(PC) Lopez v. North Kern State Prison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODRIGO LOPEZ, No. 1:16-cv-00881-ADA-BAM (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING 14 NORTH KERN STATE PRISON, et al., DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: EXHAUSTION 15 Defendants. (Doc. Nos. 23, 37) 16 17 Plaintiff Rodrigo Lopez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 19 Plaintiff’s first amended complaint against Defendant J. McDermott (“Defendant”) for failure to 20 intervene while inmate Cancel was attacking Plaintiff, in violation of the Eighth Amendment. 21 (Doc. No. 9.) 22 On April 12, 2022, the magistrate judge issued findings and recommendations that 23 Defendant’s motion for summary judgment for failure to exhaust be granted. (Doc. No. 37.) The 24 findings and recommendations were served on the parties and contained notice that any 25 objections were to be filed within fourteen (14) days after service. (Id.) Plaintiff timely filed 26 objections on May 2, 2022. (Doc. No. 38.) Following an extension of time, Defendant filed a 27 response to Plaintiff’s objections on May 31, 2022. (Doc. No. 42.) 28 As Plaintiff’s objections largely reiterate the arguments raised in his opposition to the 1 | motion for summary judgment, the court finds no basis to overturn the findings and 2 || recommendations. In Plaintiffs objections, Plaintiff cited to Andres v. Marshall, 867 F.3d 1076 3 | (9th Cir. 2017), to support that he had exhausted the administrative remedies within the meaning 4 | of the Prison Litigation Reform Act. (See 42 U.S.C. § 1997e(a).) In Andres, the Ninth Circuit 5 | held that when prison officials fail to respond to a prisoner’s grievance, the prisoner is deemed to 6 | have exhausted his administrative remedies. (Andres, 867 F.3d at 1079.) Because prison officials 7 | timely responded to each of Plaintiff's submitted California Department of Corrections and 8 | Rehabilitation Forms 602, Plaintiffs case is distinguishable from Andres. (Doc. No. 37.) 9 | Therefore, the court finds Plaintiff's objections unpersuasive to overturn the findings and 10 || recommendations. 11 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 12 | de novo review of this case, including plaintiffs objections and defendant’s response. Having 13 | carefully reviewed the entire file, the court finds the findings and recommendations to be 14 | supported by the record and by proper analysis. 15 Accordingly, 16 1. The findings and recommendations issued on April 12, 2022, (Doc. No. 37), are adopted 17 in full; 18 2. Defendant’s motion for summary judgment for failure to exhaust administrative remedies, 19 (Doc. No. 23), is granted; 20 3. This action is dismissed, without prejudice, for the failure to exhaust available 21 administrative remedies; and 22 4. The Clerk of the Court is directed to close this case. 23 24 95 | IT ISSO ORDERED. 26 Dated: _ September 2, 2022 37 UNITED f£TATES DISTRICT JUDGE 28