Garcia v. Moreno et al
Filing
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ORDER ADOPTING 39 Findings and Recommendations and DENYING Defendants' 32 Motion for Summary Judgment, signed by District Judge Dale A. Drozd on 4/3/19. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LENIN GARCIA,
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No. 1:18-cv-00014-DAD-SAB
Plaintiff,
v.
E. MORENO, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
Defendants.
(Doc. Nos. 32, 39, 43, 44)
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Plaintiff Lenin Garcia is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge
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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On November 1, 2018, the assigned magistrate judge issued findings and
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recommendations, recommending that defendants’ motion for summary judgment for failure to
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exhaust his administrative remedies (Doc. No. 32) be denied without prejudice. (Doc. No. 39.)
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In doing so, the magistrate judge noted that defendants were entitled to an evidentiary hearing
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pursuant to Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) to resolve certain factual issues related
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to plaintiff’s exhaustion, and invited defendants to file a motion to that effect. (Id. at 12.) The
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findings and recommendations were served on the parties and contained notice that any
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objections were due within thirty days. (Id.) On November 15, 2018, plaintiff filed objections.
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(Doc. No. 41.) Defendants filed a response on November 29, 2018 indicating their belief that an
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evidentiary hearing was necessary to resolve the underlying dispute (Doc. No. 42), and
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concurrently filed a motion requesting such a hearing. (Doc. No. 43.) On December 26, 2018,
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plaintiff filed a request for leave to file a sur-reply to defendants’ response to his objections.
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(Doc. No. 44.)
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) 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 and defendants’ response, the court finds the findings and
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recommendations to be supported by the record and proper analysis.
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In his objections, plaintiff contends that a hearing is not necessary, and that he has
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established as a matter of law that “generally unavailable administrative remedies [were]
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effectively unavailable to him.” Albino, 747 F.3d at 1172. Plaintiff repeats this argument in his
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request for permission to file a sur-reply. (Doc. No. 44.) The undersigned disagrees with
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plaintiff’s contention. As noted by the assigned magistrate judge, plaintiff did present evidence
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that he attempted to exhaust his administrative remedies, but “[w]hether due to some inadvertent
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loss of the grievance form, or for some other reason,” prison officials took no action with respect
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to this inmate grievance. (Doc. No. 39 at 12.) Thus, the magistrate judge concluded that the issue
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of whether plaintiff properly submitted such a grievance turns on a credibility determination,
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which necessarily requires an evidentiary hearing. The undersigned finds no error with this
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analysis.
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Accordingly,
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1.
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The finding and recommendations issued on November 1, 2018 (Doc. No. 39) are
adopted in full;
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2.
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Defendants’ motion for summary judgment for plaintiff’s failure to exhaust his
administrative remedies (Doc. No. 32) is denied without prejudice;
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3.
Defendants’ motion for an evidentiary hearing (Doc. No. 43) is granted; and
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4.
Plaintiff’s request for leave to file a sur-reply (Doc. No. 44) is denied.
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IT IS SO ORDERED.
Dated:
April 3, 2019
UNITED STATES DISTRICT JUDGE
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