Harris v. Zamudio, et al

Filing 48

ORDER signed by Judge Lawrence K. Karlton on 9/21/12 ADOPTING, except as provided in this order, 44 FINDINGS AND RECOMMENDATIONS. Defendants' 30 motion to dismiss is GRANTED for plaintiff's failure to exhaust administrative remedies as to defendant Zamudio and this defendant is DISMISSED, and the motion is DENIED as to defendants Forsterer, Hill and Walker. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEVONTE B. HARRIS,
Plaintiff,

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No. CIV S-09-1523 LKK GGH P

vs.
L. ZAMUDIO, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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

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On May 24, 2011, the magistrate judge filed findings and recommendations

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herein which were served on all parties and which contained notice to all parties that any

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objections to the findings and recommendations were to be filed within fourteen days. Plaintiff

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has filed objections to the findings and recommendations.

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

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

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entire file, the court finds the findings and recommendations to be supported by the record and

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by proper analysis. Although the court does not find that Plaintiff’s ability to timely file an
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unrelated administrative appeal while in administrative segregation undercuts Plaintiff’s

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assertion that he was incapable of filing the third level appeal at issue in this case, the court

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ultimately agrees with the magistrate judge’s determination that Plaintiff has failed to exhaust his

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administrative remedies against Defendant Zamudio.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed May 24, 2011, are adopted, except as

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provided herein; and

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2. Defendants’ September 7, 2010 motion to dismiss (Docket No. 30) is granted
for plaintiff’s failure to exhaust administrative remedies as to defendant Zamudio and this

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defendant is dismissed, and the motion is denied as to defendants Forsterer,1 Hill and Walker.

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DATED: September 21, 2012.

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This defendant’s name was inadvertently misspelled as “Forrester” in the
recommendation clause of the May 24, 2011, findings and recommendations.
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