(PC) Hicks v. Arya, No. 2:2016cv02465 - Document 54 (E.D. Cal. 2017)
Court Description: ORDER signed by District Judge Morrison C. England, Jr on 12/11/17 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 8/23/17 38 are ADOPTED IN FULL; and Plaintiff's Motion to Amend 26 is GRANTED. (Mena-Sanchez, L)
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(PC) Hicks v. Arya Doc. 54 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL J. HICKS, 12 13 14 15 No. 2:16-cv-2465 MCE KJN P Plaintiff, v. ORDER AFSHIN ARYA, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 23, 2017, the magistrate judge filed findings and recommendations 21 recommending that Plaintiff’s motion to amend be granted. (ECF No. 38.) Defendant has filed 22 objections to the findings and recommendations. (ECF No. 42.) The undersigned addresses 23 Defendant’s objections herein. 24 The only named defendant in the original complaint is Dr. Arya. Plaintiff alleges that 25 Defendant Arya provided inadequate medical care for his cervical spondylosis and hepatitis C. 26 The proposed amended complaint includes the same allegations against Defendant Arya as are 27 made in the original complaint. In the amended complaint, Plaintiff also names as defendants 28 California State Prison-Sacramento (“CSP-Sac”) Chief Executive Officer Felder and California 1 Dockets.Justia.com 1 Correctional Health Care Facilities Deputy Director Lewis. Plaintiff alleges that Defendants 2 Felder and Lewis failed to provide him with adequate medical care for his hepatitis C. 3 In the opposition to Plaintiff’s motion to amend, Defendant Arya raised one argument: 4 Plaintiff’s motion to amend was futile because Plaintiff failed to exhaust his administrative 5 remedies with respect to his claim that Defendant Arya provided inadequate medical care for his 6 cervical spondylosis. 7 The magistrate judge rejected Defendant’s argument that amendment was futile for the 8 following reasons. First, the magistrate judge noted that in the Ninth Circuit, dismissal of a 9 prisoner civil rights action for failure to exhaust administrative remedies must generally be 10 decided pursuant to a motion for summary judgment. See Albino v. Baca, 747 F.3d 1162 (9th 11 Cir. 2014 (en banc). The magistrate judge found that, based on this law, the issue of exhaustion 12 of administrative remedies is not appropriately raised, or considered by the Court, in an 13 opposition to a motion to amend. 14 The magistrate judge also found that it was not clear that Plaintiff failed to exhaust his 15 administrative remedies as to Defendant Arya. The magistrate judge found that the issue of 16 Plaintiff’s exhaustion of administrative remedies as to Defendant Arya should be raised in a 17 summary judgment motion. 18 In the objections to the findings and recommendations, Defendant Arya raises two new 19 arguments in opposition to Plaintiff’s motion to amend. First, Defendant argues that Plaintiff 20 failed to exhaust his administrative remedies with respect to his claim that Defendant Arya 21 provided inadequate medical care for his hepatitis C. Second, Defendant argues that Plaintiff 22 failed to exhaust administrative remedies with respect to his claims against Defendants Lewis and 23 Felder. 24 The purpose of objections is to identify a specific defect of law or fact in the Magistrate 25 Judge’s analysis. See 28 U.S.C. § 636(b)(1). A District Judge has discretion to consider, or to 26 decline to consider, new arguments presented for the first time in objections. See Brown v. Roe, 27 279 F.3d 742, 745 (9th Cir. 2002). The arguments presented by defendant, who is represented by 28 counsel, in the objections are not merely new arguments in support of a point already raised, but 2 1 new and distinct points entirely. Plaintiff has not had an opportunity to address these arguments. 2 The undersigned has determined that these belated arguments are not properly raised. See United 3 States v. Howell, 231 F.3d 615, 623 (9th Cir. 2000). 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 5 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 6 Court finds the findings and recommendations to be supported by the record and by proper 7 analysis. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed August 23, 2017 (ECF No. 38) are 10 ADOPTED IN FULL; and 11 2. Plaintiff’s motion to amend (ECF No. 26) is GRANTED. 12 IT IS SO ORDERED. 13 Dated: December 11, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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