(PC) Chatman v. Vera ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AUDREE CHATMAN, No. 1:18-cv-01463-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 H. VERA, et al., DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 15 Defendants. (Doc. Nos. 24, 33) 16 17 18 Plaintiff Audree Chatman is proceeding pro se and in forma pauperis in this civil rights 19 action brought under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. This case now proceeds on 21 plaintiff’s claim against defendant H. Vera for excessive use of force in violation of the Eighth 22 Amendment of the United States Constitution. (Doc. No. 11.) 23 On October 28, 2019, defendant Vera filed a motion for summary judgment based on 24 plaintiff’s purported failure to exhaust his administrative remedies prior to filing suit as is 25 required. (Doc. No. 24.) Plaintiff did not file an opposition to defendant’s motion despite 26 receiving an extension of time in which to do so from the court. (Doc. No. 31.) 27 On February 10, 2020, the assigned magistrate judge issued findings and 28 recommendations recommending that defendant’s motion for summary judgment be denied 1 because defendant has failed to meet his initial burden to “prove that there was an available 2 administrative remedy, and that the prisoner did not exhaust that available remedy.” (Doc. No. 33 3 at 3, 7) (citing Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014).) In particular, the magistrate 4 judge found contradictions in defendant’s arguments and the documentation submitted to the 5 court in support of the motion. (Id. at 6–7.) On the one hand, defendant argued that plaintiff’s 6 inmate grievance regarding excessive use of force is still pending at the second level of review 7 and attached as exhibits to his motion twelve memorandums of delay dated between March 2018 8 and July 2019 stating that the due date for the second level review had been extended. (Id.) But, 9 on the other hand, defendant also attached a response dated February 22, 2018, stating that 10 plaintiff’s appeal inquiry at the second level had been completed and that staff did not violate 11 CDCR policy with respect to the issue plaintiff had presented in his inmate grievance.1 (Id.) In 12 the pending findings and recommendations, the magistrate judge pointed out this discrepancy, 13 stating: 14 It is unclear why the second level review issued memorandums of delay after a decision was rendered at that level. Defendant does not 15 address this discrepancy and the Court finds that he has failed to meet his initial burden of demonstrating that Plaintiff failed to exhaust the 16 administrative remedies. It is not clear what, if anything, Plaintiff was required to do given that the second level issued a decision on 17 February 22, 2018—which Defendant fails to acknowledge or address. 18 19 (Id. at 7.) Defendant had an opportunity to address these concerns by filing objections to the 20 pending findings and recommendations, but did not do so. The pending findings and 21 recommendations were served on the parties and contained noticed that any objections thereto 22 were to be filed within thirty (30) days. (Id. at 8.) No objections have been filed and the time for 23 doing so has passed. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 1 There is no evidence before the court showing that plaintiff ever received a copy of the 27 response from the second level of review. In the “Second Level – Staff Use Only” section on plaintiff’s Form 602 for the grievance at issue, the space for “Date mailed/delivered to appellant” 28 is left blank. (Doc. No. 24-3 at 41.) 1 | undersigned concludes that the findings and recommendations are supported by the record and 2 | proper analysis. 3 Accordingly, 4 1. The findings and recommendations issued on February 10, 2020 (Doc. No. 33) are 5 adopted in full; 6 2. Defendant’s motion for summary judgment due to plaintiffs failure to exhaust his 7 administrative remedies, with respect to the claims presented in this action, prior to 8 filing suit as required (Doc. No. 24) is denied; and 9 3. This matter is referred back to the assigned magistrate judge for further 10 proceedings. 11 | IT Is SO ORDERED. a 2 Dated: _ April 7, 2020 J aL A 4 7 a 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28