Vickers v. Thompson et al

Filing 110

ORDER requiring Defendants to file motion for leave to amend responsive pleading within 14-Days re 109 signed by Magistrate Judge Stanley A. Boone on 10/8/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEREMIAH D. VICKERS,
Plaintiff,

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v.
THOMPSON, et al.,
Defendants.

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Case No.: 1:15-cv-00129-SAB (PC)
ORDER REQUIRING DEFENDANTS TO
FILE MOTION FOR LEAVE TO AMEND
RESPONSIVE PLEADING WITHIN
FOURTEEN DAYS
[ECF No. 109]

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I.

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INTRODUCTION

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Plaintiff Jeremiah D. Vickers is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. All parties have consented to the

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jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Local Rule

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302. (ECF Nos. 8, 40, 65, 89.) This action currently proceeds on Plaintiff’s claim for excessive

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force against Defendants Smith, Sandoval, and Akin, and the failure to intervene against

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Defendant Alvarez.

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II.

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BACKGROUND

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On October 3, 2017, Defendants filed a motion for summary judgment. (ECF No. 85.)

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On March 2, 2018, Plaintiff filed an opposition to that motion, on extension. (ECF No. 95.) On

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March 8, 2018, Defendants filed a reply. (ECF No. 97.)
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On August 14, 2018, the Court granted in part and denied in part Defendants’ motion for

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summary judgment. (ECF No. 98.) Among other things, the Court held that disputed issues of

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fact precluded the Court from concluding that administrative remedies were available to

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Plaintiff, and that Defendants were entitled to an evidentiary hearing on that issue. (Id. at 16.)

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Defendants were permitted an opportunity to request an evidentiary hearing, within thirty days.

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(Id.)

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On September 5, 2018, Defendants filed a timely motion requesting an evidentiary

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hearing. (ECF No. 99.) On September 7, 2018, the motion was granted, and the Court set an

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evidentiary hearing on the issue of exhaustion of administrative remedies for September 27, 2018

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at 2:00 p.m. in Courtroom 9 of the United States Courthouse in Fresno, California. (ECF No.

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100.)

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On September 7, 2018, the Court issued an order and writ of habeas corpus ad

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testificandum, ordering the warden of California State Prison, Los Angeles County (“CSP-

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LAC”), where Plaintiff is housed, to produce Plaintiff for the September 27, 2018 hearing. (ECF

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No. 101.)

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On September 19, 2018, Plaintiff filed an ex parte motion requesting the appointment of

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counsel for the evidentiary hearing, and seeking to postpone the hearing. (ECF No. 104.) On

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September 21, 2018, that motion was denied. (ECF No. 105.) The order was served via email

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on the Litigation Coordinator at CSP-LAC so that it could be hand-delivered to Plaintiff, due to

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the time-sensitive nature of the ruling. (ECF No. 106.)

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On September 26, 2018, the Court was informed by the Department of Corrections and

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Rehabilitation (“CDCR”) that Plaintiff refused to be transported for the September 27, 2018

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hearing. (ECF No. 108.)

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As a result, the Court sua sponte found that the interests of justice required Plaintiff to

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appear via video conferencing at the hearing. The Court requested that defense counsel work

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with CDCR and the Court’s IT Department to facilitate Plaintiff’s video conference appearance

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on an expedited basis. Defense counsel and CDCR expeditiously complied, which the Court

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greatly appreciated. Despite their efforts Plaintiff refused to appear for the hearing even though
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video appearance but then changed his mind shortly before the actual hearing.

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III.

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EVIDENTIARY HEARING

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On September 27, 2018, the Court conducted an evidentiary hearing on the issue of

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exhaustion of administrative remedies. (ECF No. 109.) Plaintiff appeared pro se, via video

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telephone conference, on behalf of himself, and Amy I. Myers, Tulare County Counsel, appeared

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on behalf of Defendants.
Plaintiff’s Failure to Appear

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A.

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At the outset of the hearing, the Court informed the parties that it had information from

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CDCR that Plaintiff refused to be transported for the evidentiary hearing. The Court questioned

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Plaintiff on the matter.

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Plaintiff stated that he understood that he would have to transfer prisons to attend the

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hearing, and that he did not find that the schedule would accommodate him. The Court found

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that Plaintiff willfully refused to attend the evidentiary hearing. Nevertheless, in an abundance

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of caution, it accommodated Plaintiff on a one-time basis by allowing him to appear by video

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conference. Defendants did not object to Plaintiff appearing and giving testimony by video

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conference. As noted at the hearing, the Court appreciates counsel accommodating the change in

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proceedings.

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Plaintiff was warned, and is expressly warned here again, that for all future proceedings,

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he will be required to appear in person and be transported to the United States Courthouse in

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Fresno, with transportation arrangements to be made in CDCR’s discretion. Further, Plaintiff’s

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failure to appear and refusal to prosecute this action may result in sanctions, up to and including

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dismissal of this action.

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B.

Exhaustion of Available Administrative Remedies

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During the hearing, Plaintiff submitted as evidence Defendants’ Answer to the amended

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complaint; specifically, Plaintiff submitted Defendants’ admission in the Answer that Plaintiff

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submitted a grievance on the claim at issue, as alleged in his amended complaint. (Defs.’

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Answer, ECF No. 35, ¶ 1.) Previously, Plaintiff submitted that portion of Defendants’ Answer
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as an exhibit to his opposition to Defendants’ motion for summary judgment for the failure to

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exhaust administrative remedies. Plaintiff cited the Answer as support for his argument that he

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submitted a grievance in compliance with the requirements of the Prison Litigation Reform Act

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(“PLRA”), 42 U.S.C. § 1997e(a). (Pl.’s Opp’n, ECF No. 95, Ex. F.)

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Plaintiff clarified at the hearing that by citing to this admission in Defendants’ Answer,

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he meant to raise that he was unaware, until Defendants brought their summary judgment

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motion, that there was any dispute regarding his exhaustion of available administrative remedies.

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Further, there was an admission in the record on the issue, and he argues that he is disadvantaged

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under the circumstances.

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IV.

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DISCUSSION

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“There is no question that exhaustion is mandatory under the PLRA and that unexhausted

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claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S. Ct. 910, 918–19,

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166 L. Ed. 2d 798 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 988, 152 L.

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Ed. 2d 12 (2002)); see also Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 2382, 165 L. Ed.

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2d 368 (2006) (same). Nevertheless, “[f]ailure to exhaust under the PLRA is ‘an affirmative

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defense the defendant must plead and prove.’” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.

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2014) (citing Jones, 549 U.S. 199, 204 (2007)); see also Reed Elsevier, Inc. v. Muchnick, 559

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U.S. 154, 166 & n. 6, 130 S. Ct. 1237, 1246-47, 176 L. Ed. 2d 18 (2010) (citing Jones and

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Woodford as examples of cases in which the Supreme Court treated exhaustion under the PLRA

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as a non-jurisdictional threshold requirement). A party’s responsive pleading under Federal Rule

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of Civil Procedure 8(c) must contain the affirmative defenses it wishes to assert, or those

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affirmative defenses are deemed waived. E.g., In re Adbox, Inc., 488 F.3d 836, 841 (9th Cir.

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2007). Thus, the failure to exhaust administrative remedies is an affirmative defense that is

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waived if the Defendant does not plead it in a responsive pleading, and prove it. Lira v. Herrera,

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427 F.3d 1164, 1171 (9th Cir. 2005) (citing Wyatt v. Terhune, 315 F.3d 1108, 1117-18 & n.9

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(9th Cir. 2003)).

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Here, the Court finds that Defendants admitted that Plaintiff exhausted available
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administrative remedies for the claims raised in this suit, and failed to raise the affirmative

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defense of the failure to exhaust available administrative remedies, in their Answer.

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Nevertheless, at the hearing, defense counsel argued that Defendants’ admission and failure to

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raise the defense was done in error, and that there was reasonable justification for the error.

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Ordinarily, motions to amend the pleadings are governed by Federal Rule of Civil

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Procedure 15(a). That Rule provides that unless a party can amend its pleading as a matter of

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course (which is not applicable here), the party “may amend its pleading only with the opposing

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party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The Rule further provides

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that “[t]he court should freely give leave when justice so requires.” Id.

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However, once a court has entered a pretrial scheduling order pursuant to Federal Rule of

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Civil Procedure 16, the standards of Rule 16, rather than Rule 15, govern amendment of the

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pleadings. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).

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Under Rule 16, scheduling orders may be modified “only for good cause and with the judge’s

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consent.” Fed. R. Civ. P. 16(b)(4).

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In this case, a Discovery and Scheduling Order was entered on June 10, 2016, setting the

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deadline to amend the pleadings as October 11, 2016. (ECF No. 36.) Plaintiff moved to extend

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that deadline for sixty days until December 11, 2016, (ECF No. 49), which was granted, (ECF

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No. 50.) Defendants have not made any motion for leave to amend their Answer, and the

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deadline has now passed, but the potential of good cause for the failure to seek leave to amend at

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an earlier date was raised by defense counsel at the evidentiary hearing. No evidence has yet

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been presented on that issue, nor have the parties fully argued whether Defendants may now

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amend their responsive pleading.

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In the interests of justice, the Court finds that Defendants may move for leave amend

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their responsive pleading within fourteen (14) days of this order, and must make a showing of

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good cause for leave to amend. Plaintiff may file a response to that motion within fourteen (14)

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days of service and filing. No reply will be permitted, and the Court will rule upon the motion

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once the deadline to file any response has passed. Local Rule 230(l).

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If Defendants fail to make a timely motion, or fail to show good cause for leave to amend

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their Answer, then the defense of the failure to exhaust available administrative remedies will be

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deemed waived. The Court will then proceed to set this matter for trial.

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If Defendants file the motion for leave to amend, and it is granted, then Court will also

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grant Plaintiff a reasonable opportunity to pursue discovery only on the limited issue of whether

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administrative remedies were effectively unavailable in this case. Specifically, this includes only

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evidence regarding the factual dispute as to whether Deputy Timothy Abbot gave Plaintiff a

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grievance form on or about August 28, 2014, whether Plaintiff submitted that form to Deputy

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Abbot, and whether that form was lost, destroyed or otherwise not acted upon. Plaintiff will also

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be allowed a reasonable opportunity to supplement his opposition to Defendants’ motion for

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summary judgment based on any newly discovered evidence.

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V.

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CONCLUSION

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For the reasons explained, it is HEREBY ORDERED that Defendants must file a motion

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to amend their responsive pleading within fourteen (14) days, or the defense of the failure to

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exhaust available administrative remedies will be deemed waived, as discussed above.

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IT IS SO ORDERED.

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Dated:

October 8, 2018
UNITED STATES MAGISTRATE JUDGE

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