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)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MICHAEL J. SULLIVAN,
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Plaintiff,
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v.
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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.,
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Defendants.
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Plaintiff, Michael J. Sullivan, is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action brought under 42 U.S.C. § 1983 against Dr. Chen, Dr. Patel, and Dr.
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Marchiano. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
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636(b)(1)(B) and Local Rule 302.
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On August 8, 2018, the assigned magistrate judge entered findings and recommendations
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recommending that the motion for summary judgment filed by Defendants Chen and Patel be
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granted for failure to exhaust. (ECF No. 138.) Defendant Dr. Marchiano has not yet been served
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in the case and was thus not part of the motion for summary judgment
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The findings and recommendations were served on Plaintiff and contained notice that any
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objections thereto were to be filed within twenty-one days. (Id.) Plaintiff requested, and the Court
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granted, additional time for Plaintiff to file his objections. (ECF No. 142, 143, 146, 147.) Plaintiff
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timely filed objections on November 2, 2018. (ECF No. 151.)
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s
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objections, the Court finds the findings and recommendations to be supported by the record and
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by proper analysis.
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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
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against Dr. Marchiano arise from the same set of facts, and so the conclusion as to exhaustion, as
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set forth in the Magistrate Judge’s Findings and Recommendations, would equally apply to him.
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For this reason, summary judgment will be granted as to Plaintiff’s Eighth Amendment Claim
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against Dr. Marchiano. See Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800,
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803 (9th Cir. 1995) (affirming grant of summary judgment in favor of nonappearing defendant
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where plaintiff, in response to summary judgment motion filed by defendant who had appeared,
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had “full and fair opportunity to brief and present evidence” on dispositive issue as to claim
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against nonappearing defendant).
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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;
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3. The motion for summary judgment for failure to exhaust filed by Defendants Dr.
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Chen and Dr. Patel (ECF No. 119, 123) is GRANTED, and applies to Plaintiff’s
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Eighth Amendment claim against Defendants Dr. Chen, Dr. Patel, and Dr.
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Marchiano;
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4. The subpoena issued to Dr. Marchiano on November 15, 2018 (Doc. No. 152) is
recalled;
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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.
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IT IS SO ORDERED.
Dated: November 27, 2018
SENIOR DISTRICT JUDGE
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