# (PC) Petillo v. Galliger

> District Court, E.D. California · July 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10045975

## Case

- **Court:** District Court, E.D. California
- **Decided:** July 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 ISAIAH J. PETILLO, Case No. 1:18-cv-00217-JLT-GSA-PC
12 Plaintiff, ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS IN FULL AND
13 v. GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
14 GALLIGER, et al.,
15 Defendant. (Doc. 57; Doc. 79)
16
17 The assigned Magistrate Judge issued findings and recommendations that Defendants’
18 motion for summary judgment, filed on November 10, 2021, be granted and this case be
19 dismissed, without prejudice, for Petillo’s failure to exhaust administrative remedies before filing
20 suit. (Doc. 79.) Petillo filed objections to the findings and recommendations. (Doc. 83.)
21 According to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court has conducted a de
22 novo review of this case. Having carefully reviewed the entire file, including Petillo’s objections,
23 the Court finds the findings and recommendations to be supported by the record and proper
24 analysis. For example, Petillo argues his failure to exhaust administrative remedies should be
25 excused because courts in other circuits have found an exception to the exhaustion requirement
26 where the prison officials did not strictly follow their own policies or where instructions for
27 administrative proceedings are unclear. (Doc. 83 at 15-16 (citing e.g., Collins v. Goord, 438 F.
28 Supp. 2d 399, 411, n.13 (S.D.N.Y. 2006); Brownell v. Kron, 446 F.3d 305, 311 (2d Cir. 2006)).)
1 The Ninth Circuit, however, follows Supreme Court precedent and allows for three
2 exceptions the exhaustion requirement. See e.g., Ross v. Blake, 578 U.S. 632, 643-44 (2016); see
3 also Blackwell v. Cal. Dep’t of Corr. & Rehab., 2019 WL 8163803, at *4 (C.D. Cal. Dec. 18,
4 2019). These three exceptions include (1) when an exhaustion procedure is “unavailable,” such
5 that it operates as a “dead end” because, for example, the administrative office or officials
6 disclaim authority to consider the prisoner’s grievance; (2) when exhaustion procedures are so
7 confusing that no reasonable prisoner “can make sense of what it demands”; (3) when prison
8 officials undermine exhaustion procedures by use of machination, misrepresentation, or
9 intimidations. Ross, 578 U.S. at 643-44. None of these exceptions apply to Petillo’s case. Though
10 Defendants repeatedly delayed issuing a final decision in Petillo’s appeal, Defendants sent timely
11 notices to Petillo explaining the delay and estimating a decision date. (Doc. 83 at 28-41.) Even if
12 Defendants’ treatment of Petillo’s appeal did not comply with strict adherence to the
13 administrative procedures, they did not wholly fail to respond to Petillo’s grievance complaints
14 such that it thwarted the process or made such remedies unavailable. See Contreraz v.
15 Stockbridge, 2011 WL 2620367, at *2 (E.D. Cal. June 29, 2011) (finding administrative remedies
16 effectively “unavailable” where plaintiff made multiple attempts to file an appeal but received no
17 response from defendants).
18 In addition, Petillo’s concerns that the statute of limitations for a § 1983 required him to
19 initiate his suit before resolution of the prison’s administrative findings due to delay are
20 unfounded. In the Ninth Circuit, equitable tolling allows prisoners to exhaust their administrative
21 remedies without running the clock on the § 1983 claims’ statute of limitations. Brown v. Valoff,
22 422 F.3d 926, 943 (9th Cir. 2005) (“[W]e agree with the uniform holdings of the circuits that
23 have considered the question that the applicable statute of limitations must be tolled while a
24 prisoner completes the mandatory exhaustion process.”). Therefore, waiting for Defendants to
25 reach a final decision on Petillo’s appeal would not have prevented him from initiating suit under
26 § 1983. Thus, the Court ORDERS,
27 1. The findings and recommendations issued by the Magistrate Judge on May 9, 2022
28 (Doc. 79), are ADOPTED IN FULL.
1 2. Defendants’ motion for summary judgment, filed on November 10, 2021, (Doc. 57)
2 is GRANTED and this action is DISMISSED without prejudice, for Petillo’s
3 failure to exhaust administrative remedies before filing suit.
4 3. The Clerk is directed to CLOSE this case.
5
6 IT IS SO ORDERED.
| Dated: _ July 19, 2022 Cerin | Tower
TED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10045975. Public record. Not legal advice.