(PC) Cortinas v. Vasquez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, No. 1:19-cv-0367 JLT SKO (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING 13 v. DEFENDANTS’ MOTION FOR SUMMARY 14 VASQUEZ, et al., JUDGMENT 15 Defendants. (Docs. 61, 75, 134) 16 17 Larry William Cortinas is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. Defendants seek summary judgment, 19 asserting that Plaintiff failed to exhaust his administrative remedies related to his claims for 20 deliberate indifference and sexual assault. (Doc. 61.) 21 On November 7, 2022, the assigned magistrate judge found the Court “is unable to 22 determine, on the present record, whether Plaintiff has exhausted his administrative remedies as 23 to Plaintiff’s deliberate indifference and sexual assault claims.” (Doc. 134 at 22; see also id. at 24 10-22.) Therefore, the magistrate judge recommended Defendants’ motion for summary 25 judgment be denied. (Id.) 26 The Court granted the parties 14 days to file written objections to the Findings and 27 Recommendations and informed them that “[f]ailure to file objections within the specified time may result in waiver of rights on appeal.” (Doc. 134 at 23, citing Wilkerson v. Wheeler, 772 F.3d 1 | 834, 839 (th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) To date, no 2 || objections have been filed and the time to do so has passed. 3 According to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this 4 | case. Having carefully reviewed the file, the Court concludes the magistrate judge’s Findings and 5 | Recommendations to be supported by the record and proper analysis. Thus, the Court ORDERS: 6 1. The Findings and Recommendations filed on November 7, 2022 (Doc. 134) are 7 ADOPTED in full. 8 2. Defendants’ motion to strike Plaintiff's sur-replies (Doc. 75) is GRANTED. 9 3. Defendants’ motion for summary judgment for a failure to exhaust administrative 10 remedies pertaining to Plaintiff's claims of excessive force against Defendants 11 Vasquez, Fisher and Washington is DENIED. 12 4. Defendants’ motion for summary judgment for a failure to exhaust administrative 13 remedies pertaining to Plaintiffs claim of deliberate indifference to serious 14 medical needs against Defendant Ramos is DENIED without prejudice. 15 5. Defendants’ motion for summary judgment for a failure to exhaust administrative 16 remedies pertaining to Plaintiff's claim of sexual assault against any Defendant is 17 DENIED without prejudice. 18 6. This case is referred to the magistrate judge for further proceedings. 19 20 IT IS SO ORDERED. 21 | Dated: _November 29, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 22 23 24 25 26 27 28