1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC WARREN, Case No. 1:21-cv-0120 JLT HBK (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL, 13 v. GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, DISMISSING THE 14 N. NDU, SECOND AMENDED COMPLAINT, AND DIRECTING THE CLERK OF COURT TO 15 Defendant. CLOSE THE CASE 16 (Docs. 25, 33) 17 18 Eric Warren seeks to hold Dr. Ndu liable for medical deliberate indifference in violation 19 of his rights arising under the Eighth Amendment. (See Docs. 13, 14.) Defendant moved for 20 summary judgment, asserting Plaintiff failed to exhaust his available administrative remedies. 21 (Doc. 25.) 22 The magistrate judge found there is no dispute of material fact that Plaintiff failed to fully 23 exhaust his administrative remedies as to his claim against Defendant. (Doc. 33.) Specifically, 24 the magistrate judge determined the undisputed evidence demonstrates that Plaintiff’s first 25 grievance regarding his foot pain was filed more than a year before Defendant became his 26 primary care physician, and it cannot have put either the institution or Defendant on notice as to 27 any claim against the physician. (Id. at 9.) Although Plaintiff submitted a second grievance 28 regarding his foot pain that named Defendant, the magistrate judge found it was undisputed that 1 | Plaintiff failed to fully exhaust that grievance to the headquarters level. (/d. at 10-11.) 2 | Accordingly, the magistrate judge recommended the motion for summary judgment be granted. 3 | Ud. at 11.) 4 The Court served the Findings and Recommendations on the parties and notified Plaintiff 5 | that any objections were due within 14 days. (Doc. 33 at 11.) The Court advised Plaintiff that the 6 | “failure to file objections within the specified time may result in the waiver of rights on appeal.” 7 | Ud. at 11-12, citing Wilkerson v. Wheeler,

(9th Cir. 2014).) Plaintiff did 8 | not file objections, and the time to do so has passed. 9 According to

(b)(1)(C), this Court performed a de novo review of this 10 | case. Having carefully reviewed the matter, the Court concludes the Findings and 11 || Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 12 1. The Findings and Recommendations, filed on February 13, 2024 (Doc. 33), are 13 ADOPTED IN FULL. 14 2. Defendant’s motion for summary judgment (Doc. 25) is GRANTED. 15 3. Plaintiff's Second Amended Complaint (Doc. 13) is DISMISSED without 16 prejudice for failure to exhaust administrative remedies. 17 4. The Clerk of Court is directed to enter judgment in favor of Defendant and to close 18 this case. 19 20 IT IS SO ORDERED. | Dated: _Mareh 20, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 22 23 24 25 26 27 28