Ransom v. Aguirre et al

Filing 67

ORDER GRANTED IN PART and DENIED IN PART 41 Motion to Dismiss ; ORDER ADOPTING 56 FINDINGS AND RECOMMENDATIONS, IN FULL, signed by District Judge Anthony W. Ishii on 03/12/14. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRYAN E. RANSOM,
Plaintiff,

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vs.
RODOLFO AGUIRRE, et al.,

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Defendants.

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1:12cv01343 AWI DLB PC
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS AND
GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION TO
DISMISS
(Document 56)

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Plaintiff Bryan E. Ransom (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se in this

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civil rights action pursuant to 42 U.S.C. § 1983. Defendants removed the action on August 16,

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2012.

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On June 17, 2013, Defendants filed an unenumerated Rule 12(b) Motion to Dismiss
based on Plaintiff’s failure to exhaust. The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On November 1, 2013, the Court issued Findings and Recommendations that Defendants’

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motion be granted in part and denied in part. Defendants filed objections on November 27,
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2013. Plaintiff filed objections on December 4, 2013, and Defendants replied to those objections
on December 18, 2013.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted
a de novo review of this case. Having carefully reviewed the entire file, including the parties’
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objections and Defendants’ reply, the Court finds that the Findings and Recommendations are
supported by the record and by proper analysis.
Plaintiff’s arguments in his objections are without merit. The use of the words “will
continue” and “every” in the grievance response does not mean that his original grievance

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included a period in the future.
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Plaintiff also contends that the cancellation of his July 22, 2011, appeal, “for all intents
and purposes,” rendered administrative remedies unavailable. Obj. 9. Plaintiff states that
appealing the cancellation is a separate issue from the underlying grievance issue. While it may

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be a separate issue, a successful appeal on the cancellation issue would have allowed Plaintiff to

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proceed with his grievance. Plaintiff did not attempt to appeal, however, and cannot demonstrate

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that there were no available remedies.

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Defendants’ objections are based on their request for an evidentiary hearing to address

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the credibility issues identified by the Magistrate Judge. The Magistrate Judge recommended

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denial without prejudice of the two claims where factual issues existed. By separate order, the

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Court will address Defendants’ request for an evidentiary hearing. However, the denial without

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prejudice remains supported by the record and proper analysis.
Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, filed November 1, 2013, are ADOPTED in

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full; and

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2.

Defendants’ Motion to Dismiss, filed on June 17, 2013, is GRANTED IN PART
and DENIED IN PART.

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IT IS SO ORDERED.
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Dated: March 12, 2014
SENIOR DISTRICT JUDGE

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