McMillan v. Pfile, et al.

Filing 198

ORDER signed by Chief District Judge Kimberly J. Mueller on 6/15/2022 VACATING the 6/17/2022 Motion Hearing; GRANTING 193 Motion to Continue; CONTINUING the Jury Trial to 10/11/2022 at 09:00 AM in Courtroom 3 (KJM) before Chief District Judge Kimberly J. Mueller; GRANTING IN PART AND DENYING IN PART 194 Motion for leave to file motion for summary judgment; and ORDERING that any motion for summary judgment shall be heard by 8/19/2022 at 10:00 a.m. in Courtroom 3. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Edwin D. McMillan,

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Plaintiff,

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No. 2:13-cv-00578-KJM-KJN
ORDER

v.
Ringler, et al.,

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Defendants.

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For the following reasons, having carefully considered the matter, the court grants the

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defendants’ motion to continue the trial date and denies in part and grants in part the

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motion for leave to file a motion for summary judgment.

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I.

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BACKGROUND
Plaintiff Edwin D. McMillan claims the defendants violated his rights under the First

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Amendment and California’s Bane Act. See First Am. Compl., ECF No. 18. On December 5,

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2012, plaintiff submitted an inmate grievance, “alleg[ing] facts that form the basis of his [ ]

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claims.” MIL No. 5 at 2, ECF No. 181; Finding and Recommendation at 4, ECF No. 41.

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Plaintiff then filed this case on March 25, 2013, Compl., ECF No. 1, about two months before he

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received a decision at the final level of his administrative appeal, Third Level Appeal Decision

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at 1, MIL No. 5 Ex. A, ECF No. 181. In January 2014, plaintiff filed his operative first amended
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complaint, ECF No. 18, to “allege completion of . . . Administrative Review.” Mot. to Am. at 2,

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ECF No. 15.

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This case was set to begin trial on May 20, 2022, but plaintiff’s counsel could not

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proceed due to health concerns. Mins, ECF No. 192. The court reset the trial to begin on

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July 12, 2022, and granted the parties leave to file additional pretrial motions. Id.

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Defendants now move to continue the trial date, Mot. to Continue, ECF No. 193, and for

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leave to file a motion for summary judgment on the issue of administrative exhaustion, Mot. for

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Leave to File Mot. for Summ. J. (Mot. for Leave), ECF No. 194. The motions are briefed, and

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the court submits them on the papers.

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II.

ANALYSIS
Starting with the motion to continue, defendants explain they are available to start trial

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from October 10, 2022, to November 7, 2022. Mot. to Continue at 2. Plaintiff does not oppose

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the motion. Statement of Non-opp’n, ECF No. 195. The court resets the trial to begin on

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October 11, 2022, at 9:00 a.m. in Courtroom 3.

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Moving to the defendants’ request for leave to move for summary judgment, defendants

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argue plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform

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Act (PLRA) and California law prior to filing this suit. Mot. for Leave at 6. Whether the court

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permits defendants to file this late-stage motion for summary judgment turns on whether they can

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show good cause to do so. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th

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Cir. 1992) (dates in scheduling order may be modified only for “good cause” under Federal Rule

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of Civil Procedure 16(b)(4)). Defendants contend there is good cause to file the motion because

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the court should address exhaustion before proceeding to trial and plaintiff will not be prejudiced

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because of the continued trial date. Id. at 2.

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A.

Federal Claim Exhaustion

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Under the PLRA “all inmates must [ ] exhaust all available remedies” before filing a claim

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in court. Ross v. Blake, 578 U.S. 632, 641 (2016). “To comply with the PLRA’s exhaustion

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requirement in California, [p]laintiff was required to follow a three-step grievance process: first

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submit a grievance Form 602 to the prison appeals office and then, depending on the response,
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appeal that decision to a second and third level.” Saddozai v. Davis, __ F.4th __, 2022 WL

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1613616, at *3 (9th Cir. May 23, 2022). The PLRA’s exhaustion requirement is an affirmative

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defense, meaning the “defendants must plead and prove” failure to exhaust. Fordley v.

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Lizarraga, 18 F.4th 344, 350–51 (9th Cir. 2021) (citation omitted).

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Here, defendants did not plead exhaustion in their answer, see generally Answer, ECF

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No. 66, and did not raise the issue in their motion for summary judgment, see generally Mot. for

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Summ. J., ECF No. 77. The defendants did not raise the issue for the first time until five years

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after the May 18, 2017 pretrial motion deadline, Discovery and Scheduling Order at 5, ECF No.

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71, only two months before the scheduled trial date , Ex Parte Application, ECF No. 178.

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Plaintiff argues there is no good cause to allow the defendants to amend their answer and move

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for summary judgment because plaintiff has exhausted his administrative remedies. Opp’n at 2,

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ECF No. 196. Although plaintiff commenced this action while his third, and final, level of

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administrative review was still pending, Third Level Appeal Decision at 1, he amended his

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complaint after the final review was completed, see generally FAC. In support of his argument

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plaintiff cites Saddozai v. Davis, supra. Opp’n at 3 (citing 2022 WL 1613616, at *3).

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In Saddozai, the plaintiff did not fully exhaust his administrative remedies before he filed

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his initial complaint. 2022 WL 1613616, at *3. But the parties agreed “[p]laintiff had fully

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exhausted by the time he filed his third amended complaint, which the district court deemed the

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‘operative complaint.’” Id. The Ninth Circuit explained “that a prisoner can cure [exhaustion]

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deficiencies through later filings, regardless of when he filed the original action” because

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“[e]xhaustion requirements apply based on when a plaintiff files the operative complaint.” Id.

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(quotation marks and citations omitted). Thus, the Circuit held the date of plaintiff’s operative

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complaint “controls the PLRA exhaustion analysis, and the district court erred in dismissing [the

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case] for lack of exhaustion.” Id. (citing Ramirez v. Collier, __ U.S. __, 142 S. Ct. 1264, 1276

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(2022) as “not irreconcilable” with Ninth Circuit precedent).

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The defendants’ only response to Saddozai is to insist it “was wrongly decided” and may

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be overturned, without pointing to any en banc or petition for certiorari the Saddozai defendants

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have filed. Reply at 2, ECF No. 197. While it is always possible a decision may be reconsidered
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by an en banc panel or the Supreme Court, the defendants do not ask this court to stay the case

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based on any pending review and they do not grapple with related Ninth Circuit precedent, which

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is consistent with Saddozai. For more than a decade, Ninth Circuit authority has provided that a

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properly amended complaint can cure exhaustion issues in PLRA cases. See Rhodes v. Robinson,

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621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule, when a plaintiff files an amended

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complaint, ‘[t]he amended complaint supercedes the original, the latter being treated thereafter as

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non-existent.”); see also Jackson v. Fong, 870 F.3d 928, 934 (9th Cir. 2017) (“we concluded that

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the amended complaint controlled the PLRA exhaustion analysis”). Furthermore, although the

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Supreme Court has “not definitively resolve[d] the issue,” it has noted the Ninth Circuit’s

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reasoning without questioning it. See Ramirez v. Collier, 142 S. Ct. at 1276 (where prison

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officials did not resolve grievance until after plaintiff filed in federal court “[b]ut [plaintiff] filed

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an amended complaint . . . . [t]he original defect was arguably cured by those subsequent filings”)

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(citing Rhodes, 621 F.3d at 1005).
Even if other circuits would not permit plaintiff’s amendment to cure his initial exhaustion

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defect, see Reply at 1–2, this court is bound by the decisions of the Ninth Circuit. As reviewed

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above, in this Circuit, the PLRA exhaustion analysis is based on the timing of the operative

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complaint. Given that plaintiff filed his operative complaint after exhausting his administrative

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remedies permitting defendants to move for summary judgment would be futile. Good cause

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does not support modifying the schedule order to allow such a motion under Rule 16.

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B.

State Claim Exhaustion

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The defendants also argue plaintiff did not exhaust administrative remedies as required for

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his state law claims. California law requires a plaintiff to exhaust available administrative

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remedies “provided by statute” before turning to the courts. Campbell v. Regents of the Univ. of

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Cal., 35 Cal. 4th 311, 321 (2005)). California courts have held that “[e]xhaustion of

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administrative remedies is a ‘jurisdictional prerequisite’” to bringing state law claims. Johnson v.

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City of Loma Linda, 24 Cal. 4th 61, 70 (2000) (citation omitted). A “[p]laintiff bears the burden

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of showing that he has complied.” Baker v. Cnty. of Sonoma, No. 08-03433, 2010 WL 1038401,

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at *20 (N.D. Cal. Mar. 19, 2010) (citing Wright v. State of California, 122 Cal. App. 4th 659, 665

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(2004)).

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Plaintiff’s opposition addresses only exhaustion under the PLRA and, as defendants point

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out, “makes no argument that the PLRA governs exhaustion of his state-law claims.” Reply at 2;

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see generally Opp’n. At the same time, without addressing the merits of whether PLRA

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exhaustion satisfies state law exhaustion requirements, the defendants simply argue the plaintiff’s

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failure to address the issue means they should be permitted to move for summary judgment on

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this ground. Reply at 2–3. Thus, unlike with plaintiff’s PLRA claims, the court cannot conclude

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on the current filings whether an exhaustion motion regarding plaintiff’s Bane act claim would be

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futile.
On the one hand, defendants’ raising exhaustion for the first time after nearly a decade of

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litigation is hardly diligent. At the same time, in the days leading up to trial, plaintiff’s counsel

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missed several court-imposed filing deadlines, did not meet and confer with opposing counsel,

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and did not timely inform the court his health conditions might impede his ability to proceed to

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trial. While the court is sympathetic to plaintiff’s counsel given the health issues he ultimately

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shared with the court, in light of the need to continue the trial date the court grants in part the

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defense request for motion practice to clarify whether failure to exhaust bars plaintiff’s Bane Act

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claim.

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III.

CONCLUSION

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The motion hearing set for June 17, 2022, is vacated.

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The court grants the motion to continue (ECF No. 193). The trial date set for July 12,

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2022, is vacated and reset for October 11, 2022, at 9:00 a.m. in Courtroom 3.

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The court denies in part and grants in part the motion for leave to file motion for

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summary judgment (ECF No. 194). Any motion for summary judgment shall be heard by

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August 19, 2022, at 10:00 a.m. in Courtroom 3. The motion and any opposition shall be

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limited to 10 pages, any reply shall be 5 pages. The briefing schedule shall follow in accordance

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with the relevant local rules.

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IT IS SO ORDERED.
DATED: June 15, 2022.

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