Opinion
1:02-cv-05037-LJO-GSA-PC
08-24-2011
NORRIS LEE, Plaintiff, v. C/O HOUGH, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 90.)
ORDER GRANTING DEFENDANT WHITE'S MOTION TO DISMISS (Doc. 64.)
ORDER DISMISSING DEFENDANT WHITE FROM THIS ACTION FOR PLAINTIFF'S FAILURE TO EXHAUST
Norris Lee ("Plaintiff") is a state prisoner proceeding pro se in this civil rights 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.
On July 19, 2011, Findings and Recommendations were entered, recommending that defendant White's motion to dismiss, filed on February 14, 2011, be granted, and that defendant White be dismissed from this action based on Plaintiff's failure to exhaust remedies against him. (Doc. 90.) On August 3, 2011, Plaintiff filed objections to the Findings and Recommendations. (Doc. 97.)
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff's objections, the Court finds the Findings and Recommendations to be supported by the record and proper analysis. Plaintiff objects on the ground that the Findings and Recommendations are premature because Plaintiff's motion for summary judgment, filed on July 18, 2011, has not been resolved. Plaintiff also argues that the Court should resolve his motion for entry of default judgment against defendant White at this stage of the proceedings. These arguments are without merit. See Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 534 (7th Cir. 1999) (vacating judgment and remanding with instructions to dismiss for failure to exhaust in case where district court granted summary judgment to defendants on the merits and did not rule on their pending motion for dismissal based on failure to exhaust).
Plaintiff also requests the Court to reconsider his assertion that he filed a prison appeal on July 12, 2000, addressing defendant White's failure to protect him during the July 10 assault, which was not processed by the appeals coordinator. Even taking as true Plaintiff's assertion that he submitted a prison appeal on July 12, 2000, Plaintiff has not provided credible evidence of the content of the appeal. Plaintiff declares under penalty of perjury that the appeal addressed his claims against defendant White, "detail[ing] Defendant White's inactions at protecting him." (Objections, Doc. 97 at 2:21-22.) Plaintiff has not submitted a copy of the appeal itself. However, Plaintiff submits declarations of three inmates which he claims to have submitted to the appeals coordinator along with the appeal, arguing that "these eye witness accounts should be a strong indicator to the Court of the inactions of the Defendant(s) and that Plaintiff was in fact victimized by their inactions." (Id., Declarations of Plaintiff, Robert K. Sole, Charles Rathbun, and Edward Armendariz, Exh. B to Objections, Doc. 97 at 20-21.) The Court has reviewed the inmate declarations and finds nothing addressing any staff member's failure to protect Plaintiff. In fact, all three of the inmates indicate in their verified declarations that when the officers arrived at the scene of the assault, they ordered Plaintiff and the other participants to stop the altercation and lie down on the floor, which they proceeded to do. (Id.) Thus, Plaintiff's evidence does not support his assertion that the July 12 appeal addressed defendant White's failure to protect him through inaction. Therefore, Plaintiff has not shown that he exhausted his remedies with the July 12, 2000 prison appeal, with regard to his claims against defendant White.
Plaintiff also argues that he submitted two more 602 appeals and several inmate requests for interview forms, but he "did not receive any answers." (Id. at 3:3-4.) Even if Plaintiff's assertion is taken as true, he has not submitted evidence of the content of the appeals or requests. Therefore, Plaintiff's argument fails.
Accordingly, THE COURT HEREBY ORDERS that:
1. The Findings and Recommendations issued by the Magistrate Judge on July 19, 2011, are ADOPTED in full;
2. Defendant White's motion to dismiss, filed on February 14, 2011, is GRANTED;
3. Defendant White is DISMISSED from this action based on Plaintiff's failure to exhaust administrative remedies against him; and
4. The Clerk of Court is DIRECTED to reflect the dismissal of defendant White from this action on the Court's docket.
IT IS SO ORDERED.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE