Way v. 20 Unknown Emps., 1:12cv00357 AWI DLB PC
| Decision Date | 23 October 2014 |
| Docket Number | 1:12cv00357 AWI DLB PC |
| Court | U.S. District Court — Eastern District of California |
| Parties | LONG WAY, Plaintiff, v. 20 UNKNOWN EMPLOYEES, Defendants. |
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BASED ON EXHAUSTION, DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, AND PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT
(Documents 118 and 125)
ORDER DENYING MOTIONS TO STRIKE AS MOOT
(Documents 131 and 132)
Plaintiff Long Way ("Plaintiff"), a federal prisoner proceeding pro se, filed this civil action on March 9, 2012, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. The action is proceeding against numerous Defendants for violation of the First Amendment right of access to the courts.1
On April 24, 2014, Defendants filed a motion for summary judgment based on exhaustion and a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiffopposed the motion on June 6, 2014, and also moved for summary judgment on the merits on his claims. Defendants filed a reply/opposition on July 7, 2014, and Plaintiff filed a reply on July 21, 2014.
On July 31, 2014, Plaintiff filed a "motion to strike" Defendants' affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f). On August 5, 2014, Defendants moved to strike Plaintiff's filing, contending that it was an unauthorized surreply. Plaintiff opposed the motion to strike on August 18, 2014.
All pending motions are ready for decision pursuant to Local Rule 230(l).
Plaintiff is currently incarcerated at the Federal Correctional Institution, Victorville. The events occurred while Plaintiff was housed at the United States Penitentiary in Atwater, California.
Plaintiff alleges that on or about April 9, 2010, during a lockdown at Atwater, a mass shakedown was conducted in Unit 5A. Pursuant to the instructions of the shakedown crew (all 27 Defendants), Plaintiff packed all of his personal property and government issued property into 10 full bags, with his name and cell number visible on each bag. The 10 bags included: 1 bag of government issued property, 3 bags of personal/commissary items and 6 bags of legal property.
Plaintiff observed Defendants Gray, Tincher, Bautista, Herrera, Ortiz and Garcia remove 10 bags of property from his cell to be x-rayed on the first floor. From there, his property was moved again to be manually searched out of view of the inmates. Plaintiff contends that the "USP-Atwater Daily Assignment Accountability of April 9, 2010" reveals that Plaintiff's bags were searched by Defendants Ciufo, Adam, Silver, Aquitana, Linsenmeyer, Gardea, Sanchez, Aguirre, Jackson, Scott, Taitano, Fields, Wolff, Sahota, Robinson, Gallegos, Shandor, Paniagua, Cole, Watkins and Spencer.
After Plaintiff's cell was searched and checked off on the shakedown log posted on his cell door, Plaintiff was brought back to his cell. Although ten bags were removed, Defendants Gray, Tincher, Bautista, Herrera, Ortiz and Garcia only returned 5 bags (1 bag of government issued items, 1 bag of personal items and 3 bags of legal property).
Plaintiff asked them about his other 5 bags of property, and was told that they would be returned when the crew had finished their assigned tasks. Plaintiff's 5 bags were not returned and he never received a confiscation form when the forms were handed out by Defendants Watkins and Spencer. Plaintiff asked Defendant Watkins and Spencer about his 5 missing bags and demanded a confiscation form. Defendants Watkins and Spencer told him that there was no confiscation form concerning the 5 bags, and that they would look for his missing bags when they were done handing out forms to the other inmates. They never returned.
Plaintiff alleges that none of his bags contained contraband. He also explains that he has been through numerous shakedowns at Atwater, and had always received a confiscation form and got his property back after the institution came off lockdown.
Plaintiff contends that after the April 2010 search, his 5 bags of property were illegally confiscated and destroyed without documentation "due to the collective actions" of all 27 Defendants. TAC, at 6.
Plaintiff also explains that from 2002 to 2009, he worked in the laundry department at Atwater, where he witnessed shakedown crews push carts of inmates' personal property and contraband to the trash compactor.
Plaintiff inquired about his 5 bags of property, and Counselor Coggin was able to locate and return 2 bags of personal property. After numerous conversations with Coggin and other inmates housed in Unit 5A, Plaintiff concluded that all 27 Defendants illegally confiscated his legal property and destroyed it without documentation.
Plaintiff contends that part of the legal property is irreplaceable. Plaintiff states that in 1997, he was wrongly accused and convicted by a jury of conspiracy to manufacture marijuana. He was sentenced to 50 years. He had been accumulating his legal files related to his cases challenging his conviction.
Plaintiff's section 2255 petition had been pending in the United States District Court for the Eastern District of California since 2004, and he was working on a writ of mandamus to compel the court to issue an order when Atwater was placed on lockdown in April 2010. Due to the intentional and/or negligent actions of all 27 Defendants, Plaintiff was not able to perfect his writ of mandamus.
After the incident, he asked the Clerk of Court about his case file and was informed that pro se status does not include free copies of legal documents. Plaintiff also contacted Attorney Diversified Services and was told that his case file was too large for a cost estimate.
In November 2010, Plaintiff received a response from his administrative remedy BP-9 and was told to file a tort claim because no information regarding the 3 bags could be located. Plaintiff's tort claim was denied on July 27, 2011, based on a finding that there was no negligence by the shakedown crew.
On August 29, 2011, the District Court denied Plaintiff's section 2255 motion. He contends that without his case file, he was not able to raise every constitutional issue that had merit on his certification of appealability. The Court denied his request in April and December 2012.
Plaintiff filed a writ of certiorari to the Supreme Court, without the benefit of his case file, in June 2013. He contends that he is still without his case file and cannot pursue the ongoing litigation to challenge his wrongful conviction.
The failure to exhaust is subject to a motion for summary judgment in which the court may look beyond the pleadings. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). If the Court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without prejudice. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).
"If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56." Albino, 747 F.3d at 1166. However, "[i]f material facts are disputed, summary judgment should be denied, and [following such denial] the district judge rather than a jury should determine the facts." Id. The Albino court specified that the court should act as the finder of fact in connection with an exhaustion challenge "in a preliminary proceeding" and, "if feasible, before reaching the merits of a prisoner's claim." Id. at 1168, 1170.
In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 1566 (2012). The Court determines only whether there is a genuine issue for trial, and Plaintiff's filings must be liberally construed because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).
Pursuant to the Prison Litigation Reform Act of 1996, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819 (2001), and the exhaustion requirement applies to all suits relating to prison life, Porter v. Nussle, 435 U.S. 516, 532, 122 S.Ct. 983 (2002).
The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under which the defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The failure to exhaust is subject to an unenumerated Rule 12(b) motion, and in resolving the motion, the Court may look beyond the pleadings and decide disputed issues of fact. Stratton v. Buck, 697 F.3d 1004, 1008 (9th Cir. 2012); Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010); Wyatt, 315...
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