(PC) Sutton v. Giessner ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KARIMI SUTTON, No. 2:16-cv-2369-KJM-EFB P 12 Plaintiff, 13 v. ORDER 14 G. GEISSNER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner now proceeding pro se, has filed this civil rights action seeking 18 relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 13, 2020, the magistrate judge filed findings and recommendations, which were 21 served on all parties and which contained notice to all parties that any objections to the findings 22 and recommendations were to be filed within fourteen days. After extensions of time, plaintiff 23 has filed objections to the findings and recommendations and defendants have responded to those 24 objections. ECF Nos. 44, 49. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 27 findings and recommendations to be supported by the record and by the proper analysis. The 28 court writes separately here to address plaintiff’s objection that he did exhaust the claims in 1 || grievance number HDSP-D-15-01267. See generally Objections, ECF No. 44. That grievance 2 || bypassed the first level of review and was granted in part and denied in part at the second level. 3 || See id. (citing Opp’n Ex. D, ECF No. 37). Plaintiffs third-level appeal was cancelled for 4 | exceeding time limits, and he did not appeal the cancellation. See Spaich Decl. Ex. C, ECF 5 || No. 28-5. The magistrate judge therefore correctly found that plaintiff had not exhausted his 6 || administrative remedies, as required by the Prison Litigation Reform Act. See, e.g., Vaughn v. 7 || Hood, No. 14-2235, 2015 WL 5020691, at *8—9 (E.D. Cal. Aug. 21, 2015), aff'd, 670 F. App’x 8 || 962 (9th Cir. 2016) (unpublished); see also Woodford v. Ngo, 548 US. 81, 90 (2006). Plaintiff 9 || argues in objection to the magistrate judge’s findings and recommendations that correctional staff 10 || prevented him from filing a timely appeal. He could have raised that claim in an appeal of the 11 | cancellation decision, but he did not do so. 12 Given the court’s resolution of plaintiff’s objection, defendant’s request for a hearing is 13 || moot. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The findings and recommendations filed May 13, 2020, are adopted in full; 16 2. Defendants’ motion for summary Judgment (ECF No. 28) is GRANTED and □□□□□□□□□□ 17 || claim against them are DISMISSED without prejudice for failure to exhaust administrative 18 || remedies; and 19 3. The clerk of the court shall close this case. 20 | DATED: April 1, 2021. 21 22 l ti / ¢ q_/ 33 CHIEF NT] ED STATES DISTRICT JUDGE 24 25 26 27 28