-SKO (PC) Gregory Rodriguez v. Hopkins, No. 1:2009cv02184 - Document 22 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that Defendant's 15 Motion to Dismiss be Denied; Fifteen-Day Objection Period signed by Magistrate Judge Sheila K. Oberto on 8/11/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 8/30/2011. (Sant Agata, S)

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-SKO (PC) Gregory Rodriguez v. Hopkins Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GREGORY RODRIGUEZ, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-02184-AWI-SKO PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT’S MOTION TO DISMISS BE DENIED v. HOPKINS, 13 (Doc. 15) Defendant. FIFTEEN-DAY OBJECTION PERIOD / 14 15 Findings and Recommendations Addressing Motion to Dismiss 16 I. Procedural History 17 Plaintiff Gregory Rodriguez, proceeding pro se and in forma pauperis, filed this civil rights 18 action pursuant to 42 U.S.C. § 1983 on December 16, 2009. This action is proceeding against 19 Defendant Hopkins for use of excessive physical force, in violation of the Eighth Amendment. 20 On June 6, 2011, Defendant filed a motion seeking dismissal of Plaintiff’s due process claim 21 for failure to state a claim and dismissal of the action in its entirety for failure to exhaust. 42 U.S.C. 22 § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff did not file an opposition or a statement of non23 opposition and the motion is deemed submitted.1 Local Rule 230(l). For the reasons that follow, 24 the Court recommends that Defendant’s motion be denied. 25 /// 26 27 28 1 Plaintiff was provided with notice of the requirements for opposing a motion to dismiss for failure to exhaust in an order filed on February 28, 2011. W yatt v. Terhune, 315 F.3d 1108, 1120 n.14 (9th Cir. 2003). (Doc. 11-1.) 1 Dockets.Justia.com 1 II. Discussion 2 A. 3 On February 9, 2011, the Court screened Plaintiff’s complaint and found that it stated a 4 cognizable claim against Defendant Hopkins for excessive force in violation of the Eighth 5 Amendment. 28 U.S.C. § 1915A; Fed. R. Civ. P. 8(a). Plaintiff’s separately pled due process claim 6 was dismissed from the action at that time, with prejudice, for failure to state a claim. 28 U.S.C. § 7 1915A; Fed. R. Civ. P. 8(a). Failure to State a Claim for Denial of Due Process 8 Defendant’s motion is therefore moot and it should be denied on that ground. 9 B. Failure to Exhaust 10 Pursuant to the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with 11 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 12 confined in any jail, prison, or other correctional facility until such administrative remedies as are 13 available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are required to exhaust the available 14 administrative remedies prior to filing suit, Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 918-19 15 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002), and the failure to exhaust 16 in compliance with section 1997e(a) is an affirmative defense under which the defendants have the 17 burden of raising and proving the absence of exhaustion, Jones, 549 U.S. at 216; Wyatt v. Terhune, 18 315 F.3d 1108, 1119 (9th Cir. 2003). 19 Plaintiff filed this action on December 16, 2009. (Doc. 1.) On the same date, he filed a 20 notice of change of address stating that he paroled and is no longer in prison. (Doc. 2.) Because 21 Plaintiff was not a prisoner when he filed this suit, he was not required to exhaust his claim and 22 Defendant’s motion must be denied. Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir. 2009). 23 III. 24 25 Recommendation Based on the foregoing, the Court HEREBY RECOMMENDS that Defendant’s motion to dismiss, filed June 6, 2011, be DENIED in its entirety. 26 These Findings and Recommendations will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) 28 days after being served with these Findings and Recommendations, the parties may file written 2 1 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” The parties are advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 4 1153 (9th Cir. 1991). 5 6 IT IS SO ORDERED. 7 Dated: ie14hj August 11, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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