Free v. Peikar et al

Filing 61

ORDER DENYING 60 Plaintiff's Motion to Cancel Evidentiary Hearing signed by Magistrate Judge Jennifer L. Thurston on 6/11/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:17-cv-00159 AWI JLT (PC)

PAUL FREE,

v.

ORDER DENYING PLAINTIFF’S MOTION
TO CANCEL EVIDENTIARY HEARING
(ECF NO. 60)

DR. NADER PEIKAR, et al.,

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Defendants.

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This matter is set for an evidentiary hearing on June 25, 2018, to assist the Court in

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evaluating the credibility of plaintiff’s claim that the grievance system was unavailable to him, so

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that he was excused from exhausting his administrative remedies. Plaintiff now seeks to have the

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hearing cancelled and to have the Court dismiss defendants’ motion for summary judgment. (ECF

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No. 60.) This motion is premised on plaintiff’s claim that, (a) the hearing is moot and (b) the

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undersigned lacks jurisdiction to grant the defendants’ request for an evidentiary hearing. Neither

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of these arguments are grounds to cancel the hearing, and therefore plaintiff’s motion will be

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denied.

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I.

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Relevant Procedural Background
Plaintiff is a federal prisoner who initiated this action on February 6, 2017, pursuant to

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Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). He proceeds on a first amended complaint

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filed on May 15, 2017, against Dr. Peikar, Ms. Mettri, Ms. Fuentes-Arce, and Mr. Tyson.

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On December 21, 2017, defendants filed a motion for summary judgment for failure to
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exhaust administrative remedies. (ECF No. 19.)

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On April 11, 2018, Magistrate Judge Michael J. Seng issued findings and

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recommendations to deny defendants’ motion for summary judgment on the ground that there

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existed a dispute of material fact as to whether the administrative remedies were effectively

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unavailable to plaintiff. (ECF No. 45.) In the order, Judge Seng noted that the defendants were

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entitled to seek an evidentiary hearing in their objections to his order. (Id. at 13) Then, the case

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was reassigned to the undersigned due to the retirement of Judge Seng. (ECF No. 48.)

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Following reassignment, defendants filed objections to the findings and recommendations
requesting, in part, an evidentiary hearing on the question of whether remedies were unavailable

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to plaintiff. (ECF No. 49.) On review, the undersigned vacated the findings and recommendations

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and set this matter for an evidentiary hearing for June 25, 2018. (ECF No. 51.)

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II.

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Discussion
Plaintiff moves to vacate the evidentiary hearing and deny defendants’ summary judgment

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on two grounds. First, he argues that the hearing is moot because any attempt by him to exhaust

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administrative remedies would have been moot in light of prison policy to not award damages.

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Second, he argues that the undersigned did not have jurisdiction to vacate the previously-assigned

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magistrate judge’s findings and recommendations.

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Turning first to plaintiff’s mootness argument, plaintiff relies on several cases to argue

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that any failure on his part to exhaust administrative remedies must be excused because the

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pursuit of those remedies would have been futile since he was requesting only money damages.

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This argument is clearly foreclosed, however, by Booth v. Churner, 532 U.S. 731, 734 (2001),

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which specifically answered in the affirmative “whether an inmate seeking only money damages

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must complete a prison administrative process that could provide some sort of relief on the

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complaint stated.” In other words, the Prison Litigation Reform Act “mandated exhaustion clearly

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enough, regardless of the relief offered through administrative procedures.” Id. at 741. The cases

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cited to by plaintiff do not alter this conclusion because they either pre-date Booth or they are

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habeas corpus cases, which are not subject to the Prison Litigation Reform Act’s exhaustion

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requirement. See Washington v. Los Angeles Cnty Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir.
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Aug. 12, 2016).
Next, plaintiff argues that the undersigned lacked jurisdiction to vacate Judge Seng’s

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findings and recommendations, apparently on the ground that the referral order directed the

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undersigned to conduct “all further proceedings” (emphasis added), implying that this court may

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not modify any orders issued before the reassignment. Plaintiff cites to no legal authority for this

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position, namely, that a newly-assigned judge may not modify orders issued before the

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assignment. Additionally, the doctrine of stare decisis that he references in passing is

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inapplicable. That doctrine provides that “[i]f a court must decide an issue governed by a prior

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opinion that constitutes binding authority, the later court is bound to reach the same result, even if

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it considers the rule unwise or incorrect. Binding authority must be followed unless and until

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overruled by a body competent to do so.” Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001).

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The previously-issued findings and recommendations in this case do not constitute “binding

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authority.”

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To the extent plaintiff intended to reference the law of the case doctrine, that doctrine

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provides that a court should not revisit its own decisions unless extraordinary circumstances show

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that its prior decision was wrong. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816

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(1988). Here, Judge Seng specifically advised the defendants that they may file a request for an

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evidentiary hearing if they disagreed with the findings and recommendations. (See ECF No. 45 at

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13.) There was, therefore, no modification of any law of the case so much as a response to Judge

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Seng’s directive to the defendants. See also Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014

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(en banc) (disputes of material fact on a motion for summary judgment for failure to exhaust

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administrative remedies should be decided at an evidentiary hearing).

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III.

Conclusion

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Based on the foregoing, the Court ORDERS:

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Plaintiff’s motion to cancel evidentiary hearing and dismiss defendants’ motion for

summary judgment (ECF No. 60) is DENIED.

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IT IS SO ORDERED.
Dated:

June 11, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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