(PC) Green v. Smith ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JARVON D. GREEN, No. 2:22-cv-1472 KJM KJN P 11 Plaintiff, 12 v. ORDER 13 SERGEANT SMITH, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief 17 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 18 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On October 6, 2022, the magistrate judge filed findings and recommendations, which 20 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 21 and recommendations were to be filed within fourteen days. F&R, ECF No. 10. Plaintiff has not 22 filed objections to the findings and recommendations. 23 The court presumes that any findings of fact are correct. See Orand v. United States, 24 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 25 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 26 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 27 . . . .”). 28 ///// ] Having reviewed the file, the court finds the findings and recommendations to be 2 || supported by the record and by the proper analysis. The magistrate judge cites to Albino v. Baca, 3 | 747 F.3d 1162, 1166 (9th Cir. 2014), for the proposition “courts may dismiss a claim if failure to 4 || exhaust is clear on the face of the complaint.” F&R at 2; see also Wynn v. Escarcega, 5 || No. 121CV00202, 2021 WL 2383334, *1 (E.D. Cal. June 10, 2021). Albino does not explicitly 6 || discuss a court’s power but holds “[i]n the rare event that a failure to exhaust is clear on the face 7 || of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Jd. Because courts 8 | have the power to dismiss actions sua sponte under Rule 12(b)(6), this court has the authority to 9 | dismiss petitioner’s claim. See Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987). 10 Accordingly, IT IS HEREBY ORDERED that: 1] 1. The findings and recommendations filed October 6, 2022, are adopted in full; 12 2. This action is dismissed; and 13 3. The clerk of court is directed to close this case. 14 | DATED: December 15, 2022. 15 7 CHIEF ED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28