United States District Court, E.D. California
JOSE A. RODRIGUEZ, Plaintiff,
v.
A. ESCOBEDO, Defendant.
ORDER DISCHARGING ORDER TO SHOW CAUSE AND DIRECTING
PLAINTIFF TO FILE OPPOSITION TO THE MOTION TO DISMISS (ECF
NO. 16) OPPOSITION DUE IN FOURTEEN DAYS
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Plaintiff
Jose A. Rodriguez is a state prisoner proceeding pro se and
in forma pauperis pursuant to 42 U.S.C. § 1983. This
matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On
April 14, 2016, an order was entered, directing Plaintiff to
file either an opposition or statement of non-opposition to
Defendants’ motion to dismiss. (ECF No. 15.) Plaintiff
failed to do so, and on May 17, 2016, an order to show cause
was entered, directing Plaintiff to show cause why this
action should not be dismissed for failure to prosecute and
failure to obey a court order. (ECF No. 16.) On May 31, 2016,
Plaintiff filed a response to the order to show cause. (ECF
No. 17.) The response appeared to be signed by another
inmate, and was not signed by Plaintiff. The response
indicated that Plaintiff does not speak English and “is
under the ADA for learning and mental illness.” (ECF
No. 17.) The response indicates that Plaintiff is seeking
help from other inmates. On June 14, 2016, an order was
entered, advising Plaintiff that he may represent himself or
be represented by an attorney admitted to the bar of this
Court and may not delegate that duty to any other individual.
The Court granted Plaintiff until July 1, 2016, in which to
file a response to the order to show cause on his own behalf,
and signed by Plaintiff. Plaintiff was specifically warned
that his failure to do so would result in a recommendation
that this action be dismissed for failure to prosecute and
failure to obey a court order. (ECF No. 19 at 2:18.)
Plaintiff has not filed a response to the order to show
cause.
Defendant
sought an extension of time to respond to the order to show
cause in order to investigate and respond to
Plaintiff’s claims regarding his ability to respond. On
June 29, 2016, Defendant filed a response, supported by the
declaration of M. Ayon, the litigation coordinator at the
California Men’s Colony, where Plaintiff is
incarcerated. The declaration indicates that
Plaintiff’s primary language is Spanish. Plaintiff has
a Test of Adult Basic Education (TABE) score of 1.5, meaning
that he has the approximate education level of a
first-grader. (Ayon Decl. ¶ 7.) Plaintiff has been
assessed for possible inclusion in the Developmental
Disability Program (DDP), and it has been determined that
Plaintiff does not meet the criteria for participation in the
DDP. Specifically, Plaintiff does not require adaptive
supportive needs, and has no substantial deficits in
self-care, social skills, self-advocacy, or completing
activities of daily living. (Id. ¶ 9.)
Plaintiff is a participant in the CDCR’s Mental Health
Services Delivery System (MHSDS) at the Enhanced Outpatient
Program (EOP) level of care, the highest level of outpatient
mental health care provided under the MHSDS. (Id.
¶ 10.)
The
Court finds good cause to discharge the order to show cause.
Plaintiff may avoid dismissal of this action by filing an
opposition to the motion to dismiss. The Court will provide
Plaintiff with one further opportunity to file an opposition
to the motion to dismiss. Defendant filed a motion to dismiss
this action based upon Plaintiff’s failure to exhaust
his administrative remedies prior to filing suit.
The
conduct at issue in this lawsuit occurred on 2014. As of
2011, an inmate initiates the grievance process by submitting
a CDCR Form 602, colloquially called an inmate appeal (IA),
describing “the problem and action requested.”
Cal. Code Regs., tit. 15, § 3084.2(a). An IA must be
submitted within thirty calendar days of the event or
decision being appealed, first knowledge of the action or
decision being appealed, or receipt of an unsatisfactory
departmental response to an appeal filed. Tit. 15 §
3084.8(b). The inmate is limited to raising one issue, or
related set of issues, per IA in the space provided on the
form and one form attachment in which he/she shall state all
facts known on that issue. Tit. 15 § 3084.2(a)(1), (2),
(4). All involved staff members are to be listed along with a
description of their involvement in the issue. Tit. 15 §
3084.2(a)(3). Originals of supporting documents are to be
submitted with the IA; if they are not available, copies may
be submitted with an explanation why the originals are not
available, but are subject to verification at the discretion
of the appeals coordinator. Tit. 15 § 3084.2(b). With
limited exceptions, an inmate must initially submit his/her
IA to the first level. Tit. 15 § 3084.7. If dissatisfied
with the first level response, the inmate must submit the IA
to the second level, and likewise thereafter to the third
level. Tit. 15 § 3084.2, 7. First and second level
appeals shall be submitted to the appeals coordinator at the
institution for processing. Tit. 15 § 2084.2(c). Third
level appeals must be mailed to the Appeals Chief via the
United States Mail Service. Tit. 15 § 3084.2(d).
Plaintiff
is directed to respond to Defendant’s argument.
Defendant argues that the third level of review did not
receive Plaintiff’s appeal of the second level decision
until October 14, 2014 - seventy six days after Plaintiff had
received the second-level response. Accordingly, the third
level of review cancelled Plaintiff’s appeal for
exceeding the time limits for appealing the second level
decision. Tit. 15, § 3084.6(c)(4). The third level
memorandum concluded by instructing Plaintiff that pursuant
to section 3084.6(e), once an appeal is cancelled, it may not
be resubmitted. The original appeal may only be resubmitted
if the appeal on the cancellation is granted. Plaintiff was
advised that he had thirty days in which to appeal the
cancellation. Defendant’s argument is clear. Plaintiff
did not attach any documents to his complaint indicating that
he appealed the third level cancellation of his grievance.
Defendant argues that because Plaintiff has not shown that he
appealed the cancellation of this third level grievance, or
that any appeal of the cancellation was granted, he has
failed to exhaust his available administrative remedies.
Although
Plaintiff may have a low cognitive ability, he is not
developmentally disabled, and has the ability, with the
assistance of other inmates, to respond to Court orders in
this case. Plaintiff may not be represented by a non-lawyer,
but he may avail himself of the assistance of other inmates.
Plaintiff has filed a complaint which stated a claim against
Defendant for excessive force, and has adequately responded
to the order directing him to submit documents for service of
process, presumably with the assistance of other inmates.
Plaintiff may be assisted by other inmates, but he must sign
each submission to the Court, as he has done with the
complaint, application to proceed in forma pauperis, and
notice of submission of documents in this case. It appears
that Plaintiff has the ability, with the assistance of other
inmates, to respond to Court orders in this action, including
this order, which directs Plaintiff to file an opposition to
Defendant’s motion to dismiss. Plaintiff is directed to
respond to Defendant’s argument that Plaintiff did not
file an appeal of the cancellation of his third level appeal,
and that any such appeal was granted. Should Plaintiff fail
to file an opposition to the motion to dismiss, the Court
will recommend that this action be dismissed for failure to
prosecute and to obey a Court order. Accordingly, IT IS
HEREBY ORDERED that:
1. The
May 17, 2016, order to show cause is discharged; and
2.
Plaintiff is directed to file an opposition to
Defendant’s motion to dismiss within fourteen days of
the date of service of this order. Plaintiff’s
failure to file an opposition will result in a recommendation
that this action ...