Fratus v. Peterson et al

Filing 45

ORDER that Defendants Shall File Evidence Establishing when Plaintiff Received the Second-Level Response signed by District Judge Roslyn O. Silver on 04/21/2010. Evidence due by 4/30/2010. (Flores, E)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a prisoner in a California State Prison. According to the complaint, on July 12, 2006, Plaintiff was assaulted by various prison officers. Plaintiff filed a grievance on August 2, 2006. Because the grievance alleged staff misconduct, the informal and firstformal levels were bypassed. The second-level response was signed by the warden on October 5, 2006 and returned to Plaintiff "via institutional mail on 10/6/06." (Doc. 32 at 19). It is unclear when Plaintiff received the second-level response. If Plaintiff did not receive the response until October 9, his appeal submitted on October 29, 2006 was timely. See Cal. Cod. Regs., tit. 15 at 3084.6 (inmate must submit appeal "within 15 working days of receiving an unacceptable lower level appeal decision"). Defendants will be instructed to establish when Plaintiff received his second-level response. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) (defendants bear burden of proving absence of exhaustion). John Fratus, Plaintiff, vs. Sergeant Peterson, et. al., Defendants. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) No. CV-08-1500-ROS ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, IT IS ORDERED Defendants shall file evidence establishing when Plaintiff received the second-level response. This evidence shall be filed no later than April 30, 2010. DATED this 21st day of April, 2010. -2-

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