(PC) Henley v. Burnes ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ZURI HENLEY, No. 1:19-cv-01101-DAD-JLT (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 BURNES, et al., ACTION 15 Defendants. (Doc. No. 13) 16 17 18 Plaintiff Zuri Henley is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 9, 2020, the assigned magistrate judge issued findings and recommendations, 22 recommending that the action be dismissed due to plaintiff’s failure to exhaust administrative 23 remedies prior to filing suit as required by the Prison Litigation Reform Act (“PLRA”). (Doc. 24 No. 13.) The magistrate judge noted that plaintiff had admitted, both in his first amended 25 complaint and in his response to the court’s February 6, 2020 order to show cause why the action 26 should not be dismissed, that his administrative grievance was still pending. (Id. at 1; see Doc. 27 Nos. 7, 11.) The findings and recommendations were served on plaintiff and contained notice 28 that any objections were to be filed within twenty-one (21) days of the date of service. After wOow 4:40 VV □□□ LOMAS VR ti POC Ore oI Se 1 | receiving an extension of time to file objections on March 24, 2020, plaintiff filed timely 2 | objections on April 24, 2020. (Doc. Nos. 14, 15, 16.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), the court has conducted a 4 | de novo review of this case. Having carefully reviewed the entire file, including plaintiff's 5 | objections, the court concludes that the findings and recommendations are supported by the 6 | record and proper analysis. 7 In his objections, plaintiff merely recites legal standards relating to the exhaustion 8 || requirement under the PLRA and his allegations of deliberate indifference under the Eighth 9 | Amendment. (See Doc. No. 16 at 1-2.) However, plaintiff does not contest the magistrate 10 | judge’s conclusion that he failed to exhaust administrative remedies prior to filing this civil 11 action. As the magistrate judge noted, exhaustion is mandatory under the PLRA, and 12 | “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation 13 | omitted). Although failure to exhaust is generally an affirmative defense that the defendant must 14 | plead and prove, courts may dismiss a claim if, as here, the failure to exhaust administrative is 15 | clear on the face of the complaint. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). 16 Accordingly, 17 1. The findings and recommendations filed on March 9, 2020 (Doc. No. 13) are 18 adopted in full; 19 2. This action is dismissed without prejudice due to plaintiff's failure to exhaust 20 administrative remedies prior to filing suit as is required; and 21 3. The Clerk of the Court is directed to close this case. 22 | IT IS SO ORDERED. me □ | Dated: _May 7, 2020 Yole A Lara 24 UNITED STATES DISTRICT JUDGE 25 26 27 28