(PC) Williams v. Just ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, No. 2:18-CV-0740-MCE-DMC-P 12 Plaintiff, 13 v. ORDER 14 D. JUST, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is plaintiff’s motion for a Peavy hearing (ECF No. 19 81). For the reasons discussed below, plaintiff’s motion is denied. 20 21 I. BACKGROUND 22 This action proceeds on plaintiff’s civil rights complaint, filed on April 3, 2018 23 against defendants D. Just and T. Villescaz. See ECF No. 1. On February 15, 2019, the Court 24 issued its scheduling order, establishing a period of time for discovery and setting a deadline for 25 submission of dispositive motions. See ECF No. 24. On August 26, 2019, defendant Villescaz 26 filed a motion for summary judgement. See ECF No. 47. In his motion, Villescaz argued that 27 plaintiff failed to exhaust his administrative remedies through the grievance process available 28 from the California Department of Corrections and Rehabilitation (CDCR), thus violating the 1 Prison Litigation Reform Act (PLRA). On March 31, 2020, the Court issued findings and 2 recommendations recommending that defendant Villescaz’s motion for summary judgement be 3 granted. See ECF No. 66. On May 27, 2020, the District Judge adopted the Court’s findings and 4 recommendations and dismissed defendant Villescaz. See ECF No. 73. Plaintiff then appealed 5 this dismissal to the Ninth Circuit Court of Appeals, which subsequently denied plaintiff’s appeal 6 for lack of jurisdiction. See ECF No. 80. After this denial, plaintiff brought forth this pending 7 motion for a Peavy hearing. Specifically, plaintiff seeks this hearing to “develop the facts about 8 the exhaustion issue. . .” ECF No. 81, pg. 1. 9 10 II. DISCUSSION 11 In seeking a “Peavy hearing”, plaintiff is referencing Peavy v. Conley, 544 F.3d 12 739 (7th Cir. 2008). In Peavy, the Seventh Circuit questioned the Ninth Circuit’s approach to 13 exhaustion under the PLRA, which at the time was governed by Wyatt v. Terhune, 315 F.3d 1108 14 (9th Cir. 2003). In Wyatt, the Ninth Circuit concluded that exhaustion was best raised as an 15 unenumerated Rule 12(b) motion because failure to exhaust under the PLRA is an affirmative 16 defense. See id. at 1119-20. The Seventh Circuit disagreed with the approach, but agreed with 17 the result that failure to exhaust should be addressed by way of motion rather than simply 18 asserting the defense as an answer to the complaint. See Peavy, 544 F.3d at 741. Ultimately, the 19 Seventh Circuit crafted a three-step approach to address the issue, stating in part that: 20 The sequence to be followed in a case in which exhaustion is contested is therefore as follows: (1) The district judge conducts a hearing on 21 exhaustion and permits whatever discovery relating to exhaustion he deems appropriate [. . .] 22 Id. at 742. 23 24 However, since Peavy, the Ninth Circuit has overturned Wyatt with the case 25 Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), in which the Ninth Circuit concluded 26 that an unenumerated Rule 12(b) motion is not generally the proper approach for raising 27 exhaustion. See id. at 1168. While an unenumerated Rule 12(b) motion may be appropriate in 28 the rare event failure to exhaust is clear on the face of the complaint, defendants are encouraged wAOe 6 LOU VEY EET IVES IVINS MUO OD PC ere TOY VV VI 1 | to raise the issue by way of a motion for summary judgment. See id. at 1168-69. 2 In his motion, plaintiff demands that he be permitted a hearing in order to develop 3 | the facts relevant to exhaustion. See ECF No. 81. However, a review of the docket reflects that 4 | he has already been granted an opportunity to develop those facts. The Court issued a scheduling 5 | order opening discovery on February 15, 2019. See ECF No. 24. Plaintiff had several months to 6 | pursue discovery, which he did. See e.g. ECF No. 40 (plaintiff's motion to compel); see also 7 | ECF No. 37 (order granting plaintiff's request for issuance of a subpoena). Defendant Villescaz 8 | filed a motion for summary judgment arguing failure to exhaust. See ECF No. 47. Plaintiff had 9 | an opportunity to present whatever evidence he had to support exhaustion in opposition to 10 || defendant’s motion. The Court determined the evidence was undisputed that plaintiff failed to 11 | exhaust as to defendant Villescaz, who was ultimately dismissed from the case. See ECF No. 12 | 73. Plaintiff did not ask this Court to certify the issue for interlocutory appeal and the Ninth 13 | Circuit rejected plaintiff's interlocutory appeal from this determination for lack of 14 | jurisdiction. See ECF No. 80. Thus, plaintiff had ample opportunity to develop the factual record 15 | regarding the exhaustion issue and his pending motion is unnecessary. 16 17 I. CONCLUSION 18 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for a Peavy 19 || hearing (ECF No. 81) is denied as unnecessary. 20 21 | Dated: July 22, 2020 Sx