The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner represented by counsel, proceeds with a civil rights action pursuant to 42 U.S.C. § 1983. This case involves an allegation of excessive force that occurred on July 7, 2008, by defendant guards Hougland and McBride. On September 22, 2010, defendants' motion to dismiss for failure to exhaust administrative remedies was granted and this case was closed. Plaintiff stated he had attempted to exhaust his administrative remedies but prison authorities were discarding his appeals and not logging them even though many of his other appeals were properly logged. However, the Ninth Circuit reversed and remanded the case and ordered an evidentiary hearing to be held to determine if plaintiff did submit an appeal on July 13, 2008. An evidentiary hearing was held before the undersigned on August 14, 2012. George Harris, Stacey Sprenkel and Robert Cortez Webb appeared for plaintiff and Christopher Becker appeared for defendants.
In the original 2010 motion to dismiss, the undersigned found the following after analyzing the pleadings:
In ruling on the instant motion the court is faced with a scarcity of evidence as the pleadings from both parties are lacking. Somewhat surprisingly, defendants' motion to dismiss includes no exhibits and has instead relied on plaintiff's exhibits from the second amended complaint. Therefore, the court assumes that defendants believe that all of plaintiff's exhibits are authentic or perhaps just the exhibits cited in defendants' motion to dismiss.
Defendants maintain that plaintiff filed one administrative appeal on August 23, 2009, concerning the July 7, 2008 incident. Motion to Dismiss (MTD) at 2. This administrative appeal was denied as untimely. SAC at 30-31. Plaintiff argues that he filed several inmate appeals immediately following the July 7, 2008 incident, but these appeals were discarded by prison officials and not logged.
Plaintiff states that on or about July 13, 2008, he filed his first appeal concerning the incident. SAC at 6. Plaintiff contends that he filed the appeal in an institutional envelope and placed it in the prison mailing system. Id. Plaintiff received no response. Id. Plaintiff states that on September 7, 2008, he made a second attempt and filed another appeal in the mail but received no response. Id. On September 21, 2008, plaintiff submitted an inmate request concerning his complaints but received no response. Plaintiff states he filed two more appeals on November 2, 2008 and January 4, 2009, but still received no response. Id. at 7. Plaintiff has not included any copies of these appeals as exhibits in the complaint or opposition to the motion to dismiss.
On August 23, 2009, more than one year after the incident, plaintiff filed another inmate appeal that he has included as an exhibit. SAC at 27-29. This appeal generally describes the allegations against the defendants but there is no reference to any previous appeals plaintiff may have filed. Id. Plaintiff received two responses from prison officials, one on August 26, 2009, and the second on August 31, 2009. SAC at 30-31. The first response indicated that plaintiff's appeal was untimely and also stated that it was determined that plaintiff's grievance was not a staff complaint. SAC at 30. The second response just stated that it was a second notice telling plaintiff that he had not met the time constraints. SAC at 31.
While plaintiff has not included copies of any of the other appeals he allegedly filed, he has included correspondences received from the Office of Internal Affairs for CDCR on November 24, 2008, and December 29, 2008, that urged plaintiff to utilize the inmate appeals process. SAC at 11, 12. Plaintiff also received letters from the CDCR Inmate Appeals Branch on January 13, 2009, and other CDCR offices on February 11, 2009, and March 5, 2009. SAC at 13-16. While plaintiff has not included his letters to these offices, it is clear the subject matter of at least some of these letters was concerning improper handling of inmate appeals. However, based on the response from the Office of Internal Affairs, plaintiff did not send his first letter to them until October 8, 2008, several months after the incident and well after time expired to file a proper inmate grievance. Id. at 11.
In the motion to dismiss, defendants cite to plaintiff's exhibit that is a printout of plaintiff's appeals filed from May 12, 2008, to November 6, 2008. SAC at 14. Defendants note that plaintiff's nine appeals in this time period were screened out and none of the appeals were classified as a staff complaint. MTD at 5. Unfortunately, there are no exact dates on when any of these appeals were filed, nor does this address plaintiff's underlying argument that his appeals were being discarded rather than logged. In addition, defendants note that none of the appeals are classified as staff complaints, however, the one appeal response before the court regarding plaintiff's allegations, specifically states that plaintiff's claim has been determined not to be a staff complaint. SAC at 30. Therefore, the lack of any staff complaints on the appeal printout is not dispositive of the issue. . . . .
Defendants have submitted no exhibits of their own related to plaintiff's claims. The only declaration submitted by defendants is from the official who maintains that tracking system for inmate appeals, yet the entire substance of the declaration concerns other inmates who are not a ...