United States District Court, E.D. California
RECOMMENDATIONS REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO
EXHAUST (DOCUMENT 51) THIRTY-DAY OBJECTION DEADLINE
DENNIS L. BECK, Magistrate Judge.
Plaintiff Darnell Dukes ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action on June 11, 2012. This action is proceeding on a First Amendment retaliation claim against Defendant Garcia. All other claims and Defendants have been dismissed.
A. PROCEDURAL HISTORY
On October 2, 2013, Defendant filed an unenumerated Rule 12(b) motion to dismiss based on exhaustion. The Court issued Findings and Recommendations that the motion be granted on January 8, 2014, and the findings were adopted on February 24, 2014.
Plaintiff appealed the dismissal on March 24, 2014.
On August 19, 2014, the Ninth Circuit remanded the action "for further proceedings in light of the intervening authority of Albino v. Baca ." ECF No. 45, at 2. The Court made no substantive findings.
Pursuant to the order of remand, the Court vacated the judgment on September 12, 2014.
On October 15, 2014, Defendant filed the instant motion for summary judgment based on Plaintiff's failure to exhaust his administrative remedies. After receiving an extension of time, Plaintiff opposed the motion on December 18, 2014. Defendant filed his reply on December 30, 2014. The motion was deemed submitted when Defendant filed his reply pursuant to Local Rule 230(l).
On January 26, 2015, Plaintiff submitted an unauthorized surreply.
B. PLAINTIFF'S ALLEGATIONS
Plaintiff is currently incarcerated at Kern Valley State Prison ("KVSP"), where the events at issue occurred.
Plaintiff alleges that in June 2010, while he was housed at California State Prison, Los Angeles County ("CSP-LAC"), he received a false Rules Violation Report ("RVR"). The RVR resulted in his transfer to KVSP, which Plaintiff contends is a much harsher environment than CSP-LAC.
Plaintiff arrived at KVSP in April 2011. Shortly thereafter, he received an order from the Chief Inmate Appeals Office dated June 16, 2011. The order requested that Plaintiff forward a copy of his general chrono and classification chrono. To obtain the documents, Plaintiff sent an "inmate request for interview" to Defendant Garcia, his assigned counselor. Plaintiff had staff sign and date the request and deliver it to Defendant Garcia. Defendant Garcia did not respond or send Plaintiff the documents. Plaintiff therefore filed an inmate grievance against him.
Plaintiff alleges that on October 18, 2011, Defendant Garcia came to his cell and yelled, "Here's your shit, don't fuck with me anymore." ECF No. 1, at 6.
On October 29, 2011, Plaintiff had a rehearing on the June 2010 RVR. The RVR was dismissed. Plaintiff informed Defendant Garcia of the program review changes that he was now entitled to through an "inmate request for interview" dated November 17, 2011. The form indicates that staff hand-delivered it to Defendant Garcia on November 17, 2011. ...