United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING,
WITHOUT PREJUDICE, DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT ON NON-EXHAUSTION GROUNDS, AND REFERRING MATTER FOR
ALBINO EVIDENTIARY HEARING (ECF Nos. 77, 87)
LAWRENCE J. O'NEILL UNITED STATES DISTRICT JUDGE.
Plaintiff
Thurman Gaines is a state prisoner proceeding in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983. This action was referred to a United
States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
On
September 5, 2019, the assigned Magistrate Judge issued
findings and recommendations recommending that Defendant
Horowitz's motion for summary judgment on the issue of
exhaustion be denied without prejudice, and that this matter
be set for an Albino evidentiary hearing on the
issue of whether Plaintiff filed an administrative appeal
grieving Defendant's denial of a lower tier and lower
bunk chrono. (ECF No. 87.) The parties were granted thirty
(30) days to file written objections to the findings and
recommendations. (Id. at 25-26.) On October 7, 2019,
Defendant timely filed objections. (ECF No. 90.) Following an
extension of time, Plaintiff timely filed his objections on
November 1, 2019. (ECF No. 92.) Defendant filed a response to
Plaintiff's objections on November 14, 2019. (ECF No.
93.)
In
Defendant's objections, Defendant argues that summary
judgment should be granted in Defendant's favor because
Plaintiff had not exhausted all of his available
administrative remedies before he filed this action. (ECF No.
90.) First, Defendant argues that Plaintiff's allegation
that he filed a relevant grievance that was never processed
is only supported by self-serving inmate declarations and
fails to establish a triable issue of whether prison
officials prevented or interfered with Plaintiff's
attempts to exhaust his administrative remedies.
(Id. at 2-3, 5-6.) However, “[a]lthough the
source of the evidence may have some bearing on its
credibility and on the weight it may be given by a trier of
fact, the district court may not disregard a piece of
evidence at the summary judgment stage solely based on its
self-serving nature.” Nigro v. Sears, Roebuck &
Co., 784 F.3d 495, 498 (9th Cir. 2015). Further, the
undersigned agrees with the Magistrate Judge's
determination that the declarations of Plaintiff, Victor
Cooper, and Darrell Harris create a triable issue of fact
regarding whether prison officials prevented Plaintiff from
exhausting his administrative remedies by losing and failing
to process the administrative appeal of Defendant's
denial of Plaintiff's request for a lower tier and lower
bunk chrono that Plaintiff states he submitted on July 21,
2014. Therefore, Defendant's first objection is
overruled.
Second,
Defendant argues that, even presuming that Plaintiff did
submit a relevant grievance on July 21, 2014 and that
Plaintiff's grievance was lost and not processed by
prison officials, Plaintiff has still not exhausted all of
his administrative remedies prior to filing this action
because Plaintiff did not file a new grievance on the same
topic or file a grievance asking for the missing grievance to
be reinstated. (ECF No. 90, at 2.) However, the undersigned
finds that no regulation requires an inmate to file a new
grievance on the same topic or file a new grievance regarding
the missing grievance in order to exhaust administrative
remedies. Further, the undersigned agrees with the Magistrate
Judge that, while Plaintiff could have filed a request
pursuant to California Code of Regulations, title 15, §
3086(a) asking about the status of the grievance he submitted
on July 21, 2014, Plaintiff's failure to file such a
request only goes to Plaintiff's credibility, not to the
exhaustion requirement. Therefore, Defendant's second
objection is overruled.
In
Plaintiff's objections, Plaintiff contends that the
Magistrate Judge's findings and recommendations should be
adopted except for the portion of the findings and
recommendations recommending that the undersigned preclude
Plaintiff from using any evidence that was not disclosed by
the January 22, 2018 opposition to Defendant's motion for
sanctions in opposition to Defendant's motion for summary
judgment or at any Albino evidentiary hearing. (ECF
No. 87, at 7-11.) Plaintiff first argues that the Court
should decline to adopt the recommendation regarding the
sanction because Plaintiff believes that he likely did
disclose the witnesses, Albert Sanchez and Norberto Robancho,
prior to January 22, 2018. (ECF No. 92, at 2.) However, while
Plaintiff provided letters and declarations from Albert
Sanchez and Norberto Robancho to the Court on December 7,
2017, the documents related only to Plaintiff's alleged
falls. (ECF No. 48, at 33-35, 37.) The letters and
declarations did not disclose that the inmates had knowledge
that Plaintiff had submitted an inmate grievance regarding
Defendant's denial of Plaintiff's request for a lower
tier and lower bunk chrono. Therefore, the first time that
Plaintiff disclosed that Inmates Sanchez and Robancho had any
knowledge regarding Plaintiff's attempt to exhaust
administrative remedies was in Plaintiff's opposition to
Defendant's motion for summary judgment, filed pursuant
to the prison mailbox rule on June 27, 2019 and docketed on
July 1, 2019. Consequently, Plaintiff's first objection
is overruled.
Second,
Plaintiff argues that the undersigned should decline to adopt
the recommendation regarding the evidentiary sanction
because, in their memorandum decision vacating the
undersigned's grant of terminating sanctions, the Ninth
Circuit Court of Appeals stated that “it is not clear
whether an evidentiary sanction is warranted given that
Gaines eventually complied with his discovery obligations to
defendant's satisfaction.” (ECF No. 69, at 2.)
Upon
remand, the District Court must proceed on the terms of the
Ninth Circuit's mandate. Stacy v. Colvin, 825
F.3d 563, 567-68 (9th Cir. 2016). The District Court may,
however, decide anything not foreclosed by the mandate, so
long as the District Court does not take actions that
contradict it. Id. at 568; Firth v. United
States, 554 F.2d 990, 993-94 (9th Cir. 1977) (“. .
. a mandate is controlling as to all matters within its
compass, while leaving any issue not expressly or impliedly
disposed of on appeal available for consideration by the
trial court on remand.”). Furthermore, while the
“law of the case” doctrine limits district court
reconsideration of issues previously determined, the doctrine
does not apply to issues or claims that were not actually
decided. Mortimer v. Baca, 594 F.3d 714, 720 (9th
Cir. 2010); Odima v. Westin Tucson Hotel, 53 F.3d
1484, 1497 (9th Cir. 1995).
In this
case, the Ninth Circuit's mandate was to vacate the
undersigned's grant of terminating sanctions and to
remand the action for further proceedings. (ECF No. 69, at
2-3.) While the Ninth Circuit's memorandum decision
stated that it was not clear whether an evidentiary sanction
was warranted, the Court finds that this language does not
foreclose the imposition of an evidentiary sanction on
grounds not actually decided by the Ninth Circuit. Therefore,
the undersigned finds that imposition of an evidentiary
sanction prohibiting Plaintiff from using any evidence that
was not disclosed by Plaintiff's January 22, 2018
opposition to Defendant's motion for sanctions or
Plaintiff's prior discovery responses to support his
opposition to Defendant's motion for summary judgment or
at any Albino evidentiary hearing is appropriate in
the instant action. See Cassett v. Stewart, 406 F.3d
614, 621 (9th Cir. 2005) (district court is free to do
anything not foreclosed by the mandate or counter to the
“spirit” of the circuit court's decision)
(quoting United States v. Kellington, 217 F.3d 1084,
1092-93 (9th Cir. 2000)). Consequently, Plaintiff's
second objection is overruled.
In
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the Court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, including Plaintiff's and Defendant's
objections, the Court finds that the findings and
recommendations are supported by the record and by proper
analysis.
Accordingly,
IT IS HEREBY ORDERED that:
1. The findings and recommendations issued on September 5,
2019, (ECF No. 87), are adopted in full;
2. Defendant Horowitz's motion for summary judgment for
failure to exhaust administrative remedies, (ECF No. 77) is
DENIED WITHOUT PREJUDICE;
3. This matter be set for an Albino hearing on the
issue of whether Plaintiff filed an administrative appeal
grieving Defendant's denial of a lower ...