(PC) Kenyon D. Brown v. CDCR Director ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENYON DARRELL BROWN, No. 1:21-cv-01186-JLT-SKO (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. ACTION FOR FAILURE TO EXHAUST 14 CDCR Director, et al., (Doc. No. 19) 15 Defendants. 16 17 Plaintiff Kenyon Darrell Brown is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action brought under 42 U.S.C. § 1983. This matter was referred to a 19 United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 The assigned magistrate judge issued findings and recommendations, recommending that 21 this action be dismissed for Plaintiff’s failure to exhaust administrative remedies prior to filing 22 suit as required by the Prison Litigation Reform Act. (Doc. No. 19.) Plaintiff filed objections 23 thereto. 24 In his objections, Plaintiff does not dispute that he failed to exhaust his claim that a 25 prison-wide modified program violates the Eighth Amendment, which he raised in his first 26 amended complaint. (See generally Doc. No. 20.) Instead, he requests that the first amended 27 complaint be dismissed, and that he be allowed to proceed on his original complaint. (Id. at 1.) However, in his original complaint, Plaintiff contends that prison officials unlawfully denied him 1 | parole consideration under California Proposition 57. (See Doc. No. 1.) This is the same claim 2 | raised in a separate, still-pending case, Brown v. North Kern State Prison, et al., No. 1:20-cv- 3 | 01396 (Doc. No. 1; see also Doc. No. 32.) Thus, if the Court were to grant Plaintiffs request to 4 | dismiss the first amended complaint and to proceed with the original complaint, this action should 5 | still be dismissed as duplicative. See Cato v. United States, 70 F.3d 1103, 1105 (9th Cir. 1995). 6 | In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de 7 | novo review of this case. Having carefully reviewed the entire file, including Plaintiffs 8 || objections, the Court finds the findings and recommendations to be supported by the record and 9 | proper analysis. Accordingly, the Court ORDERS: 10 1. The findings and recommendations issued on December 1, 2021 (Doc. No. 19) are 11 ADOPTED in full; 12 2. This action is DISMISSED for failure to exhaust administrative remedies; and, 13 3. The Clerk of the Court is DIRECTED to terminate all pending motions and to 14 close this case. 15 16 IT IS SO ORDERED. Dated: _ January 18, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28