(PC) Hernandez v. Lizarraga ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRES C. HERNANDEZ, No. 2:19-cv-01479 MCE AC P 12 Plaintiff, 13 v. ORDER 14 JOE LIZARRAGA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 19, 2019, the magistrate judge issued findings and recommendations herein 21 which were served on plaintiff and which contained notice to plaintiff that any objections to the 22 findings and recommendations were to be filed within fourteen days. See ECF No. 7. Plaintiff 23 has filed objections to the findings and recommendations. ECF No. 10. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, for 26 the reasons stated below, the court finds the findings and recommendations to be supported by the 27 record and by proper analysis. 28 //// 1 The findings order issued by the magistrate recommends that this action be dismissed for 2 | failure to exhaust administrative remedies prior to filing the instant action in federal court. See 3 | ECF No. 7 at 3-4. In plaintiff's objections to the order, he asserts that the court misunderstood 4 | him; that he did, in fact, exhaust his state administrative remedies prior to filing the instant action. 5 | See ECF No. 10 at 2-6. However, a review of the documents that plaintiff has filed in support of 6 | this assertion do not support his claim of exhaustion. On the contrary, the documents provided 7 | indicate that plaintiff's appeal was cancelled at the second level of review. See id. at 10 8 | (California Department of Corrections Office of Appeal letter stating plaintiff's appeal was 9 | cancelled due to failure to correct and return a rejected appeal within thirty calendar days of 10 | rejection). According to the California Code of Regulations, “a cancellation or rejection decision 11 || does not exhaust administrative remedies.” Cal. Code Regs. tit. 15, § 3084.1(b). For these 12 | reasons, the magistrate’s findings and recommendations will be adopted. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The findings and recommendations issued August 19, 2019 (ECF No. 7), are 15 | ADOPTED in full, and 16 2. This action is SUMMARILY DISMISSED for lack of jurisdiction pursuant to 42 17 | U.S.C. § 1997e(a), Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014), and Akhtar vy. Mesa, 698 18 | F.3d 1202, 1210 (9th Cir. 2012). 19 IT IS SO ORDERED. 20 21 | Dated: September 13, 2021 EF 22 A batte./ , LEK . °3 NOR UNITED STARS DIS exe} JUDGE 24 25 26 27 28