(PC) Hisle v. Conanon ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS CURTIS HISLE, ) Case No. 1:17-cv-01400-NONE-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT ) 14 MARLYN CONANAN, et al., CONANAN BE DENIED AS MOOT ) 15 Defendants. ) (ECF No. 122) ) 16 ) 17 Plaintiff Dennis Curtis Hisle is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion for summary judgment, filed on August 6, 20 2020. 21 On March 2, 2020, Defendant Conanan filed a motion for summary judgment on the ground 22 that Plaintiff failed to exhaust the inmate grievance procedures prior to filing suit. (ECF No. 107). On 23 April 20, 2020, Plaintiff filed an opposition, and Defendant Conanan filed a reply on May 1, 2020. 24 (ECF Nos. 115, 120). 25 On August 3, 2020, the undersigned issued Findings and Recommendations finding that the 26 inmate grievance plaintiff lodged regarding this instance of medical care to indisputably establish that 27 he “did not include allegations that Defendant Conanan falsified medical records, failed to provide 28 Plaintiff with a lay in, and failed to urgently refer Plaintiff to a pulmonologist,” and, as a result, 1 || plaintiff failed to exhaust his administrative remedies with respect to the asserted Eighth Amendment 2 || claim against defendant Conanan based on those allegations. (ECF No. 121 at 9.) Therefore, it was 3 || recommended that Defendant Conanan’s motion for summary judgment be granted. (Id. at 12.) The 4 || Findings and Recommendations were adopted in full on November 6, 2020, and the claims against 5 || Defendant Conanan were dismissed, without prejudice. (ECF Nos. 136, 137.) 6 Plaintiff's motion for summary judgment, self-dated August 1, 2020, and filed on August 6, 7 || 2020 (after the Findings and Recommendations recommending Defendant Conanan’s motion for 8 || summary judgment be granted) is moot as it has been determined the claims against Conanan are 9 || unexhausted and have been dismissed. Accordingly, it is HEREBY RECOMMENDED that Plaintiff 10 || motion for summary judgment, filed on August 6, 2020, be denied as moot. 11 This Findings and Recommendation will be submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 13 || after being served with this Findings and Recommendation, the parties may file written objections 14 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 15 || Recommendation.” The parties are advised that failure to file objections within the specified time mz 16 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 17 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 IS SO ORDERED. A (Fe 20 || Dated: November 10, 2020 F- UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28