United States District Court, E.D. California
ORDER VACATING ECF NO. 81 CORRECTED FINDINGS AND
RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES FOURTEEN (14) DAY OBJECTION
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
16, 2017, this Court issued findings and recommendations to
grant Defendants' motion for summary judgment on
exhaustion grounds. (ECF No. 81.) On further reflection, the
Court finds said recommendation to grant Defendants'
motion was in error, as Defendants' summary judgment
motion had already been ruled on and denied. (ECF Nos. 38
& 67.) Rather, the Court should have recommended that
this action be dismissed for failure to exhaust based on its
factual findings after the Mary 26, 2017 evidentiary hearing.
Accordingly, ECF No. 81 is hereby VACATED and the following
corrected findings and recommendations addressing only the
factual findings on the issue of exhaustion after the
evidentiary hearing shall issue.
is a parolee proceeding pro se in this civil rights action
brought pursuant to 42 U.S.C. § 1983. The action
proceeds against Defendants Rosa Gonzales and Sergeant Olsen
on Plaintiff's First Amendment retaliation, Fourteenth
Amendment Equal Protection, and state tort conversion claims.
filed a motion for summary judgment based on Plaintiff's
failure to exhaust administrative remedies. (ECF No. 38.) It
is undisputed that Plaintiff did not properly exhaust his
administrative remedies before filing his lawsuit. There was
a dispute of fact, however, over whether circumstances beyond
Plaintiff's control rendered the administrative remedies
effectively unavailable to Plaintiff. Accordingly, the
Magistrate Judge recommended that Summary judgment be denied.
(ECF No. 49.) On March 10, 2017, the District Court adopted
the Magistrate Judge's Findings and Recommendations to
deny the motion. (ECF No. 67.) The matter was referred back
to the Magistrate Judge for further proceedings on the issue
of exhaustion. On May 26, 2017, an evidentiary hearing was
held before the undersigned to resolve disputed issues of
fact. Plaintiff represented himself. Deputy Attorney General
Lucas Hennes and Supervising Deputy Attorney General
Christopher Becker appeared on behalf of Defendants.
Plaintiff testified on his own behalf; three witnesses
testified on behalf of Defendants. The matter was deemed
submitted at the conclusion of the hearing
Court should decide disputed factual questions relevant to
exhaustion “in the same manner a judge rather than a
jury decides disputed factual questions relevant to
jurisdiction and venue.” Albino v. Baca, 747
F.3d 1162, 1169-71 (9th Cir. 2014). “If the district
judge holds that the prisoner has exhausted available
administrative remedies, that administrative remedies are not
available, or that a prisoner's failure to exhaust
available remedies should be excused, the case may proceed to
the merits.” Id. at 1171.
defendant bears the burden of raising and proving the absence
of exhaustion. Id. at 1169; Wyatt v.
Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Exhaustion
may be excused where ad ministrative procedures were
effectively unavailable, prison officials obstructed attempts
to exhaust, or the plaintiff was prevented from exhausting
because procedures for processing grievances were not
followed. See Sapp v. Kimbrell, 623 F.3d 813, 822-24
(9th Cir. 2010). Where a Plaintiff alleges that a grievance
or appeal was improperly screened, the inmate must establish
“(1) that he actually filed a grievance or grievances
that, if pursued through all levels of administrative
appeals, would have sufficed to exhaust the claim that he
seeks to pursue in federal court, and (2) that prison
officials screened his grievance or grievances for reasons
inconsistent with or unsupported by applicable
regulations.” Id. at 823-24. Alternatively, a
plaintiff may show that officials failed to respond to a
properly filed grievance in a timely manner. Vlasich v.
Reynoso, No. CV F 01 5197 AWI LJO P, 2006 WL 3762055, at
*3 (E.D. Cal. Dec. 20, 2006) (citing Circuit Court decisions
holding that a prisoner's administrative remedies are
exhausted when prison officials fail to timely respond to a
properly filed grievance.)
Summary of Allegations
times relevant to this suit, Plaintiff was housed at Valley
State Prison (“VSP”) in Chowchilla, California.
His factual allegations may be summarized as follows:
September 13, 2013, Defendant Gonzales stated that Plaintiff
and other African-American inmates were being too loud in the
Facility D dayroom. Inmates of other ethnicities were also
being loud, but Defendant Gonzales did not address them.
Defendant Gonzales announced she was going to search the
cells of all African-American inmates on the B hallway.
During the search, Defendant Gonzales seized family
photographs from Plaintiff's cell. She did not give
Plaintiff or the other inmates a cell search slip and refused
to return Plaintiff's photographs.
submitted several CDCR Request Form 22s (“Form
22”) to the D-Yard program Sergeant, Defendant Olsen,
complaining about Defendant Gonzales' conduct. Defendant
Olsen refused to intervene.
Summary of Evidence Presented
hearing, Plaintiff testified as fo llows with regards to his
attempts to appeal Defendants' actions:
• On September 13, 2013, Plaintiff filed a complaint
with Internal Affairs regarding the search.
• Plaintiff also filed an inmate appeal
(“602”) on behalf of himself and other inmates
affected by the search. On September 30, 2013, Plaintiff
received notification that the 602 had been cancelled because
a staff complaint such as it was could only be filed by and
on behalf of an individual. Plaintiff was directed to
resubmit his grievance on behalf of himself individually.
• On October 1, 2013, Plaintiff resubmitted his 602 as
an individual. He sent it through institutional mail rather
than using the appeals drop box. He never received a response
• On October 27, 2013, Plaintiff filled out and filed a
Form 22 inquiring about the status of his October 1, 2013,
602. When he did not receive a response, Plaintiff submitted
a second Form 22 on November 24, 2013. Plaintiff received no
response to the latter Form 22 either. Both forms were
submitted to Correctional Officer T. Pronold, the unit
officer, in accordance with a procedure whereby Officer
Pronold was to sign and return the Form 22s to the inmate to
place in the institutional mail.
• On March 25, 2014, after six months without a response
to his 602, Form 22s, or Internal Affairs complaint,
Plaintiff filed another 602. It was properly cancelled as
untimely. Plaintiff then filed a ...