(PC) Washington v. Fresno County Sheriff

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA PERRY WASHINGTON, No. 1:19-cv-01069-NONE-SKO (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. ACTION WITHOUT PREJUDICE FRESNO COUNTY SHERIFF, et al., (Doc. No. 26) 15 Defendants.

17 Plaintiff Perry Washington is detained in county jail and proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On March 27, 2020, the assigned magistrate judge ordered plaintiff to show cause in writing why this action should not be dismissed for failure to exhaust his administrative remedies prior to filing suit. (Doc. No. 22.) Plaintiff filed a response on April 17, 2020. (Doc. No. 25.) In his response, plaintiff states that he exhausted administrative remedies “after [he] filed suit on ‘August 5, 2019.’” (Id. at 2.)

25 Accordingly, on April 21, 2020, the assigned magistrate judge filed findings and recommendations, recommending that this action be dismissed without prejudice due to plaintiff’s failure to exhaust administrative remedies prior to filing suit as required. (Doc. No. 26.) The magistrate judge noted that exhaustion of such administrative remedies must be wOASe 4b UVM EY MEARE SINR MVOC OO PO vee □□ Ove | completed prior to filing a complaint, not during the pendency of a lawsuit. (Ud. at 2 (citing | McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002).) The magistrate judge provided | plaintiff 21 days to file objections to the findings and recommendations. (/d. at 3.) Plaintiff has | not filed any objections and the time to do so has passed.

5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), this court has conducted a | de novo review of this case. Having carefully reviewed the entire file, the court finds the findings || and recommendations to be supported by the record and proper analysis. As the magistrate judge | correctly found, exhaustion is mandatory under the Prison Litigation Reform Act and | “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (citation | omitted). Although failure to exhaust is generally an affirmative defense that the defendant must | plead and prove, id. at 216, courts may dismiss a claim if the failure to exhaust administrative | remedies is clear on the face of the complaint, see Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. | 2014). Here, it is clear on the face of his complaint that plaintiff failed to exhaust those || administrative remedies prior to bringing suit, which plaintiff confirmed in his response to the || magistrate judge’s order to show cause.

16 Accordingly, 17 1. The findings and recommendations filed on April 21, 2020 (Doc. No. 26) are 18 adopted in full; 19 2. This action is dismissed without prejudice to the filing of a new action following 20 exhaustion if otherwise appropriate; and, 21 3. The Clerk of the Court is directed to assign a district judge for the purposes of 22 closure and to close this case.

23 | IT IS SO ORDERED. me □ Dated: _ June 2, 2020 Yole A Lara 25 UNITED STATES DISTRICT JUDGE