(PC) Smith v. Allison ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FREDERICK WAYNE SMITH, Case No. 1:22-cv-01580 JLT SAB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND DISMISSING THE 14 KATHLEEN ALLISON, et al., ACTION WITHOUT PREJUDICE 15 Defendants. (Docs. 28, 39) 16 17 Frederick Wayne Smith seeks to hold R. Rodriguez—the sole remaining defendant—liable 18 for retaliation, deliberate indifference to safety, and denial of access to the courts. (See Doc. 16.) 19 Defendant seeks summary judgment, asserting Plaintiff did not exhaust available administrative 20 remedies. (Doc. 28.) 21 The magistrate judge observed, “Defendant has submitted undisputed evidence that an 22 administrative procedure process was available to Plaintiff.” (Doc. 39 at 6.) The magistrate 23 judge determined it was “undisputed that Plaintiff failed to put the institution or CDCR on 24 notice that Plaintiff claimed retaliation, deliberate indifference, or denial of access to the courts 25 by Defendant Rodriguez or anyone else.” (Id. at 6-7.) Therefore, the magistrate judge found 26 “Plaintiff failed to exhaust available administrative remedies available to him before filing his 27 lawsuit.” (Id. at 7.) The magistrate judge recommended the motion for summary judgment be granted, and the claims be dismissed without prejudice. (Id.) 1 The Court served the Findings and Recommendations on all parties and notified Plaintiff 2 | any objections were due within 14 days. (Doc. 39 at 7.) The Court advised him that the “failure 3 | to file objections within the specified time may result in the waiver of rights on appeal.” (d., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Plaintiff did not file 5 | objections, and the time to do so has passed. 6 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case. 7 | Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 8 | are supported by the record and proper analysis. Thus, the Court ORDERS: 9 1. The Findings and Recommendations dated January 10, 2024 (Doc. 39) are 10 ADOPTED. 11 2. Defendants motion for summary judgment (Doc. 28) is GRANTED. 12 3. The action is DISMISSED, without prejudice, for failure to exhaust administrative 13 remedies. 14 4. The Clerk of Court is directed to close this case. 15 16 IS SO ORDERED. 17| Dated: _ February 8, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28