Lopez v. North Kern State Prison et al

Filing 44

ORDER ADOPTING Findings and Recommendations regarding Defendant's Motion for Summary Judgment 23 , 37 signed by District Judge Ana de Alba on 9/2/2022. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODRIGO LOPEZ,

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Plaintiff,
v.
NORTH KERN STATE PRISON, et al.,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT RE: EXHAUSTION

Defendants.
(Doc. Nos. 23, 37)

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No. 1:16-cv-00881-ADA-BAM (PC)

Plaintiff Rodrigo Lopez (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s first amended complaint against Defendant J. McDermott (“Defendant”) for failure to

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intervene while inmate Cancel was attacking Plaintiff, in violation of the Eighth Amendment.

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(Doc. No. 9.)

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On April 12, 2022, the magistrate judge issued findings and recommendations that

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Defendant’s motion for summary judgment for failure to exhaust be granted. (Doc. No. 37.) The

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findings and recommendations were served on the parties and contained notice that any

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objections were to be filed within fourteen (14) days after service. (Id.) Plaintiff timely filed

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objections on May 2, 2022. (Doc. No. 38.) Following an extension of time, Defendant filed a

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response to Plaintiff’s objections on May 31, 2022. (Doc. No. 42.)

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As Plaintiff’s objections largely reiterate the arguments raised in his opposition to the
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motion for summary judgment, the court finds no basis to overturn the findings and

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recommendations. In Plaintiff’s objections, Plaintiff cited to Andres v. Marshall, 867 F.3d 1076

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(9th Cir. 2017), to support that he had exhausted the administrative remedies within the meaning

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of the Prison Litigation Reform Act. (See 42 U.S.C. § 1997e(a).) In Andres, the Ninth Circuit

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held that when prison officials fail to respond to a prisoner’s grievance, the prisoner is deemed to

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have exhausted his administrative remedies. (Andres, 867 F.3d at 1079.) Because prison officials

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timely responded to each of Plaintiff’s submitted California Department of Corrections and

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Rehabilitation Forms 602, Plaintiff’s case is distinguishable from Andres. (Doc. No. 37.)

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Therefore, the court finds Plaintiff’s objections unpersuasive to overturn the findings and

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

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de novo review of this case, including plaintiff’s objections and defendant’s response. Having

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carefully reviewed the entire file, the court finds the findings and recommendations to be

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supported by the record and by proper analysis.

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Accordingly,
1. The findings and recommendations issued on April 12, 2022, (Doc. No. 37), are adopted
in full;
2. Defendant’s motion for summary judgment for failure to exhaust administrative remedies,
(Doc. No. 23), is granted;
3. This action is dismissed, without prejudice, for the failure to exhaust available
administrative remedies; and
4. The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

September 2, 2022
UNITED STATES DISTRICT JUDGE

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