Virgil E. Holt v. P. Finander et al

Filing 169

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge James V. Selna for Amended Report and Recommendation (Issued) 163 , NOTICE OF MOTION AND MOTION for Summary Judgment 131 . IT IS ORDERED that Defendant's Motion for Summary Judgm ent is DENIED. The Court grants partial summary judgment in favor of Plaintiff on the issue of whether he has exhausted his administrative remedies with respect to his claims against each of the defendants. All further proceedings shall be before the District Judge assigned. (see document for further details) (hr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
VIRGIL E. HOLT,

)
)
Plaintiff,
)
v.
)
)
)
P. FINANDER, et al,
)
Defendants.
)
_________________________________ )

NO. CV 15-5089-JVS (KS)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended
Complaint, all of the records herein, Defendant’s Motion for Summary Judgment
and the parties’ related briefing, the June 10, 2019 Amended Report and
Recommendation of United States Magistrate Judge (“Report”), and Defendant’s
Objections to the Report (“Objections”). The Court has also reviewed Plaintiff’s
Objections, which state his non-objection to the Report.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court
has conducted a de novo review of those portions of the Reports to which
objections have been stated. Having completed its review, the Court accepts the
findings and recommendations set forth in the Report, with the exception the
following language at page 45, lines 12-13 of the Amended Report and
Recommendation: “whether Plaintiff administratively exhausted his claim of
deliberate indifference against Defendants,”. Accordingly, IT IS ORDERED that
Defendant’s Motion for Summary Judgment is DENIED.

Further, the Court finds that the parties have fully presented and ventilated
the issue of exhaustion, and therefore, the Court grants partial summary judgment
in favor of Plaintiff on the issue of whether he has exhausted his administrative
remedies with respect to his claims against each of the defendants. See Gospel
Missions of Am. v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003)
(finding "a district court may enter summary judgment sua sponte against a moving
party if the losing party has had a ‘full and fair opportunity to ventilate the issues
involved in the matter’" (quoting Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312
(9th Cir. 1982))).
.

Further, the parties’ deadline for filing dispositive motions has passed.
Therefore, the Court presumes this case ready to be set for trial and all further
proceedings shall be before the District Judge assigned.

DATED: July 19, 2019

________________________________
JAMES V. SELNA
UNITED STATES DISTRICT JUDGE