Leos v. Rasey et al

Filing 47

ORDER ADOPTING 43 Findings and Recommendations and DENYING Defendants' 29 Motion for Summary Judgment, signed by Chief Judge Lawrence J. O'Neill on 9/15/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES LEOS,

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Case No. 1:14-cv-02029-LJO-JLT (PC)
Plaintiff,

v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

RASEY, et al.,
(Docs. 29, 43)
Defendants.

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Plaintiff, James Leos, is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.

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On July 27, 2016, the Magistrate Judge filed Findings and Recommendations (F&R) to
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grant Defendants’ motion for summary judgment on Plaintiff’s failure to timely file this action in
compliance with the California Tort Claims Act, Cal. Gov’t Code § 945.6, but to deny their
motion on Plaintiff’s claims under § 1983, finding that Plaintiff had exhausted the administrative

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remedies that were available to him. (Doc. 43.) This was served on the parties that same day and
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contained notice that any objections to it were to be filed within twenty-one days. (Id.) Both
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sides filed timely objections. (Docs. 44, 45.)
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Defendants objected to the finding that they had not met their burden on Plaintiff’s claims
under § 1983 and asserted that it was Plaintiff’s burden to show that the requirements of Title 15

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were not publicized to have rendered the process unavailable and objected to the applicability of
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Ross v. Blake, --- U.S. ---, 136 S. Ct. 1850, 1858 (June 6, 2016). (Doc. 44.) However, as

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correctly stated in the F&R, when moving for summary judgment, Defendants must first prove

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that there was an available administrative remedy which Plaintiff did not exhaust prior to filing

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suit. Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino v. Baca, 747 F.3d

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1162, 1172 (9th Cir. 2014) (en banc)). “Under § 1997e(a), the exhaustion requirement hinges on

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the “availability’ of administrative remedies: An inmate, that is, must exhaust available remedies,

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but need not exhaust unavailable ones.” Ross v. Blake, --- U.S. ---, 136 S. Ct. 1850, 1858 (June 6,

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2016). Defendants failed to show that Plaintiff had been informed of the requirements under Title

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15 both to list of all offending prison staff (§ 3084.2(a)(3)) and for detailed factual specificity (§

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3084.2(a)(4)). Yet their motion relied heavily on these requirements. An administrative process

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that is not conveyed to the inmates effectively renders the remedy unavailable since “essentially

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‘unknowable’ -- so that no ordinary prisoner can make sense of what it demands . . . .” Ross v.

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Blake, --- U.S. ---, 136 S. Ct. 1850, 1859-60 (2016), quoting Goebert v. Lee County, 510 F.3d

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1312, 1323 (C.A.11 2007), and Turner v. Burnside, 541 F.3d 1077, 1084 (C.A.11 2008)

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(“Remedies that rational inmates cannot be expected to use are not capable of accomplishing their

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purposes and so are not available”). Inmate Appeals #13-1073 and #13-1320 exhausted Plaintiff’s

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available administrative remedies on his claims under § 1983 in this action.

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Plaintiff objected that his attempts to file suit in Kings County Superior Court in March

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and May of 2013 on his claims under California law were timely and sufficed his obligation to

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commence a timely civil action under California Government Code § 945.6, subd. (a)(1). (Doc.

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45.) However, as noted in the F&R, neither of those filings “commenced” an action as both were

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rejected by the Superior Court and Plaintiff’s filing in June of 2013 was not timely for purposes

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of the California Tort Claims Act.

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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, the Court finds the

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Findings and Recommendations to be supported by the record and by proper analysis.

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//
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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendations, filed July 27, 2016 (Doc. 43), is adopted in
full;1 and

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2. This case is referred back to the Magistrate Judge for further proceedings.

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IT IS SO ORDERED.

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Dated:

/s/ Lawrence J. O’Neill _____

September 15, 2016

UNITED STATES CHIEF DISTRICT JUDGE

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There are no factual disputes which require an evidentiary hearing. Albino, 747 F.3d at 1170. Defendants’ request
for a hearing is denied.

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