(PC) Page v. CDCR Medical ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATTI M. PAGE, No. 1:20-cv-00917-NONE-BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING 13 v. DISMISSAL OF ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 CDCR MEDICAL, (Doc. No. 17) 15 Defendant. 16 17 Plaintiff Patti M. Page is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 8, 2020, the assigned magistrate judge issued findings and recommendations 21 recommending dismissal of this action, without prejudice, due to plaintiff’s failure to exhaust 22 administrative remedies prior to filing suit. (Doc. No. 17.) Those findings and recommendations 23 were served on plaintiff and contained notice that any objections thereto were to be filed within 24 fourteen (14) days after service. (Id. at 3.) Plaintiff timely filed objections on October 19, 2020. 25 (Doc. No. 18.) 26 In her objections, plaintiff confirms that she did not exhaust all administrative remedies 27 prior to filing suit, and she just received the last level of review of her inmate appeal regarding 28 health care. Plaintiff has attached a copy of her Headquarters’ Level Response, dated October 5, 1 | 2020 to her objections. (/d. at 3.) However, the fact that plaintiff has now exhausted her 2 | administrative remedies does not save her complaint. See Lira v. Herrera, 427 F.3d 1164, 1170 3 | (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice when there is no presuit 4 | exhaustion, even if there is exhaustion while suit is pending.” (citation and internal quotation 5 || marks omitted)). 6 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 7 | de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 8 | findings and recommendations are supported by the record and by proper analysis. 9 Accordingly, 10 1. The findings and recommendations issued on October 8, 2020, (Doc. No. 17), are adopted 11 in full; 12 2. This action is dismissed, without prejudice, due to plaintiff's failure to exhaust 13 administrative remedies prior to filing suit as required; and 14 3. The Clerk of the Court is directed to close this case. 15 | IT IS SO ORDERED. si □ '6 Dated: _ October 23, 2020 Y L ah yt 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28