(PC) Hernandez v. Clark-Barlow ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY CEASAR HERNANDEZ, No. 2:17-cv-01681-TLN-EFB 12 Plaintiff, 13 v. ORDER 14 JOE LIZZARAGA, et al., 15 Defendants. 16 17 Plaintiff Anthony Ceasar Hernandez (“Plaintiff”), a California Department of Corrections 18 and Rehabilitation (“CDCR”) inmate proceeding pro se, brings this action pursuant to 42 U.S.C. 19 § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. 21 Presently before the Court is Defendant Clark-Barlow’s (“Defendant”) Motion for 22 Summary Judgment for failure to exhaust administrative remedies. (ECF No. 39.) On October 23 18, 2019, the magistrate judge filed findings and recommendations herein which were served on 24 all parties and which contained notice to all parties that any objections to the findings and 25 recommendations were to be filed within fourteen days. (ECF No. 52.) On November 14, 2019, 26 Plaintiff filed Objections to the Findings and Recommendations. (ECF No. 54.) 27 This Court reviews de novo those portions of the proposed findings of fact to which 28 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 1 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As 2 to any portion of the proposed findings of fact to which no objection has been made, the Court 3 assumes its correctness and decides the motions on the applicable law. See Orand v. United 4 States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 5 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 6 Having carefully reviewed the entire file under the applicable legal standards, the Court 7 finds the Findings and Recommendations to be supported by the record and by the magistrate 8 judge’s analysis. 9 Plaintiff’s Objections appear to largely reassert the arguments set forth in his Opposition 10 to Defendant’s Motion for Summary Judgment. (See ECF No. 49 at 6.) The Court finds these 11 arguments were correctly addressed and rejected by the Findings and Recommendations. (See 12 ECF No. 52 at 5–6.) Accordingly, Plaintiffs’ objections are overruled. 13 To the extent Plaintiff argues that the exhaustion requirement should be deemed waived 14 because CDCR failed to meet its own grievance deadlines (ECF No. 54 at 4–8), Plaintiff’s 15 argument is without merit and was also properly rejected by the Findings and Recommendations. 16 (See ECF No. 52 at 5–6.) Further, Plaintiff’s reliance on Abney v. McGinnis and Lewis v. 17 Washington (ECF No. 54 at 4, 6–7) is misplaced, as the Court finds that neither of these cases are 18 factually apposite or support Plaintiff’s contention. See Abney v. McGinnis, 380 F.3d 663, 667– 19 69 (2nd Cir. 2004) (grievance process deemed not “available” to prisoner who received a 20 favorable grievance ruling but the ruling was not implemented); Lewis v. Washington, 300 F.3d 21 829, 833–35 (7th Cir. 2002) (rejecting prisoner’s claims of “substantial compliance,” or that 22 grievance process was not “available” to him where he failed to appeal an unfavorable grievance 23 ruling within the required thirty day period). For this reason as well, Plaintiff’s objections 24 pertaining to the waiver of his exhaustion requirement are overruled. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The Findings and Recommendations, filed October 18, 2019 (ECF No. 52), are 27 adopted in full; and 28 2. Defendant’s Motion for Summary Judgment (ECF No. 39) is GRANTED; 1 3. Plaintiff’s claims are DISMISSED, without prejudice, for failure to exhaust 2 administrative remedies; and 3 4. The Clerk is directed to close the case. 4 IT IS SO ORDERED. 5 Dated: December 2, 2019 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28