Johnson v. Cate et al

Filing 46

ORDER ADOPTING 41 FINDINGS AND RECOMMENDATIONS in FULL and ORDER DENYING 32 Defendant Doran's Motion to Dismiss and Motion for Sanction signed by District Judge Lawrence J. O'Neill on 12/27/2013. (Jessen, A)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 GARRISON S. JOHNSON, Case No. 1:10-cv-02348-LJO-MJS (PC) 13 Plaintiff, 14 15 v. 16 CATE, et al., 17 18 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING DEFENDANT DORAN’S MOTION FOR (1) SANCTION FOR FAILURE TO DISCLOSE LITIGATION HISTORY, and (2) DISMISSAL OF ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Defendants. (ECF No. 41) 19 20 CASE TO REMAIN OPEN 21 22 Plaintiff Garrison S. Johnson is a state prisoner proceeding pro se in this civil rights 23 action filed December 16, 2010 pursuant to 42 U.S.C. § 1983. The matter was referred to a 24 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of 25 the United States District Court for the Eastern District of California. 26 On November 15, 2013, the Magistrate Judge issued findings and recommendations 27 (ECF No. 41) that Defendant Doran’s May 20, 2013 motion for non-disclosure sanction and 28 to dismiss the action for failure to exhaust (ECF No. 32) be denied and the Plaintiff be 1 1 admonished against misrepresentations of facts in future filings. On December 2, 2013, 2 Defendant Doran filed objections to the findings and recommendations. (ECF No. 42.) 3 Plaintiff did not reply to the objections and the time for doing so has passed. (ECF No. 41 at 4 7:28-8:1.) 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has 6 conducted a de novo review of this case. Having carefully reviewed the entire file, the Court 7 finds the findings and recommendations to be supported by the record and by proper 8 analysis. 9 The objections, which relate only to the motion to dismiss, re-hash Defendant’s 10 argued disparity between claims exhausted and those asserted in the pleading. This line of 11 argument was previously considered and found deficient by the Magistrate Judge in the 12 findings and recommendations. 13 These re-arguments do not raise an issue of law or fact under the findings and 14 recommendations. It remains that Plaintiff exhausted, under the Prison Litigation Reform 15 Act, claimed racial imbalance at the prison, putting prison officials on notice of Defendant’s 16 alleged discrimination against blacks, failure to achieve racial balance in law clerk 17 positions, and harm to Plaintiff and other black inmates, and providing pre-litigation 18 opportunity to resolve the matter. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). 19 Defendant also objects to the Magistrate Judge’s reliance on out of circuit authority, 20 Strong v. David, 297 F.3d 646 (7th Cir. 2002). However, the Ninth Circuit has expressly 21 adopted the standard in Strong. See Griffin, 557 F.3d at 1120, adopting Strong, 297 F.3d at 22 650 (when a prison's grievance procedures are silent or incomplete as to factual specificity, 23 “a grievance suffices if it alerts the prison to the nature of the wrong for which redress is 24 sought.”). 25 Accordingly, it is HEREBY ORDERED that: 26 1. 2013 (ECF No. 41) in full, 27 28 The Court adopts the findings and recommendations filed on November 15, 2. Defendant Doran’s May 20, 2013 motion for non-disclosure sanction and to 2 dismiss the action for failure to exhaust (ECF No. 32) is DENIED, 1 2 3. and 3 4 Plaintiff is admonished against misrepresentations of facts in future filings, 4. The case shall remain open. 5 6 7 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill December 27, 2013 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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