Colbert v. Leininger, et al.

Filing 53

ORDER signed by Judge Kimberly J. Mueller on 3/30/15 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 2/13/15 49 are ADOPTED in full; Defendant's MOTION for Summary Judgment 30 is GRANTED; and This matter is referred back to the assigned Magistrate Judge for further pretrial proceedings. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE K. COLBERT,

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No. 2:13-cv-0382 KJM KJN P

Plaintiff,
v.

ORDER

D. LEININGER, et al.,
Defendants.

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

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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

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On February 13, 2015, the magistrate judge filed findings and recommendations, which

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

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

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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 304, this

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

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finds the findings and recommendations to be supported by the record and by proper analysis.

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In his objections, plaintiff apparently contends that the alleged incident of April 21, 2012

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was included in Appeal Log No. SAC-12-01340, a grievance that was cancelled as duplicative of
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Appeal Log No. SAC-12-01047. See ECF No. 52 at 2; ECF No. 30-7 ¶ 14. With their motion,

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defendants presented evidence that Appeal Log No. SAC-12-01340 had been cancelled as

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duplicative of Appeal Log No. SAC-12-01047, but did not include a copy of the former grievance

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with the evidence tendered in support of the motion for summary judgment. See Jibson Decl.

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¶ 14, ECF No. 30-7. Plaintiff himself has not provided a copy of Appeal Log No. SAC-12-01340

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with his objections or with his opposition to the motion for summary judgment. The magistrate

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judge finds, correctly, that “Appeal Log No. SAC-12-01047 does not set forth any allegations that

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defendant sexually touched plaintiff on April 21, 2012.” ECF No. 49 at 12. The sexual innuendo

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allegations in that grievance concerning the events of April 21, 2012 are distinguishable from the

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allegations that defendant Leininger “physically touch[ed] and grabb[ed] [plaintiff’s] buttocks”

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on April 21, 2012. Compare ECF No. 1 at 5 with ECF No. 30-10 at 12. To the extent plaintiff’s

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objections are construed to suggest that allegations of sexual touching on April 21, 2012 were

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included in Appeal Log No. SAC-12-01340, it is plaintiff’s burden to show that Appeal Log No.

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SAC-12-01340 did contain those specific allegations and that the appeal was improperly screened

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out as duplicative. See Albino v. Baca, 697 F.3d 1023, 1033 (9th Cir. 2012) (quoting Sapp v.

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Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010)). He has not met this burden.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 13, 2015 (ECF No. 49) are adopted

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in full;

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2. Defendant’s motion for summary judgment (ECF No. 30) is granted; and

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3. This matter is referred back to the assigned magistrate judge for further pretrial

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proceedings.

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DATED: March 30, 2015.

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UNITED STATES DISTRICT JUDGE

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