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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 AARON PEARSON, Case No. 2:18-09065 SB (ADS)

12 Plaintiff,

13 v. ORDER ACCEPTING UNITED STATES

MAGISTRATE JUDGE’S REPORT AND

14 LOS ANGELES COUNTY, RECOMMENDATION AND SETTING

EVIDENTIARY HEARING

15 Defendant.

16

17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 18 Complaint, [Dkt. No. 11], Defendant Los Angeles County’s Motion for Summary 19 Judgment, or in the Alternative, Summary Adjudication, [Dkt. No. 54], Defendant’s 20 Notice of Non-Opposition Reply to County’s Motion for Summary Judgment, or in the 21 Alternative, Summary Adjudication, [Dkt. No. 56], the Report and Recommendation of 22 United States Magistrate Judge (“Initial Report”), [Dkt. No. 58], and the Supplemental 23 Report and Recommendation of United States Magistrate Judge (“Supplemental 24 Report”) [Dkt. No. 61]. The Court has also reviewed Plaintiff’s October 25, 2021 letter, 1 [Dkt. No. 59], as well as Defendant’s Objection to Supplemental Report and 2 Recommendation (“Objections”), [Dkt. No. 62], and has engaged in a de novo review of 3 those portions of the Initial and Supplemental Reports to which objections have been 4 made. 5 Defendant’s Objections are overruled. Defendant requests both that the Court

6 take the motion for summary judgment under submission, and also that it issue an 7 order granting the parties leave to submit additional evidence. However, Defendant 8 fails to refute the reasoning set forth in the Supplemental Report in any manner that 9 would justify Defendant’s requested relief. Instead, Defendant focuses its arguments on 10 Plaintiff’s letter, whereas the Supplemental Report relies on Plaintiff’s testimony, which 11 Defendant itself filed with its motion. Furthermore, Defendant does not cite to any 12 binding law or facts that justify its request for leave to reopen discovery and to 13 supplement its motion at this stage, particularly in light of Defendant’s burden as the 14 moving party. See Fed. R. Civ. P. 56. 15 The Supplemental Report concludes that a genuine issue of material fact exists as 16 to whether the administrative remedy was functionally unavailable to Plaintiff. [Dkt.

17 No. 61, p. 5]. This issue is properly addressed in an evidentiary hearing, which the Court 18 will hold on March 14, 2022 at 8:30 a.m. See Albino v. Baca, 747 F.3d 1162, 1168 (9th 19 Cir. 2014) (“If summary judgment is not appropriate, the district judge may decide 20 disputed questions of fact in a preliminary proceeding.”). 21 Accordingly, IT IS HEREBY ORDERED: 22 1. The Report and Recommendation of United States Magistrate Judge [Dkt. 23 No. 58] and Supplemental Report and Recommendation [Dkt. No. 61] are 24 accepted; 1 2, Defendant’s Motion for Summary Judgment, or in the Alternative, 2 Summary Adjudication [Dkt. No. 54] is denied; 3 3. The reference to the Magistrate Judge is vacated and all further 4 proceedings are permitted before the undersigned United States District 5 Judge; and 6 4. The Court SETS an evidentiary hearing on March 14, 2022 at 7 8:30 a.m. to determine whether Plaintiff has exhausted his 8 administrative remedies. The Court by separate order will issue a writ of 9 habeas corpus ad testificandum to procure Plaintiffs appearance by 10 videoconference at the hearing. Plaintiff is cautioned that a willful failure 11 to appear will result in dismissal of his case. 12 13 || Dated: January 6, 2022 14 ries. 15 Stanley Blumenfeld, Jr. United States District Judge 16 17 18 19 20 21 22 23 24