Green v. Sherman, et al.

Filing 58

ORDER GRANTING 49 Motion for Clarification ; ORDER DENYING Plaintiff's 54 Motion to Declare Exhaustion of Remedies; ORDER STRIKING 53 Reply to Defendant Franklin's answer to the complaint, signed by Magistrate Judge Michael J. Seng on 1/31/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CEDRIC EUGENE GREEN,

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Plaintiff,

Case No. 1:15-cv-01548-LJO-MJS (PC)
ORDER GRANTING PLAINTIFF’S
MOTION FOR CLARIFICATION

v.
(ECF NO. 49)
STUART SHERMAN, et al.,

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ORDER STRIKING PLAINTIFF’S REPLY
TO DEFENDANT’S ANSWER TO THE
COMPLAINT

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(ECF NO. 53)

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ORDER DENYING PLAINTIFF’S
MOTION TO DECLARE
ADMINISTRATIVE REMEDIES
EXHAUSTED

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Defendants.

(ECF NO. 54)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

23 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s
24 First Amendment claim against Defendant Franklin. (ECF Nos. 40, 42.)
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Before the Court are Plaintiff’s motion for clarification (ECF No. 49), his reply to

26 Defendant Franklin’s answer and affirmative defense (ECF No. 53) and his motion to
27 declare administrative remedies exhausted. (ECF No. 54).
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1 I.

Motion for Clarification

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Plaintiff’s motion (ECF No. 49) seeks clarification of the status of this case and of

3 this Court’s denial (ECF No. 45) of Plaintiff’s objection to extending Defendants time to
4 respond to the first amended complaint. (ECF No. 36.)
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On May 25, 2017, Defendants filed a motion requesting that the Court screen

6 Plaintiff’s first amended complaint before they had to respond. (ECF No. 33.) On June
7 8, 2017, Plaintiff asked the Court to deny Defendants additional time to respond. (ECF
8 No. 36.) However, by then the Court had dismissed Plaintiff’s first amended complaint
9 for failure to state a claim (ECF No. 35), and so there was no pleading for Defendant’s
10 to answer and no need for them to seek or be given additional time to answer.
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Plaintiff then filed a second amended complaint. (ECF No. 40.) The Court

12 screened it and recommended it proceed on certain cognizable claims. (ECF No. 42.)
13 Plaintiff’s previously filed request to deny Defendant an extension of time was still
14 pending on the record, and so was denied as moot. (ECF No. 45.)
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As a result of the foregoing and more recent events, the current posture of the

16 case is as follows:
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1) Plaintiff has stated a cognizable First Amendment mail interference claim
against Defendant Franklin. (ECF No. 47.)
2) On December 22, 2017, Franklin filed an answer to the complaint. (ECF No.
50.)

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3) The Court then issued an order outlining the procedures to be followed and

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deadlines to be met for discovery and trial. (ECF Nos. 51, 52.) Both parties

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must comply with the terms of this order.

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4) A settlement conference has been scheduled for March 23, 2018. (ECF No.
57.)
In summary, the case is at the stage where both parties can engage in pre-trial

27 discovery and motion practice. In the interim, a judge will meet with the parties on
28 March 23, 2018 and try to help them come to an agreement to settle the case.
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2 II.

Reply and Affirmative Defense

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Plaintiff filed a reply (ECF No. 53) to Defendant Franklin’s answer to the

4 complaint (ECF No. 50) and disputed the factual bases underlying Defendant Franklin’s
5 affirmative defenses.
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No such response is required or permitted. See Fed. R. Civ. P. 7. Plaintiff

7 provides no justification for filing it. The Court did not request or approve it. As such it
8 will be stricken from the record.
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(Plaintiff may dispute Defendant’s characterization of the facts in appropriate

10 motions and at trial.)
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Motion to Declare Exhaustion of Remedies

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Plaintiff seeks an order declaring his remedies exhausted. (ECF No. 54.)

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Pursuant to the PLRA “[n]o action shall be brought with respect to prison

14 conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in
15 any jail, prison, or other correctional facility until such administrative remedies as are
16 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the
17 available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211
18 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). However,
19 “[I]nmates are not required to specially plead or demonstrate exhaustion in their
20 complaints.” Jones, 549 U.S. at 216. The PLRA's exhaustion requirement is not
21 jurisdictional; it creates an affirmative defense that defendants must plead and prove. Id.
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Thus, it is the Defendant's burden to prove that Plaintiff has not exhausted his

23 administrative remedies. Therefore this issue generally is resolved on a motion for
24 summary judgment by Defendant. Unless and until Defendant raises the defense, there
25 rarely is any reason for the Court to address it.
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However, if Plaintiff wishes to have the issue addressed and resolved, he too

27 may file a motion for summary adjudication of the fact that he has exhausted his
28 administrative remedies. However, in doing so, he must comply with the directives of
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1 Fed. R. Civ. P. 56(b). The current motion is not properly brought.
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Accordingly, Plaintiff’s current motion to declare his administrative remedies

3 exhausted shall be DENIED.
4 IV.
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Conclusion and Order
Based on the foregoing, it is HEREBY ORDERED that:

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1. Plaintiff’s motion for clarification (ECF No.49) is GRANTED;

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2. Plaintiff’s reply (ECF No. 53) to Defendant Franklin’s answer to the
complaint is STRICKEN from the record;

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3. Plaintiff’s motion to declare exhaustion of remedies (ECF No. 54) is

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DENIED.

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13 IT IS SO ORDERED.
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Dated:

January 31, 2018

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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