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Mitchell v. Villa

March 7, 2007

ROBERT MITCHELL, PLAINTIFF,
v.
L. VILLA, CORRECTIONAL OFFICER, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is Defendant's Motion to Dismiss Plaintiff's Complaint (Doc. #91).

BACKGROUND

On June 11, 2003, Plaintiff, a state prisoner proceeding pro se, filed a Complaint alleging that Defendant Correctional Officer Villa violated his rights pursuant to 42 U.S.C. § 1983 under the First Amendment and Fourteenth Amendment of the United States Constitution. (Doc. # 1).

On April 10, 2006, Defendant Villa filed a motion for summary judgment. (Doc. # 64). On August 3, 2006, this Court filed an order granting Defendant's motion for summary judgment in part and denying Defendant's motion for summary judgment in part. The Court granted summary judgment for Defendant Villa on Plaintiff's claim that Defendant retaliated against him on March 10, 2003 by filing a disciplinary rules violation against Plaintiff. The Court concluded that Plaintiff was not entitled to challenge the filing of the disciplinary rules violation in an action under 42 U.S.C. § 1983 because Plaintiff "can only succeed in this retaliation claim by demonstrating the invalidity of the disciplinary rules violation and directly attacking the duration of his confinement." (Doc. # 79 at 11.) The Court denied summary judgment in favor of Defendant Villa on a separate claim that the Defendant retaliated against Plaintiff for filing prisoner complaints against Defendant by telling other inmates that Plaintiff was a snitch. The Court concluded that "[t]he evidence in the record presents a genuine issue of material fact as to whether the Defendant retaliated against Plaintiff for filing citizen complaints against Defendant by telling other inmates that he was a snitch." Id. at 12-13. The Court concluded that the only claim remaining is the claim that Defendant Villa "retaliated against [Plaintiff] for filing two citizen's complaints by informing inmate gang members that Plaintiff was a snitch" in violation of Plaintiff's First Amendment rights (second claim for relief) and Fourteenth Amendment (third claim for relief) rights. Id. at 15.

On January 4, 2007, Defendant Villa filed a motion to dismiss Plaintiff's complaint. (Doc. # 91). Defendant Villa contends that he is entitled to judgment in his favor on the grounds that prior to filing this action, Plaintiff failed to file any administrative claim alleging that Defendant Villa retaliated against Plaintiff for filing prisoner complaints by informing inmate gang members that Plaintiff was a snitch. The Court set Defendant's Motion to Dismiss on the court calendar for February 5, 2007. Plaintiff filed no response to Defendant's Motion to Dismiss.

On February 5, 2007, this Court filed a NOTICE TO PLAINTIFF which stated as follows:

This notice may be required to be given to you pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999) and Wyatt v. Terhune, 315 F.3d 1108,1120 n.14 (9th Cir. 2003).

On January 4, 2007, Defendant Villa filed a motion to dismiss Plaintiff's complaint (#91). Defendant Villa contends that he is entitled to judgment in his favor on the grounds that Plaintiff failed to fully exhaust any administrative claim that Defendant Villa retaliated against Plaintiff for filing two citizen's complaints by informing inmate gang members that Plaintiff was a snitch in violation of Plaintiff's First Amendment rights (second claim for relief) and Fourteenth Amendment (third claim for relief) rights prior to filing this action on June 11, 2003. This Court set Defendant's motion to dismiss on the court calendar for February 5, 2007. Plaintiff has not filed a response to Defendant's motion to dismiss.

In deciding a motion to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the pleadings and decide disputed issues of fact. If the district court concludes that the prisoner has not exhausted non-judicial remedies, the proper remedy is dismissal of the claim without prejudice. Wyatt v. Terhune, 315 F.3d at 1120.

This notice is intended to provide Plaintiff with fair notice of his opportunity to develop a record. Plaintiff shall file any response to Defendant's motion to dismiss including any specific facts in declarations or authenticated documents no later than February 26, 2005. Defendant shall file any reply no later than March 12, 2006. The Court will rule thereafter.

Doc. # 92. Plaintiff filed no response to the Notice To Plaintiff.

BACKGROUND FACTS

The California Department of Corrections and Rehabilitation has a three step review process for prisoner complaints set forth in the California Code of Regulations, Title 15, Section 3084, et seq. (Declaration of N. Grannis in Support of ...


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