(PC) Cortinas v. Vasquez

Opinion

LARRY WILLIAM CORTINAS, No. 1:19-cv-0367 JLT SKO (PC)

Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING v. DEFENDANTS’ MOTION FOR SUMMARY VASQUEZ, et al., JUDGMENT

Defendants. (Docs. 61, 75, 134) Larry William Cortinas is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Defendants seek summary judgment, asserting that Plaintiff failed to exhaust his administrative remedies related to his claims for deliberate indifference and sexual assault. (Doc. 61.) On November 7, 2022, the assigned magistrate judge found the Court “is unable to determine, on the present record, whether Plaintiff has exhausted his administrative remedies as to Plaintiff’s deliberate indifference and sexual assault claims.” (Doc. 134 at 22; see also id. at 10-22.) Therefore, the magistrate judge recommended Defendants’ motion for summary judgment be denied. (Id.) The Court granted the parties 14 days to file written objections to the Findings and Recommendations and informed them that “[f]ailure to file objections within the specified time may result in waiver of rights on appeal.” (Doc. 134 at 23, citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) To date, no objections have been filed and the time to do so has passed. According to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this case. Having carefully reviewed the file, the Court concludes the magistrate judge’s Findings and Recommendations to be supported by the record and proper analysis. Thus, the Court ORDERS: 1. The Findings and Recommendations filed on November 7, 2022 (Doc. 134) are ADOPTED in full. 2. Defendants’ motion to strike Plaintiff's sur-replies (Doc. 75) is GRANTED. 3. Defendants’ motion for summary judgment for a failure to exhaust administrative remedies pertaining to Plaintiff's claims of excessive force against Defendants Vasquez, Fisher and Washington is DENIED. 4. Defendants’ motion for summary judgment for a failure to exhaust administrative remedies pertaining to Plaintiffs claim of deliberate indifference to serious medical needs against Defendant Ramos is DENIED without prejudice. 5. Defendants’ motion for summary judgment for a failure to exhaust administrative remedies pertaining to Plaintiff's claim of sexual assault against any Defendant is DENIED without prejudice. 6. This case is referred to the magistrate judge for further proceedings. Dated: _November 29, 2022 Charis [Tourn TED STATES DISTRICT JUDGE