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Jones v. Burk

February 4, 2010

FREDERICK JONES, SR., PLAINTIFF,
v.
JOHN BURK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTION TO DISMISS

(Doc. 59)

OBJECTIONS DUE WITHIN 30 DAYS

Plaintiff Frederick Jones, Sr. ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 23, 2009, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) based on Plaintiff's failure to exhaust his administrative remedies. (Docs. #59-62.) Plaintiff filed an opposition on July 23, 2009. (Doc. #63.) Defendants filed a reply to Plaintiff's opposition on July 27, 2009. (Doc. #64.) Plaintiff filed an "affidavit . . . in support of . . . opposition" on August 14, 2009. (Doc. #66.) This action proceeds on Plaintiff's second amended complaint filed on September 8, 2006. (Doc. #14.)

I. Background

This action proceeds on Plaintiff's September 8, 2006 second amended complaint. On July 24, 2008, Defendants filed a motion to dismiss based on Plaintiff's failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). On March 26, 2009, the Court partially granted the motion and ordered that this action proceed on Plaintiff's section 1983 claim against Defendants for the violation of the First Amendment. Plaintiff claims that Defendants violated his rights under the First Amendment by interfering with Plaintiff's free exercise of his religion. Defendants denied Plaintiff's requests for various religious items. Plaintiff was incarcerated at the Merced County Jail.

In their second motion to dismiss, Defendants argue that they are entitled to dismissal pursuant to Federal Rule of Civil Procedure 12(b) on the basis that Plaintiff failed to exhaust his administrative remedies prior to filing suit. (Notice of Mot. and Unenumerated Rule 12(b) Mot. to Dismiss Second Am. Compl. 1:24-27.) Defendants argue that the Merced County Sheriff's Office has an administrative grievance system for prisoner complaints. (Mem. of P. & A. in Supp. of Unenumerated Rule 12(b) Mot. to Dismiss Second Am. Compl. 3:14-16.) Prisoners must first raise their complaints with the "line staff member." (Mem. of P. & A. in Supp. of Mot. to Dismiss 3:16-17.) If the problem is not resolved at the staff level, the inmate must submit a written grievance. (Mem. of P. & A. in Supp. of Mot. to Dismiss 3:17-19.) If the grievance is not resolved at the staff level, it is forwarded to the sergeant. (Mem. of P. & A. in Supp. of Mot. to Dismiss 3:19-20.) The sergeant may forward the grievance to the commander. (Mem. of P. & A. in Supp. of Mot. to Dismiss 3:22.) The commander, who may or may not conduct additional investigation of the grievance, issues a response. (Mem. of P. & A. in Supp. of Mot. to Dismiss 3:22-25.) If the inmate wishes to appeal the commander's decision, he/she must submit a letter to the undersheriff. (Mem. of P. & A. in Supp. of Mot. to Dismiss 3:25-28.)

Defendants contend that Plaintiff did not comply with the inmate grievance process because Plaintiff's grievance was processed by the commander but only partially granted. (Mem. of P. & A. in Supp. of Mot. to Dismiss 4:1-8.) Plaintiff's requests for prayer oil, prayer beads, and prayer clay were denied. (Mem. of P. & A. in Supp. of Mot. to Dismiss 5-8.) Defendants claim that Plaintiff did not appeal the commander's decision by submitting a letter to the undersheriff. (Mem. of P. & A. in Supp. of Mot. to Dismiss 4:8-10.) Defendants conclude that Plaintiff did not exhaust all of his administrative remedies prior to filing suit. (Mem. of P. & A. in Supp. of Mot. to Dismiss 4:11-12.)

Plaintiff filed an opposition on July 23, 2009. Plaintiff argues that he did exhaust because he did not have a copy of the regulations detailing the Merced County Sheriff's Office's administrative grievance system. (Reply to Defs.' Second Mot. to Dismiss 2.) Plaintiff claims that he was not told that he had to abide by the jail's regulations and was unaware of the existence of any regulations detailing the administrative grievance system. (Reply to Defs.' Second Mot. to Dismiss 2.)

In Defendants' reply to Plaintiff's opposition, Defendants argue that Plaintiff's opposition was untimely and should be disregarded. (Reply to Opp'n to Unenumerated Rule 12(b) Mot. to Dismiss Second Am. Compl. 1:25-21.) Defendants argue that Plaintiff's opposition was mailed on July 20, 2009, though the proof of service states that it was placed in the mail on July 16, 2009. (Reply 1:27-2:1.) By Local Rule, Plaintiff's opposition was due 21 days after Defendants' motion was filed and served. (Reply 2:19-20.) Defendants' motion was filed and served on June 23, 2009. (Reply 2:19.) Plaintiff's opposition was due on July 14, 2009. Defendants also argue that Plaintiff's ignorance of the jail's administrative grievance system should not excuse Plaintiff's failure to pursue his appeal to the highest levels.

On August 14, 2009, Plaintiff filed an "Affidavit of Fred Jones in Support of 1st Opposition & Affidavit to Defendant's 2nd Motion to Dismiss." Plaintiff's pleading is a response to Defendants' reply. Plaintiff argues that his opposition to the motion to dismiss was filed in a timely fashion and that he should be excused for being unaware of the jail's administrative grievance procedures.

II. Discussion

A. Plaintiff's Untimely Opposition

Defendants argue that Plaintiff's opposition should be disregarded because it was filed in an untimely manner. Defendants' motion to dismiss was filed and served on June 23, 2009. The local rules state that an opposition to a motion in a prisoner case must be served and filed "not more than eighteen (18) days, plus three (3) days for mailing or electronic service." Local Rule 230(l). Plaintiff's opposition was thus due on July 14, 2009. Plaintiff's opposition was placed in the mail on July 16, 2009, making it untimely. However, the Court is unaware of any rule or law that requires the Court to disregard untimely pleadings. The local rules provide that the failure to file an opposition or statement of no opposition "may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions." Local Rule 230(l) (emphasis added). Local Rule 110 provides that the "[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." The rule does not mandate any particular form of sanction or any sanction at all. Thus, the Court has discretion to disregard Plaintiff's opposition. The Court declines to exercise that discretion, given that the opposition was only a few days late, that Plaintiff's incarcerated status undoubtedly limits his ability to prepare and file pleadings, and the fact that the Court grants extensions of time for ...


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