Bejarano v. Allison et al

Filing 132

ORDER Adopting Findings and Recommendations and Granting Defendants' Motion for Summary Judgment, signed by Chief Judge Lawrence J. O'Neill on 8/10/16. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BOB BEJARANO,

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Plaintiff,
v.

No. 1:11-cv-00589 LJO DLB PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

BEST, et al.,
(Document 115)
Defendants.

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Plaintiff Bob Bejarano (“Plaintiff”) is a California state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action

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on April 12, 2011, and it proceeds on his February 8, 2012, Second Amended Complaint against

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Defendants M. Bejarano and O. Best for retaliation in violation of the First Amendment.

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On December 15, 2015, Defendants filed a motion for summary judgment for failure to

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exhaust. The matter was referred to a United States magistrate judge pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and Local Rule 302.

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On April 28, 2016, the Magistrate Judge issued Findings and Recommendations that the

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motion for summary judgment be granted and that the action be dismissed without prejudice. The

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Findings and Recommendations were served on the parties and contained notice that any

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objections must be filed within thirty days. After receiving leave to file late objections, Plaintiff

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filed his objections on July 22, 2016. Defendants filed their reply on August 8, 2016.
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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, including Plaintiff’s

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objections and Defendants’ reply, the Court finds that the Findings and Recommendations are

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supported by the record and proper analysis.

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In his objections, Plaintiff argues that he (1) filed an appeal; and (2) that prison officials

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should have forwarded the appeal to the correct institution, as stated in the CDC 602 Route Slip.

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Plaintiff contends that the Magistrate Judge did not discuss the route slip, and that the officials’

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failure to forward the appeal thwarted his attempts at exhaustion.

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Plaintiff’s argument is without merit. Plaintiff cites to the route slip to show that he

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submitted a grievance in the first instance, but the Magistrate Judge assumed this fact in the

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Findings and Recommendations. “Viewing the evidence in the light most favorable to Plaintiff,

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as this Court must, CSATF received the appeal at some point and cancelled it as untimely on July

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6, 2010. However, there is no indication that Plaintiff filed a separate appeal on the cancellation.”

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ECF No. 115, at 7. Moreover, contrary to Plaintiff’s argument, a remedy remained because he

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could have appealed the cancellation. Ross v. Blake, 136 S.Ct. 1850, 1857-1859 (2010).

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Plaintiff also argues that prison officials improperly applied their own regulations,

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because they could have accepted his untimely grievance. 15 Cal.Code Regs. § 3000.5(f).

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However, as Defendants note, the regulation at issue affords discretion to prison officials to

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excuse non-compliance with regulatory deadlines, and they are not required to do so. Prison

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officials’ decision not to exercise their discretion to overlook the untimeliness of Plaintiff’s

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grievance does not excuse his failure to exhaust.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations, filed April 28, 2016, are adopted in full;

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Defendants’ motion for summary judgment (Document 91) is GRANTED;

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3.

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This action is DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to
exhaust.

This terminates this action in its entirety.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

August 10, 2016

UNITED STATES CHIEF DISTRICT JUDGE
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