United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING
IN PART AND DENYING IN PART WITHOUT PREJUDICE
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. NOS. 15,
23)
Plaintiff
Vance Edward Johnson is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
§ 1983.
The
matter was referred to a United States magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 13, 2015, the assigned magistrate judge issued
findings and recommendations recommending that
defendants’ motion for summary judgment be granted in
part and denied in part. Specifically, the magistrate judge
recommended that defendants’ motion for summary
judgment based upon plaintiff’s alleged failure to
exhaust his administrative remedies prior to filing suit as
required be denied as to plaintiff’s claim against
defendant Sweeney for failure to provide mailing envelopes in
retaliation for plaintiff’s exercising of his First
Amendment right, and granted as to all other claims of
retaliation brought by plaintiff against defendants Sweeney
and Harden. Those findings and recommendations were served on
the parties and contained notice that objections were to be
filed within thirty days of service. Defendants filed
objections, in light of the mailbox rule, on November 10,
2015, and plaintiff’s objections were received by the
court on November 23, 2015. (Doc. Nos. 24, 26.)
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the court has conducted a de novo review of
this case. Having carefully reviewed the entire file,
including the parties’ objections, the court finds the
findings and recommendations to be supported by the record
and by proper analysis.
In
their objections, defendants submit they “did not fully
address the Mail Appeal in their moving papers in good faith
because the legal mail issue had been screened out of the
Complaint and was unrelated to the issue of
retaliation.” (Doc. No. 24 at 2.) “Defendants
request this Court allow them to submit the additional
briefing and evidence in support of their Motion for Summary
Judgment on the Mail Appeal contained herein.”
(Id. at 3.) The undersigned does not agree that
plaintiff’s retaliation claim relating to the mail
appeal was screened out by the magistrate judge in his
December 22, 2014 screening order finding service of the
complaint appropriate. (See Doc. No. 8.) In that
screening order, the magistrate judge found that
plaintiff’s complaint stated a First Amendment claim of
retaliation against defendants Sweeney and J. Hardin.
(Id. at 1.) Indeed, defendants acknowledge in their
motion for summary judgment that plaintiff’s complaint:
(1) “alleges that on January 1, 2014, Defendant Sweeney
‘ransacked’ Plaintiff’s cell, threw away
legal paperwork, opened personal hygiene items, stepped on
food, spit in his prayer oil and confiscated his flat screen
TV;” and (2) “alleges Defendant Sweeney refused
to provide indigent state envelopes to Plaintiff so he could
mail his attorney information regarding Correctional Officer
White’s alleged actions.” (Doc. No. 15-2 at 2.)
With
their objections, defendants submit evidence that plaintiff
did not administratively exhaust his retaliation claim
relating to the mail appeal issue and argue that plaintiff
“will have the opportunity to respond to
Defendants’ objections and legal authority in his
response to Defendants’ objections.” (Doc. No. 24
at 2.) However, the court finds the prudent approach is to
deny defendants’ motion for summary judgment as it
relates to this claim without prejudice to defendants
re-noticing and re-filing a motion for summary judgment
directed at the argument now raised by defendants. By
proceeding in this way, proper briefing by both sides on the
issue will be received.
Plaintiff
has also submitted objections to the findings and
recommendations regarding his remaining claims. (See
Doc. No. 26.) In support of his objections, plaintiff argues
that the findings and recommendations failed to account for
certain evidence and relied on allegedly false testimony.
Plaintiffs evidence, however, does not resolve the
deficiencies described in the findings and recommendations.
For example, plaintiff states that additional discovery
reveals a second failure of the Inmate/Parolee Appeals
Tracking System. (Id. at 7-8.) Plaintiff alleges
that this failure caused the loss of his inmate appeal of the
cancellation decision regarding PVSP Log No. 14-00085,
purportedly dated March 20, 2014. (Id; see also Doc.
No. 18 at 40-42.) Because plaintiff fails to adequately lay a
foundation for this inmate appeal or to describe the
circumstances surrounding the submission of the alleged
inmate appeal, the court finds summary judgment to be
warranted.
Accordingly,
1. The October 13, 2015 findings and recommendations are
adopted in full;
2. Defendants’ motion for summary judgment is granted
in part and denied in part;
3. Within thirty (30) days from the date of service of this
order, defendant Sweeney may re-file an exhaustion-related
motion for summary judgment as to plaintiffs mail appeal
retaliation claim against defendant Sweeney; and
4. All other claims and defendant Harden are dismissed from
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