Cato v. Darst et al
Filing
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ORDER signed by District Judge Troy L. Nunley on 5/27/2020 ADOPTING in FULL 48 Findings and Recommendations. DENYING 47 Motion for Relief from Judgment, without prejudice to its filing in Eastern District Case No. 2:14-CV-0959 TLN KJN P, and DENYING 37 Motion for Summary Judgment. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMES CATO,
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No. 2:17-cv-01873-TLN-EFB
Plaintiff,
v.
ORDER
M. DARST, et al.,
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Defendants.
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James Cato (“Plaintiff”), a state prisoner proceeding pro se, brings 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 March 23, 2020, the magistrate judge filed findings and recommendations which were
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served on all parties and which contained notice to all parties that any objections to the findings
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and recommendations were to be filed within fourteen days. (ECF No. 48.) Defendants have
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filed objections to the Findings and Recommendations. (ECF No. 51.) Plaintiff filed a reply.
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(ECF No. 32.)
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This Court reviews de novo those portions of the proposed findings of fact to which
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objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore
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Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As
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to any portion of the proposed findings of fact to which no objection has been made, the Court
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assumes its correctness and decides the motions on the applicable law. See Orand v. United
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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are
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reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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Having carefully reviewed the entire file under the applicable legal standards, the Court
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finds the Findings and Recommendations to be supported by the record and by the magistrate
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judge’s analysis.
The magistrate judge’s recommendation to deny Defendants’ Motion for Summary
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Judgment turns on the finding that Defendants failed to show there were actual remedies
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available to Plaintiff should he be granted the third level of review in the administrative
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exhaustion process. Defendants argue Plaintiff would have some remedy available to him even
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though an investigation had already been performed. Defendants, in their motion and reply, rely
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on the language of the notice partially granting Plaintiff’s second level review which indicates the
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availability of a remedy at the third level, but does not specify what that remedy might be. The
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magistrate judge found that while the language allowed Plaintiff to appeal to the third level, it was
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unclear whether review at that level could result in any actual remedies that were not already
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granted at the first and second levels. This is especially the case given that an investigation — the
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form of relief requested by Plaintiff — had already been performed.
The Court agrees with the magistrate judge’s application of Brown v. Valoff, 422 F.3d
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926, 939 (9th Cir. 2005) in finding that “to discharge their burden of showing an available
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administrative remedy, defendants must present evidence not only that third level review was
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technically possible, but that an appeal to the third level might have netted plaintiff additional
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relief.” (ECF No. 48 at 15.) Defendant has established that review was technically possible but
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failed to produce evidence showing that Plaintiff could acquire some additional relief from that
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review. This remains true in Defendants’ objections. For this reason, Defendants’ objections are
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overruled. Additionally, Defendants’ request for an Albino hearing is denied as this Court is not
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required to consider evidence presented for the first time in a party’s objection to a magistrate
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judge’s recommendation. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002).
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///
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations filed March 23, 2020 (ECF No. 48), are adopted in
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full;
2. Plaintiff’s February 18, 2020 Motion for Relief from Judgment (ECF No. 47) is
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DENIED without prejudice to its filing in Eastern District Case No. 2:14-cv-0959-
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TLN-KJN-P; and
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3. Defendants’ October 15, 2019 Motion for Summary Judgment (ECF No. 37) is
DENIED.
IT IS SO ORDERED.
DATED: May 27, 2020
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Troy L. Nunley
United States District Judge
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