Exmundo v. Scribner et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Defendant's 45 Motion to Dismiss be Denied signed by Magistrate Judge Gerald B. Cohn on 06/14/2011. Referred to Judge Ishii; Objections to F&R due by 7/18/2011. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EMELITO EXMUNDO,
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CASE NO.
Plaintiff,
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1:06-cv-00205-AWI-GBC (PC)
FINDINGS AND RECOMMENDATION
RECOMMENDING DEFENDANT’S MOTION
TO DISMISS BE DENIED
v.
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(ECF No. 45)
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A. K. SCRIBNER, et al.,
OBJECTIONS DUE WITHIN THIRTY DAYS
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Defendants.
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/
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I.
PROCEDURAL HISTORY
Plaintiff Emelito Exmundo (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before this
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Court is a Motion to Dismiss filed by Defendants Bell and Johnson. (ECF No. 45.) Plaintiff
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filed an Opposition on May 12, 2011, and Defendants replied on June 6, 2011. (ECF Nos.
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48 & 52.)
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This action proceeds on Plaintiff’s Second Amended Complaint filed June 19, 2009
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(ECF No. 32.) On October 8, 2010, this Court screened Plaintiff's Complaint finding that
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it stated a cognizable claim for relief against Defendant Bell for retaliation and against
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Defendants Bell and Johnson for use of excessive force. (ECF No. 35.)
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II.
ARGUMENT
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In the instant Motion, Defendants argue that Plaintiff failed to exhaust his
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administrative remedies before filing this action. Defendants state that Plaintiff filed this
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action within three weeks of filing his inmate grievance concerning Defendants Bell and
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Johnson. The alleged incident occurred on October 5, 2005. Plaintiff filed the related
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inmate grievance on February 2, 2006. (ECF No. 32, 2nd Am. Compl. Ex. C1(a).) Plaintiff
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filed this action on February 23, 2006. (ECF No. 1.) Plaintiff received the First-Level
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Response on March 22, 2006 and then withdrew his appeal. (ECF No. 32, 2nd Am.
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Compl. Exs. C1(b) & (e).) Thus, Plaintiff did not exhaust his administrative remedies
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before filing this action with the Court.
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In his Opposition, Plaintiff states that he filed a grievance on October 25, 2005
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related to Defendants Bell and Johnson and that Defendants failed to respond. Plaintiff
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then refiled the grievance on December 12, 2005 to which he never received a response.
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When Defendants failed to respond to his grievances twice, Plaintiff filed this action on
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February 23, 2006. Plaintiff claims that the administrative remedies were not “available”
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to him. Plaintiff goes on to state that the grievance filed on February 2, 2006 was against
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Renteria and Defendant Johnson for retaliation and harassment, but the primary reason
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for the grievance was Defendants failure to respond to Plaintiff’s previously filed
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grievances. Plaintiff argues that Defendants failure/delay in responding to his grievances
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made the administrative remedies unavailable to him, excusing him from exhausting.
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In their Reply, Defendants merely repeat the dates of Plaintiff’s grievance,
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complaint, and prison appeal reviews. They fail to address Plaintiff’s contention that he
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previously attempted to file the same grievance twice prior to the February 2, 2006
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grievance which was accepted and processed.
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III.
LEGAL STANDARD
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“The Prison Litigation Reform Act [(“PLRA”)] requires that a prisoner exhaust
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available administrative remedies before bringing a federal action concerning prison
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conditions.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing 42 U.S.C. §
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1997e(a)); Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005) (quoting Porter v. Nussle,
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534 U.S. 516, 525 n.4 (2002)) (The PLRA “creates ‘a general rule of exhaustion’ for
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prisoner civil rights cases.”). “‘[T]he PLRA’s exhaustion requirement applies to all inmate
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suits about prison life, whether they involve general circumstances or particular episodes,
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and whether they allege excessive force or some other wrong.’” Bennett v. King, 293 F.3d
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1096, 1098 (9th Cir. 2002) (quoting Porter, 534 U.S. at 532); accord Roles v. Maddox, 439
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F.3d 1016, 1018 (9th Cir.), cert. denied, 549 U.S. 905 (2006). The PLRA’s “exhaustion
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requirement is mandatory.” McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per
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curiam); accord Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that
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exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought
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in court.”); see also Panaro v. City of North Las Vegas, 432 F.3d 949, 954 (9th Cir. 2005)
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(The PLRA “represents a Congressional judgment that the federal courts may not consider
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a prisoner’s civil rights claim when a remedy was not sought first in an available
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administrative grievance procedure.”). Even if the prisoner seeks monetary or other relief
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that is unavailable through the grievance system in question, the prisoner must still first
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exhaust all available administrative remedies. See Booth v. Churner, 532 U.S. 731, 741
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(2001) (“[W]e think that Congress has mandated exhaustion clearly enough, regardless of
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the relief offered through administrative procedures.”).
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While the PLRA requires “proper” exhaustion of available administrative remedies,
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Woodford v. Ngo, 548 U.S. 81, 93 (2006), it does not define the boundaries of proper
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exhaustion.
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compliance with an agency’s deadlines and other critical procedural rules[.]” Woodford,
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548 U.S. at 90. “The level of detail necessary in a grievance to comply with the grievance
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procedures will vary from system to system and claim to claim, but it is the prison’s
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See Jones, 549 U.S. at 218.
Rather, “[p]roper exhaustion demands
requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones,
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549 U.S. at 218; see, e.g., Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009, as
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amended June 5, 2009) (per curiam) (“The California prison system’s requirements define
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the boundaries of proper exhaustion.”) (internal quotation marks and citation omitted).
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Absent a prison grievance procedure mandating the naming of each individual involved,
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a prisoner need not identify all of the defendants later named in a lawsuit during the
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administrative grievance process. Jones, 549 U.S. at 218.
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The PLRA’s exhaustion requirement is not jurisdictional; rather, it creates an
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affirmative defense that a defendant may raise in an unenumerated Rule 12(b) motion.
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See Jones, 549 U.S. at 213-14; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.), cert.
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denied, 540 U.S. 810 (2003). The defendant bears the burden of raising and proving the
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absence of exhaustion. Wyatt, 315 F.3d at 1119. Specifically, the defendant must show
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that some administrative relief remains available to the plaintiff “whether at unexhausted
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levels of the grievance process or through awaiting the results of the relief already granted
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as a result of that process.” Brown, 422 F.3d at 936-37. In deciding a motion to dismiss
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for failure to exhaust, a court may “look beyond the pleadings and decide disputed issues
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of fact.” Wyatt, 315 F.3d at 1119-20. When a prisoner has not exhausted administrative
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remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Id.
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at 1120. However, dismissal of the entire complaint is not required when a prisoner has
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exhausted some, but not all, of the claims included in the complaint. See Jones, 549 U.S.
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at 223-24.
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California provides its inmates and parolees the right to appeal administratively the
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alleged misconduct of correctional officers and “any departmental decision, action,
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condition or policy perceived by those individuals as adversely affecting their welfare.” Cal.
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Code Regs. tit. 15, § 3084.1(a), (e). In order to exhaust administrative remedies within this
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system, a prisoner normally must proceed through four levels: (1) initiation of informal
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resolution through submission of a CDC form describing the problem and the action
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requested; (2) first level formal written appeal to the prison’s appeals coordinator; (3)
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second level formal appeal to the institution’s warden or designee; and (4) third level formal
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appeal to the CDCR Director (“Director’s Level”). Id. § 3084.5; see Woodford, 548 U.S.
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at 90-91 (California prisoners are required to use the process established by Cal. Code
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Regs., tit. 15 §§ 3084.1, 3084.2-3084.6 in order to satisfy 42 U.S.C. § 1997e(a)); Porter,
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534 U.S. at 532 (the exhaustion requirement is mandatory and applies to all prisoner suits
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relating to prison life that do not implicate the duration of the prisoner’s sentence).
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IV.
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ANALYSIS
After reviewing the attachments to Plaintiff’s Second Amended Complaint, it
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appears that Plaintiff did file several grievances prior to the grievance filed in February
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2006. In the February 2006 grievance, Plaintiff states, much like he does here, that he
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filed two grievances about the incident in October 2005, but did not receive any responses
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from them.
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It is undisputed that there is no record in the Inmate Appeal Tracking System of
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Plaintiff's October grievance or his resubmitted December grievance. Plaintiff claims that
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he placed both grievances on his door for mail pickup. Defendants merely repeat that
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Plaintiff failed to exhaust before filing this action.
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While the absence of evidence that a grievance was officially filed may indicate that
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a plaintiff never submitted the grievance, it may also indicate that the grievance was
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discarded or ignored by staff. See Spence v. Director of Corr., 2007 WL 61006, *3
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(E.D.Cal. Jan. 8, 2007) (If prison officials “are interfering with inmates’ ability to properly
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file their 602s, then there will be no official record of the 602s having been ‘accepted.’”),
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findings and recommendations adopted in full, 2007 WL 738528 (E.D.Cal. Mar. 6, 2007).
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The PLRA requires that an inmate exhaust such administrative remedies “as are
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available.” 42 U.S.C. § 1997e(a). As the Ninth Circuit has repeatedly reiterated, the PLRA
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does not require exhaustion when circumstances render administrative remedies
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“effectively unavailable.” Sapp v. Kimbrell, 623 F.3d 813 (9th Cir. 2010). If employees of
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a facility prevent or interfere with the filing of a grievance or the inmate’s ability to exhaust
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administrative remedies, the exhaustion requirement may be “unavailable” and defendants
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estopped from raising non-exhaustion as an affirmative defense. See Jernigan v. Stuchell,
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304 F.3d 1030, 1032 (10th Cir. 2002). Courts have repeatedly held that an administrative
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remedy becomes “unavailable” for purposes of the exhaustion requirement if prison
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officials do not respond to a properly filed grievance or if they otherwise use affirmative
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misconduct to thwart a prisoner’s attempts to exhaust. See e.g., Brown v. Valoff, 422 F.3d
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926 n. 18 (9th Cir. 2005); Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010); Lewis
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v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (“we refuse to interpret the PLRA ‘so
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narrowly as to permit prison officials to exploit the exhaustion requirement through
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indefinite delay in responding to grievances.’”); Abney v. McGinnis, 380 F.3d 663, 667 (2nd
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Cir. 2004); Ziemba v. Wezner, 366 F.3d 161, 163-64 (2nd Cir. 2004); Miller v. Norris, 247
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F.3d 736, 740 (8th Cir. 2001) (finding allegations that prison officials failed to respond to
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his written requests for grievance forms were sufficient to raise an inference that the
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prisoner had exhausted his “available” administrative remedies); Mitchell v. Horn, 318 F.3d
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523, 529 (3rd Cir. 2003) (holding that prisoner lacked available administrative remedy for
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exhaustion purposes where the prisoner was unable to file a grievance because prison
officials refused to provide him with the necessary grievance forms).
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Plaintiff has submitted a sworn statement that he filed a timely grievance form and
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also resubmitted the grievance form when he did not receive a response. The Court
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cannot ignore Plaintiff’s sworn statements. “In a situation such as this in which the parties
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offer differing versions of events based on competing declarations, the issue is one of
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witness credibility and the Court cannot make that requisite assessment on a motion to
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dismiss.” Buchanan v. Santos, 2010 WL 1267353, *5 (E.D.Cal. Mar. 31, 2010). Thus,
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given the limited record before it, the Court is essentially compelled at this stage of the
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proceedings to accept Plaintiff’s allegations that he attempted to exhaust his administrative
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remedies but was thwarted in doing so by Defendants.
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V.
CONCLUSION AND RECOMMENDATION
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Therefore, the Court HEREBY RECOMMENDS that Defendants’ Motion to Dismiss
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for failure to exhaust be DENIED.
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These Findings and Recommendations will be submitted to the United States
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District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l).
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Within thirty (30) days after being served with these Findings and Recommendation, the
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parties may file written objections with the Court. The document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” The parties are
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advised that failure to file objections within the specified time may waive the right to appeal
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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
1j0bbc
June 14, 2011
UNITED STATES MAGISTRATE JUDGE
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