Fearence v. Schulteis et al
Filing
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ORDER signed by District Judge Lawrence J. O'Neill on 12/19/2012 re 31 FINDINGS AND RECOMMENDATIONS; denying 22 Motion to Dismiss and REFERRING CASE back to Magistrate Judge for further proceedings. (Lundstrom, T)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAQUES FEARENCE,
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Plaintiff,
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vs.
L. L. SCHULTEIS, et al.,
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1:08-cv-00615-LJO-GSA-PC
ORDER RE FINDINGS
AND RECOMMENDATIONS
(Doc. 31.)
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS FOR FAILURE
TO EXHAUST
(Doc. 22.)
Defendants.
ORDER REFERRING CASE BACK
TO MAGISTRATE JUDGE FOR
FURTHER PROCEEDINGS
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_____________________________/
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I.
BACKGROUND
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Jaques Fearence (“Plaintiff”) is a state prisoner proceeding pro se in this 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 November 6, 2012, the Magistrate Judge entered findings and recommendations,
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recommending that Defendants’ motion to dismiss for failure to exhaust remedies, filed on December
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16, 2011, be granted, dismissing this action in its entirety. (Doc. 31.) On December 7, 2012, Plaintiff
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filed objections to the findings and recommendations. (Doc. 33.)
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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this Court
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has conducted a de novo review of this case. Having carefully reviewed the entire file, including
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Plaintiff’s objections, the Court declines to adopt the findings and recommendations.
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II.
MOTION TO DISMISS FOR FAILURE TO EXHAUST
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The Magistrate Judge found that Defendants carried their burden in demonstrating that Plaintiff
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failed to exhaust the remedies available to him, by submitting evidence that Plaintiff failed to file a
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timely appeal to the third level of review. Plaintiff argues that prison officials prevented him from
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complying with the exhaustion process because they confiscated his 602 appeal document during a cell
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search and would not return it to him. Plaintiff provides evidence that he attempted to obtain assistance
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by sending letters to the Director of Corrections and the Warden. Plaintiff asserts that he also filed a
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second 602 appeal complaining about the confiscation of his property, but he received no response. In
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November 2008, after obtaining a copy of his first 602 appeal form from his Central File, Plaintiff filed
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an untimely appeal to the third level of review.
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The regulations in effect in 2005, when Plaintiff submitted his appeals, required that at the formal
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levels of review, the appeal be forwarded to the appeals coordinator within fifteen days of the date of
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the decision being appealed. 15 CCR §§ 3084.2(c), 3084.6 (2005). The Magistrate Judge found that
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Plaintiff failed to exhaust the administrative remedies available to him because he sent letters to the
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Director of Corrections and the Warden instead of submitting an appeal to the third level of review. The
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Magistrate Judge is correct that letters to prison officials are insufficient to show exhaustion; however,
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in this case, Plaintiff’s letters to the Director and Warden were not intended to show exhaustion, but
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rather to show that Plaintiff attempted to obtain assistance when he was prevented from timely
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submitting his appeal to the third level of review. Plaintiff did not send the letters instead of submitting
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the appeal, but because he was unable to submit the appeal.
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The regulations in effect also required prison officials to ensure that appeal forms “are readily
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available to all inmates and parolees.” 15 CCR § 3084.1(c) (2005). The Magistrate Judge found Plaintiff
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at fault for not requesting a copy of his appeal from his Central File until sometime in 2008. In this
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instance, however, it was prison officials who were at fault for failing to return Plaintiff’s appeal
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documents to him so he could properly exhaust his remedies.
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The Magistrate Judge also found Plaintiff at fault for not sending an explanation of his dilemma
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to the Director’s Level before his appeal deadline expired. The Court finds it reasonable that Plaintiff
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attempted, instead, to obtain his appeal documents so he could comply with the regulations. The
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regulations in effect provided that “[a]n appeal may be rejected ... if [t]he appeal is incomplete or
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necessary supporting documents are not attached.” 15 CCR § 3084.3(c). It is not unreasonable for
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Plaintiff to believe that he needed a copy of his 602 appeal form before he could prepare and submit an
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effective appeal to the third level of review. Further, Plaintiff had no obligation to appeal the Director’s
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Level decision rejecting his November 2008 appeal as untimely. Harvey v. Jordan, 605 F.3d 681, 685-
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86 (9th Cir. 2010).
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Defendants have the burden to prove that further administrative remedies were “available” to the
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Plaintiff. Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir.2005); see Ngo v. Woodford, 403 F.3d 620,
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625 (9th Cir.2005). However, Defendants have not offered any argument or evidence in opposition to
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Plaintiff’s allegations that the grievance process was unavailable to him because prison officials thwarted
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his efforts to utilize or exhaust the grievance process. Therefore, Defendants in this case have not met
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their burden.
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Based on the foregoing, the Court finds that Plaintiff exhausted his available administrative
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remedies, and therefore Defendants’ motion to dismiss for failure to exhaust must be denied.
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III.
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
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Because the Magistrate Judge found that Defendants’ motion to dismiss should be granted, the
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Magistrate Judge did not consider Defendants’ motion to dismiss Plaintiff’s Eighth Amendment claim
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against defendants Davis and Duffy for failure to state a claim. By this order, the motion to dismiss for
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failure to state a claim shall be referred back to the Magistrate Judge for consideration.
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IV.
CONCLUSION
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Accordingly, THE COURT HEREBY ORDERS that:
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1.
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Magistrate Judge on November 6, 2012;
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2.
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The Court declines to adopt the Findings and Recommendations entered by the
Defendants’ motion to dismiss for failure to exhaust administrative remedies, filed on
December 16, 2011, is denied; and
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This case is referred back to the Magistrate Judge for consideration of Defendants’
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motion to dismiss Plaintiff’s Eighth Amendment claim against defendants Davis and
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Duffy for failure to state a claim, filed on December 16, 2011.
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IT IS SO ORDERED.
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Dated:
b9ed48
December 19, 2012
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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