Arellano v. Blahnik

Filing 163

ORDER : (1) Adopting Report and Recommendation [Doc. No. 160 ]; Rejecting Defendant's Objections [Doc. No. 161 ]; (3) Denying Defendant's Motion for Summary Judgment [Doc. No. 134 ; and (4) Setting Telephonic Status Conference. Signed by Judge Cathy Ann Bencivengo on 9/28/2020. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARRELLANO,

Case No.: 16cv2412-CAB-MSB
Plaintiff,

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v.

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ORDER: (1) ADOPTING REPORT
AND RECOMMENDATION [Doc.
No. 160]; (2) REJECTING
DEFENDANT’S OBJECTIONS [Doc.
No. 161]; (3) DENYING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [Doc. No.
134]; AND (4) SETTING
TELEPHONIC STATUS
CONFERENCE

BLAHNIK,
Defendant.

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Plaintiff Raul Arellano (“Plaintiff”), a state prisoner proceeding pro se and in

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forma pauperis, filed his complaint in this case on September 23, 2016, alleging

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Defendant Blahnik (“Defendant”) violated his rights under 42 U.S.C. §1983. [Doc. No.

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1.] On December 12, 2019, Defendant filed a motion for summary judgment. [Doc. No.

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134.] On March 5, 2020, Plaintiff filed an opposition. [Doc. No. 150.] On March 13,

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2020, Defendant filed a reply. [Doc. No. 151.] On March 30, 2020, Plaintiff filed a sur-

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reply. [Doc. No. 153.]

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On July 2, 2020, Magistrate Judge Michael S. Berg issued a Report and
Recommendation regarding Defendant’s motion for summary judgment (the “Report”),
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recommending that Defendant’s motion be denied. [Doc. No. 160.] On July 20, 2020,

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Defendant filed objections to the Report. [Doc. No. 161.] On August 5, 2020, Plaintiff

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filed a reply to Defendant’s objections. [Doc. No. 162.] Having reviewed the matter de

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novo and for the reasons that follow, the Report is ADOPTED, Defendant’s objections

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are REJECTED, and the motion for summary judgment is DENIED.

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REVIEW OF REPORT AND RECOMMENDATION
The duties of the district court in connection with a report and recommendation of

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a magistrate judge are set forth in Federal Rules of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §

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636(b). The district court need not review de novo those portions of a report and

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recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992,

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1000 n. 13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003)

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(en banc).

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DISCUSSION

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A. Collateral Estoppel (Issue Preclusion).

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Defendant argues that because the issue of exhaustion of administrative remedies was

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decided against Plaintiff in a previous state habeas corpus action connected to Defendant

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Blahnik’s loss of his legal papers, Plaintiff should be precluded from arguing he

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exhausted his administrative remedies in this case. [Doc. No. 134 at 21.] Magistrate

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Judge Berg concluded that the standard for exhaustion of administrative remedies is

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different for state habeas petitions than under the federal PLRA and, therefore, issue

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preclusion does not apply. [Doc. No. 160 at 5-10.] Defendant does not object to this

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portion of the Report. Nevertheless, this Court has reviewed the matter of issue

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preclusion de novo and agrees with Magistrate Judge Berg that issue preclusion does not

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apply here, as the standard for exhaustion is different in state habeas petitions. See,

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Report at 9, and cases cited therein. Therefore, Defendant’s motion for summary

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judgment based on issue preclusion is DENIED.

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B. Administrative Exhaustion.

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Defendant argues that Plaintiff failed to exhaust his administrative remedies regarding

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the lost paperwork issue before bringing this action. [Doc. No. 134 at 21.] Magistrate

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Judge Berg concluded that there are disputed issues of material fact as to whether

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Plaintiff submitted Grievance 4029 a third time and whether it was obstructed or ignored.

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[Doc. No. 160 at 20.] Magistrate Judge Berg also concluded that the Grievance Rewrite

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[Doc. No. 134 at 60-65] was sufficient on its face to alert prison officials to Plaintiff’s

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attempt to seek redress for the lost paperwork issue. [Doc. No. 160 at 21.] Defendant

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objects to both findings.

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1. Finding that the Grievance Rewrite put “prison staff on notice” that the lost
paperwork issue was “the wrong that Plaintiff sought to remedy.”

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Defendant objects to this finding because the Grievance Rewrite clearly listed the yard

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move as the chosen issue. [Doc. No. 161 at 4.] If the first page of the Grievance Rewrite

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is viewed in a vacuum, then it is possible it would not put prison staff on notice that the

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lost paperwork was the issue Plaintiff wanted resolved. However, when viewed in

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conjunction with the attachments to the Grievance Rewrite, as well as Plaintiff’s other

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submissions, especially the handwritten notations on the rejection notices (see below), it

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is simply unclear on summary judgment whether prison officials were on notice of the

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lost paperwork issue. Therefore, Defendant’s objection to this finding is REJECTED

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because the question of whether prison staff was on notice of the lost paperwork issue

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cannot be determined on summary judgment.

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2. Finding of factual dispute as to whether Plaintiff re-submitted the December 3,
2014 grievance after its December 24, 2014 rejection.
Defendant objects to this finding because, even if the December 3, 2014 grievance

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was resubmitted it could only have ever exhausted Plaintiff’s yard move request, since

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that was the issue that was raised by that grievance. [Doc. No. 161 at 7.] However, this
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Court agrees with Magistrate Berg’s conclusion that the record does not conclusively

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show that Plaintiff’s assertion that he timely resubmitted the 4029 Grievance after its

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December 24, 2014 rejection is not credible. [Doc. No. 160 at 20.] Plaintiff’s

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handwritten notations on the various rejection notices [Doc. No. 134 at 55-57, 67]

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suggest that Plaintiff resubmitted the rejection notices with the handwritten notations

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sometime after December 24, 2014, and that he assumed this was adequate to pursue the

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lost paperwork issue. As such, there is a factual dispute as to whether the handwritten

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notations could reasonably constitute a grievance and whether prison staff obstructed or

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ignored Plaintiff’s alleged resubmission of his grievance that was needed to fully exhaust

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his claims. Given this factual dispute, Defendant’s objection is OVERRULED, and the

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motion for summary judgment based upon failure to exhaust administrative remedies is

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DENIED.

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C. Access to Courts Claim.

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Defendant argues that, even if he is responsible for the lost documents, the contents of

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those documents would not have resulted in a successful habeas petition, thereby

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disproving Plaintiff’s contention he was frustrated in his efforts to file a nonfrivolous

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claim. [Doc. No. 134 at 9.] Magistrate Judge Berg concluded that the alleged injury to

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Plaintiff is not whether the habeas petition would have been successful, but whether

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Plaintiff lost the opportunity to present a nonfrivolous claim. Magistrate Judge Berg also

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pointed out that Defendant did not argue that the facts alleged by Plaintiff in support of

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his underlying claims are “fantastical or delusional,” but instead only argued that

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Plaintiff’s alleged facts do not adequately support his alleged habeas claims. [Doc. No.

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160 at 38.] In his objections, Defendant now clarifies that his moving papers do show

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that Plaintiff’s alleged facts regarding his alleged habeas claims are “fantastical or

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delusional.” [Doc. No. 161 at 7-8.] However, a petition for writ of habeas corpus (which

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is what Plaintiff alleges he intended to file) is “not facially frivolous.” Sprinkle v.

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Robinson (“Sprinkle I”), No. CIV S-02-1563 LKK EFB P., 2007 WL 2389984, at *7

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(E.D. Cal. Aug. 27, 2007). And Plaintiff’s alleged facts supporting the alleged petition
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cannot be said, at least on summary judgment, to be “fantastical or delusional.”

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Therefore, Defendants objection is OVERRULED, and the motion for summary

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judgment based upon failure to present an arguable habeas claim to support an access to

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courts claim is DENIED.

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CONCLUSION

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For the reasons set forth above, the Court rules as follows:

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1. The Report [Doc. No. 160] is ADOPTED;

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2. Defendant’s Objections [Doc. No. 161] are REJECTED;

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3. The Motion for Summary Judgment [Doc. No. 134] is DENIED;

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4. A telephonic status conference before Judge Bencivengo to reset pretrial dates

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is HEREBY SCHEDULED for October 8, 2020 at 11:00 a.m. Counsel for

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Defendant is instructed to connect through an AT&T Teleconference

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connection at [phone], access code: 1749358. Counsel for Defendants

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shall also arrange for Plaintiff’s telephonic appearance.

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IT IS SO ORDERED.
Dated: September 28, 2020

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