(PC) Miller v. Navarro ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD LEE MILLER, No. 1:17-cv-01309-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 FLORES, et al., PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT, GRANTING DEFENDANTS’ 15 Defendant. CROSS-MOTION FOR SUMMARY JUDGMENT, AND DISMISSING ACTION 16 FOR FAILURE TO EXHAUST 17 (Doc. No. 36) 18 19 20 Plaintiff Gerald Lee Miller is a state prisoner proceeding pro se and in forma pauperis in 21 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On December 13, 2019, the assigned magistrate judge issued findings and 24 recommendations, recommending that plaintiff’s motions for summary judgment (Doc. Nos. 28, 25 32)be denied as moot and that defendants’ cross-motion for summary judgment (Doc. No. 29) be 26 granted in part. (Doc. No. 36.) Specifically, the findings and recommendations recommended 27 that defendants’ cross-motion for summary judgment be granted in favor of defendants on the 28 issue of whether plaintiff exhausted his administrative remedies prior to filing suit, and be denied 1 as moot with respect to plaintiff’s retaliation claim against defendants Flores, Marquez, and 2 Xayoudom. (Id. at 12.) The findings and recommendations were served on the parties and 3 contained notice that any objections thereto were to be filed within thirty days after service. (Id. 4 at 12-13.) On December 30, 2019, plaintiff filed objections. (Doc. No. 37.) 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 6 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 7 including plaintiff’s objections, the court finds the findings and recommendations to be supported 8 by the record and proper analysis. 9 In his objections, plaintiff contends that the magistrate judge is biased against him because 10 he did not consent to the magistrate judge’s jurisdiction. (Id. at 4.) Plaintiff also contends that 11 defendants waived the exhaustion of administrative remedies issue because they did not “comply 12 with this court[’s] discovery and scheduling order.” (Id. at 5.) The court does not find plaintiff’s 13 conclusory objection that the assigned magistrate judge is somehow biased against him to be in 14 any way persuasive. Moreover, defendants raised the issue of plaintiff’s failure to exhaust his 15 administrative remedies in their answer and did not waive it. (See Doc. No. 25 at 3.) Finally, 16 plaintiff’s objections do not meaningfully dispute the magistrate judge’s finding that the 17 undisputed evidence before the court on summary judgment establishes that plaintiff commenced 18 this suit prior to exhausting the administrative remedies that were available to him. (See Doc. No. 19 36 at 8–11); see also Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“[A] prisoner 20 must exhaust his administrative remedies for the claims contained within his complaint before 21 that complaint is tendered to the district court.”). 22 Accordingly, 23 1. The December 13, 2019 findings and recommendations (Doc. No. 36) are adopted 24 in full; 25 2. Defendants’ cross-motion for summary judgment (Doc. No. 29) is granted in part 26 and denied as moot in part as follows: 27 ///// 28 ///// 1 a. Summary judgment is granted in favor of defendants on the issue of 2 plaintiffs failure to exhaust available administrative remedies prior to 3 filing suit; 4 b. Summary judgment is denied in all other respects; 5 3. Plaintiff's motions for summary judgment (Doc. Nos. 28, 32) are denied as moot; 6 4. This case is dismissed without prejudice; and 7 5. The Clerk of the Court is directed to close this case. 8 | IT IS ORDERED. a 9 Li. wh F Dated: _ February 12, 2020 Sea 1" S098 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28