Rodriguez v. Escobedo

          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 ...