree of fault, the Court concludes that the appropriate sanction in this case is to award attorneys’ fees to Ebert for the cost of making his Motion for Sanctions. Ebert's other requested sanctions would impose substantial unfairness upon Defendants, and they are therefore DENIED.

Finally, to order the adverse inference sanction that Ebert requests under Rule 37(e)(2), the Court must find that the County failed to preserve the footage with the intent to deprive Ebert of its use. Ebert presents no evidence that the County willfully destroyed the footage with the intent to deprive Ebert of its use. See Jones v. Riot Hosp. Grp. LLC, 95 F.4th 730, 735 (9th Cir. 2024) (“Rule 37(e) does not define ‘intent,’ but in context, the word is most naturally understood as involving the willful destruction of evidence with the purpose of avoiding its discovery by an adverse party.”). In fact, the evidence was lost inadvertently, due to a malfunction of the servers that stored the footage. Therefore, Ebert's request for adverse inference presumptions is DENIED.

B. Defendants’ Motion for Summary Judgment

Defendants move for summary judgment on all of Ebert's six remaining claims. Those claims are as follows:

• 42 U.S.C. § 1983 claim for use of excessive force against Poulter and Jewsbury;

• 42 U.S.C. § 1983 claim for failing to protect against Poulter and Jewsbury;

• Monell claim for illegal custom, practice, or policy against the County;

• Bane Act violation against Poulter and Jewsbury;

• state law battery against Poulter and Jewsbury; and

• negligence against Poulter and Jewsbury.88

Ebert, in his Opposition, does not oppose Defendants’ Motion for Summary Judgment “to the extent it requests summary judgment as to (1) the claim for relief for excessive force, (3) the Monell claim, or (5) the battery claim.”⁸⁹ Thus, the Court GRANTS Defendants’ Motion for Summary Judgment with respect to those three claims and addresses Defendants’ arguments pertaining to Ebert's remaining three claims.

1. Failure to Exhaust Remedies

Defendants argue that because Ebert failed to exhaust available administrative grievance processes before he filed this lawsuit, his federal claims are barred by the Prison Litigation Reform Act (the “PLRA”). Ebert does not dispute his failure to file an administrative grievance, but, instead, he counters that the County's administrative grievance procedures were effectively unavailable to him due to limits imposed because of the COVID-19 pandemic.

The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). That mandatory prerequisite “applies to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), and it “demands compliance with an agency's deadlines and other critical procedural rules,” Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The burden of showing noncompliance with the PLRA's exhaustion requirement lies with the defendant. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). But, even when the defendant carries its burden, the inmate may avoid summary judgment on his claims if he adduces “evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id.

Defendants have carried their burden to show that an administrative grievance procedure existed at the County jail and that Ebert did not comply with it in a timely manner.⁹⁰ In response, the only evidence that Ebert cites for his assertion that COVID-19 closures rendered administrative grievance procedures unavailable is his own declaration. The issue is whether that evidence is sufficient to create a genuine dispute. The Court concludes that it is.

Defendants cite several cases for the proposition that “[m]ere ‘conclusory allegations unsupported by factual data’ cannot satisfy plaintiff's burden to raise a genuine dispute about whether he fully exhausted available administrative remedies.”⁹¹ However, the plaintiffs in the cases that Defendants cite attempted to rely on speculative, conclusory allegations to contradict the defendants’ evidence. Here, Ebert makes specific allegations about COVID-19-related measures that prevented him from filing an administrative grievance. While not corroborated by other evidence, Ebert's testimony is specific and detailed, rather than speculative and vague, and Defendants do not present any evidence that such COVID-19 measures did not exist. The closest that Defendants come to contradicting Ebert's testimony is to point to the undisputed fact that an administrative grievance was submitted in Ebert's name on January 13, 2021—four days after the incident. The existence of that grievance, Defendants reason, tends to disprove Ebert's assertion that he was unable to file administrative grievances. Ebert asserts that his cellmate, White, filed that grievance on Ebert's behalf, but Ebert does not explain how White could file a grievance at a time when Ebert was prevented from doing so. That inconsistency is troubling, but it does not rise to the level of discrediting Ebert's testimony that COVID-19 policies prevented his access to administrative grievance procedures.

Finally, Defendants contend that Ebert's failure to include those assertions in his pleading precludes him from raising them now. Defendants apparently misunderstand the case law. The case that Defendants cite—Soremekun v. Thrifty Payless, Inc., 509 F.3d 978 (9th Cir. 2007)—concerns a plaintiff's failure to plead exhaustion as an essential element of his claim, not, as is the circumstance here, a plaintiff's alleged failure to plead sufficient facts to survive an affirmative defense. In fact, a plaintiff is not required to plead around an affirmative defense in his complaint. See Perttu v. Richards, 605 U.S. 460, 469, 145 S.Ct. 1793, 222 L.Ed.2d 108 (2025) (“PLRA exhaustion is not a ‘pleading requirement,’ which is why ‘inmates are not required to specially plead or demonstrate exhaustion in their complaints.’ ”).

Having concluded that a genuine dispute exists with respect to the availability of administrative grievance procedures, the Court addresses the merits of Ebert's claims. And because the Court concludes that summary judgment is appropriate with respect to Ebert's § 1983 failure-to-protect claim, it also concludes that an evidentiary hearing regarding the availability of administrative grievance procedures is unnecessary. See Albino, 747 F.3d at 1166 (instructing that the district court, rather than the jury, serves as the finder of fact with respect to PLRA exhaustion defenses).

2. Proximate Cause

Defendants argue that Ebert's claims fail because Ebert's own actions constitute a superseding intervening act, severing the possibility that Defendants caused Ebert's injuries. Defendants contend that the “undisputed evidence establishes that Plaintiff initiated and participated in the physical altercations with Garcia,”⁹² thus breaking the chain of causation and relieving Defendants of any liability for Ebert's alleged injuries.

All three of Ebert's remaining claims require that he prove proximate cause. See Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978) (describing the “requisite causal connection” for a § 1983 claim); Ladd v. Cnty. of San Mateo, 12 Cal. 4th 913, 918, 50 Cal.Rptr.2d 309, 911 P.2d 496 (1996) (listing proximate cause as an element of negligence). While Defendants are correct that an inmate's initiation of an altercation with another inmate may constitute a superseding cause that breaks the chain of proximate cause, see, e.g., Rosenblum v. Orange Cnty. Sheriff Dep't, 2021 WL 933750, at *11 (C.D. Cal. Feb. 10, 2021), report and recommendation adopted, 2021 WL 2420412 (C.D. Cal. May 7, 2021), Defendants are incorrect that there is no dispute regarding whether Ebert's actions constitute a superseding intervening cause.

Based upon the undisputed sequence of events, including interactions between Ebert and Garcia, the Court cannot, as a matter of law, conclude that Ebert initiated the incident and severed the causal chain. The evidence to which Defendants refer is insufficient to establish that there is no dispute regarding proximate cause. Because a genuine dispute of fact exists with respect to causation, the Court DENIES Defendants’ Motion for Summary Judgment with respect to their proximate cause arguments.

3. Failure-to-Protect Claim

“Inmates who sue prison officials for injuries suffered while in custody may do so under the Eighth Amendment's Cruel and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment's Due Process Clause. Under both clauses, the plaintiff must show that the prison officials acted with ‘deliberate indifference.’ ” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016). The Ninth Circuit further clarified that to prove deliberate indifference in the context of a Fourteenth Amendment failure-to-protect claim, a plaintiff must establish that “(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff's injuries.” Id. at 1071. “With respect to the third element, the defendant's conduct must be objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each particular case.” Id. (citation modified).

Defendants contest the sufficiency of the evidence to establish the third element. Ebert asserts that because Garcia was convicted of assaulting an inmate, Poulter and Jewsbury knew or should have known that Garcia posed a substantial risk of serious harm to Ebert. And therefore, by allowing inmates to open Ebert's cell door and by failing to prevent Garcia from entering Ebert's cell, Poulter and Jewsbury did not take reasonable available measures to abate that risk. However, Ebert offers no evidence that Poulter and Jewsbury were aware of the specifics of Garcia's conviction. And even if they were, Ebert fails to explain why that conviction for assaulting an unrelated inmate would put Poulter and Jewsbury on notice that Garcia posed a particular danger to Ebert. On the contrary, Ebert and Garcia had been housed in the same unit for the six months prior to January 9, 2021, without incident, and Ebert had no other connections with Garcia from which a reasonable officer in Poulter and Jewsbury's position would have apprehended a particular risk of harm. See Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160-61 (9th Cir. 2013).

In the absence of any evidence that Poulter and Jewsbury knew or should have known that Garcia posed a substantial risk of serious harm to Ebert, Poulter and Jewsbury's failure to intervene cannot, as a matter of law, rise to the level of deliberate indifference. See Castro, 833 F.3d at 1071 (noting that a mere lack of due care by a state official does not violate the Fourteenth Amendment). Accordingly, the Court GRANTS Defendants’ Motion for Summary Judgment with respect to Ebert's § 1983 failure-to-protect claim.

4. Qualified Immunity

Defendants assert that qualified immunity protects Poulter and Jewsbury from Ebert's claims that they violated his constitutional rights. “Qualified immunity is applicable unless the official's conduct violated a clearly established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The two inquiries to determine whether an official is entitled to qualified immunity are (1) whether the facts that a plaintiff has shown make out a violation of a constitutional right; and (2) whether the right at issue was “clearly established” at the time of defendant's alleged misconduct. See id. at 236, 129 S.Ct. 808 (keeping the test articulated in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), but concluding that the sequence of the inquiries is discretionary).

Defendants argue that qualified immunity is appropriate here because the record, viewed in the light most favorable to Ebert, establishes that no constitutional violation occurred. The Court agrees. Because Ebert has failed, as a matter of law, to establish a constitutional violation, the Court GRANTS Defendants’ Motion for Summary Judgment with respect to qualified immunity for Poulter and Jewsbury from Ebert's constitutional claims.

5. Bane Act Claim

To prevail on his Bane Act, Cal. Civ. Code § 52.1, claim, Ebert must prove that (1) Defendants violated his Fourteenth Amendment right to be protected from harms as a pretrial detainee; and (2) the violations were carried out with specific intent to deprive him of that constitutional right. See Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018). Because Ebert has failed to present evidence sufficient to survive summary judgment on his Fourteenth Amendment claim, his Bane Act claim also necessarily fails. Accordingly, the Court GRANTS Defendants’ Summary Judgment Motion with respect to Ebert's Bane Act claim.

6. Negligence Claim

Finally, Defendants argue that Poulter and Jewsbury were, as a matter of law, not negligent because (1) they did not breach their duty to protect Ebert from harm; (2) Ebert presents no evidence of any failure to train or supervise, and (3) Cal. Govt. Code § 845.6 immunizes Poulter and Jewsbury from negligence-based liability for their alleged failure to provide medical care.

First, Defendants assert that because “Deputies Poulter and Jewsbury did not use any force on Plaintiff and did not fail to protect him from harm,”⁹³ they did not breach their duty. Defendants are correct that Ebert offers no evidence that the Deputies used any force on him. And, as discussed above, the Court agrees with Defendants that Poulter and Jewsbury's actions did not rise to the level of deliberate indifference. However, ordinary negligence presents a less demanding standard. See Castro, 833 F.3d at 1071 (“[A] pretrial detainee who asserts a due process claim for failure to protect to prove more than negligence but less than subjective intent—something akin to reckless disregard.”). Here, the evidence of the incident and Poulter and Jewsbury's failure to intervene is sufficient to create a genuine dispute with respect to whether Poulter and Jewsbury's conduct constitutes a breach of their duty to protect Ebert from violent third-party conduct. See Giraldo v. Dep't of Corr. & Rehab., 168 Cal. App. 4th 231, 250, 85 Cal.Rptr.3d 371 (2008) (imposing on jailers a duty of care to prisoners).

Second, the Court agrees with Defendants that Ebert has presented no evidence of Poulter or Jewsbury's failure to train or supervise County employees. Thus, Ebert may not maintain his negligence claim on that basis.

Third, Defendants contend that Poulter and Jewsbury are protected from Ebert's negligence claim insofar as Ebert bases that claim on their failure to provide prompt medical care. Under Cal. Govt. Code § 845.6, “prison officials generally cannot be sued for failing to provide medical care to a prisoner, unless the official knows, or reasonably should know, that the prisoner requires immediate medical care.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 605 (9th Cir. 2019). “In order to state a claim under § 845.6, a prisoner must establish three elements: (1) the public employee knew or had reason to know of the need (2) for immediate medical care, and (3) failed to reasonably summon such care.” Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir. 2006). Here, the parties disagree whether Poulter and Jewsbury had reason to know of Ebert's need for medical care. Defendants assert that Poulter and Jewsbury did not observe any blood on, or injury to, Ebert, but they do not dispute that Ebert told Poulter over the intercom that he was covered in blood. That undisputed statement is sufficient to create a genuine dispute of fact regarding Poulter and Jewsbury's awareness of Ebert's injuries.

However, Defendants also note the medical care that Ebert received and the absence of injury reports related to the January 9, 2021, incident, and they argue that Ebert presents no evidence to show that any failure to provide prompt medical care resulted in any harm. Ebert does not respond to that argument in his Opposition, and the Court cannot locate any evidence showing that a delay in the provision of medical services caused Ebert harm. Thus, because Ebert has failed to present evidence of causation and harm with respect to the alleged failure to provide prompt medical care, summary judgment is appropriate with respect to that claim.

Nevertheless, because there is a genuine dispute of fact regarding whether Poulter and Jewsbury's failure to intervene amounts to ordinary negligence, Defendants’ Motion for Summary Judgment is DENIED with respect to Ebert's negligence claim insofar as it is based upon Poulter and Jewsbury's failure to intervene.

V. DISPOSITION

For the foregoing reasons, the Court hereby ORDERS as follows:

1. Ebert's Motion for Sanctions [ECF No. 110] is GRANTED in part and DENIED in part, as follows:

a. Ebert's request for an award of the attorneys’ fees that he incurred to make his Motion for Sanctions is GRANTED. Ebert is DIRECTED to file no later than May 22, 2026, an accounting of the attorneys’ fees that he incurred in making his Motion for Sanctions. Defendants are DIRECTED to file no later than May 29, 2026, any opposition thereto. The Court will issue an appropriate order thereafter.

b. Ebert's Motion is DENIED with respect to his request for any other sanctions.

2. Defendants’ Motion for Summary Judgment [ECF No. 107] is GRANTED in part and DENIED in part, as follows:

a. Ebert's § 1983 claim for relief for excessive force is DISMISSED.

b. Ebert's Monell claim is DISMISSED.

c. Ebert's Battery claim is DISMISSED.

d. Ebert's Fourteenth Amendment § 1983 failure-to-protect claim is DISMISSED.

e. Ebert's Bane Act claim is DISMISSED.

f. To the extent that Ebert's negligence claim is based upon Defendants’ alleged failure to intervene, Defendants’ Motion for Summary Judgment is DENIED.

g. To the extent that Ebert's negligence claim is based upon Defendants’ alleged failure to train or supervise or their alleged failure to provide prompt medical care, Ebert's negligence claim is DISMISSED.

3. The parties are DIRECTED to meet and confer forthwith regarding the case schedule and to file no later than May 22, 2026, a joint proposed case schedule. If the parties cannot agree on a case schedule, then the parties are DIRECTED to provide the Court with the following:

a. the parties’ respective proposed case schedules;

b. each party's justification therefor; and

c. each party's objections to the other party's proposed case schedule.

4. A Scheduling Conference is SET for June 5, 2026, at 11:00 a.m. Counsel for the parties are DIRECTED to appear in Courtroom 9D of the Ronald Reagan Federal Building and U.S. Courthouse, 411 W. 4th Street, Santa Ana, California, at that date and time.

IT IS SO ORDERED.

FOOTNOTES

1.   Pl.’s Mot. for Sanctions for Spoliation of Evidence [ECF No. 110]; Pl.’s Mem. of P. & A. in Supp. of Mot. for Sanctions for Spoliation of Evidence (the “Motion for Sanctions”) [ECF No. 111].

2.   Defs.’ Mot. for Summary J. (the “Motion for Summary Judgment”) [ECF No. 107].

3.   The Court considered the documents of record in this action, including the following papers: (1) Motion for Sanctions and related documents [ECF Nos. 110, 112, & 113]; (2) Defs.’ Opp'n to the Motion for Sanctions (the “Sanctions Opposition”) [ECF No. 116]; (3) Pl.’s Reply in Supp. of the Motion for Sanctions (the “Sanctions Reply”) [ECF No. 119]; (4) Motion for Summary Judgment and Joint Ex. (the “Joint Exhibit”) [ECF No. 108]; (5) Pl.’s Opp'n to the Motion for Summary Judgment (the “Summary Judgment Opposition”) [ECF No. 117]; and (6) Defs.’ Reply in Supp. of the Motion for Summary Judgment (the “Summary Judgment Reply”) [ECF No. 118].

4.   Third Am. Compl. (the “Third Amended Complaint”) [ECF No. 30].

5.   Defs.’ Mot. to Dismiss the Third Amended Complaint [ECF No. 38].

6.   See Order re Defs.’ Mot. to Dismiss the Third Amended Complaint [ECF No. 56].

7.   Order re Appointment of Attorney Jeff D. Price as Counsel for Plaintiff [ECF No. 83].

8.   Scheduling Order [ECF No. 91].

9.   See (In Chambers) Order [ECF No. 123].

11.   Summary Judgment Reply 10:7-15.

12.   Joint Statement of Undisputed Facts and Genuine Disputes (the “Joint Statement”) [ECF No. 107-1] No. 55.

13.   Summary Judgment Opposition 5:1-2 & 12 n.5.

14.   Joint Statement No. 1.

15.   Id. at No. 2.

16.   Id. at Nos. 10 & 12.

17.   Id. at Nos. 13 & 15.

18.   Id. at Nos. 113 & 116.

19.   Id. at Nos. 114 & 115.

20.   Id. at Nos. 16 & 17.

21.   Id. at No. 18.

22.   Joint Exhibit, Ex. 25 (the “Ebert Declaration”), ¶¶ 4-7.

23.   Joint Statement Nos. 26 & 29.

24.   Id. at No. 30.

25.   Joint Exhibit, Ex. 22 (the “Poulter Declaration”) ¶ 9.

26.   Id.

27.   Joint Statement No. 117.

28.   Id.

29.   Id. at Nos. 19 & 20.

30.   Id. at No. 31.

31.   Id. at Nos. 33 & 34.

32.   Id. at No. 35.

33.   Id. at No. 38.

34.   Joint Exhibit, Ex. 1 (Dep. of Michael Ebert) 82:6-8; Ebert Declaration ¶¶ 9-11.

35.   Joint Statement No. 36.

36.   Id. at Nos. 40 & 41.

37.   Id. at No. 42.

38.   Id. at Nos. 43 & 44.

39.   Id. at Nos. 45 & 46.

40.   Id. at No. 50.

41.   Id. at Nos. 51 & 52.

42.   Id. at Nos. 54-61.

43.   Joint Exhibit, Ex. 10 (“Video 2”) 3:43-4:18.

44.   Joint Statement Nos. 63-65.

45.   Video 2 4:51-5:31.

46.   Ebert Declaration ¶¶ 49, 52, & 60.

47.   Joint Statement No. 67.

48.   Ebert Declaration ¶¶ 65-71.

49.   Id.

50.   Joint Statement Nos. 69 & 70.

51.   Id. at No. 71.

52.   Id. at No. 72.

53.   Id. at Nos. 73 & 74.

54.   Id. at Nos. 75 & 76.

55.   Joint Exhibit, Ex. 20 (Decl. of Jordan Jewsbury) ¶ 12; Poulter Declaration ¶ 13.

56.   Ebert Declaration ¶ 66.

57.   Joint Statement Nos. 79 & 80.

58.   Id. at Nos. 81-84.

59.   Ebert Declaration ¶¶ 69 & 70.

60.   Joint Statement Nos. 85 & 86.

61.   Id. at Nos. 87 & 88.

62.   Id. at Nos. 89 & 90.

63.   Id. at No. 3.

64.   Id. at Nos. 4 & 5.

65.   Id. at Nos. 5 & 8.

66.   Id. at Nos. 6 & 7.

67.   Id. at No. 9.

68.   Id. at No. 199.

69.   Id. at No. 202.

70.   Id. at Nos. 92-94.

71.   Id. at No. 91.

72.   Id. at No. 203

73.   Motion for Sanctions 6:14-17.

74.   Sanctions Opposition 13:22-25.

75.   Id. at 13:25-28.

76.   Motion for Sanctions, Ex. B (the “Claim Form”) [ECF No. 110-5].

77.   Sanctions Opposition 14:9-12.

78.   Id. at 14:12-13.

79.   See Scheduling Order.

80.   Sanctions Reply 2:14-18.

81.   Motion for Sanctions 2:7-14.

82.   Id. at 9:3-7.

83.   Id. at 6:5-6. Ebert also argues that the grievances that he submitted in January and February 2021 put Defendants on notice of future litigation. The Court concludes that Ebert's grievances fall short of notifying Defendants of a likelihood of litigation because they are limited to Ebert's request to remain in his current housing unit and they make no reference to litigation.

84.   Sanctions Opposition 11:8-14.

85.   See Claim Form.

86.   Sanctions Opposition 14:9-12.

87.   Motion for Sanctions 9:3-7.

88.   See generally Third Amended Complaint.

89.   Summary Judgment Opposition 1:4-6.

90.   Ebert contends that Defendants may not rely on the declaration of Winegar to establish his noncompliance with administrative procedures. But, as discussed above, the Court concludes that Winegar's testimony is appropriately a part of the record.

91.   Summary Judgment Reply 7:1-17 (quoting Garcia v. County of Riverside, 2025 WL 836564, at *2 (C.D. Cal. Feb. 10, 2025), report and recommendation adopted, 2025 WL 833072 (C.D. Cal. Mar. 13, 2025)).

92.   Motion for Summary Judgment 20:20-21.

93.   Id. at 34:20-21.

John W. Holcomb, UNITED STATES DISTRICT JUDGE