(PC) Lewis v. Ugwueze

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DARONTA T. LEWIS, ) Case No.: 1:20-cv-00596-AWI-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) RECOMMENDING PLAINTIFF’S EXHAUSTION- RELATED MOTION FOR SUMMARY DR. G. UGWUEZE, et al., ) JUDGMENT BE DENIED AS UNNECESSARY ) 15 Defendants. ) (ECF No. 99) ) 16 ) 17 Plaintiff Daronta T. Lewis is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

19 On September 10, 2021, Plaintiff filed a motion for summary judgment regarding exhaustion of the administrative remedies. (ECF No. 99.)

21 I.

22 DISCUSSION 23 This action is proceeding against Defendant Dr. Kokor for retaliation in violation of the First Amendment and deliberate indifference in violation of the Eighth Amendment.

25 Failure to exhaust administrative remedies is an affirmative defense that must be raised by defendants and proven on a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014).

28 /// 1 Although Plaintiff contends the motion for summary judgment is brought to demonstrate || exhaustion of the administrative remedies, the bulk of Plaintiffs motion addresses the merits of his || claims. To the extent that Plaintiff’?s motion addresses the issue of exhaustion, which is an affirmative || defense and not a basis for judgment in Plaintiff's favor, his motion is unnecessary and shall be denied. Defendants did not file a motion for summary judgment on non-exhaustion grounds and the || deadline to do has passed. Accordingly, Plaintiff's motion for summary judgment should be denied < |) unnecessary as his arguments are relevant only to oppose a motion for summary judgment filed by || Defendants.

9 Il.

10 RECOMMENDATION 11 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion for summat || judgment, filed on September 10, 2021, be denied.

13 This Findings and Recommendation will be submitted to the United States District Judge || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty (30) days aft || being served with this Findings and Recommendation, the parties may file written objections with the || Court. The document should be captioned “Objections to Magistrate Judge’s Findings and || Recommendation.” The parties are advised that failure to file objections within the specified time mz || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

21 □□ IS SO ORDERED.

Al (re 22 pated: _ September 14, 2021 OF 23 UNITED STATES MAGISTRATE JUDGE