Bealer v. Secretary of California Department of Corrections and Rehabilitation et al

Filing 80

ORDER ADOPTING 75 FINDINGS AND RECOMMENDATIONS ; ORDER GRANTING 59 Motion for Summary Judgment ; ORDER DENYING AS MOOT 60 , 65 , 68 , 69 , 73 and 74 ; ORDERED Case DISMISSED Without Prejudice, signed by Chief Judge Lawrence J. O'Neill on 1/28/2019.CASE CLOSED (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 ANTWOINE BEALER, Case No. 1:16-cv-00671-LJO-JDP 17 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS THAT (1) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST BE GRANTED IN FULL (2) ALL OTHER PENDING MOTIONS BE DENIED AS MOOT (3) THIS CASE BE DISMISSED WITHOUT PREJUDICE 18 ECF No. 75 Plaintiff, 13 14 15 16 v. OFFICER STINSON, Defendant. 19 20 Plaintiff Antwoine Bealer is a state prisoner proceeding without counsel in this civil 21 rights action brought under 42 U.S.C. § 1983. The matter was referred to a United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On December 7, 2018, the magistrate judge filed findings and recommendations to grant 24 defendant’s motion for summary judgment on the ground that plaintiff did not exhaust his 25 administrative remedies. ECF No. 75. Plaintiff filed objections to the findings and 26 recommendations on January 24, 2019. ECF No. 79. 27 In his objections, plaintiff makes four primary arguments. First, he argues that “the court 28 abused its authority in finding that administrative remedies were not sought.” ECF No. 79 at 1. 1 Second, he argues that dismissal of certain defendants at the screening stage was improper. Id. 2 Third, he argues that “the court did not . . . explain how the drug testing program was utilized 3 to[] reduce my drug use, hold me accountable for any actions pertaining to drugs, provide[] an 4 opportunity for recover from drug addiction[,] or[] increase institutional security and public 5 safety.” Id. at 2. Fourth, he argues that “the 602 administrative process has no [bearing] in a[] 6 motion for summary judgment.” Id. at 4. 7 Plaintiff’s arguments lack merit. First, the magistrate judge did not find that 8 “administrative remedies were not sought.” ECF No. 79 at 1. Instead, the magistrate found 9 that plaintiff filed a grievance, but by failing to mention defendant Stinson or sexual 10 harassment, the grievance did not exhaust his claim. ECF No. 75 at 9-10. Second, the 11 screening order is not before the court, so any objections to it are irrelevant. Third, the 12 magistrate judge was under no obligation to opine on the utility of CDCR’s drug testing 13 program. Fourth, contrary to plaintiff’s assertions, the 602-administrative grievance process 14 does bear on the instant motion for summary judgment, because the basis for defendant’s 15 motion is failure to exhaust administrative remedies. 16 Finally, plaintiff attaches a new 602 grievance that was not included in the summary 17 judgment record. ECF No. 79 at 8-11. Unlike his previous grievance, the new grievance 18 specifically describes the alleged sexual misconduct by Stinson. While this grievance may 19 exhaust his administrative remedies for a subsequent lawsuit, it cannot exhaust his remedies for 20 the instant lawsuit because exhaustion must occur prior to filing. See 42 U.S.C. § 1997e(a) 21 (“No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any 22 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 23 such administrative remedies as are available are exhausted.” (emphasis added)). There is no 24 evidence to suggest that plaintiff has submitted this new grievance through the third level of 25 review. 26 In conclusion, the court has reviewed the file and finds the findings and recommendations 27 to be supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS 28 HEREBY ORDERED that: 2 1 1. the findings and recommendations filed December 7, 2018, ECF No. 75, are 2 adopted in full; 3 2. the defendant’s April 2, 2018, motion for summary judgment, ECF No. 59, is 4 granted; 5 3. all other pending motions, ECF Nos. 60, 65, 68, 69, 73, and 74, are denied as 6 moot; and 7 4. this case is dismissed without prejudice. 8 9 IT IS SO ORDERED. 10 11 Dated: /s/ Lawrence J. O’Neill _____ January 28, 2019 UNITED STATES CHIEF DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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