McCoy v. Tate et al

Filing 34

ORDER (1) CONVERTING Findings and Recommendations to Order; (2) DENYING Plaintiff's Motion for Reconsideration; (3) GRANTING Defendants' Motion for Evidentiary Hearing; and (4) SETTING Evidentiary Hearing: Evidentiary Hearing set for 7/7/2017 at 10:00 AM in Courtroom 6 (MJS) 20 , 27 , 32 , 33 , signed by Magistrate Judge Michael J. Seng on 3/29/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVON ELIMU MCCOY,

CASE NO. 1:15-cv-01428-MJS (PC)

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Plaintiff,

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v.

ORDER
(1) CONVERTING
FINDINGS
AND
RECOMMENDATIONS TO ORDER;

DR. H. TATE, et al.,
Defendants.

(2) DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION;

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(3) GRANTING DEFENDANTS’ MOTION
FOR EVIDENTIARY HEARING; AND

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(4) SETTING EVIDENTIARY HEARING

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Date: July 7, 2017
Time: 10:00 a.m., Courtroom 6 (MJS)
(ECF Nos. 20, 27, 32, 33)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 42 U.S.C. § 1983. On February 28, 2017, the
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undersigned issued findings and recommendations to grant in part Defendants’ motion

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for summary judgment for Plaintiff’s failure to exhaust his administrative remedies. (ECF
Nos. 20, 27.) This action has since been reassigned to the undersigned pursuant to the
consent of the parties. (ECF No. 31.) Accordingly, the findings and recommendations will
be converted to an order.

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In separate filings, the parties objected to the findings and recommendations.
(ECF Nos 32, 33.) The undersigned construes these objections as motions for
reconsideration.
I.

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Procedural Background and Undisputed Facts
The procedural background and undisputed facts set forth in the February 28,

2017, findings and recommendations, herein converted to an order, are incorporated by
reference. (ECF No. 27.)
II.

Legal Standards
“A motion for reconsideration should not be granted, absent highly unusual

circumstances, unless the ... court is presented with newly discovered evidence,
committed clear error, or if there is an intervening change in the controlling law,” Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).
“A motion for reconsideration may not be used to raise arguments or present evidence
for the first time when they could reasonably have been raised in earlier litigation.” Id.
Furthermore, “‘[a] party seeking reconsideration must show more than a disagreement
with the Court's decision, and ‘recapitulation ...’ ” of that which was already considered
by the court in rendering its decision. U.S. v. Westlands Water Dist., 134 F. Supp. 2d
1111, 1131 (E.D. Cal. 2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F.
Supp. 834, 856 (D. N.J. 1992)). Similarly, Local Rule 230(j) requires that a party seeking
reconsideration show that “new or different facts or circumstances are claimed to exist
which did not exist or were not shown upon such prior motion, or what other grounds
exist for the motion....”

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III.

Discussion
A.

Plaintiff’s Motion for Reconsideration

Plaintiff’s motion seeks reconsideration of that portion of the February 28, 2017,
Order finding that Plaintiff did not exhaust his administrative remedies as to his claim
against Dr. Tate, a complaint premised on this Defendant’s July 2012 discontinuation of
Plaintiff’s seizure and pain medication and withdrawal of a walking cane chrono. The
Court held that Plaintiff failed to properly exhaust a July 2012 appeal addressing Dr.
Tate’s conduct, and Plaintiff’s later attempt to reassert his claim against Dr. Tate in
October 2012 was properly dismissed as untimely.
Plaintiff now repeats the arguments he made in his opposition to Defendants’
motion, namely, that he did not exhaust his administrative remedies as to the July 2012
appeal because Dr. Tate improperly canceled it beyond his authority and because the
cancelation was based on the false assertion that Plaintiff refused to be interviewed.
These arguments were previously found unpersuasive, and the Court sees no reason to
revisit them.
Plaintiff also makes a related argument that he was prevented from resubmitting
his appeal for further review in light of the cancelation. In support, Plaintiff cites to 15
CCR § 3084.6(e), but that section states only that “Once cancelled, an appeal shall not
be accepted except pursuant to subsection 3084.6(a)(3) ….” (Emphasis added.)
Subsection 3084.6(a)(3) then provides that “At the discretion of the appeals coordinator
or third level Appeals Chief, a cancelled appeal may later be accepted if a determination
is made that cancellation was made in error or new information is received which makes
the appeal eligible for further review.” Indeed, the letter accompanying the canceled
appeal at issue in this case stated: “If you wish to appeal this action you may do so by
submitting a separate appeal, attaching these documents, and citing the reasons you
believe the appeal should not be canceled. You must adhere to the 14-calendar day

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limitation per CCR, Title 15, Section 3084.6(b)(3) when resubmitting.” Decl. of J. Long in
Supp. Defs.’ Mot. Summ. J. Ex. B (ECF No. 20-3 at 15).
Since Plaintiff did not resubmit his appeal within the 14-day period raising any of
the issues he raises here concerning the propriety of the cancelation, the Court again
finds that he failed to exhaust his administrative remedies as to Dr. Tate.
Accordingly, Plaintiff’s motion for reconsideration will be denied.
B.

Defendants’ Motion for Reconsideration

Defendants seek reconsideration of that portion of the February 28, 2017, Order
finding that there is a dispute of material fact preventing the entry of summary judgment
on Defendants’ claim that Plaintiff failed to exhaust his administrative remedies related to
the October 16, 2012 conduct of Defendants Lenker, Twitty, Holland, and Lundy (“the
Correctional Officer Defendants”).
In the October 2012 appeal, Plaintiff raised claims concerning the conduct of the
Correctional Officer Defendants. Since this appeal has an institutional receipt date of
July 18, 2013, the question before the Court was whether Plaintiff submitted a timely
appeal on October 30, 2012, and California Correctional Institution (“CCI”) staff simply
failed to respond to it, or whether—as Defendants claimed—Plaintiff falsified the date on
the appeal before submitting it for the first time in July 2013.
In finding the existence of a genuine dispute of material fact, the undersigned
relied on two CDCR 22 forms (titled “Inmate/Parolee Request for Interview, Item or
Service”) that Plaintiff claims he submitted in January 27, 2013, and June 30, 2013. Both
forms questioned why CCI staff was not responding to the October 2012 appeal, and
each included a signature of CCI staff members who purportedly received the forms on
the dates that Plaintiff submitted them. These forms were found sufficient to preclude
summary judgment because they appeared to show that Plaintiff’s attempt to exhaust his
administrative remedies was thwarted by non-responsive CCI staff.

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Defendants now move for reconsideration of the authenticity of the CDCR 22
forms, arguing that the forms unequivocally demonstrate that the dates and CCI staff
signatures are falsified. In support, Defendants point out that the forms provide two
methods of delivery to CCI staff: “SENT THROUGH MAIL” and “DELIVERED TO
STAFF.” See Long Decl. in Supp. Defs.’ Mot. Summ. J. Ex. A (ECF No. 20-3 at 10-11).
In the event an inmate chooses to send the form through the mail, the form specifically
provides ** NO RECEIPT WILL BE PROVIDED IF REQUEST IS MAILED **. See id.
(emphasis in original). If the form is delivered to a staff member, then the receiving staff
member is to print his or her name, date and sign it, and give the inmate the Goldenrod
copy of the form. See id.
Of the two CDCR 22 forms at issue here, Plaintiff wrote on the first form that he
mailed it on “1/27/13” to “The Appeal Coordinator.” See Pl.’s Opp’n to Defs.’ Mot. Summ.
J. Ex. H (ECF No. 24 at 153). Plaintiff wrote on the second form that he mailed it on
“6/30/13” to “Inmate Appeals Office.” See id. (ECF No. 24 at 154). Curiously, each of the
forms includes a CCI staff member’s name in the “RECEIVED BY” section and is dated
the same day that Plaintiff mailed them: the January 27, 2013, form is signed on that
date by an “M. Olson,” and the June 30, 2013, form, which is not signed, notes that it
was received by a “Francisco” on that date. In addition, the January 27, 2013, form
indicates that it was forwarded to another staff member, but fails to identify this person in
the section headed “IF FORWARDED – TO WHOM.”
In their motion, Defendants highlight that the mailed forms reflect receipt by CCI
staff even after the forms explicitly state that receipts will not be provided to mailed
requests. They also highlight that the signatures are dated the same day that Plaintiff
mailed the forms, suggesting an improbable one-day processing time for outgoing and
incoming mail. Defendants also focus on the July 18, 2013, institutional receipt date on
each of the forms, asserting that there is no evidence that Plaintiff submitted the forms
on an earlier date. And lastly, they contend that even if the Court concludes that the

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forms are not fabricated, Plaintiff has not explained why he waited three months before
submitting his first CDCR 22 form and then another five months before submitting the
second CDCR 22 form, all while actively submitting inmate appeals concerning other
issues during the same time period. In the event the undersigned finds that a dispute of
material fact remains, Defendants request an evidentiary hearing.

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In his opposition to Defendants’ motion for summary judgment, Plaintiff argued
only that all of his documentary evidence is authentic, Pl.’s Decl. ¶ 5 (ECF No. 24 at 23),
and that he was diligent in pursuing his October 2012 appeal, as evidenced by the
CDCR 22 forms, but was ultimately unable to exhaust due to CCI staff’s nonresponsiveness. Plaintiff has not addressed the discrepancies in the CDCR 22 forms
identified by the Defendants, which was first highlighted in their Rely brief and now
presented in their pending motion for reconsideration. An evidentiary hearing will
therefore be held for the purpose of hearing testimony from Plaintiff and receiving any
additional evidence on the question of the authenticity of these forms.
IV.

Conclusion
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of Court shall convert the February 28, 2017, findings and

recommendations (ECF No. 27) to an Order;
2. Plaintiff’s motion for reconsideration (ECF No. 33) is DENIED;
3. The Court reserves ruling on Defendants’ motion for reconsideration (ECF No.
32) pending an evidentiary hearing to decide the disputed issues of fact relating to the
exhaustion of Plaintiff’s claims against the Correctional Officer Defendants. These
Defendants need not file a responsive pleading or motion until after the Court rules on
their motion for reconsideration;
4.

An evidentiary hearing will be held on July 7, 2017, at 10:00 a.m., in

Courtroom 6, Seventh Floor of the United States District Court in Fresno, California. The
hearing will commence and be completed that day, and will be limited to the issue of

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whether Plaintiff is excused from the Prison Litigation Reform Act’s exhaustion
requirement because administrative remedies were “effectively unavailable.”
More specifically, the parties should be prepared to present evidence as to the
following:

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

Whether and when Plaintiff submitted the CDCR 22 forms;



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Whether and when CCI staff Members “M. Olson” and “Francisco”

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received the CDCR 22 forms;

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

Whether Plaintiff timely submitted the October 30, 2012, appeal;



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Whether prison officials failed to respond to or otherwise process Plaintiff’s

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CDCR 22 forms; and

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

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Whether prison officials failed to respond to or otherwise process Plaintiff’s
October 2012 appeal. May 5, 2014 appeal.

In preparation for the hearing, it is HEREBY ORDERED that, no later than June 7,
2017, the parties shall confer regarding the witnesses to be called and evidence to be
presented at the hearing. No later than June 16, 2017, defense counsel shall file a
statement setting forth the witnesses to be called and documents to be presented at the
hearing. Defense counsel shall also provide a courtesy physical and electronic copy of
all exhibits to be used at the hearing to Judge Seng’s chambers no later than June 16,
2017. Electronic copies can be mailed to [e-mail].

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IT IS SO ORDERED.

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Dated:

March 29, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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