Dodds v. Lascano et al
Filing
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FINDINGS and RECOMMENDATIONS recommending Defendants' 30 36 Motions to Dismiss be Granted in Part and Denied in Part signed by Magistrate Judge Dennis L. Beck on 07/13/2011. Referred to Judge Ishii; Objections to F&R due by 8/8/2011. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAYMAR DODDS,
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Plaintiff,
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CASE NO. 1:09-CV-00656-AWI-DLB PC
FINDINGS AND RECOMMENDATION
RECOMMENDING DEFENDANTS’
MOTIONS TO DISMISS BE GRANTED IN
PART AND DENIED IN PART
v.
E. LASCANO, et al.,
(DOCS. 30, 36)
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Defendants.
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OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS
/
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Findings And Recommendations
I.
Background
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Plaintiff Jaymar Dodds (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding
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against Defendants E. Lascano, J. Hamlin, and B. Williams. On November 15, 2010 and April 6,
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2011, Defendants filed motions to dismiss for Plaintiff’s failure to exhaust administrative
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remedies pursuant to 42 U.S.C. § 1997a(e). Def. Williams’s Mot. Dismiss, Doc. 30; Defs.
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Lascano and Hamlin’s Mot. Dismiss, Doc. 36. Plaintiff filed an opposition on May 13, 2011.1
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Pl.’s Opp’n Doc. 40. Defendants filed a reply on May 20, 2011. Defs.’ Reply, Doc. 41. The
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matter is submitted pursuant to Local Rule 230(l).
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Plaintiff was provided with notice of the requirements for opposing an unenumerated Rule 12(b) motion
on November 13, 2009. Wyatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003); see Second Informational
Order, Doc. 14.
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II.
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Summary of Complaint
The events giving rise to this action allegedly occurred at Kern Valley State Prison
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(“KVSP”). Plaintiff alleges that on November 1, 2007, a cell search was conducted at KVSP.
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Plaintiff alleges that Rivera and defendants Lascano and Williams ordered Plaintiff from his cell.
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Plaintiff alleges that he was drugged/dragged in front of the unit counselor’s office, and ordered
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strip searched while others were present. Plaintiff alleges that defendant Lascano authorized
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Rivera and defendant Williams to confiscate Plaintiff’s bed linens, clothing, legal property, and
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personal property. Plaintiff alleges that he was subsequently informed by prison staff that his
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property was under investigation and would not be immediately returned. Plaintiff contends that
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he was left in his cell for five or six days without a toothbrush, toothpaste, deodorant, soap or his
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personal property. Plaintiff contends that he suffered from cold temperatures without state-
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issued clothing and bed linens. Plaintiff alleges that he informed defendants Lascano and
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Williams of the problems but they did nothing to assist him. Plaintiff states that he filed a 602
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grievance and a citizen’s complaint concerning his treatment. Plaintiff alleges that defendants
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Lascano and Hamlin retaliated against him by placing him in the “hole” for four months.
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Plaintiff stated cognizable claims against Defendant Williams and Lascano for deliberate
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indifference in violation of the Eighth Amendment regarding his conditions of confinement, and
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against Lascano and Hamlin for retaliation in violation of the First Amendment.
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III.
Exhaustion Of Administrative Remedies
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A.
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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with
Legal Standard
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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such administrative remedies as are
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available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available
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administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney
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v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion is required
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regardless of the relief sought by the prisoner and regardless of the relief offered by the process,
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Booth v. Churner, 532 U.S. 731, 741 (2001), and the exhaustion requirement applies to all
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prisoner suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532 (2002).
Section 1997e(a) does not impose a pleading requirement, but rather, is an affirmative
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defense under which defendants have the burden of raising and proving the absence of
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exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The
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failure to exhaust nonjudicial administrative remedies that are not jurisdictional is subject to an
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unenumerated Rule 12(b) motion, rather than a summary judgment motion. Wyatt, 315 F.3d at
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1119 (citing Ritza v. Int’l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th
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Cir. 1998) (per curiam)). In deciding a motion to dismiss for failure to exhaust administrative
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remedies, the Court may look beyond the pleadings and decide disputed issues of fact. Id. at
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1119-20. If the Court concludes that the prisoner has failed to exhaust administrative remedies,
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the proper remedy is dismissal without prejudice. Id.
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B.
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The California Department of Corrections and Rehabilitation has an administrative
Discussion
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grievance system for prisoner complaints. Cal. Code Regs. tit. 15, § 3084.1 (2010). At the time
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the grievance was filed, the process was initiated by submitting a CDC Form 602. Id. §
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3084.2(a). Four levels of appeal were involved, including the informal level, first formal level,
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second formal level, and third formal level, also known as the “Director’s Level.” Id. § 3084.5.
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Appeals must be submitted within fifteen working days of the event being appealed, and the
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process is initiated by submission of the appeal to the informal level, or in some circumstances,
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the first formal level. Id. §§ 3084.5, 3084.6(c). In order to satisfy § 1997e(a), California state
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prisoners are required to use this process to exhaust their claims prior to filing suit. Woodford v.
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Ngo, 548 U.S. 81, 85-86 (2006); McKinney, 311 F.3d at 1199-1201. Exhaustion does not always
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require pursuit of an appeal through the Director’s Level of Review. What is required to satisfy
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exhaustion is a fact specific inquiry, and may be dependent upon prison officials’ response to the
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appeal. See Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir. 2010) (listing examples of
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exceptions to exhaustion requirement from other circuits); Brown v. Valoff, 422 F.3d 926, 935-36
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(9th Cir. 2005) (“[E]ntirely pointless exhaustion” not required).
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Defendants contend that Plaintiff did not exhaust administrative remedies. Defendants
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contend that none of Plaintiff’s inmate appeals notified prison officials of the problem and the
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action requested, or were properly exhausted. Defendants submit as exhibits in support inmate
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grievance Nos. KVSP 08-00146, KVSP 08-00182, and KVSP 08-00232.
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1.
KVSP Grievance No. 08-00146 and 08-0182
In grievance No. 08-00146, Plaintiff complained of being strip searched and that he was
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missing certain personal property following the November 1, 2007 incident. In grievance No.
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08-00182, Plaintiff complained of being denied his personal and legal property. Plaintiff
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requested the return of his property.
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Defendants contend that Plaintiff did not complain of being deprived of his bedding,
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linens, or personal hygiene items. That appears to be incorrect. In grievance No. 08-00146,
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Plaintiff complained that he and his cell mate’s bedding was taken, and that some of their
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hygiene products were busted open. See Ex. A, p. 12, Doc. 30-4.
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However, Plaintiff failed to exhaust administrative remedies with these grievances.
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Plaintiff grievances Nos. 08-00146 and 08-00182 were both denied at the First Level of review.
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See Ex. A, p. A000001, Doc. 30-4; Ex. B., p. B00001, Doc. 30-5. There is no evidence to
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indicate that Plaintiff appealed these grievances further. Thus, Plaintiff did not exhaust all
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available administrative remedies with grievance Nos. 08-00146 and 08-00182.
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2.
KVSP Grievance No. 08-00232
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In grievance No. 08-00232, Plaintiff complained that he had been placed in the
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administrative segregation unit (“ASU”). Ex. C, pp. C00003-06, Doc. 30-6. Plaintiff
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complained that his placement in ASU was retaliation for Plaintiff filing a previous inmate
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grievance concerning his property.
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Plaintiff requested as relief that: 1) he be provided with evidence as to his placement in ad
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seg, or his immediate release from ASU 2) he be provided due process; and 3) that this grievance
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be considered a citizen’s complaint against Defendant Hamlin. Plaintiff’s grievance was granted
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at the first level of review pertaining to his request for release from ASU.
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Defendants contend that 1) grievance No. 08-00232 does not exhaust administrative
remedies as to Plaintiff’s claims for conditions of confinement; and 2) remedies remained
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available for Plaintiff regarding Plaintiff’s claim of retaliation. Defs.’ Reply 2:17-5:24, Doc. 41.
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A.
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Conditions of Confinement
Defendants contend that Plaintiff failed to notify prison officials of his conditions of
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confinement issues with grievance No. 08-00232. Defs.’ Reply 4:11-19. Plaintiff contends that
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Defendants' arguments that Plaintiff failed to notify prison officials of his conditions of
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confinement are nonsensical because a grievance regarding missing property is about conditions
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of confinement. Pl.’s Opp’n 5, Doc. 40. Plaintiff’s argument is incorrect. Where a prison’s
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grievance procedures are silent or incomplete as to the level of factual specificity required, “‘a
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grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.’”
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Griffin v. Arpaio, 557 F.3d 1117, 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.
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2002)).
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Here, grievance No. 08-00232 complained of his placement in ASU. It is not clear that
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Plaintiff sought remedy of his issues regarding conditions of confinement. The wrong mentioned
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in grievance No. 08-00232 focused on his allegedly improper placement in ASU. While
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Plaintiff’s property issues were mentioned, including deprivation of bed linens, state-issued
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clothing, and personal property, Plaintiff did not identify a remedy sought regarding his property.
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There is also no language that would inform prison officials that this deprivation of property
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resulted in harm to Plaintiff regarding his conditions of confinement, namely the alleged harsh
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conditions in his cell. The grievance was insufficient to place prison officials on notice of the
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nature of the wrong and the redress sought regarding his conditions of confinement.
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Accordingly, Plaintiff failed to exhaust administrative remedies regarding his conditions
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of confinement claim with grievance No. 08-00232. Because Plaintiff’s conditions of
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confinement claim was the only claim against Defendant Williams, the appropriate remedy is
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dismissal of Defendant Williams from this action without prejudice. Wyatt, 315 F.3d at 1119-20.
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B.
Retaliation
Defendants contend that Plaintiff had available administrative remedies. Defendants
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contend that available remedies included his grievance being treated as a citizens complaint, a
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formal investigation being done, a written apology, or an affirmation that his allegations had been
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sustained. Defs.’ Reply, 4:3-24. Plaintiff contends that his grievance was granted at the first
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level of review. Plaintiff contends that because the grievance was granted, he was under no
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obligation to appeal further, and he has exhausted all available administrative remedies. Pl.’s
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Opp’n 4.
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Plaintiff cites to Harvey v. Jordan, 605 F.3d 681 (9th Cir. 2010), in support. In Harvey,
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the plaintiff had appealed a delayed CDC 115 disciplinary hearing. Id. at 684-85. The plaintiff
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requested that he be given a hearing with access to a requested video tape that would exonerate
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him, or that the 115 charge be dropped. Id. at 685. Prison officials granted the plaintiff’s request
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that he would be given a hearing and access to the video tape. Id. However, the plaintiff did not
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receive the promised hearing for over five months. Id. The defendants contended that the
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plaintiff should have appealed the grant of his grievance. Id. The Ninth Circuit found that the
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plaintiff “has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in
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order to exhaust his administrative remedies.” Id.
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Here, based on the submitted evidence, Plaintiff received a grant of his grievance insofar
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as he received release from ASU. Plaintiff’s request for an additional citizens complaint was not
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granted. However, requesting alternative forms of relief does not change the result here. As
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found by the Ninth Circuit, “[o]nce the prison officials purported to grant relief with which [the
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prisoner] was satisfied, his exhaustion obligation ended. His complaint had been resolved, or so
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he was led to believe, and he was not required to appeal the favorable decision.” Id. Thus, it
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appears that Plaintiff has exhausted available administrative remedies regarding his retaliation
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claim with grievance No. 08-00232.
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IV.
Conclusion And Recommendation
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
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GRANTED in full;
2.
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Defendant Williams’s motion to dismiss, filed November 15, 2010, be
Defendant Williams be dismissed without prejudice for Plaintiff’s failure to
exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a);
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Defendants Lascano and Hamlin’s motion to dismiss, filed April 6, 2011, be
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GRANTED in part and DENIED in part;
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Plaintiff’s condition of confinement claim against Defendant Lascano be
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dismissed without prejudice for Plaintiff’s failure to exhaust administrative
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remedies pursuant to 42 U.S.C. § 1997e(a);
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5.
Defendants’ motion to dismiss Plaintiff’s retaliation claim be DENIED; and
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6.
Defendants Lascano and Hamlin serve and file an answer within twenty (20) days
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from the date of service of the District Judge’s order resolving these Findings and
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Recommendations.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-
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one (21) days after being served with these Findings and Recommendations, the parties may file
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written objections with the Court. The document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
July 13, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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