Sullivan v. Biter et.al.

Filing 157

AMENDED ORDER ADOPTING 138 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER VACATING the November 26, 2018 Order 153 and Judgment 156 ; ORDER DENYING AS MOOT 118 Defendants' Motion to Compel; ORDER GRANTING 119 & 123 Defendants' Motion for Summary Judgment; and ORDER RECALLING 152 Subpoena Issued to Dr. Marchiano on November 15, 2018 signed by District Judge Anthony W. Ishii on 11/27/2018. CASE CLOSED. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
MICHAEL J. SULLIVAN,
12
Plaintiff,

13
14

v.
15
16

No. 1:12-cv-01662-AWI-EPG (PC)
AMENDED ORDER ADOPTING
FINDINGS AND RECOMMENDATIONS
AND GRANTING SUMMARY
JUDGMENT IN FAVOR OF
DEFENDANTS CHEN, PATEL, AND
MARCHIANO
(ECF No. 118, 119, 123, 138)

CHEN, et al.,

17
Defendants.
18
19
Plaintiff, Michael J. Sullivan, is a state prisoner proceeding pro se and in forma pauperis
20
with this civil rights action brought under 42 U.S.C. § 1983 against Dr. Chen, Dr. Patel, and Dr.
21
Marchiano. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
22
636(b)(1)(B) and Local Rule 302.
23
On August 8, 2018, the assigned magistrate judge entered findings and recommendations
24
recommending that the motion for summary judgment filed by Defendants Chen and Patel be
25
granted for failure to exhaust. (ECF No. 138.) Defendant Dr. Marchiano has not yet been served
26
in the case and was thus not part of the motion for summary judgment
27
The findings and recommendations were served on Plaintiff and contained notice that any
28
1

1

objections thereto were to be filed within twenty-one days. (Id.) Plaintiff requested, and the Court

2

granted, additional time for Plaintiff to file his objections. (ECF No. 142, 143, 146, 147.) Plaintiff

3

timely filed objections on November 2, 2018. (ECF No. 151.)

4

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a

5

de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s

6

objections, the Court finds the findings and recommendations to be supported by the record and

7

by proper analysis.

8
9

Further, the Court notes that though Dr. Marchiano has not yet been served—and so did
not join this motion—summary judgment should issue in his favor as well. Plaintiff’s claims

10

against Dr. Marchiano arise from the same set of facts, and so the conclusion as to exhaustion, as

11

set forth in the Magistrate Judge’s Findings and Recommendations, would equally apply to him.

12

For this reason, summary judgment will be granted as to Plaintiff’s Eighth Amendment Claim

13

against Dr. Marchiano. See Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800,

14

803 (9th Cir. 1995) (affirming grant of summary judgment in favor of nonappearing defendant

15

where plaintiff, in response to summary judgment motion filed by defendant who had appeared,

16

had “full and fair opportunity to brief and present evidence” on dispositive issue as to claim

17

against nonappearing defendant).

18
19
20
21
22

Accordingly,
1. The November 26, 2018 Order (Doc. No. 153) and Judgment (Doc. No. 156) are
hereby vacated;
2. The findings and recommendations entered August 8, 2018 (ECF No. 138) are
ADOPTED in full;

23

3. The motion for summary judgment for failure to exhaust filed by Defendants Dr.

24

Chen and Dr. Patel (ECF No. 119, 123) is GRANTED, and applies to Plaintiff’s

25

Eighth Amendment claim against Defendants Dr. Chen, Dr. Patel, and Dr.

26

Marchiano;

27
28

4. The subpoena issued to Dr. Marchiano on November 15, 2018 (Doc. No. 152) is
recalled;
2

1
2
3

5. The motion to compel filed by Defendants Dr. Chen and Dr. Patel (ECF No. 118)
is DENIED as moot; and
6. The Clerk of the Court is directed to CLOSE this case.

4
5
6

IT IS SO ORDERED.
Dated: November 27, 2018
SENIOR DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3