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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTWOINE BEALER,

Case No. 1:16-cv-00671-LJO-JDP

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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

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ECF No. 75

Plaintiff,

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v.
OFFICER STINSON,
Defendant.

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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.
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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.
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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.
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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.
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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.
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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:
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1. the findings and recommendations filed December 7, 2018, ECF No. 75, are

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adopted in full;

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2. the defendant’s April 2, 2018, motion for summary judgment, ECF No. 59, is

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granted;

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3. all other pending motions, ECF Nos. 60, 65, 68, 69, 73, and 74, are denied as

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moot; and

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4. this case is dismissed without prejudice.

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Dated:

/s/ Lawrence J. O’Neill _____

January 28, 2019

UNITED STATES CHIEF DISTRICT JUDGE

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