(PC) Borbon v. Smiley ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO BORBON, No. 2: 19-cv-1464 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 D. SMILEY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is defendants’ motion for summary judgment on 19 the grounds that plaintiff failed to exhaust administrative remedies. (ECF No. 36.) 20 For reasons stated herein, the parties are ordered to file further briefing. 21 Defendants move for summary judgment on the grounds that plaintiff did not pursue 22 grievances MCSP HC-16048527 and SATF HC-1700483 through the final level of review. 23 On June 26, 2020, plaintiff filed an opposition to defendants’ summary judgment motion. 24 (ECF No. 45.) In part, plaintiff alleges that he did not appeal grievance MCSP HC-16048527 25 beyond the first level of review because he was satisfied with the relief granted, i.e., the referral to 26 an ophthalmologist. (Id. at 3.) In support of this argument, plaintiff cites Harvey v. Jordan, 605 27 F.3d 681 (9th Cir. 2010). (Id. at 4.) 28 □□ UV LET ING IVE bMVVULTICI hiriayv Payee ¢e¢vic 1 In Harvey the Ninth Circuit held that the plaintiff “had exhausted the administrative 2 | process when the prison officials purported to grant relief that resolved his due process grievance 3 | to his satisfaction.” Harvey, 605 F.3d at 686. 4 In order to assist the undersigned in evaluating plaintiff's claim that MCSP HC-16048527 5 | exhausted his administrative remedies, the parties are directed to file further briefing addressing if 6 | and when plaintiff was seen by an ophthalmologist in response to this grievance. The 7 | undersigned cannot determine from the current record when plaintiff was seen by an 8 | ophthalmologist regarding his left eye after this grievance was partially granted at the first level 9 || of review on July 19, 2016.! 10 Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order, 11 | both parties shall file the further briefing discussed above. 12 | Dated: July 16, 2020 13 Al Norra 14 KENDALL J. Wha Borbon1464.fb UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 } ——__ ! Tn the complaint, plaintiff suggests that he did not see the ophthalmologist before his transfer to 25 SATE on September 13, 2016, 1.e., approximately two months after MCSP HC 16048527 was 26 | Partially granted on July 19, 2016. (ECF No. | at 12.) In grievance SATF HC-17000483, filed December 12, 2017, plaintiff again requested to see an eye specialist. The records from SATF 27 | HC-17000483 state that plaintiff was seen by the ophthalmologist on February 1, 2018. It is not clear if plaintiff's February 1, 2018 examination was the first time plaintiff saw an 28 | ophthalmologist regarding his left eye after July 19, 2016.