Washington v. Mohammed et al

Filing 63

ORDER signed by Judge Kimberly J. Mueller on 3/31/2014 ORDERING 59 FINDINGS AND RECOMMENDATIONS are NOT ADOPTED; and this case is REFERRED to the magistrate judge for further proceedings. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN WASHINGTON,

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No. 2:08-cv-0386-KJM-CMK-P

Plaintiff,
v.

ORDER

SALEM MOHAMED, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action under

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42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by

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Eastern District of California local rules.

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On December 31, 2013, the magistrate judge filed findings and recommendations,

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which were served on the parties and which contained notice that the parties may file objections

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within a specified time. Defendants have filed timely objections to the findings and

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recommendations and plaintiff has replied.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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this court has conducted a de novo review of this case. Having carefully reviewed the file, the

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court declines to adopt the findings and recommendations as explained below.

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Plaintiff alleges defendants violated his Eighth Amendment rights by failing to

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protect him from inmates who had threatened to kill him. ECF No. 8. The defendants filed a
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motion to dismiss, presenting evidence showing plaintiff had failed to exhaust administrative

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remedies. ECF No. 16. In response, plaintiff alleged defendant Hilliard ordered him not to file a

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grievance. ECF No. 18. The magistrate judge asked for supplemental briefing and declarations

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and eventually issued findings and recommendations recommending the motion to dismiss be

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granted. ECF No. 27. The district court adopted this recommendation and dismissed the case.

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ECF No. 29.

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Plaintiff appealed and on July 22, 2010, the Ninth Circuit vacated and remanded

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the case and returned it to the district court “to develop the record.” ECF No. 33 at 2. Thereafter

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the magistrate judge asked the parties to supply supplemental briefing and any additional

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evidence they deemed necessary. ECF No. 38. He considered new declarations submitted by the

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defendants and on the basis of those declarations, determined that plaintiff’s declaration lacked

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credibility. ECF No. 51 at 2. He thus concluded defendants had borne their burden of proving

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plaintiff’s failure to exhaust, giving “plaintiff’s declaration little weight and afford[ing]

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significant weight to the declarations provided by defendants.” ECF No. 51 at 3.

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This court did not adopt this recommendation, saying “it is improper for a court

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. . . to make credibility determinations when, as in the instant case, the court is presented with

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differing versions of events.” ECF No. 53 at 2. The court cited to cases that found a court

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cannot make credibility determinations to resolve an exhaustion issue when presented only with

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competing declarations. Id. It then found defendants had not met their burden on the record

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before the court at that time and referred the case back to the magistrate judge. ECF No. 53 at 3.

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Defendants again filed a motion to dismiss seeking limited discovery on the

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question and requesting an evidentiary hearing. ECF No. 54 at-1 at 3-4. The magistrate judge

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denied the motion, saying that this court’s previous order prevented him from resolving the

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credibility issues presented by the motion. ECF No. 59 at 2.

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In saying that it is improper to make credibility determinations in resolving

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differing versions of events on a 12(b) motion, this court was not precluding an evidentiary

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hearing but rather saying only that resolving credibility based on competing declarations was

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improper. The Ninth Circuit has recognized that a court cannot make a credibility determination
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without holding an evidentiary hearing. Hubbard v. Houghland, 471 F. App’x 625, 626 (9th Cir.

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2012) (unpublished); see Porter v. Neotti, Civil No. 11cv1050 BTM (BLM), 2013 WL 416552, at

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*1 (S.D. Cal. Jan. 31, 2013) (discussing the results of evidentiary hearing on the question whether

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administrative remedies were effectively unavailable to him); Wimberly v. Cnty of Sacramento,

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No. CIV S-06-289 JAM GGH P, 2008 WL 5234729, at *2 (E.D. Cal. Dec. 16, 2008) (same); see

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also FED. R. CIV. P. 43(c).

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In this case the question whether defendants can bear their burden of showing a

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failure to exhaust turns on a credibility determination that cannot be made on the competing

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papers, but can be made after a hearing. The magistrate judge erred in recommending the motion

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be denied without further factual development.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The findings and recommendations filed December 31, 2013, are not
adopted; and

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The case is referred to the magistrate judge for further proceedings.

DATED: March 31, 2014.

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UNITED STATES DISTRICT JUDGE

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