1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT EUGENE THOMAS, No. 1:19-cv-01185-KES-HBK (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Docs. 40, 48) 14 SALAS, MEDINA, FLORES, and C/O #1 THIRD WATCH, 15 Defendants. 16 17 18 Plaintiff Albert Eugene Thomas proceeds on his prisoner civil rights action filed under 42 19 U.S.C. § 1983 against defendants Salas, Medina, Flores, and C/O #1 Third Watch. The matter 20 was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 21 Rule 302. 22 On June 9, 2023, defendants filed a motion for summary judgment, arguing that this 23 action should be dismissed based on plaintiff’s failure to exhaust administrative remedies. Doc. 24 40. Plaintiff opposed summary judgment and defendants filed a reply. Docs. 46, 47. On 25 September 27, 2023, the magistrate judge issued findings and recommendations, recommending 26 that defendants’ motion for summary judgment be granted as the record established that plaintiff 27 failed to exhaust administrative remedies. See Doc. 48. The findings and recommendations 28 1 notified the parties that any objections were to be filed within 14 days of service. Id. at 11. On 2 October 20, 2023, plaintiff filed objections to the findings and recommendations. Docs. 49. 3 Defendants Flores, Medina, and Salas filed a response to plaintiff’s objections. Doc. 51. 4 Also on October 20, 2023, plaintiff filed a “Petition for Cross Claim by Summary 5 Judgment and Memorandum of Points and Authorities in Support for File Any Opposition By 6 Counter Affidavit Under Penalty of Perjury On the Record [Filed Concurrently With the 7 Affidavit] [In Objection In Support]” (Doc. 50, “Motion”). Plaintiff attached to his motion a 8 request for judicial notice of the following exhibits: (1) a “Copy Certification by Document 9 Custodian” attesting that the attached documents are true copies, signed by plaintiff on October 10 19, 2023; (2) a copy of a purported June 2019 grievance form signed by plaintiff but without any 11 filing stamp; and (3) a declaration from fellow inmate Paul Pleasant, dated August 7, 2019, 12 concerning the conditions of plaintiff’s cell. Doc. 50 at 5-11. On February 14, 2024, the 13 magistrate judge granted defendants’ motion to strike plaintiff’s motion as untimely, among other 14 grounds. Doc. 60. Plaintiff has not appealed that order. See docket. Moreover, even considering 15 those now-stricken records in conjunction with plaintiff’s objections, as set forth below they do 16 not undermine the findings and recommendations. 17 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the court has conducted a de 18 novo review of this case. Having carefully reviewed the file, for the reasons set forth below, the 19 court finds the findings and recommendations to be supported by the record and by proper 20 analysis. 21 In an affidavit included with his objections, plaintiff asserts that he recently discovered a 22 copy of his grievance claim dated June 29, 2019 (which is unstamped and is blank in all sections 23 other than those filled in by plaintiff), which he claims shows that he exhausted his administrative 24 remedies by filing a grievance in June 2019. Doc. 49 at 2 ¶ 2. This assertion contradicts 25 plaintiff’s prior statements in his court filings and interrogatory responses, in which plaintiff 26 claimed that he filed this § 1983 action without exhausting his administrative remedies because 27 he believed he was about to die. To explain this contradiction, plaintiff now asserts that he 28 believes he may suffer from early-onset Alzheimer’s disease and that he forgot he had filed a 1 grievance. Id. at ¶ 5. He also “now seems to recollect that [his] cell was searched and documents 2 were [unlawfully] confiscated at that time,” implying that the documents at issue must have been 3 taken by CDCR staff. Id. at 3 ¶ 6. Plaintiff argues that the existence of the purported grievance 4 form creates a genuine dispute of material fact that should preclude summary judgment. 5 The court finds plaintiff’s objections unpersuasive and adopts the findings and 6 recommendations. First, the court has discretion whether to consider supplemental evidence 7 presented for the first time in objections to a magistrate judge’s findings and recommendations. 8 See U.S. v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). Here, the court declines to accept the 9 proffered supplemental evidence. It would be unfair to permit plaintiff to introduce new evidence 10 at this late stage of the proceedings, after failing to produce it in response to requests for 11 production, see Doc. 51 at 2, and particularly after plaintiff made contrary representations in his 12 interrogatory responses, see Doc. 40-6 at 4, and his own briefing, see Doc. 46 at 4.1 13 Second, the court has examined plaintiff’s affidavit and will disregard it as a “sham 14 affidavit.” “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by 15 an affidavit contradicting” prior testimony. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 16 (9th Cir. 2009) (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). The 17 sham affidavit rule “applies to conflicts between affidavits and interrogatory responses as well as 18 deposition testimony.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 19 1264 (9th Cir. 1993). There are two important limitations on a district court’s discretion to 20 disregard a sham affidavit. Van Asdale, 577 F.3d at 998. First, the district court must make a 21 factual determination that the contradiction was a “sham”; and second, the inconsistency between 22 the prior testimony and subsequent affidavit must be clear and unambiguous to justify the striking 23 of the affidavit. Id. at 998–99. The non-moving party is not prohibited from elaborating on or 24 clarifying prior testimony and “minor inconsistencies that result from an honest discrepancy, 25 mistake, or newly discovered evidence.” Id. at 999. 26 1 In his opposition to defendants’ motion for summary judgment, plaintiff conceded that he never 27 filed a grievance regarding the conditions of confinement in his cell, but argued he should be excused from doing so because he “didn’t believe that he was going to live much longer” and 28 therefore could not exhaust his administrative remedies. See Doc. 46 at 4. 1 Plaintiff’s affidavit contradicts his prior statements indicating that he did not exhaust the 2 administrative grievance process because he feared he would die before he could do so. See 3 Doc. 40-6 at 4–5. Plaintiff offers unpersuasive, shifting explanations for his failure to produce 4 the grievance form and other documents earlier. First, he claims to have newly discovered the 5 documents “upon his search through boxes worth of filed [sic] in the course of all litigation 6 accumulated over the years . . .” (Doc. 49 at 2 ¶ 3), implying that he had the documents in his 7 possession for an unspecified period but did not discover them until shortly after the magistrate 8 judge issued the findings and recommendations.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT EUGENE THOMAS, No. 1:19-cv-01185-KES-HBK (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. (Docs. 40, 48) 14 SALAS, MEDINA, FLORES, and C/O #1 THIRD WATCH, 15 Defendants. 16 17 18 Plaintiff Albert Eugene Thomas proceeds on his prisoner civil rights action filed under 42 19 U.S.C. § 1983 against defendants Salas, Medina, Flores, and C/O #1 Third Watch. The matter 20 was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 21 Rule 302. 22 On June 9, 2023, defendants filed a motion for summary judgment, arguing that this 23 action should be dismissed based on plaintiff’s failure to exhaust administrative remedies. Doc. 24 40. Plaintiff opposed summary judgment and defendants filed a reply. Docs. 46, 47. On 25 September 27, 2023, the magistrate judge issued findings and recommendations, recommending 26 that defendants’ motion for summary judgment be granted as the record established that plaintiff 27 failed to exhaust administrative remedies. See Doc. 48. The findings and recommendations 28 1 notified the parties that any objections were to be filed within 14 days of service. Id. at 11. On 2 October 20, 2023, plaintiff filed objections to the findings and recommendations. Docs. 49. 3 Defendants Flores, Medina, and Salas filed a response to plaintiff’s objections. Doc. 51. 4 Also on October 20, 2023, plaintiff filed a “Petition for Cross Claim by Summary 5 Judgment and Memorandum of Points and Authorities in Support for File Any Opposition By 6 Counter Affidavit Under Penalty of Perjury On the Record [Filed Concurrently With the 7 Affidavit] [In Objection In Support]” (Doc. 50, “Motion”). Plaintiff attached to his motion a 8 request for judicial notice of the following exhibits: (1) a “Copy Certification by Document 9 Custodian” attesting that the attached documents are true copies, signed by plaintiff on October 10 19, 2023; (2) a copy of a purported June 2019 grievance form signed by plaintiff but without any 11 filing stamp; and (3) a declaration from fellow inmate Paul Pleasant, dated August 7, 2019, 12 concerning the conditions of plaintiff’s cell. Doc. 50 at 5-11. On February 14, 2024, the 13 magistrate judge granted defendants’ motion to strike plaintiff’s motion as untimely, among other 14 grounds. Doc. 60. Plaintiff has not appealed that order. See docket. Moreover, even considering 15 those now-stricken records in conjunction with plaintiff’s objections, as set forth below they do 16 not undermine the findings and recommendations. 17 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the court has conducted a de 18 novo review of this case. Having carefully reviewed the file, for the reasons set forth below, the 19 court finds the findings and recommendations to be supported by the record and by proper 20 analysis. 21 In an affidavit included with his objections, plaintiff asserts that he recently discovered a 22 copy of his grievance claim dated June 29, 2019 (which is unstamped and is blank in all sections 23 other than those filled in by plaintiff), which he claims shows that he exhausted his administrative 24 remedies by filing a grievance in June 2019. Doc. 49 at 2 ¶ 2. This assertion contradicts 25 plaintiff’s prior statements in his court filings and interrogatory responses, in which plaintiff 26 claimed that he filed this § 1983 action without exhausting his administrative remedies because 27 he believed he was about to die. To explain this contradiction, plaintiff now asserts that he 28 believes he may suffer from early-onset Alzheimer’s disease and that he forgot he had filed a 1 grievance. Id. at ¶ 5. He also “now seems to recollect that [his] cell was searched and documents 2 were [unlawfully] confiscated at that time,” implying that the documents at issue must have been 3 taken by CDCR staff. Id. at 3 ¶ 6. Plaintiff argues that the existence of the purported grievance 4 form creates a genuine dispute of material fact that should preclude summary judgment. 5 The court finds plaintiff’s objections unpersuasive and adopts the findings and 6 recommendations. First, the court has discretion whether to consider supplemental evidence 7 presented for the first time in objections to a magistrate judge’s findings and recommendations. 8 See U.S. v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). Here, the court declines to accept the 9 proffered supplemental evidence. It would be unfair to permit plaintiff to introduce new evidence 10 at this late stage of the proceedings, after failing to produce it in response to requests for 11 production, see Doc. 51 at 2, and particularly after plaintiff made contrary representations in his 12 interrogatory responses, see Doc. 40-6 at 4, and his own briefing, see Doc. 46 at 4.1 13 Second, the court has examined plaintiff’s affidavit and will disregard it as a “sham 14 affidavit.” “The general rule in the Ninth Circuit is that a party cannot create an issue of fact by 15 an affidavit contradicting” prior testimony. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 16 (9th Cir. 2009) (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). The 17 sham affidavit rule “applies to conflicts between affidavits and interrogatory responses as well as 18 deposition testimony.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 19 1264 (9th Cir. 1993). There are two important limitations on a district court’s discretion to 20 disregard a sham affidavit. Van Asdale, 577 F.3d at 998. First, the district court must make a 21 factual determination that the contradiction was a “sham”; and second, the inconsistency between 22 the prior testimony and subsequent affidavit must be clear and unambiguous to justify the striking 23 of the affidavit. Id. at 998–99. The non-moving party is not prohibited from elaborating on or 24 clarifying prior testimony and “minor inconsistencies that result from an honest discrepancy, 25 mistake, or newly discovered evidence.” Id. at 999. 26 1 In his opposition to defendants’ motion for summary judgment, plaintiff conceded that he never 27 filed a grievance regarding the conditions of confinement in his cell, but argued he should be excused from doing so because he “didn’t believe that he was going to live much longer” and 28 therefore could not exhaust his administrative remedies. See Doc. 46 at 4. 1 Plaintiff’s affidavit contradicts his prior statements indicating that he did not exhaust the 2 administrative grievance process because he feared he would die before he could do so. See 3 Doc. 40-6 at 4–5. Plaintiff offers unpersuasive, shifting explanations for his failure to produce 4 the grievance form and other documents earlier. First, he claims to have newly discovered the 5 documents “upon his search through boxes worth of filed [sic] in the course of all litigation 6 accumulated over the years . . .” (Doc. 49 at 2 ¶ 3), implying that he had the documents in his 7 possession for an unspecified period but did not discover them until shortly after the magistrate 8 judge issued the findings and recommendations. Inconsistently, plaintiff also asserts that the 9 documents must have been stolen from him during a search of his cell during the pendency of this 10 case, id. ¶ 4, without explaining how or when he allegedly regained possession of the documents. 11 Finally, to attempt to explain why he repeatedly “forgot” he filed the grievance, and made 12 contrary representations throughout this litigation, plaintiff now asserts he “believes” he suffers 13 from early onset Alzheimer’s disease. Id. at 2-3 ¶ 5. Plaintiff does not offer any medical 14 documentation to support his belief that he has early onset Alzheimer’s disease nor point to any 15 document filed in this case where he made a similar representation.2 Instead, he asserts without 16 any support that, at the time he initiated this action, he was suffering from brain fog and loss of 17 memory. Id. 18 Plaintiff’s new affidavit is inconsistent with multiple prior statements by him in this case, 19 including his previous explanations as to why he did not exhaust the administrative grievance 20 process, as set forth in his responses to interrogatories and in his opposition to summary 21 judgment, Docs. 40-6 at 4-5 and 46. The timing of plaintiff’s alleged discovery of the new 22 documents, shortly after the issuance of the findings and recommendations, also supports the 23 conclusion that plaintiff’s recent affidavit is a “sham” and should not be considered by the court 24 when ruling on the summary judgment motion. Thus, the court adopts the magistrate judge’s 25 findings that there is no genuine dispute of material fact, and that plaintiff did not exhaust his 26 administrative remedies. Accordingly, summary judgment based on plaintiff’s failure to exhaust 27 2 If plaintiff’s claim to be suffering from early onset Alzheimer’s disease were true that would 28 significantly undermine, not support, the reliability of plaintiff’s new allegations in his affidavit. 1 | administrative remedies is appropriate. 2 Accordingly, it is ORDERED that: 3 1. The findings and recommendation, issued on September 27, 2023, Doc. 48, are 4 ADOPTED in full. 5 2. Defendants’ motion for summary judgment, Doc. 40, is GRANTED. 6 3. The action is DISMISSED based upon plaintiff's failure to exhaust administrative 7 remedies. 8 4. The Clerk of Court shall terminate any pending motions and CLOSE this case. 9 10 11 | TPIS SO ORDERED. _ 12 Dated: _ October 21, 2024 4h 3 UNITED STATES DISTRICT JUDGE
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