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Hawthorne v. Mendoza-Power

January 11, 2010

RALPH KELLY HAWTHORNE, JR., PLAINTIFF,
v.
KATHY MENDOZA-POWER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DISMISS FOR FAILURE TO OBEY A COURT ORDER (Doc. 54) FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED AND ACTION BE DISMISSED WITHOUT PREJUDICE (Doc. 37) OBJECTIONS, IF ANY, DUE WITHIN / THIRTY DAYS

I. Order Vacating September 30, 2009 Findings and Recommendations

Plaintiff Ralph Kelly Hawthorne ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed February 23, 2007, against Defendants Kathy Mendoza-Powers and K. Henry. On March 12, 2009, Defendants Kathy Mendoza-Powers and K. Henry, filed a motion to dismiss. On April 21, 2009, the Court ordered Plaintiff to file a response to the motion to dismiss within thirty days. Plaintiff did not do so, and on September 30, 2009, a Findings and Recommendation was issued, recommending dismissal of the action for failure to obey a court order. On December 17, 2009, after several extensions of time, Plaintiff filed his objections to the Findings and Recommendation. (Doc. 63.)

Plaintiff contends that he failed to obey the Court's April 21, 2009 order because he did not understand the court's procedures. Plaintiff had assumed that because the Court did not respond to Plaintiff's motion for reconsideration filed on May 8, 2009, the Court was waiting for Plaintiff to file an amended complaint. Plaintiff's May 8, 2009 motion appears to indicate that Plaintiff believed his case had been dismissed in its entirety.

Because the Court will adjudicate Defendants' motion to dismiss on the merits, the Court will not dismiss this action for failure to obey a court order. The Court will thus vacate its September 30, 2009 Findings and Recommendations recommending dismissal of this action for failure to obey a court order. The Court now issues the following Findings and Recommendation regarding Defendants' motion to dismiss.

II. Findings and Recommendations Regarding Defendants' Motion to Dismiss

A. Summary Of Plaintiff's Complaint

Plaintiff is a state prisoner at Avenal State Prison, where the alleged events giving rise to this action occurred. Plaintiff alleges that between July 14, 2006 and January 5, 2007, Defendants Warden Mendoza-Powers and librarian K. Henry did not provide Plaintiff with assistance in preparing his legal documents, namely the filing of a habeas corpus petition. Plaintiff alleges that he has dyslexia. Plaintiff alleges that on January 5, 2007, he received insufficient assistance from a law library clerk after Defendant Henry went to her office rather than assist Plaintiff. Plaintiff alleges that he requested that the court appoint him representation because no one at the library could help him file a writ of habeas corpus or do research.

Plaintiff alleges that on July 14, 2006, he gave Defendant Henry a two-page letter with a list of appeals to copy and attach, and defendant Henry was supposed to give the letter to Defendant Mendoza-Powers to mail to the court. Plaintiff alleges that he filed a grievance regarding the letter and that it was partially granted at the first level.

Plaintiff also contends that he did not receive sufficient time in the law library. During the months of October and November 2006, Plaintiff claims that he spoke to Defendant Henry several times, asking for library access two times a week. Plaintiff asserts that this request was denied, and concedes that there were many days that he could not go to the law library due to medical reasons. Plaintiff also contends that between January 26 and February 14, 2007, other inmates were permitted access to the law library once or twice a week, but he was not.

Plaintiff seeks nominal monetary damages. Plaintiff also seeks an injunction requiring Defendants to grant him and others the same access to the law library as other inmates with a court deadline; a law library program with qualified aides and paralegals, and, alternatively, an order transferring him to another institution that will comply with his requests.

B. Failure to Exhaust Administrative Remedies

1. Legal Standard

Pursuant to the Prison Litigation Reform Act of 1995, "[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). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, ...


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