Ethridge v. Childs et al

Filing 38

ORDER ADOPTING 36 FINDINGS AND RECOMMENDATIONS to Grant Defendants' 31 Motion for Summary Judgment signed by District Judge Lawrence J. O'Neill on 11/24/2014. CASE CLOSED. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARL ETHRIDGE, 12 13 14 15 16 Plaintiff, v. Case No. 1:10-cv-01962-LJO-MJS (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT S. CHILDS, et al., (ECF Nos. 31, 36) Defendants. CLERK TO TERMINATE ALL PENDING MOTIONS AND CLOSE CASE 17 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action brought pursuant to 28 U.S.C. § 1983. (ECF Nos. 1 & 6.) This action 20 proceeds against Defendants Hernandez and Childs on Plaintiff’s Eighth Amendment 21 conditions of confinement claim. (ECF Nos. 18 & 19.) The matter was referred to a 22 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 23 302 of the United States District Court for the Eastern District of California. 24 On November 5, 2014, the Magistrate Judge issued Findings and a 25 Recommendation to grant Defendants’ motion for summary judgment on the ground 26 Plaintiff had failed to exhaust his administrative remedies. (ECF No. 36.) Plaintiff filed 27 objections to the Findings and Recommendations. (ECF No. 37.) 28 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has 1 conducted a de novo review of this case. Having carefully reviewed the entire file, the 2 Court finds the Findings and Recommendation to be supported by the record and by 3 proper analysis. 4 Plaintiff’s claim involves a 180-day deprivation of out-of-cell exercise imposed 5 after Plaintiff was found guilty of two Rules Violation Reports (“RVR”). Plaintiff 6 exhausted two administrative appeals that alleged his due process rights were violated 7 in adjudicating the RVRs. Plaintiff also alleged that the 90-day loss of privileges for each 8 offense was excessive, and requested that he be penalized for a “first violation.” This 9 request was denied because Plaintiff had six prior RVRs for the same type of violation. 10 In his objections, Plaintiff contends that these appeals exhausted his 11 administrative remedies with respect to the instant claim because they challenged the 12 loss of privileges. However, Plaintiff’s general challenge to the loss of privileges based 13 on his prior violations history would not have put prison officials on notice that he was 14 denied out-of-cell exercise in violation of the Eighth Amendment. See Griffin v. Arpaio, 15 557 F.3d 1117, 1120-21 (9th Cir. 2009). Plaintiff did not exhaust his administrative 16 remedies. His objections do not raise an issue of law or fact under the Findings and 17 Recommendations. 18 Accordingly, it is HEREBY ORDERED that: 1. The Court adopts the Findings and Recommendation (ECF No. 36) filed 19 on November 5, 2014, in full; 20 2. Defendants’ motion for summary judgment (ECF No. 31), filed on May 19, 21 2014, is GRANTED; 22 3. The Clerk of the Court shall terminate all pending motions, enter 23 24 25 26 judgment, and close the case. IT IS SO ORDERED. /s/ Lawrence J. O’Neill November 24, 2014 Dated: UNITED STATES DISTRICT JUDGE 27 4. 28 2

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