Agnes v. Joseph et al
Filing
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 26 , signed by District Judge Lawrence J. O'Neill on 10/20/11: Defendant's Motion to Dismiss 18 is DENIED.(Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARK AGNES,
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CASE NO.
Plaintiff,
ORDER ADOPTING
RECOMMENDATIONS
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AND
(ECF No. 26)
NURSE JOSEPH, et al.,
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Defendants.
/
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FINDINGS
v.
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1:10-cv-00807-LJO-GBC (PC)
I.
Procedural History
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Plaintiff Mark Agnes (“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. This action proceeds on Plaintiff’s
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Complaint filed May 10, 2010. (ECF No. 1.) On April 28, 2011, this Court screened Plaintiff's
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Complaint finding that it stated a cognizable claim for relief against Defendants Joseph and Dixon
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for deliberate indifference to his serious medical need in violation of the Eighth Amendment. On
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August 15, 2011, Defendant Joseph (“Defendant”) filed a motion to dismiss. (ECF No. 18). The
matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
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Local Rule 302.
On September 16, 2011, the Magistrate Judge filed a Findings and
Recommendations herein which was served on the parties which contained notice that any objections
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to the Findings and Recommendations were to be filed within thirty days. (ECF No. 26). On
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October 17, 2011, Defendant filed objections.
II.
Review of Objections
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Defendant’s argument entails that administrative remedies can never be exhausted at the
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informal level since the boilerplate language in section D on the informal complaint form states that
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if the prisoner is dissatisfied, they can appeal to the formal level within fifteen days of receiving a
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response at the informal level. Defendant’s argument is unpersuasive. First the operative language
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is “if you are dissatisfied” and if a prisoner gets the desired outcome at the informal level and is
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satisfied, then it does not make sense to appeal to the formal level. Then Defendant points to the fact
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that Plaintiff’s subsequent grievances were screened out as duplicative and argues that the
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subsequent grievances demonstrates that Plaintiff was not satisfied and should have filed a formal
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appeal. At the heart of this argument is what to do in situations where a prisoner can initially receive
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a satisfactory response, rely on it and then the satisfactory response is not carried out. How long
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must a prisoner wait in good faith for the satisfactory response to be carried out and what should a
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prisoner do when the satisfactory response is not carried out? It does not seem reasonable to demand
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that a prisoner file a formal complaint just to have it screened out as untimely simply because the
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prisoner relied on the assurances of prison officials that he would receive a satisfactory response.
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Such reasoning contradicts the Ninth Circuit findings in Harvey v. Jordan, 605 F.3d 681, 685 (9th
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Cir. 2010).
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III.
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Conclusion and Order
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court finds the
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Findings and Recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that Defendant's motion to dismiss, filed
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August 15, 2011, be DENIED. (ECF. No. 18).
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IT IS SO ORDERED.
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Dated:
b9ed48
October 20, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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