Garcia v. Park

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JOSE LUIS GARCIA, Case No. 21-cv-03588-JD

Plaintiff,

ORDER ADOPTING REPORT AND

v. RECOMMENDATION, AND

DISMISSING CASE WITHOUT

KYEONG PARK, PREJUDICE

Defendant. Re: Dkt. Nos. 14, 15 Plaintiff filed a pro se civil rights complaint under 42 U.S.C. § 1983 and consented to the jurisdiction of a magistrate judge. Dkt. No. 3. Plaintiff’s original complaint for improper medical care was served on defendant. Plaintiff filed an amended complaint which indicated that he had not fully exhausted his claim in the prison grievance system. Dkt. 13 at 1. Plaintiff stated that his grievance was still pending. Id. at 2.

Defendant did not consent to a magistrate judge, and filed a motion requesting a screening of the amended complaint. Dkt. No. 14. The magistrate judge filed a Report and Recommendation advising that the complaint should be dismissed without prejudice for failure to exhaust administrative remedies. Dkt. No. 15. The report noted that even if plaintiff exhausted administrative remedies after he filed the amended complaint, the action must still be dismissed without prejudice. See Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (“[A prisoner] may initiate litigation in federal court only after the administrative process ends and leaves his grievances unredressed. It would be inconsistent with the objectives of the [PLRA] to let him submit his complaint any earlier than that.”). Plaintiff objected to the recommendation. Dkt. No. 22.

The Court overrules plaintiffs’ objection, and adopts the Report and Recommendation. 1 otherwise proper at this time. Consequently, the case is dismissed without prejudice, and plaintiff 2 || may file a new case when he has fully exhausted the claim in the grievance system. 3 IT IS SO ORDERED.

4 Dated: October 5, 2021

JAMES ATO 7 United SfAtes District Judge Z 18