(PC) Rodriguez v. Agostini ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, 1:18-cv-01565-DAD-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE 13 v. TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO FILING SUIT 14 WARDEN FISHER, et al, (Doc. 1) 15 Defendants. 14-DAY DEADLINE 16 17 On September 3, 2020, this Court recommended that Plaintiff’s Eighth Amendment 18 medical indifference claim be dismissed for failure to exhaust administrative remedies. (Doc. 17.) 19 The Court also recommended that Plaintiff be granted leave to amend his complain to assert a 20 claim under the Americans with Disabilities Act. Id. Since then, instead of filing an amended 21 complaint, Plaintiff has sought multiple extensions of time, which this Court has granted. In its 22 most recent order, this Court stated that “no further extensions will be granted absent evidence 23 of extraordinary circumstances.” (Doc. 32.) 24 In response, Plaintiff filed an eleventh motion for a thirty-day extension of time, alleging 25 that he is “in fear of being harmed, maimed, or killed now while having [his] prison sentence 26 unlawfully extended.” (Doc. 33.) As support, Plaintiff asserts that he has been wrongfully charged 27 with various rules violations in 2020 through April 2021, and he submits a petition filed in state 28 court reflecting a challenge to the Defendants’ disciplinary methods. (Id. at 5–92.) However, none 1 of the documentary evidence submitted indicates extraordinary circumstances that have prevented 2 Plaintiff from filing a timely amended complaint after over nine months. 3 Accordingly, it is RECOMMENDED that Plaintiff’s complaint be DISMISSED for 4 failure to exhaust administrative remedies before initiating this action. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after 7 being served with these findings and recommendations, any party may file written objections with 8 the court and serve a copy on all parties. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 10 filed and served within fourteen days after service of the objections. The parties are advised that 11 failure to file objections within the specified time may waive the right to appeal the District 12 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 IT IS SO ORDERED. 14 15 Dated: June 8, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28