The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT'S MOTION TO DISMISS BE GRANTED AND THIS ACTION BE DISMISSED WITHOUT PREJUDICE (Doc. 47) OBJECTIONS, IF ANY, DUE IN 20 DAYS
Findings and Recommendations
Plaintiff William Bradley ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's amended complaint, filed September 1, 2004, against defendant McVay for use of excessive force in violation of the Eighth Amendment.
On January 26, 2009 an evidentiary hearing was held before the undersigned with the following witnesses having testified: 1) Plaintiff William Bradley; 2) J. Martinez; 3) V. Castillo; 4) T. Jung-Hernandez; and 5) L. Perez.
After closing arguments, the matter was taken under submission for written ruling.
a. Defendant's First Unenumerated Rule 12(b)Motion to Dismiss
On January 5, 2007, Defendant filed a motion to dismiss this action for plaintiff's failure to exhaust administrative remedies. (Doc. 27). In the motion, Defendant contended that on two separate occasions Plaintiff refused to be interviewed as part of an investigation into his inmate grievance. Defendant contended that Plaintiff's appeal was subsequently cancelled at the second level for his failure to cooperate in the investigation process relating to his grievance.
Plaintiff filed an opposition, entitled "objections" on January 23, 2007, wherein Plaintiff asserted that he is mobility impaired and that correctional officers refused to provide him with sufficient accommodations to transport him from his cell to the interview room.
In reply, defendant reiterated that during each attempted interview, plaintiff's cell was opened for at least two minutes to allow plaintiff to proceed to the interview room. Sgt. Martinez, whom attempted to conduct the interviews, did not recall plaintiff stating that he could not leave his cell because of a mobility impairment but Martinez acknowledged that plaintiff had a restriction disallowing the use of cane in his cell. Defendant submitted evidence that despite plaintiff's restriction from using his cane inside his cell, and he was permitted to use a cane whenever he left his cell.
On February 21, 2008, the Magistrate Judge filed a Findings and Recommendations, recommending that Defendant's motion to dismiss be denied. The Court did not find that Plaintiff had exhausted; rather, the Court held that based on the record provided, the issue was one of witness credibility and the Court could not make that requisite assessment on a motion to dismiss. Both parties filed objections and on March 7, 2008, the Findings and Recommendations were adopted in full. In the order adopting the Findings and Recommendations, Defendant was granted permission to file a second unenumerated Rule 12(b) motion in which he could request an evidentiary hearing. (Doc. 42).
b. Defendant's Renewed Unenumerated Rule 12(b) Motion to Dismiss
On May 6, 2008, Defendant filed the a second motion to dismiss for failure to exhaust administrative remedies. In his motion, Defendant requested an evidentiary hearing if the motion cannot be decided solely on the filed documents. Plaintiff filed his opposition on June 17, 2008 and June 23, ...