The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Several defendants filed a motion to dismiss on April 22, 2010. Those defendants argued that some of plaintiff's claims should be dismissed for failure to exhaust available administrative remedies. One of the claims, which appears in "Count Four" of plaintiff's complaint, concerns the fact that on or about June 7, 2007, defendants Craddock and Probst confiscated some of plaintiff's personal property, including court documents, medication, and stamps. Plaintiff asserts this was done in retaliation for plaintiff filing lawsuits and other complaints against correctional staff in violation of plaintiff's First Amendment rights. On September 12, 2011, the court found as follows with respect to defendants' motion to dismiss this claim:
Defendants concede that plaintiff submitted a grievance regarding the actions of Craddock and Probst described above and they include a copy of the grievance in "Exhibit L" attached to their motion. Defendants assert plaintiff did not properly exhaust the grievance procedure, however, because he refused to participate in an interview conducted pursuant to review at the first level as he was required to do under Cal Code. Regs. tit 15, § 3084.4(d) (2007). Defendant Harrod conducted the interview with plaintiff. In his affidavit, identified by defendants as "Exhibit Z," defendant Harrod asserts:
On approximately August 12, 2007, I was assigned to interview [plaintiff] regarding grievance HDSP-07-2687. In the grievance, [plaintiff] claims that officers [Probst] and Craddock stole his property.
During the interview, I attempted to explain departmental policy and procedures pertaining to lockdown cell searches to [plaintiff.] Plaintiff responded by changing the subject and attempting to discuss issues concerning other grievance[s] he filed. Next, [plaintiff] became argumentative and uncooperative. I explained to [plaintiff] that: (1) I need only [plaintiff's] evidence that [Probst] and Craddock stole his property; and (2) the interview would be cancelled if he chose not to cooperate.
Despite my warning, [plaintiff] refused to participate with the interview. He continued to be unresponsive, loud and argumentative.
Accordingly, I terminated the interview due to [plaintiff's] lack of cooperation. . .
I was not attempting to interfere with [plaintiff's] ability to access the Court or prevent [plaintiff] from suing [Probst], Craddock or anyone else. I terminated the interview solely because [plaintiff] refused to participate in the interview.
Plaintiff responds in his own declaration that Harrod's decision that plaintiff did not participate in the interview is "fabricated," and also retaliatory. Pl.'s Decl., ¶¶ 3-5. While plaintiff's response to defendants' motion concerning "Count Four" is piecemeal, vague and generally confusing, the most concise and understandable recitation of plaintiff's position appears in a grievance plaintiff submitted with respect to the actions of defendant Harrod:
On August 12, 2007, Sergeant Harrod summoned [plaintiff] to the C4 housing unit office, whereby he informed [plaintiff] that he had a meeting with Appeal Coordinators Chapman and Dangler, Associate Warden Wright, Litigation Coordinator Spuk and Sergeant Lockard about [plaintiff's] circumvention of the appeal process by writing to the office of internal affairs. He further stated that general census [sic] among them and him served the best interest to dismiss this appeal to avoid setting a precedent of circumventing the administration's authority. When [plaintiff] indicated to the aforesaid sergeant that the appeal was already heard by Sgt. Lockard with himself and other officials present, he responded by saying [plaintiff] imagined the whole event then began laughing, which prompted C/O Phang and C/O Hanks to laugh.
When [plaintiff] asked the aforesaid Sergeant what was so funny, he replied that he found it strange for [plaintiff] to have filed an appeal without his signature or date. [Plaintiff] responded by saying he did not file the attached appeal to the letter addressed to the Office of Internal Affairs, that someone in the administration must have done it. Sergeant Harrod laughed again, then stated someone in the administration must have changed their mind, which prompted more laughter. [Plaintiff] was dismissed from the interview as the aforesaid sergeant continued laughing without cessation.
Sergeant Harrod never asked [plaintiff] about a cell search receipt or explained any departmental policy and procedures pertaining to lockdown cell searches, as he falsely alleged in his first level response. As well, [plaintiff] never became loud, argumentative, uncooperative or made statements about any lawsuit. As such, Sergeant Harrod fabricated his first level response to justify dismissing the appeal to satisfy his superiors, as uttered*fn1 by him through the mention of their names. Opp'n, Ex. C at 7-8.
As indicated above, it is defendants' burden to demonstrate failure to exhaust administrative remedies. Defendants have not met their burden because the court cannot find on the record before the court that Harrod's version of what occurred at the August 12, 2007 interview is any more believable than plaintiff's. Defendants request that the court hold an evidentiary hearing as to this issue. However, defendants fail to point to anything indicating an evidentiary hearing is necessary. While defendants identify certain witnesses they would like to call at an evidentiary hearing, Mot. at 2, they fail to indicate why affidavits from those witnesses were not presented with the briefs concerning their motion to dismiss.
Further, defendants fail to point to anything suggesting that evidence which could only be produced via an evidentiary hearing at this point, would add anything ...