(PC) Outhoummountry v. Pascua

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STACEN OMAR Case No. 1:22-cv-0104 JLT SAB (PC) OUTHOUMMOUNTRY, 12 ORDER REFERRING THE MATTER FOR Plaintiff, AN EVIDENTIARY HEARING 13 v. ORDER DECLINING TO CONSIDER THE 14 FINDINGS AND RECOMMENDATIONS PASCUA, et al., DENYING DEFENDANTS’ EXHAUSTION 15 MOTION FOR SUMMARY JUDGMENT Defendants. UNTIL AFTER THE EVIDENTIARY 16 HEARING IS COMPLETED 17 (Docs. 48, 61) 18 Stacen Omar Outhoummountry seeks to hold N. Pascua and M. Childress liable for 19 deliberate indifference to his serious medical need in violation of the Eighth Amendment. 20 Defendants seek summary judgment, asserting Plaintiff failed to exhaust his administrative 21 remedies prior to filing this action. (Doc. 48.) 22 The magistrate judge found Defendants carried “their initial burden of demonstrating that 23 Plaintiff failed to exhaust the administrative remedies.” (Doc. 61 at 7.) However, the magistrate 24 judge found there was conflicting declaratory evidence regarding whether Plaintiff submitted a 25 grievance that was not properly processed. (See id. at 7-11.) The magistrate judge observed, 26 “The nature of the declarations cannot be resolved by way of summary judgment because the 27 Court cannot weigh the credibility of Plaintiff’s declaration that he submitted a grievance on 28 1 | January 25, 2019, against Defendants’ evidence that he did not submit a grievance....” □□□□ at 10- 2 | 11.) Therefore, the magistrate judge found “summary judgment was not appropriate on the issue 3 | of exhaustion.” (/d. at 11.) The magistrate judge found the Court should conduct an “evidentiary 4 | hearing to determine whether Plaintiff exhausted administrative remedies relative to his claim in 5 | this action,” and recommended the motion for summary judgment be denied. (/d. at 12.) 6 The Court served the Findings and Recommendations on all parties and notified them that 7 | any objections were due within 21 days of the date of service. (Doc. 61 at 12.) The Court also 8 | advised the parties that “failure to file objections within the specified time may result in the 9 | waiver of rights on appeal.” (Jd, citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 10 | 2014), Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) No objections were filed and the 11 time to do so has passed. 12 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 13 || Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 14 | are supported by the record and proper analysis. Thus, the Court ORDERS: 15 1. The Court DECLINES to consider the Findings and Recommendations at this 16 time. The matter is referred to the magistrate judge to conduct an evidentiary 17 hearing under Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 18 2. Ruling on Defendants’ motion for summary judgment is DEFERRED until the 19 evidentiary hearing is completed and supplementary or amended findings and 20 recommendations are issued. 21 IT IS SO ORDERED. | Dated: _June 4, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 24 25 26 27 28