The opinion of the court was delivered by: Hon. Rudi M. Brewster United States Senior District Court Judge
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE: EXHAUSTION OF ADMINISTRATIVE REMEDIES
On Monday, December 4 and Thursday, December 7, 2006, the Court held telephonic hearings for Defendants' Motion for Summary Judgment Re: Exhaustion of Administrative Remedies filed on August 31, 2006. For the reasons set forth below, the Court hereby DENIES Defendants' Motion for Summary Judgment.
In 1996, Plaintiff Baines was incarcerated at Calipatria State Prison. On March 5, 1998, Plaintiff filed a Complaint alleging civil rights violations under several federal statutes, including 42 U.S.C. § 1983, and the United States Constitution. (Doc. No. 1.) On August 21, 1998, Defendants filed a Motion to Dismiss, arguing in part that Plaintiff had not filed any appeal regarding the December 22, 1996, incident complained of and therefore had failed to exhaust the deliberate indifference and excessive force issues stemming from that incident. (Doc. No. 7.) On March 26, 1999, Magistrate Judge Papas issued a Report and Recommendation, in which he recommended granting Defendants' Motion to Dismiss, including dismissing the claims related to the December 22, 1996, incident with prejudice for failure to exhaust. (Doc. No. 53.)
On April 28, 1999, Plaintiff filed Objections to the Report and Recommendation. (Doc. No. 55.) Plaintiff alleged that he sent in an appeal on January 6, 1997, fourteen days after the December 22, 1996, incident complained of, but received no response from prison officials. (Id. at 40.) Plaintiff alleged that prison officials ignored his subsequent inquiries into his appeal. (Id.) Plaintiff included an alleged copy of his January 6, 1997, appeal with his opposition to the present Motion, but the appeal does not bear a log number stamp corroborating the date filed, and the "Staff Response" area has not been filled out. (Pl's Opp'n, Ex. 1.) The prison administration claims that no copy of Plaintiff's appeal is contained in its central files. (Defs' Reply, Albritton Decl. at ¶¶ 4 - 6.) In light of Plaintiff's allegations that his efforts to exhaust were impeded by prison officials, this Court overruled in part the Report and Recommendation and denied Defendants' Motion to Dismiss on grounds of exhaustion. (Doc. No. 59 at 9 - 10.)
On December 14, 1999, Plaintiff filed a First Amended Complaint. (Doc. No. 76.) On December 27, 1999, Defendants filed a Motion to Dismiss on the grounds that Plaintiff had failed to prove exhaustion of his claims. (Doc. No. 77.) Defendants argued in part that Plaintiff had failed to attach to the amended complaint the pertinent exhibits that had been attached to the original complaint. (Doc. No. 78 at 18.) On August 11, 2000, Magistrate Judge Stormes issued a Report and Recommendation, recommending a denial in part of Defendants' Motion to Dismiss because the appeal process was not "available" to Plaintiff if he sought only money damages under Rumble v. Hill, 182 F.3d 1064, 1069 (9th Cir. 1999)*fn1 . (Doc. No. 103 at 4 - 5.) On February 22, 2001, this Court issued an Order adopting the Report, denying in part Defendants' Motion to Dismiss. (Doc. No. 111 at 6 -9.)
On March 8, 2001, Defendants filed an Answer to Plaintiff's First Amended Complaint, raising failure to exhaust as an affirmative defense. (Doc. No. 113 at 11.)
On September 22, 2003, Defendants filed a Motion for Summary Judgment that did not raise the issue of exhaustion. (Doc. No. 172.) Defendants contend that they did not raise this issue there, because case law at the time of their previous motion "effectively exempted litigants who had 'tried' but failed to exhaust from the Prison Litigation Reform Act (PLRA) exhaustion requirements." (Defs' Br. at 3 n. 2.) On August 16, 2005, this Court issued an Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment. (Doc. No. 239.) Following this order, Plaintiff's only remaining claims in this case are Count Three as to Defendants Goebel, Ortiz, and Carpio for their alleged failure to protect Plaintiff from assault, alleged excessive use of force, and alleged violation of the California Constitution based on cruel and unusual punishment. (Id. at 19.)
On August 17, 2006, Defendants filed an Ex Parte Application for Leave to File a Motion for Summary Judgment on the Limited Issue of Exhaustion. (Doc. No. 324.) On August 30, 2006, this Court granted Defendants' Ex Parte Application. (Doc. No. 326.) On August 31, 2006, Defendants filed the present Motion for Summary Judgment Re: Exhaustion of Administrative Remedies. (Doc. No. 327.)
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" when, under the governing substantive law, it could affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about ...