Opinion
No. 2:17-cv-01681-TLN-EFB
12-02-2019
ANTHONY CEASAR HERNANDEZ, Plaintiff, v. JOE LIZZARAGA, et al., Defendants.
ORDER
Plaintiff Anthony Ceasar Hernandez ("Plaintiff"), a California Department of Corrections and Rehabilitation ("CDCR") inmate proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Presently before the Court is Defendant Clark-Barlow's ("Defendant") Motion for Summary Judgment for failure to exhaust administrative remedies. (ECF No. 39.) On October 18, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 52.) On November 14, 2019, Plaintiff filed Objections to the Findings and Recommendations. (ECF No. 54.)
This Court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As to any portion of the proposed findings of fact to which no objection has been made, the Court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
Having carefully reviewed the entire file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge's analysis.
Plaintiff's Objections appear to largely reassert the arguments set forth in his Opposition to Defendant's Motion for Summary Judgment. (See ECF No. 49 at 6.) The Court finds these arguments were correctly addressed and rejected by the Findings and Recommendations. (See ECF No. 52 at 5-6.) Accordingly, Plaintiffs' objections are overruled.
To the extent Plaintiff argues that the exhaustion requirement should be deemed waived because CDCR failed to meet its own grievance deadlines (ECF No. 54 at 4-8), Plaintiff's argument is without merit and was also properly rejected by the Findings and Recommendations. (See ECF No. 52 at 5-6.) Further, Plaintiff's reliance on Abney v. McGinnis and Lewis v. Washington (ECF No. 54 at 4, 6-7) is misplaced, as the Court finds that neither of these cases are factually apposite or support Plaintiff's contention. See Abney v. McGinnis, 380 F.3d 663, 667-69 (2nd Cir. 2004) (grievance process deemed not "available" to prisoner who received a favorable grievance ruling but the ruling was not implemented); Lewis v. Washington, 300 F.3d 829, 833-35 (7th Cir. 2002) (rejecting prisoner's claims of "substantial compliance," or that grievance process was not "available" to him where he failed to appeal an unfavorable grievance ruling within the required thirty day period). For this reason as well, Plaintiff's objections pertaining to the waiver of his exhaustion requirement are overruled.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed October 18, 2019 (ECF No. 52), are adopted in full; and
2. Defendant's Motion for Summary Judgment (ECF No. 39) is GRANTED;
3. Plaintiff's claims are DISMISSED, without prejudice, for failure to exhaust administrative remedies; and
4. The Clerk is directed to close the case.
IT IS SO ORDERED. Dated: December 2, 2019
/s/_________
Troy L. Nunley
United States District Judge