(PC) Hearns v. Gonzales et al, No. 1:2014cv01177 - Document 67 (E.D. Cal. 2017)

Court Description: ORDER Adopting 49 Findings and Recommendations and Denying Defendants' Motion for Summary Judgment 38 ; ORDER Denying Plaintiff's 61 Motion to Vacate Evidentiary Hearing; Case to Remain Open, signed by District Judge Dale A. Drozd on 3/9/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMAR HEARNS, 12 Plaintiff, 13 14 v. No. 1:14-cv-01177-DAD-MJS (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT R.GONZALES, et al., (Doc. No. 49) 15 Defendants. 16 ORDER DENYING PLAINTIFF’S MOTION TO VACATE EVIDENTIARY HEARING 17 (Doc. No. 61) 18 CASE TO REMAIN OPEN 19 Plaintiff is a state prisoner proceeding pro se in this civil rights action brought pursuant to 20 21 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 22 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United State District Court for the Eastern 23 District of California. On November 8, 2016, the assigned magistrate judge issued findings and 24 25 recommendations recommending that defendants’ motion for summary judgment be denied and 26 that an evidentiary hearing be conducted before the magistrate judge in order to resolve the 27 factual disputes concerning the question of whether plaintiff exhausted his administrative 28 ///// 1 1 remedies prior to filing suit as required. (Doc. No. 49.) Defendants filed no objections to the 2 findings and recommendations and the time for doing so has passed. 3 Plaintiff, rather than file objections to the findings and recommendations, filed a motion to 4 vacate the Magistrate Judge’s “order” for an evidentiary hearing. (Doc. No. 61.) Therein, 5 plaintiff describes an administrative appeals process that he believes renders it virtually 6 impossible for an inmate to prove that his administrative remedies were effectively unavailable. 7 He argues that rather than set an evidentiary hearing, the court should grant plaintiff leave to file a 8 fourth amended complaint, which plaintiff believes will “cure all defects.” Defendants have filed 9 no response to plaintiff’s motion. Moreover, the court has recently adopted the magistrate 10 judge’s findings and recommendations and denied plaintiff’s motion seeking leave to file a 11 supplemental complaint. (Doc. No. 50, 66.) 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 13 de novo review of this case. Having carefully reviewed the entire file, the court finds the findings 14 and recommendations to be supported by the record and by proper analysis. Defendants are 15 entitled to have disputed factual questions relating to exhaustion resolved through a preliminary 16 proceeding. Albino v. Baca, 747 F.3d 1162, 1169–71 (9th Cir. 2014). Plaintiff’s motion, 17 construed as objections to the pending findings and recommendations, merely raises issues of fact 18 that are appropriately addressed at that evidentiary hearing. 19 Accordingly, it is HEREBY ORDERED that: 20 1. Plaintiff’s motion to vacate (Doc. No. 61) is DENIED; 21 2. The court adopts the findings and recommendations, filed November 8, 2016 22 (Doc. No. 49), in full; 3. Defendants’ motion for summary judgment (Doc. No. 38), filed April 13, 2016 is 23 24 DENIED 25 4. The court REFERS the matter back to the Magistrate Judge for further proceedings 26 on the exhaustion issue; and 27 ///// 28 ///// 2 1 5. The case shall remain open for resolution of the exhaustion issue and, if necessary, further proceedings on plaintiff’s claims. 2 3 4 IT IS SO ORDERED. Dated: March 9, 2017 UNITED STATES DISTRICT JUDGE 5 6 7 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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