Miller v. Navarro et al

Filing 39

ORDER ADOPTING 36 Findings and Recommendations, DENYING Plaintiff's 28 Motion for Summary Judgment, GRANTING Defendants' 29 Cross-Motion for Summary Judgment, and DISMISSING Action for Failure to Exhaust, signed by District Judge Dale A. Drozd on 2/12/2020. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GERALD LEE MILLER,

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No. 1:17-cv-01309-DAD-SAB (PC)

Plaintiff,

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v.

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FLORES, et al.,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING
PLAINTIFF’S MOTIONS FOR SUMMARY
JUDGMENT, GRANTING DEFENDANTS’
CROSS-MOTION FOR SUMMARY
JUDGMENT, AND DISMISSING ACTION
FOR FAILURE TO EXHAUST

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(Doc. No. 36)

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Defendant.

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Plaintiff Gerald Lee Miller is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On December 13, 2019, the assigned magistrate judge issued findings and

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recommendations, recommending that plaintiff’s motions for summary judgment (Doc. Nos. 28,

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32) be denied as moot and that defendants’ cross-motion for summary judgment (Doc. No. 29) be

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granted in part. (Doc. No. 36.) Specifically, the findings and recommendations recommended

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that defendants’ cross-motion for summary judgment be granted in favor of defendants on the

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issue of whether plaintiff exhausted his administrative remedies prior to filing suit, and be denied
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as moot with respect to plaintiff’s retaliation claim against defendants Flores, Marquez, and

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Xayoudom. (Id. at 12.) The findings and recommendations were served on the parties and

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contained notice that any objections thereto were to be filed within thirty days after service. (Id.

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at 12-13.) On December 30, 2019, plaintiff filed objections. (Doc. No. 37.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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including plaintiff’s objections, the court finds the findings and recommendations to be supported

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by the record and proper analysis.

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In his objections, plaintiff contends that the magistrate judge is biased against him because

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he did not consent to the magistrate judge’s jurisdiction. (Id. at 4.) Plaintiff also contends that

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defendants waived the exhaustion of administrative remedies issue because they did not “comply

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with this court[’s] discovery and scheduling order.” (Id. at 5.) The court does not find plaintiff’s

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conclusory objection that the assigned magistrate judge is somehow biased against him to be in

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any way persuasive. Moreover, defendants raised the issue of plaintiff’s failure to exhaust his

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administrative remedies in their answer and did not waive it. (See Doc. No. 25 at 3.) Finally,

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plaintiff’s objections do not meaningfully dispute the magistrate judge’s finding that the

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undisputed evidence before the court on summary judgment establishes that plaintiff commenced

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this suit prior to exhausting the administrative remedies that were available to him. (See Doc. No.

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36 at 8–11); see also Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“[A] prisoner

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must exhaust his administrative remedies for the claims contained within his complaint before

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that complaint is tendered to the district court.”).

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Accordingly,

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1.

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The December 13, 2019 findings and recommendations (Doc. No. 36) are adopted
in full;

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2.

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Defendants’ cross-motion for summary judgment (Doc. No. 29) is granted in part
and denied as moot in part as follows:

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/////

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a.

Summary judgment is granted in favor of defendants on the issue of

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plaintiff’s failure to exhaust available administrative remedies prior to

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filing suit;

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b.

Summary judgment is denied in all other respects;

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3.

Plaintiff’s motions for summary judgment (Doc. Nos. 28, 32) are denied as moot;

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4.

This case is dismissed without prejudice; and

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5.

The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
Dated:

February 12, 2020
UNITED STATES DISTRICT JUDGE

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