Brewer v. Grossbaum et al

Filing 47

ORDER signed by Senior Judge William B. Shubb on 5/23/2013 ADOPTING, in full, 44 Findings and Recommendations; DENYING 29 Motion to Dismiss; ORDERING Defendants to file an Answer to the Complaint within 30 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN D. BREWER,

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Plaintiff,

No. 2:12-cv-1555 WBS DAD P

vs.
YOSSI GROSSBAUM, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On April 16, 2013, the magistrate judge filed findings and recommendations

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herein which were served on all parties and which contained notice to all parties that any

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objections to the findings and recommendations were to be filed within fourteen days. Both

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Plaintiff and Defendants have filed objections to the findings and recommendations.

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In their objections, defendants argue that plaintiff's October 21, 2011 grievance

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was properly rejected as improperly filed because it was not submitted on the originally rejected

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grievance form. First, it does not appear from a review of the record that this argument was

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raised before the Magistrate Judge. Second, it does not appear that this was the reason the

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grievance was rejected. Rather, it appears that the grievance was simply ignored and never

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responded to in any way. It is correct that an appeal may be cancelled for "failure to correct and
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return a rejected appeal within 30 calendar days of the rejection." See Cal. Code Regs. tit. 15, s

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3084.6(c). However, it does not appear that this is what was done here.

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A prison's failure to follow its own procedures defeats the defense of

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non-exhaustion. Sapp v. Kimbrell, 623 F.3d 812, 823 (9th Cir. 2010). Prison officials are

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required to respond and return appeals to an inmate within thirty days. See Cal. Code Regs. tit.

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15, s 3084.8(c). Defendants failed to do so with respect to plaintiff’s October 21st grievance.

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Moreover, the exhaustion requirement is waived where prison officials render administrative

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remedies unavailable. By failing to timely respond to and return plaintiff’s October 21st

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grievance, defendants effectively rendered administrative remedies unavailable. Plaintiff waited

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for a response, received none and by the time he re-submitted his appeal, it was screened out as

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untimely. Affirmative actions by prison officials that prevent proper exhaustion, "even if done

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innocently", are grounds for excusing compliance with the exhaustion requirement. Albino v.

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Baca, 697 F.3d 1023, 1034 (9th Cir. 2010).

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

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

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entire file, the court finds the findings and recommendations to be supported by the record and by

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proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed April 16, 2013, are adopted in full;

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2. Defendants’ motion to dismiss (Doc. No. 29) is denied; and

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3. Defendants shall file an answer to the complaint within thirty days of service of

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this order.

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DATED: May 23, 2013

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