Jones et al v. California Department of Corrections et al
ORDER Pursuant to Evidentiary Hearing, signed by Chief Judge Lawrence J. O'Neill on 3/2/17. CASE CLOSED. (Gonzalez, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ORDER PURSUANT TO
11 CDC ISU OFFICER COUCH,
California state prisoner Mark Anthony Jones appealed pro se to the Ninth Circuit from this
16 District Court’s judgment dismissing for failure to exhaust administrative remedies in his 42 U.S.C.
17 section 1983 action alleging a First Amendment retaliation claim. The Circuit Court vacated and
18 remanded for further proceedings upon its finding that the District Court overlooked uncontradicted
19 testimony that he alleged in his grievance that the defendant had made a threat of retaliation if the
20 plaintiff were to file a grievance.
Pursuant to the remand, on March 1, 2017, an Evidentiary Hearing took place. The plaintiff
22 testified, as did Captain Tammy Campbell from the California Department of Corrections and
23 Rehabilitation (CDCR). Two issues were discussed, argued and resolved:
1. Whether the Plaintiff filed any grievance/s; and if yes,
2. Whether it/they alleged a retaliation claim against defendant Couch.
After conclusion of testimony and following the arguments from both sides
of the litigation, the Court ruled from the Bench. The transcript from that hearing is incorporated by
reference herein. The Court, based on documents received and testimony given, and specifically having
made credibility findings of the witnesses finds:
1. The plaintiff filed neither a grievance on September 20, 2007 nor one on October 15, 2007;
2. Even had the Court believed the plaintiff’s testimony about filing either or both of the
grievances, he did not include any claim for retaliation. Instead, the alleged grievances were
at most inquiries for facts, since the plaintiff was admittedly not present at the incident
involving his wife;
3. Even had the alleged filing of the September 20, 2017 grievance actually occurred, with no
response from CDCR that followed after its informal filing, the plaintiff was required to
follow up with a formal filing at the next level (pursuant to the unrefuted testimony of
Captain Campbell). That never happened.
4. The plaintiff failed to exhaust his administrative remedies since he failed to file a timely 602
grievance, or any other sufficient document.
Therefore, the Court DISMISSES this case without leave to amend. The Clerk of the Court is
12 directed to CLOSE this case.
14 IT IS SO ORDERED.
/s/ Lawrence J. O’Neill _____
March 2, 2017
UNITED STATES CHIEF DISTRICT JUDGE
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