Tracy Taylor v. Hubbard et al

Filing 119

ORDER signed by District Judge Lawrence J. O'Neill on 3/21/2014 adopting 116 FINDINGS AND RECOMMENDATIONS re 74 Motion to Dismiss.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRACY TAYLOR,

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Plaintiff,
v.
SUSAN HUBBARD, et al.,
Defendants.

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Case No.: 1:10-cv-00404-LJO-BAM PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DEFENDANTS’ MOTION TO DISMISS
(ECF Nos. 74, 116)

Plaintiff Tracy Taylor (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

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

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On September 4, 2013, the Magistrate Judge issued Findings and Recommendations that

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Defendants’ motion to dismiss for failure to exhaust administrative remedies be granted in part and

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denied in part and this action proceed only on Plaintiff’s claims (1) against Defendant Cate, in his

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official capacity, for violations of the Free Exercise Clause of the First Amendment and RLUIPA; and

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(2) against Defendant Wegman, in her individual capacity, for violation of the Free Exercise Clause of

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the First Amendment arising out of the alleged confiscation of Plaintiff’s religious items on February

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11, 2009. The Findings and Recommendations were served on the parties and contained notice that

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any objections to the Findings and Recommendations were to be filed within thirty days. On

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September 20, 2013, Plaintiff filed his objections. Defendants did not file a response.
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Plaintiff objects to the Magistrate Judge’s recommendation that the claims against Defendant

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Harrington and the claim against Defendant Wegman arising from the failure to provide Plaintiff his

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cigars in February 2010 be dismissed.

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Defendant Harrington

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With regard to the claims against Defendant Harrington, Plaintiff takes issue with the

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Magistrate Judge’s determination that Plaintiff’s evidence called into question the veracity of his

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arguments. Plaintiff appears to challenge the Magistrate Judge’s finding that Plaintiff “declare[d] that

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he submitted an appeal concerning Defendant Harrington’s regulations on May 11, 2009 …

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[h]owever, the appeal is dated May 14, 2009.” (ECF No. 116, p. 8.) Plaintiff now claims that the

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appeal is dated May 12, 2009.1 (ECF No. 117, p. 2.) Plaintiff’s objection lacks merit.
Although the Magistrate Judge questioned Plaintiff’s veracity and disagreed with the asserted

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date, the Magistrate Judge considered Plaintiff’s arguments as if the appeal concerning Defendant

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Harrington was dated May 11, 2009. In other words, the Magistrate Judge accepted the May 11, 2009

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date when considering whether or not Plaintiff exhausted his administrative remedies or whether he

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was precluded from exhausting through no fault of his own. (ECF No. 116, p. 8-9.)
Plaintiff has not adequately challenged the remainder of the Magistrate Judge’s findings

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regarding the veracity of Plaintiff’s assertions. The Magistrate Judge determined that the May 11,

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2009 appeal referred to another appeal submitted on “6-10-09,” which is after the May 11, 2009 date.

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(ECF No. 116, p. 8.) Plaintiff admits that he wrote the date of “6-10-09” on the grievance, but claims

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that it was an error. (ECF No. 117, p. 3.) Despite Plaintiff’s claim of error, he does not identify the

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correct date of the referenced grievance or provide any other evidence of his error.
Plaintiff also has not adequately challenged the Magistrate Judge’s further finding that

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Defendants provided evidence challenging the veracity of Plaintiff’s arguments. First, Plaintiff objects

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to the Magistrate Judge’s apparent acceptance of Defendants’ assertion that Plaintiff’s May 11, 2009

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appeal did not appear to have been received by the KVSP appeals office because it was not date

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Plaintiff apparently has changed his argument as he previously declared that he “submitted an appeal on May 11,
2009 about Warden Harrington procedures.” (ECF No. 115, p. 25; Plaintiff’s Declaration at ¶ 13.) The date change to
May 12, 2009, undercuts Plaintiff’s claims regarding exhaustion or the inability to exhaust an appeal submitted on May 11,
2009.

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stamped. (ECF No. 116, p. 9.) Despite his general objection, Plaintiff does not have any evidence to

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counter Defendants’ supporting declaration, which stated that grievances are date stamped when they

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are received. Plaintiff also has not provided evidence of any other grievances that were received and

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returned to him without a date stamp.

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Plaintiff takes issue with the Magistrate Judge’s finding that an appeal received by KVSP on

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May 11, 2009, was not the appeal related to claims against Defendant Harrington. Plaintiff objects

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because Defendants failed to provide physical evidence as to the May 11, 2009 appeal. Plaintiff’s

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objection lacks merit. If Defendants returned the appeal, they would not have a copy of it. Moreover,

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Plaintiff’s argument that the appeal was dated May 12, 2009, undermines his claim regarding the May

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11, 2009 appeal.
Plaintiff also objects to the Magistrate Judge’s determination that the May 11, 2009 appeal did

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not appear to be Plaintiff’s appeal concerning Defendant Harrington because Plaintiff claimed it was

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first rejected on May 29, 2009, but prison records indicated that the May 11, 2009 appeal was rejected

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and sent back on May 14, 2009. (ECF No. 116, p. 9.) Plaintiff now claims that he submitted a copy of

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the May 14, 2009 rejection, but simply forgot to mention it in his opposition papers. (ECF No. 117, p.

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4.) Although Plaintiff submitted a rejection letter dated May 14, 2009 with his original opposition, he

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did not argue that it was a rejection of the appeal at issue. (ECF No. 115, p. 68.) Plaintiff does not

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explain why he failed to raise this issue. Nonetheless, the Court does not find that submission of the

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May 14, 2009 letter alters the Magistrate Judge’s conclusion that Plaintiff failed to exhaust his

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administrative remedies against Defendant Harrington or that he was precluded from exhausting

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through no fault of his own.

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Finally, Plaintiff contends that the Magistrate Judge erred in finding that the December 14,

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2009 appeal did not exhaust his claims against Defendant Harrington. However, Plaintiff does not

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address the Magistrate Judge’s finding that the appeal was untimely and would not have exhausted his

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claims against Defendant Harrington even if it had not been screened out. (ECF No. 116, pp. 9-10.)

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Defendant Wegman

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Plaintiff challenges the Magistrate Judge’s finding that Plaintiff failed to take reasonable and

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appropriate steps to exhaust his claim against Defendant Wegman arising from an incident in February
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2010. In particular, Plaintiff objects to the Magistrate Judge’s finding that his February 11, 2010

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appeal was received and screened out by prison officials, and not lost as Plaintiff claimed. (ECF No.

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116, p. 11.) Plaintiff now argues that despite prison records indicating that his appeal was screened

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out, he never received a response. (ECF No. 117, p. 7.) However, as determined by the Magistrate

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Judge, Plaintiff provides no evidence indicating that he followed up on the lack of response. In other

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words, Plaintiff does not present evidence that he took reasonable and appropriate steps to exhaust his

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February 2010 claim against Defendant Wegman. Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.

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2010).

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de

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novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections,

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the Court finds the Findings and Recommendations to be supported by the record and by proper

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analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations issued on September 4, 2013, are adopted in full;

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2.

Defendants’ motion to dismiss for failure to exhaust administrative remedies is

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GRANTED IN PART and DENIED IN PART as follows:

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a. Defendants’ motion to dismiss the claims against Defendant Harrington is

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GRANTED, and Plaintiff’s claims against Defendant Harrington are DISMISSED

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without prejudice;

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b. Defendants’ motion to dismiss the claim against Defendant Wegman arising from

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the alleged failure to provide Plaintiff with cigar tobacco in February 2010 is

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GRANTED, and Plaintiff’s claim arising from the alleged failure to provide him

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with cigar tobacco is DISMISSED without prejudice; and
c. Defendants’ motion to dismiss the claim against Defendant Wegman arising from

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the alleged confiscation of Plaintiff’s religious items in February 2009 is DENIED.

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3.

This action shall proceed on Plaintiff’s claims (1) against Defendant Cate, in his official

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capacity, for violations of the Free Exercise Clause of the First Amendment and

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RLUIPA; and (2) against Defendant Wegman, in her individual capacity, for violation
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of the Free Exercise Clause of the First Amendment, arising out of the alleged

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confiscation of his religious items on February 11, 2009; and

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This matter is referred back to the Magistrate Judge for further proceedings consistent
with this order.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

March 21, 2014

UNITED STATES DISTRICT JUDGE

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