Opinion
CASE NO. 1:12-cv-0105-AWI-MJS (PC)
05-20-2015
LANARD KITCHENS, Plaintiff, v. TORDSEN, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND ENTER SUMMARY JUDGMENT FOR PLAINTIFF ON THE ISSUE OF EXHAUSTION (ECF No. 83)
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1, 10.) This matter proceeds against Defendant Tordsen on Plaintiff's First Amendment retaliation claim, and against Defendants Tordsen, Coker, Leach and Day on Plaintiff's Fourteenth Amendment claim for subjecting Plaintiff to conditions of confinement that amounted to punishment. (ECF No. 28.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On April 14, 2015, the Magistrate Judge issued Findings and Recommendations to deny Defendants' motion for summary judgment and enter summary judgment for Plaintiff on the grounds that the undisputed facts showed that Plaintiff was excused from exhausting his administrative remedies. (ECF No. 83.) However, Plaintiff does not seek summary judgment or adjudication and this Court will not grant Plaintiff summary judgment sua sponte. (See ECF No. 79 at 9.) Moreover, exhaustion of administrative remedies is an affirmative defense, not an element of any of Plaintiff's causes of action (Jones v. Bock, 549 U.S. 199, 216 (2007); Albino v. Baca, 747 F.3d 1162, 1172 (2014)); denying summary judgment to Defendants as to their failure to exhaust defense is dispositive of that issue.
In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds that the April 14, 2015 Findings and Recommendations - with the modification noted above - to be supported by record and by proper analysis.
Accordingly, it is HEREBY ORDERED that:
1. The Court adopts the findings and recommendations (ECF No. 83), filed April 14, 2015, in part;IT IS SO ORDERED. Dated: May 20, 2015
2. Defendants' motion for summary judgment (ECF No. 77), filed February 13, 2015 is DENIED.
/s/_________
SENIOR DISTRICT JUDGE