United States District Court, E.D. California
KENNETH A. GRIFFIN, Plaintiff,
J. CLARK KELSO, et al., Defendants.
ALLISON CLAIRE MAGISTRATE JUDGE
case is before the court on remand from the Ninth Circuit.
ECF No. 50. Plaintiff’s claims against defendants Bal,
Sahota, Nangalama, Masuret, and Woods were previously
dismissed for failure to exhaust administrative remedies. ECF
Nos. 37, 42. On appeal the Ninth Circuit reversed, finding
that the motion to dismiss was granted in error because
plaintiff claimed that he was satisfied with the
administrative relief he received at the first and second
levels of review, but holding that on remand defendants could
contest whether plaintiff was actually satisfied using the
procedures set forth in Albino v. Baca, 747 F.3d
1162, 1169-71 (9th Cir. 2014) (en banc). ECF No. 50 at 2-3.
Defendants accordingly filed a motion for summary judgment
arguing that plaintiff was not in fact satisfied by the
relief he received and was therefore not excused from
properly completing the grievance process. ECF No. 62. On May
20, 2016, the undersigned issued Findings and Recommendations
recommending that defendants’ motion for summary
judgment be denied. ECF No. 68.
that time, the United States Supreme Court issued its opinion
in Ross v. Blake, 136 S.Ct. 1850 (2016), and
defendants requested and were given leave to file
supplemental objections to the Findings and Recommendations
(ECF Nos. 70, 71). In their supplemental objections,
defendants argue that the satisfaction exception articulated
in Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010),
which was the basis for the Ninth Circuit’s remand, has
been abrogated by Ross. ECF No. 72. In light of the
opinion in Ross and defendants’ contention
that the timeliness of plaintiff’s third-level appeal
is once again at issue,  defendants’ motion for summary
judgment (ECF No. 62) and the May 20, 2016 findings and
recommendations (ECF No. 68) will be vacated. Defendants will
be given an opportunity to file another motion for summary
judgment that briefs the issues of (1) plaintiff’s
satisfaction; (2) how the decision in Ross impacts
the satisfaction exception set forth in Harvey; and
(3) whether plaintiff properly exhausted the grievance
process, including whether his third-level appeal was
properly rejected as untimely.
addressing whether plaintiff’s third-level appeal was
properly rejected as untimely, defendants should address the
fact that the regulations appear to be silent as to the
timeframe for appealing an acceptable lower level
appeal decision. In responding to the motion for summary
judgment, plaintiff should address any arguments raised by
defendants and explain why he believes the rejection for
untimeliness was incorrect. He should also explain what, if
any, steps he took to challenge the rejection. Plaintiff is
also advised that he should pay close attention to the
requirements for responding to a motion for summary judgment
outlined in the attached notice required by Rand v.
Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en
banc). In particular, plaintiff is directed to
the requirements that he dispute or admit each fact listed in
defendants’ statement of undisputed facts and support
his opposition with evidence. Any declarations plaintiff
relies on must be signed under penalty of perjury or they are
IT IS HEREBY ORDERED that:
Defendants’ motion for summary judgment (ECF No. 62)
and the May 20, 2016 findings and recommendations (ECF No.
68) are VACATED.
Defendants shall have thirty days from service of this order
to file and serve a motion for summary judgment in accordance
with this order. If defendants fail to file a motion for
summary judgment, the court will proceed with issuing a
discovery and scheduling order.
Notice to Plaintiff
notice is provided to ensure that you, a pro se prisoner
plaintiff, “have fair, timely and adequate notice of
what is required” to oppose a motion for summary
judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir.
2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.
1998). The court requires that you be provided with this
notice regarding the requirements for opposing a motion for
summary judgment under Rule 56 of the Federal Rules of Civil
defendant moves for summary judgment, the defendant is
requesting that the court grant judgment in defendant’s
favor without a trial. If there is no real dispute about any
fact that would affect the result of your case, the defendant
who asked for summary judgment is entitled to judgment as a
matter of law, which will end your case against that
defendant. A motion for summary judgment will set forth the
facts that the defendant asserts are not reasonably subject
to dispute and that entitle the defendant to judgment.
oppose a motion for summary judgment, you must show proof of
your claims. To do this, you may refer to specific
statements made in your complaint if you signed your
complaint under penalty of perjury and if your complaint
shows that you have personal knowledge of the matters stated.
You may also submit declarations setting forth the facts that
you believe prove your claims, as long as the person who
signs the declaration has personal knowledge of the facts
stated. You may also submit all or part of deposition
transcripts, answers to interrogatories, admissions, and
other authenticated documents. For each of the facts listed
in the defendant’s Statement of Undisputed Facts, you
must admit the facts that are undisputed, and deny the facts
that are disputed. If you deny a fact, you must cite to the
proof that you rely on to support your denial. See
L.R. 260(b). If you fail to contradict the defendant’s
evidence with your own evidence, the court may accept the
defendant’s evidence as the truth and grant the motion.
court will consider a request to postpone consideration of
the defendant’s motion if you submit a declaration
showing that for a specific reason you cannot present such
facts in your opposition. If you do not respond to the
motion, the court may consider your failure to act as a
waiver of your opposition. See L.R. 230(1).
court grants the defendant’s motion, whether opposed or
unopposed, judgment will be entered for that defendant
without a trial and ...