Jones et al v. DeForest

Filing 78

ORDER signed by Magistrate Judge Carolyn K. Delaney on 03/13/12 ordering the order to show cause 73 is discharged. The court finds the imposition of sanctions unwarranted. The hearing on the order to show cause, set for 04/04/12 is vacated. (Plummer, 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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MALIK JONES

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Plaintiff,

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vs.

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No. CIV S-08-2607 MCE CKD P

McGUIRE, et al.

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. §

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1983. On February 9, 2012, the court entered findings and recommendations on defendants’

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motion to dismiss. The court found that the affidavit of D. Clark, an appeals coordinator at High

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Desert State Prison, in which Clark concluded that none of plaintiff’s appeals administratively

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exhausted any of his claims, was an insufficient basis for dismissal without independent evidence

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by which the court could scrutinize Clark’s conclusion. Although the court recommended

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dismissal of some claims on other grounds, the court made clear that Clark’s affidavit, standing

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alone, could not be the basis of dismissal for non-exhaustion.

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On March 2, 2012, the court vacated its findings and recommendations after

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defendants attached documents from plaintiff’s administrative record to their objections to the

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findings and recommendations, claiming the documents proved plaintiff’s failure to exhaust. It
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was the documents’ first appearance in the case even though, the court noted, they had been in

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defendants’ possession since January 2010. The court stated that “[d]efendants offer no

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explanation why these documents were not provided with the motion to dismiss[.]” Findings and

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Recommendations at 2 (Docket No. 73). The court cited one district judge’s rejection, in a

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previous case, of exhaustion evidence presented for the first time in objections to findings and

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recommendations. Id. at 2. The court further noted that, since 2003, the Ninth Circuit has

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required a defendant who argues that a prisoner-plaintiff has failed to exhaust administrative

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remedies to present “evidence... establishing that the ‘Appeal Record’ is what defendants say it

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is.” Id. (citing Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003)). The court found that

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defendants’ failure to follow this well-established standard despite having the relevant

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documents in hand had resulted in a significant delay and waste of judicial resources such that

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defendants’ counsel should show cause why he should not be sanctioned. Id. at 3

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Defendants’ counsel, Matthew Ross Wilson, has timely responded to the show

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cause order. He represents that he withheld the appeal documents because he “believ[ed] Clark’s

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declaration was adequate and that the court would not want to review the plaintiff’s un-related

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inmate appeals from the relevant time period.” Response at 3. The court accepts his explanation

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but reiterates that “un-related inmate appeals from the relevant time period” are exactly what the

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Ninth Circuit requires to support an affidavit, such as Clark’s, declaring that none of an inmate’s

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appeal records shows he exhausted his claims before coming to court. Put another way,

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reviewing a comprehensive administrative appeals record is not what this court “wants,” as Mr.

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Ross puts it in his response. Id. It is what the Ninth Circuit quite clearly requires a defendant to

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submit, in the first instance, in order to show he is entitled to dismissal for failure to exhaust. It

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is the defendant’s burden to prove non-exhaustion, not the court’s.

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The court wants to resolve matters efficiently, according to standards articulated

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by the Ninth Circuit and the Supreme Court. Defendants’ counsel’s presumption thwarted that

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goal, but the evidence suggests it was inadvertent, not intentional. The court finds sanctions are
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not warranted. The order to show cause will be discharged, and the hearing set on the order to

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show cause will be vacated..

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Accordingly, IT IS HEREBY ORDERED that:

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1. The order to show cause (Docket No. 73) is discharged. The court finds the

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imposition of sanctions is unwarranted.

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2. The hearing on the order to show cause, set for April 4, 2012, is vacated.

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Dated: March 13, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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jone2607.ord

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