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Hearns v. Gonzales

United States District Court, E.D. California

June 19, 2017

JAMAR HEARNS, Plaintiff,
v.
R. GONZALES, et al., Defendants.

          ORDER VACATING ECF NO. 81 CORRECTED FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES FOURTEEN (14) DAY OBJECTION DEADLINE

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.

         I. Procedural History

         On June 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.

         Plaintiff 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.

         Defendants 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

         I. Legal Standard

         The 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.

         The 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.)

         II. Summary of Allegations

         At all times relevant to this suit, Plaintiff was housed at Valley State Prison (“VSP”) in Chowchilla, California. His factual allegations may be summarized as follows:

         On 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.

         Plaintiff 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.

         III. Summary of Evidence Presented

         At the 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 to it.
• 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 ...

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