Gornick v. California Department of Corrections, et al.

Filing 75

MEMORANDUM, DECISION and ORDER GRANTING IN PART AND DENYING IN PART 69 Plaintiff's Motion for Reconsideration; ORDER VACATING 66 Order and 67 Judgment of March 25, 2010; and ORDER DENYING AS MOOT 70 Plaintiff's Motion to Proceed IFP signed by Chief Judge B. Lynn Winmill on 7/20/2010. The Attorney General shall determine whether DoCanto is currently employed by CDCR and file a notice to the court. Plaintiff shall have (14) days after receipt of such notice in which to submit service documents for remaining defendants to the Clerk of Court. Summary Judgment Motions due by 9/30/2010. Case reopened. cc: Ninth Circuit Court of Appeals via CM/ECF. (Attachments: # 1 Service Packet). (Jessen, A)

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(PC) Gornick v. California Department of Corrections, et al. Doc. 75 IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA F R E SN O DIVISION P A U L A. GORNICK SR., C a se No. 1:06-CV-00296-BLW-LMB Plaintiff, v. C A LIF O R N IA DEPT. OF C O R R E C T IO N S, J. PAYNE, D O C A N T O , BRANDON, SGT. DICKS, e t al., Defendants. M E M O R A N D U M DECISION AND ORDER P e n d in g before the Court is Plaintiff's Motion for Reconsideration. (Dkt. 69.) Plaintiff alleges that he attempted to mail his Objections to the Report and R e c o m m e n d a tio n in a timely manner (by March 10, 2010), but the prison sent it to the w ro n g court. The Objections were received by Clerk of Court on March 24, 2010, and a p p e a r to have crossed in the mail with the Order on the Report and Recommendation (s e e Order of March 25, 2010). The Court finds that good cause exists for Plaintiff's fa ilu re to file his Objections in a timely manner. Having reviewed Plaintiff's Objection, th e Court enters this Order granting the Motion for Reconsideration in part and denying it MEMORANDUM DECISION AND ORDER- 1 Dockets.Justia.com in part. ADDITIONAL REVIEW OF EXHAUSTION ISSUE P la in tiff states that his 15-day appeal time began on December 8, 2004, and ended o n December 23, 2004. (Plaintiff's Objection, Dkt. 65, pp. 2-3.) Plaintiff alleges that he file d three successive 602 appeal forms complaining of the incident at issue, on 12/12/04, 1 2 /2 1 /0 4 , and 1/12/05. Plaintiff has no copy of the first two 602 forms because the prison grie va n c e system does not provide for the retention of a copy of such filings by the in m a te . Defendants have produced the testimony of prison records custodians who have fo u n d no record of the first and second 602 forms. Plaintiff alleges that CDCR personnel m is h a n d le d , lost, or destroyed his first two appeals. The Court finds instructive the Report and Recommendations filed in Buchanan v. S a n to s , 2010 WL 1267353 (E.D. Cal. March 31, 2010), adopted in full by 2010 WL 2 3 4 8 7 3 2 (E.D. Cal. June 8, 2010). There, the Court noted: [W ]h ile the absence of evidence that a grievance was officially filed may in d ic a te Plaintiff never submitted the grievance, it may also indicate that the grie va n c e was discarded or ignored by staff, as Plaintiff contends. See S p e n c e v. Director of Corr., 2007 WL 61006, No. CIV S-05-0690 GEB K F M PC, *3 (E.D.Cal. Jan. 8, 2007) (If prison officials "are interfering w ith inmates' ability to properly file their 602s, then there will be no official re c o rd of the 602s having been `accepted.'"), findings and r e c o m m e n d a tio n s adopted in full, 2007 WL 738528 (E.D.Cal. Mar.6, 2 0 0 7 ). In a situation such as this in which the parties offer differing ve rs io n s of events based on competing declarations, the issue is one of w itn e s s credibility and the Court cannot make that requisite assessment on a m o tio n to dismiss. Id . at *5. MEMORANDUM DECISION AND ORDER- 2 Therefore, Defendants cannot prevail on their motion to dismiss based on lack of e vid e n c e that the first two 602 appeals were filed. However, because Plaintiff has s u b m itte d evidence of the subject matter of the first and second 602 appeals (complaints a b o u t the retaliatory assault incident) in the form of a third 602 appeal form, and he has s u b m itte d no evidence that the first and second 602 appeal forms contained a complaint a b o u t lack of medical care for the incident, the Court concludes that Defendants have c a rrie d their burden of proof to show that Plaintiff did not exhaust a claim regarding lack o f medical care or that he did not act diligently to exhaust that claim. Alternatively, the Court concludes that Plaintiff either exhausted his "available" re m e d ie s or is excused from exhaustion as a result of his pursuit of the third 602 appeal fo rm and prison officials' actions and inaction regarding that appeal. The third 602 form w a s "screened out" or rejected twice; it was a follow-up form asking for information a b o u t the two prior 602 appeal forms. The prison grievance procedures provide: W h e n rejecting an appeal, the appeals coordinator shall complete an A p p e a ls Screening Form, CDC Form 695 (rev 5-83), explaining why the a p p e a l is unacceptable. If rejection is based on improper documentation, the fo rm shall provide clear instructions regarding further action the inmate m u s t take to qualify the appeal for processing. 1 5 Cal. Code Reg. at § 3084.3(d). It is undisputed that Plaintiff's third 602 appeal form of 1/12/05 was received by p riso n officials. However, as noted above, it was screened out twice­first, with in s tru c tio n s that it should have been submitted directly to CSP Corcoran for a response. (P la in tiff's Response, Exhibit 3, Dkt. 53, p. 21.) Plaintiff directs the Court's attention to a MEMORANDUM DECISION AND ORDER- 3 stamp on the third appeal form that reads: "CSP-Corcoran Appeals Office 05 Mar 16 AM 6 :2 4 ," indicating it was, in fact, received by CSP Corcoran, as directed. (As noted above, th e third 602 form of 1/12/05 addressed only the assault, and not the lack of medical care a fte r the assault.) O n April 26, 2005, the CSP Corcoran Appeals Coordinator issued a second screen o u t notice to Plaintiff, indicating that the appeal was untimely and that if he would like to p u rs u e the matter further, he needed to submit an explanation and supporting d o c u m e n ta tio n explaining why he did not or could not file his appeal on time. The form a ls o indicated: "This screening decision may not be appealed." (Dkt. 53, p. 22.) Plaintiff s h o w s that he sent a letter of explanation to the appeals coordinator on April 26, 2005. (D kt. 53, p. 29.) Plaintiff also states that on June 20, 2005, the second screen out notice for his th ird 602 form was returned to him with his explanation attached, but with no prison o ffic ia l's response to his explanation. (Dkt. 65, p. 5.) Plaintiff asked his floor officer, C/O Sp ro u s e to sign the incoming screen out notice as evidence that Plaintiff's explanation w a s , in fact, processed and returned to him without any further comment. (Dkt. 53, pp. 3 2 -3 3 .) The Court concludes that Plaintiff exercised due diligence to exhaust his a d m in istra tive remedies and is excused from exhaustion as to the retaliatory assault claim fo r the following reasons: (1) the prison grievance system provides that, when appeals are re je c te d , the appeals coordinator must give the inmate instructions to tell the inmate the MEMORANDUM DECISION AND ORDER- 4 further action he must take to qualify the appeal for processing; (2) Plaintiff was actually d ire c te d to submit an explanation; (3) Plaintiff actually submitted an explanation; (4) p riso n officials returned Plaintiff's explanation to him without comment on whether his e x p la n a tio n qualified the appeal for processing; and (5) the screen out notice bears a p rin te d statement that there is no appeal of the screen out notice. Defendants have not s h o w n that a further remedy remained available in the instance where an inmate is invited to provide an explanation to qualify the appeal for processing, the prison fails to provide a response as to whether the explanation was sufficient, and the screen out notice states th a t there is no appeal from a screen out notice. It is unclear what Plaintiff should have d o n e further to obtain a response, especially in light of the fact that no copies of the 602 fo rm s are provided to inmates, who must simply trust that the form has been received and is being processed. Here, where there was a question as to receipt and processing, P la in tiff used the procedures for follow-up, and yet the prison failed to provide Plaintiff w ith a response to his explanation. Defendants have not shown anything more Plaintiff c o u ld have done. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (exhaustion is excused where an inmate takes reasonable and appropriate steps to exhaust his claim a n d is precluded from doing so by prison officials); Dole v. Chandler, 438 F.3d 804, 809 (7 th Cir. 2006) (noting that "a remedy becomes `unavailable' if prison employees do not re s p o n d to a properly filed grievance or otherwise use affirmative misconduct to prevent a p riso n e r from exhausting"). However, because Plaintiff did not include in his 602 form of 1 /1 2 /0 5 any allegations regarding lack of medical care after the assault, he cannot proceed MEMORANDUM DECISION AND ORDER- 5 on that claim because it was not properly exhausted, nor can the exhaustion requirement b e excused because Plaintiff did not exercise diligence regarding that claim. F o r the foregoing alternative reasons, the prior Order and Judgment will be va c a te d and the Clerk of Court will be ordered to reopen this case. SERVICE UPON DEFENDANTS DOCANTO AND SANCHEZ Plaintiff alleges that in July 2009, the United States Marshal Service informed him th a t Defendant DoCanto no longer worked at the CDCR, but that the California Deputy A tto rn e y General informed Plaintiff that she thought DoCanto was still employed by the C D C R . Apparently, Plaintiff was also informed that Warden Sanchez is now retired. (See D kt. 58.) W ith in fourteen (14) days, the attorney general is ordered to determine whether D o C a n to is currently employed by CDCR and file a notice (with a copy to Plaintiff) s h o w in g the name and address of the facility where DoCanto works if he is still employed o r stating that DoCanto is no longer employed by the CDCR. However, Plaintiff will h a ve to determine a physical service address for former Warden Sanchez. In any event, Plaintiff will be given fourteen (14) days after he receives the notice fro m the attorney general in which to submit USM 285 forms to the Clerk of Court re q u e s tin g service of process on the remaining defendants. Failure to do so will result in d is m is s a l without prejudice of the claims against them without further notice. P R E T R I A L SCHEDULE Sh o u ld the remaining Defendants be served, the Court will reopen discovery as to MEMORANDUM DECISION AND ORDER- 6 those Defendants only. It appears that the parties have otherwise engaged in discovery p u rs u a n t to the schedule set forth in the Court's Order of March 11, 2009. (Dkt. 37.) Any s u m m a ry judgment motions by Plaintiff or Defendants who have already appeared in this c a s e shall be filed no later than September 30, 2010. ORDER I T IS ORDERED: 1. P la in tiff's Motion for Reconsideration (Dkt. 69) is GRANTED in part and D E N IE D in part. The case shall be reopened and Plaintiff is permitted to p ro c e e d on the claim of retaliatory assault, but Plaintiff's claims for failure to provide medical care for the assault are DISMISSED for failure to e x h a u s t administrative remedies. 2. T h e Order of March 25, 2010 (Dkt. 66) and Judgment of March 25, 2010 (Dkt. 67) are VACATED. 3. P la in tiff's Motion to Proceed in Forma Pauperis on Appeal (Dkt. 70) is D E N IE D as MOOT. Plaintiff is already proceeding in forma pauperis in th is Court (Dkt. 4). 4. T h e attorney general shall determine whether DoCanto is currently e m p lo y e d by CDCR and file a notice (with a copy to Plaintiff) showing the n a m e and address of the facility where DoCanto works if he is still e m p lo y e d or stating that DoCanto is no longer employed by the CDCR. 5. P la in tiff shall have fourteen (14) days after he receives the notice from the MEMORANDUM DECISION AND ORDER- 7 attorney general in which to submit USM 285 forms to the Clerk of Court re q u e stin g service of process on the remaining defendants. Failure to do so w ill result in dismissal of the claims against them without further notice. 6. A n y summary judgment motions by Plaintiff or the Defendants who have a p p e a re d in this case shall be filed no later than September 30, 2010. 7. T h e Clerk of Court is ordered to notify the United States Court of Appeals fo r the Ninth Circuit that the Motion for Reconsideration has been granted a n d the case reopened in the District Court. DATED: July 20, 2010 Honorable B. Lynn Winmill Chief U. S. District Judge MEMORANDUM DECISION AND ORDER- 8

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