Meredith v. Overley et al

Filing 28

ORDER to Defendants Benevidez, Gamboa, and Overley to Produce a Document in Connection with their Motion to Dismiss signed by Magistrate Judge Michael J. Seng on 05/29/2013. Copies due by 6/17/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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DWAYNE MEREDITH,
Plaintiff,

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CASE NO. 1:12-cv-455-LJO-MJS (PC)
ORDER TO DEFENDANTS BENEVIDEZ,
GAMBOA, AND OVERLEY TO PRODUCE
A DOCUMENT IN CONNECTION WITH
THEIR MOTION TO DISMISS

v.
D. OVERLEY, et al.
Defendants.
/

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Plaintiff Dwayne Meredith (“Plaintiff”) is a 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.
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Plaintiff initiated this action on March 26, 2012. (Compl., ECF No. 1.) The Court
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found that Plaintiff’s First Amended Complaint (ECF No. 8) stated a cognizable claim
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against Defendants Overley, Benevidez, and Gamboa under the Eighth Amendment of the
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United States Constitution (ECF No. 9).
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On January 7, 2013, Defendants filed a motion to dismiss the action on the ground
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that Plaintiff had failed to exhaust his administrative remedies prior to commencing the
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action. (Def.’s Mot., ECF No. 12.) Plaintiff filed an opposition (Pl.’s Opp’n, ECF No. 16)
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and Defendants a reply (Def.’s Reply, ECF No. 25).
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The Court finds that additional information is necessary to enable it to address and
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resolve the issues presented in Defendants’ motion.
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In his opposition, Plaintiff included a partial copy of an appeal numbered “COR-1028
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3293.” Defendants allege that this appeal was denied at the third level of review because

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Plaintiff had bypassed lower levels of review and, thus, failed to exhaust his appeals.

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Plaintiff alleges that it was the prison itself that bypassed lower levels of review and then

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incorrectly attributed the failure to exhaust to Plaintiff. Neither party submitted a complete

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copy of the appeal or the institution review log for it. Such information is necessary to

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enable proper evaluation of the motion to dismiss. Defendants are in the better position

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to secure and provide this information to the Court,

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Accordingly, Defendants are ORDERED to provide a complete copy of appeal COR-

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10-3293 and a copy of the institution’s log regarding this appeal to the Court within

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fourteen (14) days of entry of this order.

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IT IS SO ORDERED.

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Dated:
il0i0d

May 29, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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