Hicks v. Arya
Filing
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ORDER signed by District Judge Morrison C. England, Jr on 12/11/17 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 8/23/17 38 are ADOPTED IN FULL; and Plaintiff's Motion to Amend 26 is GRANTED. (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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MICHAEL J. HICKS,
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No. 2:16-cv-2465 MCE KJN P
Plaintiff,
v.
ORDER
AFSHIN ARYA, 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 pursuant to
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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 23, 2017, the magistrate judge filed findings and recommendations
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recommending that Plaintiff’s motion to amend be granted. (ECF No. 38.) Defendant has filed
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objections to the findings and recommendations. (ECF No. 42.) The undersigned addresses
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Defendant’s objections herein.
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The only named defendant in the original complaint is Dr. Arya. Plaintiff alleges that
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Defendant Arya provided inadequate medical care for his cervical spondylosis and hepatitis C.
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The proposed amended complaint includes the same allegations against Defendant Arya as are
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made in the original complaint. In the amended complaint, Plaintiff also names as defendants
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California State Prison-Sacramento (“CSP-Sac”) Chief Executive Officer Felder and California
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Correctional Health Care Facilities Deputy Director Lewis. Plaintiff alleges that Defendants
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Felder and Lewis failed to provide him with adequate medical care for his hepatitis C.
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In the opposition to Plaintiff’s motion to amend, Defendant Arya raised one argument:
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Plaintiff’s motion to amend was futile because Plaintiff failed to exhaust his administrative
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remedies with respect to his claim that Defendant Arya provided inadequate medical care for his
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cervical spondylosis.
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The magistrate judge rejected Defendant’s argument that amendment was futile for the
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following reasons. First, the magistrate judge noted that in the Ninth Circuit, dismissal of a
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prisoner civil rights action for failure to exhaust administrative remedies must generally be
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decided pursuant to a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162 (9th
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Cir. 2014 (en banc). The magistrate judge found that, based on this law, the issue of exhaustion
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of administrative remedies is not appropriately raised, or considered by the Court, in an
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opposition to a motion to amend.
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The magistrate judge also found that it was not clear that Plaintiff failed to exhaust his
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administrative remedies as to Defendant Arya. The magistrate judge found that the issue of
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Plaintiff’s exhaustion of administrative remedies as to Defendant Arya should be raised in a
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summary judgment motion.
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In the objections to the findings and recommendations, Defendant Arya raises two new
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arguments in opposition to Plaintiff’s motion to amend. First, Defendant argues that Plaintiff
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failed to exhaust his administrative remedies with respect to his claim that Defendant Arya
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provided inadequate medical care for his hepatitis C. Second, Defendant argues that Plaintiff
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failed to exhaust administrative remedies with respect to his claims against Defendants Lewis and
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Felder.
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The purpose of objections is to identify a specific defect of law or fact in the Magistrate
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Judge’s analysis. See 28 U.S.C. § 636(b)(1). A District Judge has discretion to consider, or to
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decline to consider, new arguments presented for the first time in objections. See Brown v. Roe,
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279 F.3d 742, 745 (9th Cir. 2002). The arguments presented by defendant, who is represented by
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counsel, in the objections are not merely new arguments in support of a point already raised, but
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new and distinct points entirely. Plaintiff has not had an opportunity to address these arguments.
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The undersigned has determined that these belated arguments are not properly raised. See United
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States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000).
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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, the
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Court finds the findings and recommendations to be supported by the record and by proper
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analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations filed August 23, 2017 (ECF No. 38) are
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ADOPTED IN FULL; and
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2. Plaintiff’s motion to amend (ECF No. 26) is GRANTED.
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IT IS SO ORDERED.
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Dated: December 11, 2017
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