Moran v. Dutra et al

Filing 149

ORDER ADOPTING 139 Findings and Recommendation to Grant Defendant Onwubuya's 132 Motion for Summary Judgment, signed by District Judge Lawrence J. O'Neill on 4/14/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NICOLAS MORAN,
Plaintiff,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATION TO GRANT
DEFENDANT ONWUBUYA’S MOTION
FOR SUMMARY JUDGMENT

v.

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Case No. 1:11-cv-00914-LJO-MJS (PC)

K. DUTRA, et al.,
(ECF No. 139)
Defendants.

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CASE TO REMAIN OPEN

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

18 rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United
19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the
20 United States District Court for the Eastern District of California.
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On

January

13,

2016,

the

Magistrate

Judge

issued

findings

and

22 recommendations to grant Defendant Onwubya’s motion for summary judgment on the
23 ground that Plaintiff failed to exhaust administrative remedies against her. (ECF No.
24 139.) Plaintiff filed objections. (ECF No. 145.) Defendant filed a response. (ECF No.
25 148.)
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has

27 conducted a de novo review of this case. Having carefully reviewed the entire file, the
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1 Court finds the findings and recommendations to be supported by the record and by
2 proper analysis. Plaintiff’s objections fail to raise an issue of fact or law under the
3 findings and recommendations. Although Plaintiff exhausted an administrative appeal
4 against Defendant Onwubuya, that appeal did not address the denial of assistive
5 devices. Such denial is the only conduct alleged by Plaintiff that could support a
6 cognizable claim against Defendant Onwubuya in this action. Accordingly, the
7 Magistrate Judge properly concluded that Plaintiff failed to exhaust administrative
8 remedies.
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Accordingly, it is HEREBY ORDERED that:
1. The Court adopts the January 13, 2016 findings and recommendations

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(ECF No. 139) in full;

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2. Defendant Onwubuya’s motion for summary judgment (ECF No. 132) is

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GRANTED;

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3. Defendant Onwubuya is DISMISSED;

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4. The case shall remain open for further proceedings on Plaintiff’s Eighth
Amendment claims against Defendants Dutra and Brockmeyer; and

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5. The matter is referred back to the Magistrate Judge for scheduling of trial

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and pretrial matters.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

April 14, 2016

UNITED STATES DISTRICT JUDGE
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