Aggers v. Tyson et al

Filing 52

ORDER Adopting Findings and Recommendations 50 ; ORDER Granting Defendant's Motion to Dismiss 38 , signed by Chief Judge Anthony W. Ishii on 7/29/11. CASE CLOSED. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRYL KEITH AGGERS,

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Case No. 1:07-cv-01701 AWI JLT (PC)

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

vs.

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ORDER GRANTING
MOTION TO DISMISS

CAPTAIN TYSON, et al.,
Defendants.

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DEFENDANT’S

(Documents #38 & #50)
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action

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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On June 16, 2011, the Magistrate Judge issued findings and recommendations recommending

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that Defendant’s March 18, 2011 motion to dismiss be granted. (Doc. 50.) Specifically, the Magistrate

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Judge found that Plaintiff did not exhaust administrative remedies prior to filing suit. (Id. at 5-6.) The

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Magistrate Judge also found that Plaintiff should not be excused from his failure to exhaust merely

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because Defendant Tyson allegedly threatened to retaliate against Plaintiff for filing grievances. (See

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id. at 6-7.) The Magistrate Judge explained that even if Defendant Tyson made such threats, Plaintiff

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could have filed a grievance and properly exhausted his claims once he was transferred to High Desert

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State Prison and away from Defendant Tyson. (Id. at 7.) Because the administrative grievance process

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was not rendered unavailable to Plaintiff, the Magistrate Judge concluded that Plaintiff’s claims must
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be dismissed without prejudice in accordance with Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.

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2003). (Id. at 8.)

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On June 30, 2011, Plaintiff filed timely objections to the findings and recommendations. (Doc.

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51.) Plaintiff argues that although he was transferred to High Desert State Prison, he still feared that

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Defendant Tyson would retaliate against him if he filed a grievance against the defendant. (Id. at 2.)

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Plaintiff avers that Defendant Tyson could have been transferred to High Desert State Prison at some

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point and retaliated against Plaintiff then. (Id.) Plaintiff also asserts that Defendant Tyson’s wife and

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friends are employed at High Desert State Prison, and through them, Defendant Tyson could have been

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notified of any grievance Plaintiff filed. (Id.) Therefore, in Plaintiff’s view, administrative remedies

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were unavailable to him. (Id.)

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Having conducted a de novo review of the record in this case in accordance with 28 U.S.C. §

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636(b)(1)(C), the Court finds that the Magistrate Judge’s findings and recommendations are supported

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by the record and the proper analysis. As an initial matter, the Court notes that Plaintiff raises a new

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argument in his objections to the findings and recommendation; Plaintiff never argued in his opposition

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to Defendant’s motion to dismiss that he feared Defendant Tyson even after being transferred to High

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Desert Prison State because the defendant’s wife and friends worked at the prison. A district court is

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not required to consider arguments that are presented for the first time in objections to a U.S. Magistrate

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Judge’s findings and recommendations. See United States v. Howell, 231 F.3d 615, 621-22 (9th Cir.

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2000).

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In any event, Plaintiff’s argument is unpersuasive. As explained by the Magistrate Judge in the

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findings and recommendations, the Eleventh Circuit has acknowledged that a prison official’s threat of

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retaliation against an inmate for filing grievances could excuse the inmate from his failure to exhaust

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administrative remedies where (1) the threat actually deterred the inmate from filing a grievance, and

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(2) the threat is one that would have deterred a reasonable inmate of ordinary firmness and fortitude from

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filing a grievance. Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir. 2008). Utilizing Turner’s

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framework as guidance here, there are no facts showing that a reasonable inmate of ordinary firmness

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and fortitude would have been deterred from filing a grievance under the circumstances faced by

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Plaintiff. First, the possibility that Defendant Tyson would be transferred to High Desert State Prison
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and would retaliate against Plaintiff thereafter is far-fetched and amounts to mere speculation. Second,

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even if Defendant Tyson did have friends and family who were employed at High Desert State Prison,1

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there is no indication that these individuals had any involvement with the grievance process at the prison.

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In essence, Plaintiff simply invites the Court to assume that because prison officials “talk,” word of

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Plaintiff’s grievance could eventually reach Defendant Tyson. Again, this is nothing more than

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speculation.

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In sum, the Court agrees with the Magistrate Judge’s analysis that Plaintiff failed to exhaust his

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administrative remedies and that Plaintiff’s failure is not excused by Defendant Tyson’s alleged threats

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of retaliation. Accordingly, it is HEREBY ORDERED that:

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The findings and recommendations issued by the Magistrate Judge on June 16, 2011
(Doc. 50) are ADOPTED in full;

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2.

Defendant’s March 18, 2011 motion to dismiss (Doc. 38) is GRANTED; and

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3.

This action is DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.

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Dated:
0m8i78

July 29, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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Plaintiff’s assertion that Defendant Tyson’s wife and friends work at High Desert State Prison is not signed under
penalty of perjury and therefore the veracity of the assertion is unclear.

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