(PC) Thorpe v. Hearn ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENELL THORPE, No. 2: 19-cv-1974 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 C. HEARN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 21, 2020, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Neither party has filed 23 objections to the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 1 supported by the record and by the proper analysis with the exception of the magistrate judge’s 2 recommendation to hold that plaintiff did not show he had exhausted the claims in grievance 3 number MCSP-A-18-3757. See F&Rs at 14–15. That grievance is related to plaintiff’s claim that 4 defendant Parham retaliated against him by filing a false rules violation report about forging a 5 document.” Id. at 14; see also Fleets Decl. Ex. C at 18–21,1 ECF No. 31-7. 6 Plaintiff’s administrative appeal relating to this grievance was canceled for exceeding time 7 limits. See Fleets Decl. Ex. C at 18. Plaintiff challenged that cancelation as improper, and he 8 submitted a copy of his challenge in opposition to summary judgment. See Thorpe Decl. ¶ 9 & 9 Attachment 5, ECF No. 43. The magistrate judge found, however, that plaintiff had not carried 10 his burden to show that he submitted the challenge because plaintiff “provided no evidence that 11 he mailed the grievance to the Appeal Chief.” See F&Rs at 14–15. But plaintiff declared under 12 penalty of perjury that he had submitted the challenge, and nothing suggests he would not testify 13 the same at trial. See Thorpe Decl. ¶ 9. His declaration creates a genuine dispute of material fact, 14 which cannot be resolved at summary judgment. See Nigro v. Sears, Roebuck & Co., 784 F.3d 15 495, 498 (9th Cir. 2015) (“[The plaintiff’s] declaration . . . , albeit uncorroborated and self- 16 serving, [was] sufficient to establish a genuine dispute of material fact . . . . His testimony was 17 based on personal knowledge, legally relevant, and internally consistent.”). Summary judgment 18 cannot be granted based on a finding that plaintiff did not challenge the cancellation of this 19 grievance as untimely. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The findings and recommendations filed October 21, 2020, are adopted in part; 22 2. Defendant’s motion for partial summary judgment (ECF No. 31) is granted except for 23 the claims that defendant Parham retaliated against plaintiff for filing grievances by filing 24 retaliatory rules violation reports against plaintiff on August 8 and 28, 2018; and 25 3. Upon further review of the file and on its own motion, the court reconsiders its order at 26 ECF No. 52 and finds the appointment of counsel to represent plaintiff is appropriate for the 27 28 1 The pages cited here are those applied to the top right of each page by the CM/ECF system. 1 | limited purposes of assisting plaintiff with discovery, any further pretrial motion practice, and 2 || preparing for and participating in any settlement conferences. The matter is referred to the 3 || supervisor of this court’s pro bono panel, Sujean Park Castelhano, to identify an appropriate 4 | attorney. 5 || DATED: April 1, 2021. CHIEF ED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28