Blair v. CDCR et al

Filing 103

ORDER adopting 99 FINDINGS AND RECOMMENDATIONS, granting in part and denying in part Defendants' exhaustion related Motion for Summary Judgment 84 and referring matter back to Magistrate Judge for evidentiary hearing signed by Chief Judge Lawrence J. O'Neill on 7/30/2018. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

PERRY C. BLAIR,

12
13
14
15

Plaintiff,
v.
CDCR, et al.,
Defendants.

16
17
18

)
)
)
)
)
)
)
)
)
)

Case No.: 1:14-cv-01156-LJO-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, GRANTING IN PART
AND DENYING IN PART DEFENDANTS’
EXHAUSTION RELATED MOTION FOR
SUMMARY JUDGMENT, AND REFERRING
MATTER BACK TO MAGISTRATE JUDGE FOR
EVIDENTIARY HEARING
[ECF Nos. 84, 99]

Plaintiff Perry C. Blair is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

19

The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

20

636(b)(1)(B) and Local Rule 302. On May 25, 2018, the Magistrate Judge filed a Findings and

21

Recommendations recommending that Defendants’ exhaustion related motion for summary judgment

22

be granted in part and denied in part, subject to an evidentiary hearing.

23

Recommendations was served on the parties and contained notice that objections were to be filed

24

within thirty days. Plaintiff filed objections on June 11, 2018.

The Findings and

25

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

26

novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and

27

Recommendations to be supported by the record and by proper analysis.

28
1

1

The Court has also reviewed Plaintiff’s objections to the Findings and Recommendations.

2

Plaintiff argues that he exhausted administrative remedies for his Eight Amendment claim regarding

3

being labeled a snitch by Defendant Johnson by filing Appeal SATF-X-13-03692. ECF No. 100. In

4

Appeal SATF-X-13-03692, Plaintiff complained that he was misquoted in a Rules Violation Report

5

(“RVR”) issued for possession of controlled substances, and requested that the misquote and other

6

inaccuracies be corrected in the final copy of the RVR. ECF No. 99 ¶¶ 14-16. Specifically, the

7

Appeal states that “[Johnson] has misquoted me in a legal document making me out to be a jail house

8

snitch, consequently putting my life in jeopardy [and] immediate danger.” ECF No. 84-4 at 11;

9

Zamora Decl. Ex. B. The alleged misquoting of Plaintiff in the RVR is separate and distinct from the

10

conduct forming the basis of Plaintiff’s claim that “[i]mmediately after the hearing was over

11

correctional officers [including Johnson] started telling all of the inmates house[d] in Build[ing] E-1

12

that the Plaintiff ‘was a snitch and need [sic] to get dealt with.’” ECF No. 14 at 16. Johnson’s actions

13

outside of the rules violation hearing and issuance of the subsequent RVR were not the subject of

14

Appeal SATF-X-13-03692. Additionally, Johnson’s misquoting Plaintiff in the RVR forms the basis

15

for a separate claim for retaliation, which remains pending in this case. Plaintiff’s objections are

16

therefore without merit.

17

Accordingly, IT IS HEREBY ORDERED that:

18

1.

The Findings and Recommendations, filed on May 25, 2018, are adopted in full;

19

2.

Defendants’ exhaustion related motion for summary judgment is granted in part and

20
21
22
23
24
25

denied in part, as follows:
a.

Plaintiff’s Eighth Amendment claim regarding labeling him a snitch against Defendants

Sanchez, Chan, Alva, Johnson, Ybarra, Esqueda and Santos is dismissed, without prejudice;
b.

Plaintiff’s Eighth Amendment claim regarding housing him with inmate Russ against

Defendants Chan and Sanchez is dismissed, without prejudice; and
c.

The matter is referred back to the Magistrate Judge for an evidentiary

26
27
28
2

1

hearing pursuant to Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014), on Plaintiff’s Eighth

2

Amendment claim against Defendant Alva for housing him with inmate Baker and Due Process claim

3

against Defendant Ybarra.1

4
5

IT IS SO ORDERED.

6

Dated:

/s/ Lawrence J. O’Neill _____

July 30, 2018

UNITED STATES CHIEF DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1

26
27
28

As stated in the Findings and Recommendation, although Defendants request an evidentiary hearing on all of Plaintiff’s
other claims for which they did not move for summary judgment, the Court will not adjudicate those claims at the
evidentiary hearing because those claims were not presented and argued in the present motion. There is no basis for an
evidentiary hearing on claims for which Plaintiff did not have fair and adequate notice by way of motion for summary
judgment.

3