Washington v. Mohammed et al

Filing 68

ORDER signed by Judge Kimberly J. Mueller on 2/6/2015 ORDERING that the 59 findings and recommendations are ADOPTED insofar as they conclude the motion to dismiss should be denied and the 54 motion is DENIED. (Zignago, K.)

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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

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SALEM MOHAMMED, et al.,

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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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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 that suggested plaintiff 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 cannot

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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. 54-1 at 3-4. The magistrate judge

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

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

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On March 31, 2014, this court declined to adopt the findings and recommendations

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and directed the matter be referred to the magistrate judge for an evidentiary hearing to resolve

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the credibility issues presented by the competing declarations. ECF No. 63.

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On April 3, 2014, the Ninth Circuit decided Albino v. Baca, overruling prior

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authority that held failure to exhaust should be raised in an unenumerated 12(b) motion, a

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procedure that would have allowed the court to resolve credibility issues. 747 F.3d 1162, 1170

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(9th Cir.) (en banc), cert. denied sub nom. Scott v. Albino, __ U.S. __, 135 S. Ct. 403 (2014).
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The Circuit held failure to exhaust, an affirmative defense, should be raised in a motion for

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summary judgment, decided, if feasible, before reaching the merits of a prisoner’s claim. Id. In

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light of Albino, the magistrate judge’s ultimate recommendation that the motion to dismiss for

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failure to exhaust be denied is correct.

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IT IS THEREFORE ORDERED that the findings and recommendations filed

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December 31, 2013 are adopted insofar as they conclude the motion to dismiss should be denied

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and the motion, filed April 10, 2013, is denied.

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DATED: February 6, 2015.

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UNITED STATES DISTRICT JUDGE

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