(PC) J'Weial v. Newsom ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 XAVIER LUMAR J’WEIAL, No. 2:19-cv-2239 KJM KJN P 11 Plaintiff, 12 v. ORDER 13 GAVIN NEWSOM, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 17 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 18 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On April 8, 2020, the magistrate judge filed findings and recommendations, which were 20 served on plaintiff and which contained notice to plaintiff that any objections to the findings and 21 recommendations were to be filed within fourteen days. Plaintiff filed objections to the findings 22 and recommendations. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 court has conducted a de novo review of this case, including a careful review of petitioner’s 25 objections to the magistrate judge’s findings and recommendations. Having carefully reviewed 26 the file, the court finds the findings and recommendations to be supported by the record and by 27 proper analysis, as explained below. 28 ///// 1 In his objections, plaintiff clarifies that he is pursuing a whistleblower complaint in Case 2 No. 12019-1462, currently under investigation by the California Bureau of State Audits. Plaintiff 3 concedes that in this action, in which he challenges the conditions of his confinement under the 4 Eighth and Fourteenth Amendments, plaintiff relied on California Government Code section 5 8547, California’s Whistleblower Statute, for his statement that he was not required to exhaust 6 administrative remedies. ECF No. 11 at 3. But plaintiff claims it was error for the magistrate 7 judge not to apply the Whistleblower Protection Act enacted by the U.S. Congress, which 8 plaintiff claims was the genesis of the California whistleblowing statute. Plaintiff further argues 9 he does not have to be an employee to seek protection under either whistleblowing statute, but 10 provides no specific case or statute citation, other than section 8547, to support his argument.1 11 Notwithstanding his objections, plaintiff provides no persuasive or binding legal authority 12 for his view that he is exempt from the Prison Litigation Reform Act (“PLRA”) requirement that 13 he is required to first exhaust his administrative remedies prior to raising conditions of 14 confinement claims. 42 U.S.C. § 1997e(a). This Congressional mandate has been reinforced by 15 the United States Supreme Court on multiple occasions. Ross v. Blake, 136 S. Ct. 1850 (2016) 16 (holding that an inmate “must exhaust available remedies, but need not exhaust unavailable 17 ones”); Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (“The PLRA mandates that inmates 18 exhaust all available administrative remedies before filing ‘any suit challenging prison 19 conditions,’ including, but not limited to, suits under § 1983,” quoting Woodford v. Ngo, 548 U.S. 20 81, 85 (2006)). Here, plaintiff did check a box in Section D.5 of his original complaint that said 21 there were no administrative remedies available at his institution. ECF No. 1 at 6. But in 22 explaining why he did not appeal, he states only in conclusory fashion that under California’s 23 whistleblower statute, a “plaintiff need not exhaust administrative remedies,” id., without 24 supporting authority. In his objections, petitioner does not argue further appeals were unavailable 25 to him. See generally ECF No. 11. 26 1 Plaintiff cites 42 U.S.C. § 1915(g) and Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 27 2007). However, these authorities do not apply in this context because plaintiff has not been found to be three-strikes barred under § 1915(g) by filing three or more actions or appeals that 28 were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim. ] Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed April 8, 2020, are adopted in full; 3 2. This action is dismissed without prejudice; and 4 3. This Clerk of Court is directed to close this case. 5 || DATED: March 24, 2021. 6 7 ( ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28