Bonty v. Escutia, et al.

Filing 20

ORDER GRANTING Plaintiff's 18 Motion for Reconsideration, Vacating Order and Judgment of Dismissal 16, 17, and Remanding Action to Magistrate Judge for Further Proceedings. Signed by Judge Oliver W. Wanger on 7/10/07. (Hellings, J)

(PC) Bonty v. Escutia, et al.

Doc. 20

Case 1:06-cv-00129-OWW-DLB

Document 20

Filed 07/12/2007

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 R. INDERMILL, et al., 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendant. vs. Plaintiff, MILES O. BONTY, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-F-06-129 OWW/DLB ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 18), VACATING ORDER AND JUDGMENT OF DISMISSAL (Docs. 16 & 17), AND REMANDING ACTION TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

On September 29, 2006, the United States Magistrate Judge recommended that this action be dismissed because of Plaintiff's admitted failure to exhaust administrative remedies prior to filing this action. November 6, 2006. Objections to the recommendation were due by Plaintiff did not file timely objections. By

Order filed on December 4, 2006, the action was dismissed for failure to exhaust administrative remedies. on December 4, 2006. On December 15, 2006, Plaintiff filed a motion for reconsideration of the December 4, 2006 Order and Judgment. 1 As Judgment was entered

Dockets.Justia.com

Case 1:06-cv-00129-OWW-DLB

Document 20

Filed 07/12/2007

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

grounds therefor, Plaintiff contends that he did not receive a copy of the Findings and Recommendation filed by the Magistrate Judge. There is nothing in the record substantiating Plaintiff's claim of non-receipt. Service of the recommendation was not Nonetheless, an

returned to the Court as undeliverable.

intervening change in controlling authority requires reconsideration of the dismissal of this action. Coupled with Plaintiff's motion for reconsideration is Plaintiff's objection to the recommendation of dismissal for failure to exhaust administrative remedies. Plaintiff filed an Amended Complaint on June 23, 2006 (Doc. 13). On September 25, 2006, Plaintiff filed a motion for leave

to complete all levels of administrative review, requesting that the Court "postpone the decision to accept or reject Plaintiff's claim, Case No. 1:06-CV-0129 OWW/DLB until his appeal, Log No. KVSP-A-06-00582 regarding the issues before the Court now complete all levels." Plaintiff asserted that his appeal was

sent to the "Director's Level (third level) of review on 8-2006." (Doc. 14). It was this motion that caused the Magistrate In his objection to

Judge to recommend dismissal of the action.

the recommendation, Plaintiff now asserts that he exhausted all available administrative remedies prior to commencing this action, referring to his administrative appeal, No. COR 03-3127, which appeal involving dietary issues based on religious belief. Review of Plaintiff's Complaint (Doc. 1), comprised of 149 pages, 2

Case 1:06-cv-00129-OWW-DLB

Document 20

Filed 07/12/2007

Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

and of Plaintiff's Amended Complaint (Doc. 13), comprised of 119 pages, establishes that Plaintiff's claims for relief are not limited to the issues raised in the administrative appeal, No. COR 03-3127. However, since the recommendation was filed, the

United States Supreme Court has held that an inmate's failure to exhaust administrative remedies as to some, but not all, claims does not warrant dismissal of the entire action. Bock, ___ U.S. ___, 127 S.Ct. 910 (2007). See Jones v.

This change in

controlling authority requires vacation of the Order and Judgment dismissing the action and remand to the Magistrate Judge for further proceedings, including the determination of those claims alleged by Plaintiff which have been administratively exhausted within the meaning of controlling law. FOR THE REASONS STATED ABOVE, 1. 2. Plaintiff's motion for reconsideration is GRANTED. The Order dismissing the action filed on December 4,

2006 and the Judgment entered on December 4, 2006 are VACATED. 3. The action is remanded to the Magistrate Judge for

further proceedings. IT IS SO ORDERED. Dated: 668554 July 10, 2007 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

3