Gregory Rodriguez v. Hopkins
Filing
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FINDINGS and RECOMMENDATIONS Recommending that Defendant's 15 Motion to Dismiss be Denied; Fifteen-Day Objection Period signed by Magistrate Judge Sheila K. Oberto on 8/11/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 8/30/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GREGORY RODRIGUEZ,
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Plaintiff,
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CASE NO. 1:09-cv-02184-AWI-SKO PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANT’S MOTION
TO DISMISS BE DENIED
v.
HOPKINS,
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(Doc. 15)
Defendant.
FIFTEEN-DAY OBJECTION PERIOD
/
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Findings and Recommendations Addressing Motion to Dismiss
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I.
Procedural History
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Plaintiff Gregory Rodriguez, proceeding pro se and in forma pauperis, filed this civil rights
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action pursuant to 42 U.S.C. § 1983 on December 16, 2009. This action is proceeding against
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Defendant Hopkins for use of excessive physical force, in violation of the Eighth Amendment.
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On June 6, 2011, Defendant filed a motion seeking dismissal of Plaintiff’s due process claim
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for failure to state a claim and dismissal of the action in its entirety for failure to exhaust. 42 U.S.C.
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§ 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff did not file an opposition or a statement of non23
opposition and the motion is deemed submitted.1 Local Rule 230(l). For the reasons that follow,
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the Court recommends that Defendant’s motion be denied.
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Plaintiff was provided with notice of the requirements for opposing a motion to dismiss for failure to
exhaust in an order filed on February 28, 2011. W yatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). (Doc.
11-1.)
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II.
Discussion
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A.
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On February 9, 2011, the Court screened Plaintiff’s complaint and found that it stated a
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cognizable claim against Defendant Hopkins for excessive force in violation of the Eighth
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Amendment. 28 U.S.C. § 1915A; Fed. R. Civ. P. 8(a). Plaintiff’s separately pled due process claim
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was dismissed from the action at that time, with prejudice, for failure to state a claim. 28 U.S.C. §
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1915A; Fed. R. Civ. P. 8(a).
Failure to State a Claim for Denial of Due Process
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Defendant’s motion is therefore moot and it should be denied on that ground.
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B.
Failure to Exhaust
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Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with
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respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
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confined in any jail, prison, or other correctional facility until such administrative remedies as are
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available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available
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administrative remedies prior to filing suit, Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19
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(2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002), and the failure to exhaust
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in compliance with section 1997e(a) is an affirmative defense under which the defendants have the
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burden of raising and proving the absence of exhaustion, Jones, 549 U.S. at 216; Wyatt v. Terhune,
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315 F.3d 1108, 1119 (9th Cir. 2003).
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Plaintiff filed this action on December 16, 2009. (Doc. 1.) On the same date, he filed a
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notice of change of address stating that he paroled and is no longer in prison. (Doc. 2.) Because
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Plaintiff was not a prisoner when he filed this suit, he was not required to exhaust his claim and
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Defendant’s motion must be denied. Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009).
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III.
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Recommendation
Based on the foregoing, the Court HEREBY RECOMMENDS that Defendant’s motion to
dismiss, filed June 6, 2011, be DENIED in its entirety.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15)
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days after being served with these Findings and Recommendations, the parties may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ie14hj
August 11, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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