Green v. David et al
Filing
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ORDER Denying Motion Requesting The Court Preserve Plaintiff's Exhaustion Of Administrative Remedies On The Record (ECF No. 37 ), signed by Magistrate Judge Gerald B. Cohn on 6/6/2011. (Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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VENCIL GREEN,
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CASE NO.
1:09-cv-01747-AWI-GBC (PC)
Plaintiff,
ORDER DENYING MOTION REQUESTING
THE COURT PRESERVE PLAINTIFF’S
EXHAUSTION OF ADMINISTRATIVE
REMEDIES ON THE RECORD
Defendants.
(ECF No. 37)
v.
B. S. DAVIS. et al,
/
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ORDER
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Plaintiff Vencil Green (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court
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is Plaintiff’s Motion Requesting that the Court Preserve Plaintiff’s Exhaustion of
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Administrative Remedies on the Record. (ECF No. 37.) In his Motion, Plaintiff requests
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that the Court preserve on the record his exhaustion of administrative remedies. Plaintiff
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states that exhaustion documents were included as attachments to his original complaint,
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but not to his Amended Complaint. (ECF Nos. 1 & 35.) Plaintiff then alleges that
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Defendants “falsified” their Answer (ECF No. 36) by including as an affirmative defense
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that Plaintiff failed to exhaust his administrative remedies.
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The Court notes that, at this time in the proceedings, Defendants have not filed any
dispositive motion arguing failure to exhaust. Failure to exhaust was referred to in their
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Answer as an affirmative defense. Federal Rule of Civil Procedure 8(c) requires that when
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Defendants respond to a pleading, they must affirmatively state any affirmative defense.
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Failure to exhaust, under the Prison Litigation Reform Act, is an affirmative defense as to
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which Defendants have the burden of proof. Wyatt v. Terhune, 315 F.3d 1108, 1119, (9th
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Cir. 2003). Until a pleading is filed contending that Plaintiff has failed to exhaust, Plaintiff
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need not argue to the contrary.
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It appears that Plaintiff is requesting that the Court take judicial notice of the fact that
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he has exhausted his administrative remedies. The Court will take judicial notice of its own
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record in this case, United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); however,
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the Court will not preserve Plaintiff’s exhaustion of administrative remedies on the record.
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Therefore, Plaintiff’s Motion is DENIED.
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IT IS SO ORDERED.
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Dated:
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June 6, 2011
UNITED STATES MAGISTRATE JUDGE
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