Johnson v. Cate et al
Filing
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FINDINGS And RECOMMENDATIONS That Defendant Doran's Motions (1) Sanction For Failure To Disclose Litigation History, and (2) Dismissal Of Action For Failure To Exhaust Administrative Remedies Be Denied (ECF No. [32), Objections Due Within Fourteen (14) Days, signed by Magistrate Judge Michael J. Seng on 11/14/2013. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/3/2013. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GARRISON S. JOHNSON,
Case No. 1:10-cv-02348-LJO-MJS (PC)
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Plaintiff,
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FINDINGS AND RECOMMENDATIONS
THAT DEFENDANT DORAN’S MOTIONS
FOR (1) SANCTION FOR FAILURE TO
DISCLOSE LITIGATION HISTORY, and
(2) DISMISSAL OF ACTION FOR
FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES BE
DENIED
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(ECF No. 32)
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OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS
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v.
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CATE, et al.,
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Defendants.
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Plaintiff Garrison S. Johnson is a state prisoner proceeding pro se in this civil rights
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action filed December 16, 2010 pursuant to 42 U.S.C. § 1983. The action proceeds against
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Defendant Doran for violation of Plaintiff’s rights under the Fourteenth Amendment Equal
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Protection Clause.
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Defendant Doran has moved to dismiss the case on grounds Plaintiff failed to
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disclose his litigation history and failed to exhaust available administrative remedies. (ECF
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No. 32.) Plaintiff filed opposition. (ECF No. 33.) Defendant filed a reply. (ECF No. 34.) The
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matter is now submitted for ruling. Local Rule 230(l).
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I.
LITIGATION HISTORY NON-DISCLOSURE
A.
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Arguments
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Defendant’s Position
Defendant argues Plaintiff materially misrepresented his litigation history in violation
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of Federal Rule of Civil Procedure 11(b) and that his case should therefore be dismissed
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pursuant to Rule 41(b).
According to Defendant, Plaintiff’s underlying pleading discloses only one prior
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action filed by Plaintiff. In truth Plaintiff has filed eighteen other actions; thirteen of those
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contain similar claims of only having filed one other action.1
Defendant contends that Plaintiff’s intentional concealment of his civil rights litigation
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history warrants dismissal of this action with prejudice.
2.
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Plaintiff’s Position
Plaintiff argues prison rules allow him to possess only seven active case files. The
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balance of his litigation files are stored at his mother’s house and unavailable to him. He
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listed only one lawsuit because “that case involved an equal protection of the law claim.”
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(Pl.’s Opp’n, ECF No. 33, at 7.)
Plaintiff seeks leave to cure the non-disclosure pursuant to Rule 11(c)(1)(A) by
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amending to add the eighteen cases identified by Defendant.
Plaintiff also argues Rule 41 dismissal is discretionary and not appropriate here
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because the non-disclosure does not interfere with the administration of justice in this case.
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B.
Legal Standard
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By submitting a pleading, a party certifies that, to the best of his/her knowledge,
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upon reasonable inquiry, it is not presented for any improper purpose, the legal contentions
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are warranted and the factual contentions have evidentiary support. Fed. R. Civ. P. 11.
The standard for triggering a violation under Rule 11 is objective unreasonableness,
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Margo v. Weiss, 213 F.3d 55, 65 (2d Cir. 2000), i.e. whether a reasonable attorney, upon
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The Court takes judicial notice of its own records. Fed. R. Civ. P. 201(d); United States v. Wilson, 631 F.2d
118, 119 (9th Cir. 1980).
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an objectively reasonable inquiry into the facts and law, would have concluded the position
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taken was well-founded. Truesdell v. Southern California Permanente Medical Group, 209
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F.R.D. 169, 174 (C.D. Cal. 2002). A court considering Rule 11 sanction should consider
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whether a position taken was frivolous, legally unreasonable, or without factual foundation
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even if not filed in bad faith. Id.
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Where a plaintiff fails to comply with Rule 11, defendant may move to dismiss the
action or any claim against it. Fed. R. Civ. P. 41(b).
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C.
Non-Disclosure Sanction Should Be Denied
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Defendant argues, the record suggests, and Plaintiff appears to concede that he has
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violated Rule 11 by knowingly understating his litigation history. A knowing nondisclosure,
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apparently replicated in many other actions filed by Plaintiff, suggests an improper purpose.
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Nonetheless, sanction should not be imposed in this case. First, the motion is
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procedurally defective. Defendant has not complied with the requirement that a motion for
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sanction be brought separately from other motions and he did not give notice of the motion
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twenty-one days before filing it with the Court. Fed. R. Civ. P. 11(c)(2); see Diamonds.net
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LLC v. Idex Online, Ltd., 254 F.R.D. 475, 476 (S.D.N.Y. 2008) (movants not entitled to
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sanction since movants failed to comply with Rule 11's procedural requirements mandating
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that motion for sanction be made separately from any other motion, and that motion be
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served on the opposing party twenty-one days before it was filed with the court).
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Secondly, it does not appear Defendant has been prejudiced by the failure to
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disclose litigation history. Defendant does not contend the ligation history relates to any
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legal or factual issue in this case or that its non-disclosure impacted any party or the Court.
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Plaintiff has here paid the filing fee and is not asking to proceed in forma pauperis, so
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Prison Litigation Reform Act (PLRA) “three strikes” disclosure is not in issue. The litigation
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history is a matter of public record, readily available to and accessed by Defendant.
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Thirdly, Plaintiff is a prisoner proceeding in pro se and entitled to liberal construal of
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pleadings in his favor. The rule of liberal construction is “particularly important in civil rights
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cases”, Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), and applies to “plaintiff’s
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factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989).
Finally, sanctions are meant to deter baseless filings, Photocircuits Corp. v.
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Marathon Agents, Inc., 162 F.R.D. 449, 451 (E.D.N.Y. 1995), and only as necessary to
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deter repetition of the conduct or comparable conduct by others similarly situated. The
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instant nondisclosure does not render the pleading baseless; a prima facie equal protection
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claim has been stated. Nor is dismissal, the sanction requested by Defendant, the minimum
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necessary deterrent.
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Imposition of Rule 11 sanctions is “at its core . . . a judgment call” for the court to
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make. Kale v. Combined Ins. Co. of America, 861 F.2d 746, 758 (1st Cir. 1988). For the
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reasons stated, the Court should exercise its discretion to decline sanction under Rules 11
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and 41 as procedurally deficient and substantively unnecessary.
Nevertheless, Plaintiff should be admonished that his arguably known
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misrepresentation is offensive and distressing to the Court. It will review future
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representations by Plaintiff with heightened scrutiny. Misleading action subject to sanction
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will be dealt with appropriately.
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II.
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MOTION TO DISMISS
A.
Arguments
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Defendant’s Position
Defendant argues that Plaintiff did not properly exhaust through administrative
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channels his claim he was denied a law library clerk assignment because of his race. The
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gravamen of such an equal protection claim is that Plaintiff was qualified for the law clerk
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position denied solely because he is African American. The administrative appeal relied
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upon by Plaintiff for PLRA exhaustion, Appeal No. KVSP -09- 02023, fails to allege that
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Plaintiff “personally” was excluded from a law clerk position, but rather complains generally
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of discrimination against African Americans in filling the clerk position. This is a failure to
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properly exhaust administrative remedies and necessitates dismissal of the action.
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2.
Plaintiff’s Position
Plaintiff argues that Appeal No. KVSP -09- 02023 was exhausted at the third level.
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He also claims he and other blacks were excluded from the library clerk position because of
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their race, precluding racial balance in the position and causing him to suffer indifference
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and disrespect.
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B.
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The PLRA stipulates, “No action shall be brought with respect to prison conditions
Legal Standard
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under [42 U.S.C. § 1983], or any other federal law, by a prisoner confined in any jail, prison,
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or other correctional facility until such administrative remedies as are available are
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exhausted.” 42 U.S.C. § 1997e(a). Therefore, prisoners are required to exhaust all
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available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211
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(2007). The Supreme Court held that “the PLRA's exhaustion requirement applies to all
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inmate suits about prison life, whether they involve general circumstances or particular
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episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle,
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534 U.S. 516, 532 (2002). Further, the exhaustion of remedies is required, regardless of
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the relief sought by the prisoner, as long as the administrative process can provide some
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sort of relief on the prisoner's complaint. Booth v. Churner, 532 U.S. 731, 741 (2001).
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The California Department of Corrections and Rehabilitation (“CDCR”) has an
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administrative grievance system for prisoner complaints; the process is initiated by
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submitting a CDCR Form 602. Cal. Code Regs., tit. 15, §§ 3084.1, 3084.2(a). During the
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time relevant to this case, four levels of appeal existed: an informal level, a first formal
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level, a second formal level, and a third formal level, also known as the “Director's Level.”
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Id. at §§ 3084.5, 3084.6(c). Each successive appeal had to be submitted within fifteen
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working days of the event being appealed. Id. To properly exhaust administrative remedies,
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a prisoner must comply with the deadlines and other applicable procedural rules. Woodford
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v. Ngo, 548 U.S. 81, 93 (2006).
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The exhaustion requirement of § 1997e(a) is not a pleading requirement, but rather
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an affirmative defense. Defendants have the burden of proving Plaintiff failed to exhaust the
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available administrative remedies before filing a complaint in the district court. Jones, 549
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U.S. at 216 (2007). A motion raising a prisoner's failure to exhaust administrative remedies
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is properly asserted by way of an unenumerated motion under Rule 12(b). Wyatt v.
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Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Ritza v. Int'l Longshoremen's &
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Warehousemen's Union, 837 F.2d 365, 368 (9th Cir. 1998). In determining whether a case
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should be dismissed for failure to exhaust administrative remedies, “the court may look
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beyond the pleadings and decide disputed issues of fact” in a procedure that is “closely
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analogous to summary judgment.” Wyatt, 315 F.3d at 1119–20. When the court concludes
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the prisoner has not exhausted all of his available administrative remedies, “the proper
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remedy is dismissal without prejudice.” Id.
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C.
Defendant’s Motion To Dismiss Should Be Denied
On review of the record, the undersigned finds that Plaintiff’s underlying equal
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protection claim relates to racial imbalance at the prison which subjected Plaintiff to
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discrimination and harm. The court also finds that Appeal No. KVSP -09- 02023 exhausted
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that claim at the third level.
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Specifically, Plaintiff filed this action on December 16, 2010, claiming that beginning
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in 2009 Defendant denied African Americans, including Plaintiff, positions as law library
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clerks. (ECF No. 8 at 4-6.) As a result, Plaintiff has suffered from racial imbalance and
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discrimination, racial hostility, tension, violence, and emotional harm. (Id.) To have properly
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exhausted this claim, Plaintiff must have submitted an inmate appeal regarding the claim
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and obtained a third level decision prior to December 16, 2010. Woodford, 548 U.S. at 85–
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86 (2006); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
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It is without dispute that on November 8, 2009, Plaintiff appealed the exclusion of
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black law clerks by Defendant’s office, requested law clerks be racially balanced, and
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asserted that he, a black inmate, had been subjected to indifference and disrespect in the
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library as a result. (ECF 32-5, Lozano Decl., at Ex. A.) Plaintiff received a denial of Appeal
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No. KVSP -09- 02023 at the third (Director’s) level on October 27, 2010. Id.
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Appeal No. KVSP -09- 02023 put prison officials on notice of Defendant’s alleged
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discrimination against blacks, failure to achieve racial balance in law clerk positions, and
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harm to Plaintiff and other black inmates. Plaintiff provided prison officials an opportunity for
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administrative resolution. This satisfied the legislative purpose behind PLRA exhaustion,
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namely to alert the prison to a problem and give the prison an opportunity to resolve it; the
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appeal need not lay the groundwork for litigation. Griffin v. Arpaio, 557 F.3d 1117, 1120
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(9th Cir. 2009); see also Woodford, 548 U.S. at 88. In California, inmates are required only
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to describe the problem and the action requested. Cal. Code Regs. tit. 15 § 3084.2(a). This
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Plaintiff accomplished through the third level. An appeal need not lay out the facts,
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articulate legal theories, or demand particular relief; all the appeal need do is object
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intelligibly to some asserted shortcoming. Strong v. David, 297 F.3d 646, 650 (7th Cir.
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2002).
For the reasons stated above, Defendant is not entitled to dismissal of the action
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based upon failure to exhaust administrative remedies.
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III.
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CONCLUSIONS AND RECOMMENDATIONS
The Court should exercise its discretion and decline sanction under Rules 11 and 41
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as procedurally deficient and substantively unnecessary. However, Plaintiff should be
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admonished that his arguably known misrepresentation of facts is offensive and distressing
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to the Court, that future representations by Plaintiff will be reviewed with heightened
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scrutiny, and that misleading action subject to sanction will be dealt with appropriately.
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The Fourteenth Amendment equal protection claim on which Plaintiff is currently
proceeding was properly exhausted.
Accordingly, for the reasons stated above, the undersigned RECOMMENDS that
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Defendant’s motion for non-disclosure sanction and to dismiss the action for failure to
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exhaust (ECF No. 32) should be DENIED.
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These Findings and Recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).
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Within fourteen (14) days after being served with these Findings and Recommendations,
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any party may file written objections with the Court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge's Findings and
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Recommendations.” Any reply to the objections shall be served and filed within fourteen
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(14) days after service of the objections. The parties are advised that failure to file
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objections within the specified time may waive the right to appeal the District Court's order.
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Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
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November 14, 2013
/s/
UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:
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Michael J. Seng
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