(PC) Jaramillo v. Burnes ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDIE ANTHONY JARAMILLO, No. 1:21-cv-00712-AWI-JLT (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS AND DISMISSING ACTION FOR FAILURE TO EXHAUST 14 J. BURNES, et al., (Doc. No. 15) 15 Defendants. 16 17 Plaintiff Rudie Anthony Jaramillo is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 19 States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 25, 2021, the assigned magistrate judge issued an order finding that Plaintiff 21 failed to exhaust administrative remedies prior to filing suit as required by the Prison Litigation 22 Reform Act. Doc. No. 13. Therefore, the magistrate judge ordered Plaintiff, within 21 days, to 23 show cause why this action should not be dismissed for his failure to exhaust. Id. at 2. Plaintiff 24 failed to respond to the order to show cause within the time provided. 25 Accordingly, on December 6, 2021, the assigned magistrate judge filed findings and 26 recommendations, recommending that this action be dismissed without prejudice. Doc. No. 15. 27 The magistrate judge found that it is clear on this face of his complaint that Plaintiff failed to 1 || Plaintiff 14 days to file objections to the findings and recommendations. Id. Plaintiff filed 2 || objections on December 20, 2021. Doc. No. 16. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 4 | de novo review of this case. Having carefully reviewed the file, including Plaintiffs objections, 5 || the Court finds the findings and recommendations to be supported by the record and proper 6 || analysis. In his objections, Plaintiff appears to argue the merits of his case and includes several 7 || attachments in support thereof; however, he does not dispute that he failed to exhaust prior to 8 || initiating this action. See generally Doc. No. 16. Infact, two of the attachments reveal that 9 | Plaintiff received dispositions from the highest level of review regarding two of his administrative 10 || grievances after he initiated this action in April of this year. See id. at 20-21, 32-33. Exhaustion, 11 || however, must be completed before the filing of a complaint; it cannot be completed during the 12 || pendency of lawsuit. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Dismissal will 13 | be “without prejudice,” though, meaning that Plaintiff may file a new lawsuit based on any claims 14 | that are now exhausted, if otherwise appropriate. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The findings and recommendations issued on December 6, 2021 (Doc. No. 15) are 17 ADOPTED in full; 18 2. This action is DISMISSED without prejudice for failure to exhaust administrative 19 remedies prior to filing suit; and, 20 3. The Clerk of the Court is DIRECTED to terminate all pending motions and to 21 close this case. 22 73 ITISSO ORDERED. 2p 94 | Dated: __December 30, 2021 E=x- TRIC UDGE 25 26 27 28