Lee v. Alamedia, et al
Filing
108
ORDER ADOPTING Findings and Recommendations 90 ; ORDER GRANTING Defendant White's Motion to Dismiss 64 ; ORDER DISMISSING Defendant White From This Action For Plaintiff's Failure to Exhaust, signed by District Judge Lawrence J. O'Neill on 8/24/11: The Clerk of Court is DIRECTED to reflect the dismissal of Defendant White from this action on the Court's docket. (Hellings, J)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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NORRIS LEE,
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Plaintiff,
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1:02-cv-05037-LJO-GSA-PC
vs.
C/O HOUGH, et al.,
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Defendants.
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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
_____________________________/
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Norris Lee (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant
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to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.
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On July 19, 2011, Findings and Recommendations were entered, recommending that
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defendant White's motion to dismiss, filed on February 14, 2011, be granted, and that defendant
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White be dismissed from this action based on Plaintiff's failure to exhaust remedies against him.
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(Doc. 90.) On August 3, 2011, Plaintiff filed objections to the Findings and Recommendations.
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(Doc. 97.)
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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this
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Court has conducted a de novo review of this case. Having carefully reviewed the entire file,
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including Plaintiff's objections, the Court finds the Findings and Recommendations to be supported
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by the record and proper analysis. Plaintiff objects on the ground that the Findings and
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Recommendations are premature because Plaintiff's motion for summary judgment, filed on July 18,
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2011, has not been resolved. Plaintiff also argues that the Court should resolve his motion for entry
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of default judgment against defendant White at this stage of the proceedings. These arguments are
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without merit. See Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 534 (7th Cir. 1999) (vacating
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judgment and remanding with instructions to dismiss for failure to exhaust in case where district
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court granted summary judgment to defendants on the merits and did not rule on their pending
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motion for dismissal based on failure to exhaust).
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Plaintiff also requests the Court to reconsider his assertion that he filed a prison appeal on
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July 12, 2000, addressing defendant White's failure to protect him during the July 10 assault, which
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was not processed by the appeals coordinator. Even taking as true Plaintiff's assertion that he
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submitted a prison appeal on July 12, 2000, Plaintiff has not provided credible evidence of the
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content of the appeal. Plaintiff declares under penalty of perjury that the appeal addressed his claims
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against defendant White, "detail[ing] Defendant White's inactions at protecting him." (Objections,
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Doc. 97 at 2:21-22.) Plaintiff has not submitted a copy of the appeal itself. However, Plaintiff
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submits declarations of three inmates which he claims to have submitted to the appeals coordinator
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along with the appeal, arguing that "these eye witness accounts should be a strong indicator to the
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Court of the inactions of the Defendant(s) and that Plaintiff was in fact victimized by their
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inactions." (Id., Declarations of Plaintiff, Robert K. Sole, Charles Rathbun, and Edward
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Armendariz, Exh. B to Objections, Doc. 97 at 20-21.) The Court has reviewed the inmate
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declarations and finds nothing addressing any staff member's failure to protect Plaintiff. In fact, all
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three of the inmates indicate in their verified declarations that when the officers arrived at the scene
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of the assault, they ordered Plaintiff and the other participants to stop the altercation and lie down on
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the floor, which they proceeded to do. (Id.) Thus, Plaintiff's evidence does not support his assertion
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that the July 12 appeal addressed defendant White's failure to protect him through inaction.
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Therefore, Plaintiff has not shown that he exhausted his remedies with the July 12, 2000 prison
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appeal, with regard to his claims against defendant White.
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Plaintiff also argues that he submitted two more 602 appeals and several inmate requests for
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interview forms, but he "did not receive any answers." (Id. at 3:3-4.) Even if Plaintiff’s assertion is
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taken as true, he has not submitted evidence of the content of the appeals or requests. Therefore,
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Plaintiff’s argument fails.
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Accordingly, THE COURT HEREBY ORDERS that:
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1. The Findings and Recommendations issued by the Magistrate Judge on July 19, 2011, are
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ADOPTED in full;
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2. Defendant White's motion to dismiss, filed on February 14, 2011, is GRANTED;
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3. Defendant White is DISMISSED from this action based on Plaintiff's failure to exhaust
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administrative remedies against him; and
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4. The Clerk of Court is DIRECTED to reflect the dismissal of defendant White from this
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action on the Court's docket.
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IT IS SO ORDERED.
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Dated:
b9ed48
August 24, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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