(PC) Howell v. Cruz, et al., No. 1:2019cv00782 - Document 39 (E.D. Cal. 2021)
Court Description: ORDER ADOPTING 36 Findings and Recommendations and ORDER GRANTING 29 Defendants' Motion for Summary Judgment signed by District Judge Dale A. Drozd on 1/4/2021. CASE CLOSED. (Jessen, A)
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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 KAREEM J. HOWELL, 12 No. 1:19-cv-00782-DAD-SAB (PC) Plaintiff, 13 v. 14 K. CRUZ, et al. 15 Defendant. 16 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DISMISSING THIS ACTION WITHOUT PREJUDICE (Doc. Nos. 29, 36) 17 18 19 Plaintiff Kareem J. Howell is proceeding pro se and in forma pauperis in this civil rights 20 action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On September 2, 2020, defendants filed a motion for summary judgment based upon 23 plaintiff’s alleged failure to exhaust his administrative remedies prior to filing suit as required by 24 § 1997e(a) of the Prison Litigation Reform Act of 1995 (“PLRA”). (Doc. No. 29.) After the 25 granting of an extension of time in which to do so, on October 13, 2020, plaintiff filed an 26 opposition to the motion for summary judgment and a response to defendant’s statement of 27 undisputed facts. (Doc. Nos. 31, 32, 33.) On October 21, 2020, defendants filed a reply. (Doc. 28 No. 35.) 1 1 On November 13, 2020, the magistrate judge issued findings and recommendations 2 recommending that defendant’s motion for summary judgment be granted due to plaintiff’s 3 failure to exhaust his administrative remedies prior to filing his complaint in this action. (Doc. 4 No. 36.) Those findings and recommendations were served on plaintiff by mail on November 13, 5 2020 and contained notice that any objections thereto were to be filed within thirty (30) days of 6 service of the findings and recommendations. (Id. at 15–16.) On December 16, 2020, plaintiff’s 7 objections to the pending findings and recommendations were filed on the docket (Doc. No. 37), 8 and on December 21, 2020, defendants filed a response to plaintiff’s objections (Doc. No. 38). 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 10 de novo review of this case. Having carefully reviewed the entire file, the court concludes that 11 the findings and recommendations are supported by the record and by proper analysis. 12 Plaintiff’s principle objection to the pending findings and recommendations is that 13 defendant’s motion should not be granted because he believes there is a genuine issue of material 14 fact concerning his ability to have exhausted the administrative remedies required by the PLRA. 15 (Doc. No. 37 at 3–4.) Plaintiff raises the argument that he was unable to exhaust the inmate 16 grievance process because defendant Raschke denied him a grievance form when plaintiff 17 requested one. (Id.) However, this argument was adequately and appropriately considered 18 previously by the findings and recommendations. (See Doc. No. 36 at 10–13.) The pending 19 findings and recommendations correctly described how there were multiple other means by which 20 plaintiff could have obtained an inmate grievance form, and that plaintiff’s own history of filing 21 such grievances demonstrated that he was well aware of alternate means to obtain inmate 22 grievance forms, which did not depend on the direct involvement of a staff member about whom 23 he wished to complain in his grievance. (Id. at 15.) Plaintiff has presented no persuasive 24 arguments for departing from this thorough analysis set forth in the findings and 25 recommendations. 26 Plaintiff also objects that the findings and recommendations because defendants did not 27 specify which administrative remedy he failed to exhaust. (Doc. No. 37 at 4.) Plaintiff is 28 mistaken, however, in this regard since defendant’s motion makes clear that the exhaustion 2 1 requirement refers to the need to first pursue the administrative grievance procedure made 2 available to a prisoner. (See Doc. No. 29-3 at 1.) 3 Accordingly, 4 1. 5 6 are adopted in full; 2. 7 8 11 12 Defendants’ motion for summary judgment filed on September 2, 2020 (Doc. No. 29) is granted; 3. 9 10 The findings and recommendations issued on November 13, 2020 (Doc. No. 36) This action is dismissed, without prejudice, due to plaintiff’s failure to exhaust his administrative remedies prior to filing suit as required by the PLRA; and 4. The Clerk of the Court is directed to close this case. IT IS SO ORDERED. Dated: January 4, 2021 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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