(PC) Howze v. CDC & R, et al, No. 2:2014cv02069 - Document 48 (E.D. Cal. 2015)
Court Description: ORDER signed by Judge Garland E. Burrell, Jr., on 9/3/15 ORDERING that the FINDINGS AND RECOMMENDATIONS 43 are REJECTED and REFERRED back to the Magistrate Judge. (Kastilahn, A)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JOHNNY LEE HOWZE, 8 9 10 11 No. 2:14-cv-02069-GEB-CKD Plaintiff, v. ORDER T. BUTLER, E. GROUT, and A. OROZCO, Defendants. 12 13 14 Plaintiff, a state prisoner proceeding pro se, filed 15 this civil rights action seeking relief under 42 U.S.C. § 1983, 16 alleging Defendants violated the Eighth Amendment to the United 17 States Constitution by failing to assign him single-cell status 18 contrary to a medical recommendation. Defendants move for summary judgment on the ground that 19 20 Plaintiff failed to exhaust his administrative remedies as 21 required under the Prison Litigation Reform Act (“PLRA”). (Defs.’ 22 Mem. P.&A. ISO Mot. Summ. J. (“MSJ”), ECF No. 23-1.) Defendants 23 also move to dismiss Plaintiff’s Complaint under Federal Rule of 24 Civil Procedure 12(b)(6) for failing to “allege facts supporting 25 the subjective component of his Eighth Amendment claim.” (Mem. 26 P.&A. ISO Mot. Dismiss 6:9-11, ECF No. 22-1.) 27 The matter was referred to a United States Magistrate 28 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On 1 1 July 2 recommendations (“F&Rs”), which were served on all parties, and 3 which contain notice to the parties that any objections to the 4 findings and recommendations were to be filed within fourteen 5 days. (ECF No. 43.) Plaintiff filed objections to the findings 6 and recommendations, and Defendants filed a reply to Plaintiff’s 7 objections. (ECF Nos. 46, 47.) 9, 2015, 8 9 the Magistrate Judge filed findings and The Magistrate Judge recommended in the F&Rs that the complaint be dismissed with prejudice, concluding it is 10 duplicative of an action Plaintiff filed in the Central District 11 of California, Howze v. CDCR, et al., Case No. 2:14-cv-04067-SVW- 12 RAO. (F&Rs 1:26-28, 2:24-25.) Therefore, the Magistrate Judge did 13 not reach the merits of either of Defendants’ pending motions. 14 Although 15 Amendment 16 assign him single-cell status, the two cases concern Plaintiff’s 17 incarceration at different correctional facilities and are made 18 against 19 case concerns Plaintiff’s incarceration at the California Men’s 20 Colony-East 21 Plaintiff’s incarceration at Folsom State Prison. (See Compl., 22 ECF No. 1; 23 SVW-RAO, ECF No. 1-1.) Therefore, the undersigned judge rejects 24 the F&Rs and refers the matter back to the Magistrate Judge. 25 Dated: Plaintiff was violated different in alleges by in Luis cases correctional individual San both officials’ defendants. Obispo, that whereas The the failure Central this Eighth case to District concerns Compl. in Central District Case No. 2:14-cv-04067- September 3, 2015 26 27 28 2
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