Briones v. Pleasant Valley State Prison et al
Filing
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ORDER Requiring Plaintiff to Provide Additional Evidence Regarding his Motin for Reconsideration, signed by Chief Judge Lawrence J. O'Neill on 12/22/2016. (Case Management Deadline: 2/3/2017) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHNNY G. BRIONES,
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Plaintiff,
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v.
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R. HAND, et al.,
1:14-cv-00750-LJO-EPG (PC)
ORDER REQUIRING PLAINTIFF TO
PROVIDE ADDITIONAL EVIDENCE
REGARDING HIS MOTION FOR
RECONSIDERATION
(ECF NO. 52)
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Defendants.
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Johnny G. Briones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint
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commencing this action on May 19, 2014. (ECF No. 1.) On August 19, 2016, defendants Cole,
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Hendricks, and Hand filed a motion to dismiss for failure to exhaust. (ECF No. 45.) On
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September 9, 2016, Plaintiff filed non-opposition to the motion, stating that he would not be able
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to oppose the motion to dismiss in a timely manner. (ECF No. 48.) Therefore, on September 12,
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2016, the Court dismissed the case, without prejudice. (ECF No. 49.) On December 14, 2016,
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Plaintiff filed a “Motion to Examine Administrative Exhaustion in Connection with Plaintiff’s
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Current Complaint.” (ECF No. 52.) The Court construes this as a motion to reconsider its order
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dismissing the case.
Federal Rule of Civil Procedure 60(b) governs grounds for relief from an order:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it prospectively is no
longer equitable; or (6) any other reason that justifies relief.
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Thus far, Plaintiff has failed to show that he meets any of the above-mentioned reasons for
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granting relief from the order dismissing the case. Plaintiff states that he has had extreme health
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problems, which is why he was unable to oppose the motion to dismiss. Additionally, Plaintiff
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states that he was not able to appeal his grievance to the third level because he has serious health
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problems, and because he was in the hospital without his legal property during the time period he
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had to appeal to the third level. Plaintiff asks the Court to order prison officials to address the
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merits of his prison grievance, even though it is untimely.
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On the present record, there appears to be no reason why Plaintiff could not have brought
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these alleged facts to the Court’s attention in response to the motion to dismiss. Plaintiff was able
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to file a non-opposition, and nothing in the non-opposition suggested that Plaintiff had health
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problems or that he was in the hospital and did not have access to the legal paperwork at the time
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he was required to exhaust his administrative remedies. Instead, he simply stated “Plaintiff will
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not be able to gather any and all documents possible in time before filing opposition pleading is
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due.” (ECF No. 48.) In other words, at the time of filing his non-opposition, Plaintiff knew (or
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should have known) about all of the issues he is now raising. Plaintiff does not explain why he
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did not raise his medical situation at that time. The only truly “new” fact presented in the present
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motion for reconsideration is that Plaintiff now has someone to “assist him to communicate with
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the court in this matter.” (ECF No. 52 at 1.) Plaintiff also now provides the sworn declaration of
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another prisoner, Troy A. Rhodes, who testifies to his own belief that “Plaintiff has some serious
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medical problems that may be part of his suffering a stroke,” and that Plaintiff is unable to
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communicate effectively due to those health issues. (Id. at 11-12.) Mr. Rhodes, however, is not a
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medical professional. Absent medical evidence, the Court cannot evaluate properly Plaintiff’s
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request for reconsideration.
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Therefore, the Court will give Plaintiff until February 3, 2017, to submit medical
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documentation in support of his motion for reconsideration. Plaintiff should submit medical
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records showing the severity of his condition, including any medical documentation indicating
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why he might have difficulty communicating, and/or any medical records showing that he was in
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the hospital or under the care of a physician at the time he was required to oppose the motion to
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dismiss. After Plaintiff submits the additional evidence, Defendants shall have 14 days to file a
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response to the motion for reconsideration. If the Court grants the motion for reconsideration, it
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may request further briefing regarding the pending motion to dismiss, but does not do so at this
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time.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
December 22, 2016
UNITED STATES CHIEF DISTRICT JUDGE
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