(PC) Dickson v. Gomez

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CHRISTOPHER DICKSON, No. 1:17-cv-00294-DAD-BAM (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING IN GOMEZ, et al., PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 15 Defendant. (Doc. No. 37) 18 Plaintiff Christopher Dickson is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

21 On November 9, 2020, the assigned magistrate judge issued findings and recommendations recommending that: (1) defendants’ motion for summary judgment based upon plaintiff’s failure to exhaust his administrative remedies prior to filing suit be granted in part and denied in part; (2) plaintiff’s deliberate indifference claim brought against defendant Sao be dismissed, without prejudice, due to plaintiff’s failure to first exhaust administrative remedies; (3) defendant Sao be dismissed from this action; and (4) this action proceed on plaintiff’s claims against defendants Gomez, Rios, and Martinez for excessive force and against defendants Duncan and Esparza for violations of plaintiff’s due process rights. (Doc. No. 57.) The findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within fourteen (14) days of the date of service. (Id. at 18.) Defendants filed objections to the findings and recommendations on November 19, 2020. (Doc. No. 58.) To date, plaintiff has not filed objections to the pending finds and recommendations, and the time in which to do so has now passed.

6 In their objections, defendants do not address the magistrate judge’s findings that they failed to oppose or dispute the factual allegations plaintiff set forth regarding his inability to utilize the prison grievance system properly, despite his best efforts. (See Doc. No. 58.) Instead, defendants merely repeat the arguments they presented to the magistrate judge which were properly rejected in light of the evidence on summary judgment that plaintiff submitted a timely administrative grievance and that prison officials simply failed to process it thereby rendering administrative remedies unavailable to plaintiff at the time this suit was filed. See Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017) (dismissal due to a failure to exhaust is inappropriate if administrative remedies were unavailable at the time complaint was filed, even where plaintiff was still utilizing the grievance process).

16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, including defendants’ objections, the court finds the findings and recommendations to be supported by the record and by proper analysis. Nothing raised in defendant’s objections persuades the undersigned otherwise.

21 Accordingly, 22 1. The findings and recommendations issued on November 9, 2020 (Doc. No. 57) are 23 adopted in full; 24 2. Defendants’ motion for summary judgment for failure to exhaust administrative 25 remedies (Doc. No. 37) is granted in part and denied in part; 26 3. Plaintiff’s deliberate indifference claim against defendant Sao is dismissed, without 27 prejudice, for the failure to exhaust available administrative remedies; 28 4. Defendant Sao is dismissed from this action; 1 5. This action shall proceed on plaintiff's claims against defendants Gomez, Rios, and 2 Martinez for excessive force and against defendants Duncan and Esparza for 3 violations of plaintiff's due process rights; and 4 6. This matter is referred back to the magistrate judge for further proceedings consistent 5 with this order.

7 IT IS SO ORDERED. ~ 4 8 Dated: _ December 16, 2020 Dele 1 DZ, 9 UNITED STATES DISTRICT JUDGE