Evans v. Malfi

Full title: ANTHONY RAY EVANS, Plaintiff, v. A. MALFI, et al., Defendants

Court: United States District Court, E.D. California

Date published: Mar 7, 2008

No. 2:06-cv-02439-JKS-DAD (E.D. Cal. Mar. 7, 2008)

Opinion

No. 2:06-cv-02439-JKS-DAD.

March 7, 2008

ORDER

JAMES SINGLETON JR., District Judge

Plaintiff, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On December 28, 2006, the Magistrate Judge filed Findings and Recommendations, which were served on all parties and which contained notice to all parties that any objections to the Findings and Recommendations were to be filed within twenty days. Plaintiff has filed objections to the Findings and Recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, with particular attention to those portions relevant or pertinent to the objections raised, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.

In his objections, which principally consists of a re-submission of his complaint, Plaintiff has failed to address the Findings and Recommendations in any meaningful manner. Under the Prison Litigation Reform Act, a prisoner must exhaust administrative remedies available to him prior to bringing his action. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, ___, 126 S.Ct. 2378, 2387-90 (2006). Plaintiff's own admission that although he initiated an internal grievance it has not been acted upon establishes he has not exhausted the administrative remedies available to him. Nor, has he shown cause to excuse exhaustion. Moreover, even if Plaintiff were to exhaust his administrative remedies during the pendency of the case, the Court must dismiss the complaint without prejudice. See McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002).

Accordingly, IT IS HEREBY ORDERED THAT:

1. The Findings and Recommendations filed December 6, 2006, are adopted in full; 2. The complaint is DISMISSED, without prejudice; and 3. The Clerk of the Court to enter final judgment accordingly.