United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (Document 66)
THIRTY-DAY OBJECTION DEADLINE
DENNIS L. BECK, Magistrate Judge.
Plaintiff Kelvin Allen ("Plaintiff") is a California state prisoner proceeding in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's First Amended Complaint ("FAC") against Defendants Meyer, Botello, Trisha, Adair, Zamora and Zuniga for violation of the Eighth Amendment.
On June 20, 2014, the Ninth Circuit Court of Appeals remanded the action with instructions to vacate the judgment based on the granting of Defendants' motion to dismiss for failure to exhaust.
Pursuant to the July 23, 2014, Notice of Appearance, Plaintiff is represented by counsel for the limited purpose of resolving the issue of exhaustion of administrative remedies.
On November 25, 2014, Defendants filed the instant motion for judgment on the pleadings based on Plaintiff's failure to exhaust his claim as to Defendants Botello and Zuniga. Plaintiff filed his opposition on January 9, 2015, and Defendants filed their reply on January 30, 2015. The motion is now ready for decision.
Discovery has been stayed pending the outcome of this motion because of the ethical issues presented in propounding merits-based discovery where Plaintiff's representation is limited to the exhaustion issue.
A. PLAINTIFF'S ALLEGATIONS
On July 9, 2008, Officer Calhoun moved Plaintiff to a rotunda holding cell. Plaintiff informed the escorting officers that the cell had human waste in it, and was "funky." ECF No. 15, at 4. However, the officers kept walking out the door.
On July 10, 2008, Defendant Botello was passing out morning meals. When he arrived at Plaintiff's door, Plaintiff told him that he needed to get out of the cell because it had human waste and flies in it, and Plaintiff could not breathe. Defendant Botello "just kept on walking." ECF No. 15, at 5.
Also on July 10, 2008, Plaintiff told Defendants Trisha, Zamora, Meyer and Adair about the problem. However, he never received help.
On July 11, 2008, Defendant Zuniga was passing out morning food. Plaintiff told him about the human waste on the walls, and Defendant Zuniga asked how long Plaintiff had been in the cell. Plaintiff told him that he would hold his food tray until he talks to a sergeant.
On July 11, 2008, Plaintiff called Ms. Pratt, who ultimately notified a sergeant and had Plaintiff removed from the cell.
During his time in the cell, Plaintiff could not eat or sleep because of the smell and flies. ...