Washington v. Mohammed et al
Filing
59
FINDINGS and RECOMMENDATIONS, recommending that defendants' 54 Renewed Motion to Dismiss be denied and they be ordered to file an Answer, signed by Magistrate Judge Craig M. Kellison on 12/30/2013. These F/Rs are SUBMITTED to District Judge Kimberly J. Mueller. Within 14 days after being served with these F/Rs, any party may file written Objections with Court. (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHN WASHINGTON,
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Plaintiff,
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vs.
FINDINGS AND RECOMMENDATIONS
SALEM MOHAMMED, et al.,
Defendants.
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No. 2:08-cv-0386-KJM-CMK-P
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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983.
In response to plaintiff’s amended complaint, the defendants originally filed a
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motion to dismiss for failure to exhaust administrative remedies. The undersigned issued
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findings and recommendations that the motion to dismiss be granted. The District Court adopted
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that recommendation, and the motion was granted. Plaintiff appealed that decision, and the
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Ninth Circuit Court of Appeals vacated the judgment and remanded the case for further
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development of the record. The parties then filed supplemental briefs with additional evidence
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supporting their positions regarding exhaustion. The undersigned then issued new findings and
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recommendations that the motion to dismiss be granted. The District Court did not adopt that
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recommendation, denied the motion to dismiss, and referred the matter back to the undersigned
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for further proceedings.
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Defendants have now filed a new motion to dismiss for failure to exhaust
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administrative remedies. In addition, they are requesting discovery and an evidentiary hearing on
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the motion to dismiss. Defendants argue the court should order an evidentiary hearing to
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evaluate the credibility of witnesses and make a credibility determination. However, the District
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Court has already determined “it is improper for the court entertaining a 12(b) motion to make
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credibility determinations when, as in the instant case, the court is presented with differing
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versions of events.” (Order, Doc. 52 at 2, citing Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557
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F.2d 1280, 1284-85 (9th Cir. 1973)).
As the District Court has already addressed the issue defendants raise in the
current motion to dismiss, the undersigned finds no basis in which to grant their request.
Based on the foregoing, the undersigned recommends that the motion to dismiss
(Doc. 54) be denied, and the defendants be ordered to file an answer.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: December 30, 2013
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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