Warner v. Cate et al

Filing 65

ORDER Adopting 59 FINDINGS AND RECOMMENDATIONS to DENY Defendants' 41 Motion for Summary Judgment; Case to Remain Open signed by District Judge Lawrence J. O'Neill on 6/9/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EARL WARNER, Plaintiff, 11 12 13 14 15 16 v. Case No. 1:12-cv-01146-LJO-MJS (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT MATTHEW L. CATE, et al., (ECF No. 59) Defendants. CASE TO REMAIN OPEN Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 17 rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 18 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the 19 United States District Court for the Eastern District of California. 20 On May 19, 2015, the Magistrate Judge issued findings and recommendations to 21 deny Defendants’ motion for summary judgment and to require an evidentiary hearing to 22 resolve factual disputes concerning exhaustion. (ECF No. 59.) Defendants filed 23 purported objections. (ECF No. 60.) The objections do not take issue with the findings 24 and recommendations but instead ask that other issues collateral to exhaustion also be 25 addressed in the recommended evidentiary hearing. Specifically, Defendants ask that 26 the evidentiary hearing address the issue of whether Plaintiff’s initial appeal submission 27 was timely. According to Defendants, the issue of timeliness falls outside the scope of 28 1 exhaustion, and instead is a matter of “procedural default.” Defendants thus contend 2 that they are excused from not having raised the timeliness issue in their exhaustion 3 motion. They argue that permitting them to address this issue at the evidentiary hearing 4 will preserve judicial resources by obviating the need to address the issue later, in a 5 substantive motion for summary judgment or in a separate evidentiary hearing. 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has 7 conducted a de novo review of this case. Having carefully reviewed the entire file, the 8 Court finds the findings and recommendations to be supported by the record and by 9 proper analysis. 10 Defendants’ request to add the issue of “procedural default” to the evidentiary 11 hearing will be denied. Defendants’ contention that timeliness is not an aspect of 12 exhaustion is incorrect. The case relied on by Defendants, Ngo v. Woodford, 403 F.3d 13 620 (9th Cir. 2005), was reversed by the United States Supreme Court on precisely this 14 basis. Woodford v. Ngo, 548 U.S. 81 (2006) (holding that “proper” exhaustion is 15 required, including compliance with administrative deadlines). Defendants’ assertion 16 that they have a continuing opportunity to raise the issue of “procedural default” is 17 incorrect; the time for argument regarding timeliness of an administrative appeal is in 18 the motion for summary judgment based on exhaustion. 19 Nevertheless, it is apparent that factual disputes regarding timeliness may bear 20 on whether administrative remedies were effectively unavailable to Plaintiff. Thus, the 21 Court will refer the matter back to the Magistrate Judge to determine the extent to which 22 issues of timeliness may or need be addressed in the evidentiary hearing. 23 24 25 26 27 28 Accordingly, it is HEREBY ORDERED that: 1. The Court adopts the findings and recommendations (ECF No. 59), filed May 19, 2015, in full; 2. Defendants’ motion for summary judgment (ECF No. 41), filed August 18, 2014, is DENIED; 3. The Court REFERS the matter back to the Magistrate Judge for further 2 proceedings on the issue of exhaustion; and 1 4. The case shall remain open for resolution of the exhaustion issue and, if 2 3 4 5 necessary, further proceedings on Plaintiff’s claims. IT IS SO ORDERED. /s/ Lawrence J. O’Neill June 9, 2015 Dated: UNITED STATES DISTRICT JUDGE 6 5. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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