Denton v. Thrasher

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 CASE NO. 3:18-CV-5017-BHS-DWC 11 Plaintiff, ORDER 12 v. 13 TIM THRASHER, et al., 14 Defendants. The District Court has referred this 42 U.S.C. § 1983 action to United States Magistrate 15 Judge David W. Christel. On December 5, 2019, Plaintiff Michael Denton, filed a Motion for 16 Summary Judgment (“Plaintiff’s Motion”). Dkt. 120. The same day, Defendants filed a Motion 17 for Summary Judgment (“Defendants’ Motion”). Dkt. 121. After considering the Motions and 18 record, the undersigned issued a Report and Recommendation (“R&R”) recommending 19 Plaintiff’s Motion be denied and Defendants’ Motion be granted. See Dkt. 137. 20 On June 29, 2020, the Honorable Benjamin H. Settle, the District Judge assigned to this 21 case, entered an Order adopting the R&R in part and requesting supplemental briefing on the 22 issue of exhaustion. Dkt. 142. On September 14, 2020, Judge Settle declined to adopt the R&R 23 24 1 on the issue of exhaustionas to the January 1, 2018 grievanceand re-referred the matter to the 2 undersigned for further consideration. Dkt. 146. 3 The undersigned thendirectedthe parties to submit a joint status report on or before 4 October 22,2020 advising the undersigned: (1) whether Defendants’ Motion should be reopened 5 or whether the parties anticipate filing renewed dispositive motions and (2) whether additional

6 discoveryis necessary, and if so, the scope of any additional discovery. Dkt. 147. 7 On October 22, 2020, the parties filed the Joint Status Report. Dkt. 148. Defendants’ 8 position is prior to ruling on the merits of the remaining claims, the Court must first resolve the 9 disputed questions of fact regarding exhaustion. Dkt. 148 at 1(citing Albinov. Baca,747 F.3d 10 1162, 1170-71 (9th Cir. 2014)). Defendants argue the Court should hold an evidentiary hearing 11 to resolve the disputed factual issues related to exhaustion.Id.Plaintiff’s position is Defendants 12 failed to establish as a matter of law that administrative remedies were available to Plaintiff. Dkt. 13 148 at 1-2. Therefore, Plaintiff argues the Court should rule on the underlying claims in this case. 14 Id. The parties agreeifevidentiary hearing is required, thendiscovery should be reopenedfor a

15 period of 60 days. Dkt. 148at 2. 16 Exhaustionis a thresholdissue which “should be decided, if feasible, before reaching the 17 merits of a prisoner’s claim.” Albino v. Baca,747 F.3d 1162, 1170-71 (9th Cir. 2014). In Albino, 18 the Ninth Circuit held that “[i]f a motion for summary judgment is denied,disputed factual 19 questions relevant to exhaustion should be decided by the judge, in the same manner a judge 20 rather than a jury decides disputed factual questions relevant to jurisdiction and venue. Id.; See 21 also McNutt v. Gen. Motors Acceptance Corp.,298 U.S. 178, 188-190 (1936) (with respect to 22 subject-matter jurisdiction, the Supreme Court indicated it may “inquire into the facts as they 23 really exist[]”); Murphy v. Schneider Nat'l, Inc.,362 F.3d 1133, 1139-1140 (9th Cir. 2004) 24 1 (venue); Lake v. Lake,817 F.2d 1416, 1420 (9th Cir. 1987) (with respect to personal jurisdiction, 2 the Supreme Court held courts “ha[ve]the discretion to evidence at a preliminary hearing in 3 order to resolve any questions of credibility or fact[]”). 4 Here, the threshold issue is whether Defendants’ failure to respond to Plaintiff’s 5 perceived emergency medical grievance rendered the grievance process effectively unavailable.

6 See Dkt. 146.Judge Settle denied Defendants’ Motion because the evidence, viewed in the light 7 most favorable to Plaintiff, raised a genuine dispute about whether any administrative process 8 was available to Plaintiff to appeal what he believed was an emergency medical grievance. Dkt. 9 146 at 3-5. Judge Settle stated “[i]f the factfinder accepts Denton’s allegation that he never 10 received a response, then the reasonable conclusion follows that a three-day delay in failing to 11 respond to an emergency grievance demonstrates that no available administrative remedy was 12 available.” Dkt. 146 at 4-5. 13 Because exhaustion is a threshold issue which should be decided, if feasible, before 14 reaching the merits of a prisoner’s claim,Albino, 747 F.3d at 1170,the undersignedreopens

15 discovery, limited to the issue of exhaustionas to the January 1, 2018 grievance. SeeDkt. 148at 16 2 (parties agree if an evidentiary hearing is needed, discovery should be reopened);Ransom v. 17 Aguirre, 2016 WL 10646321, at *1 (E.D. Cal. Mar. 11, 2016), report and recommendation 18 adopted, 2016 WL 10644771 (E.D. Cal. July 27, 2016) (the district court issued findings and 19 recommendations recommending a motion for summary judgment be denied pending an 20 evidentiary hearing on the issue of exhaustion). 21 Accordingly, the Court orders: 22 (1) Discovery, limited to the issue of exhaustionof the January 1, 2018 grievance,shall 23 be completed on or before January 15, 2021. 24 1 (2) Any motion to compel discovery shall be filed not later thanFebruary 1, 2021. 2 (3) As the discovery period may impact Defendants’ request for an evidentiary hearing 3 and/or the parties may be able to narrow or resolve the issueof exhaustion, the parties 4 are directed to meet and confer and provide the Court with a second joint status report 5 on or before February 15, 2021. Defendants’ may also renew their request for an

6 evidentiary hearing inaddition to filing the second joint status report on or before 7 February15, 2021. 8 Datedthis 12thday ofNovember, 2020. 9 A 10 David W. Christel 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24