-GBC (PC) Agnes v. Joseph et al, No. 1:2010cv00807 - Document 29 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 26 , signed by District Judge Lawrence J. O'Neill on 10/20/11: Defendant's Motion to Dismiss 18 is DENIED.(Hellings, J)

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-GBC (PC) Agnes v. Joseph et al Doc. 29 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARK AGNES, 11 CASE NO. Plaintiff, ORDER ADOPTING RECOMMENDATIONS 12 AND (ECF No. 26) NURSE JOSEPH, et al., 15 Defendants. / 16 17 FINDINGS v. 13 14 1:10-cv-00807-LJO-GBC (PC) I. Procedural History 18 19 Plaintiff Mark Agnes (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s 21 Complaint filed May 10, 2010. (ECF No. 1.) On April 28, 2011, this Court screened Plaintiff's 22 Complaint finding that it stated a cognizable claim for relief against Defendants Joseph and Dixon 23 for deliberate indifference to his serious medical need in violation of the Eighth Amendment. On 24 25 26 August 15, 2011, Defendant Joseph (“Defendant”) filed a motion to dismiss. (ECF No. 18). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 27 1 Dockets.Justia.com 1 2 Local Rule 302. On September 16, 2011, the Magistrate Judge filed a Findings and Recommendations herein which was served on the parties which contained notice that any objections 3 to the Findings and Recommendations were to be filed within thirty days. (ECF No. 26). On 4 5 6 October 17, 2011, Defendant filed objections. II. 7 8 9 Review of Objections Defendant’s argument entails that administrative remedies can never be exhausted at the informal level since the boilerplate language in section D on the informal complaint form states that if the prisoner is dissatisfied, they can appeal to the formal level within fifteen days of receiving a 10 11 response at the informal level. Defendant’s argument is unpersuasive. First the operative language 12 is “if you are dissatisfied” and if a prisoner gets the desired outcome at the informal level and is 13 satisfied, then it does not make sense to appeal to the formal level. Then Defendant points to the fact 14 that Plaintiff’s subsequent grievances were screened out as duplicative and argues that the 15 subsequent grievances demonstrates that Plaintiff was not satisfied and should have filed a formal 16 17 appeal. At the heart of this argument is what to do in situations where a prisoner can initially receive 18 a satisfactory response, rely on it and then the satisfactory response is not carried out. How long 19 must a prisoner wait in good faith for the satisfactory response to be carried out and what should a 20 prisoner do when the satisfactory response is not carried out? It does not seem reasonable to demand 21 that a prisoner file a formal complaint just to have it screened out as untimely simply because the 22 23 prisoner relied on the assurances of prison officials that he would receive a satisfactory response. 24 Such reasoning contradicts the Ninth Circuit findings in Harvey v. Jordan, 605 F.3d 681, 685 (9th 25 Cir. 2010). 26 /// 27 2 1 III. 2 Conclusion and Order In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 3 de novo review of this case. Having carefully reviewed the entire file, the Court finds the 4 5 Findings and Recommendations to be supported by the record and by proper analysis. Accordingly, IT IS HEREBY ORDERED that Defendant's motion to dismiss, filed 6 7 August 15, 2011, be DENIED. (ECF. No. 18). 8 IT IS SO ORDERED. 9 10 Dated: b9ed48 October 20, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 3

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