1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 5:21-cv-01817-SPG-SHK 11 DANIEL RAY LOYD,

12 Plaintiff, ORDER ACCEPTING FINDINGS AND

13 v. RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 14 KATHLEEN ALLISON, et al.,

15 Defendants.

16

17 18 19 Pursuant to

, the Court has reviewed the First Amended Complaint, 20 the records on file, the Report and Recommendation of the United States Magistrate 21 Judge (“R. & R.”), Plaintiff’s objections to the R. & R., and Defendants’ opposition to 22 Plaintiff’s objections. Further, the Court has made a de novo determination of the 23 portions of the R. & R. to which objections have been made. 24 The R. & R. recommends dismissal of this action without prejudice because 25 Plaintiff, a state prisoner, failed to exhaust available administrative remedies before 26 bringing this suit. (ECF No. 57 (“R. & R.”)). For the following reasons, Plaintiff’s 27 28 1 objections to the R. & R., (ECF No. 64), do not warrant a change to the R. & R.’s findings 2 or recommendations. 3 The R. & R. found that Plaintiff did not carry his burden of showing that Plaintiff 4 exhausted his administrative remedies due to untimeliness, as his March 1, 2021, grievance 5 (the “March 1 Grievance”) was filed more than thirty days after the discovery of the 6 Defendant’s alleged conduct. (R. & R. at 8, 24; (ECF No. 48-6 at 21). Under the applicable 7 regulation, “[d]iscovery occurs when a claimant knew or should have reasonably known 8 of the adverse policy, decision, action, condition, or omission.” Cal. Code Regs., tit. 15, 9 § 3482(b); see also (R. & R. at 22 n.7 (the regulations that apply are the ones in place 10 during the relevant time period)). 11 Plaintiff objects that the March 1 Grievance was improperly rejected by prison 12 officials as untimely because, according to Plaintiff, the date triggering the 30-day period 13 was February 19, 2021, when he and other inmates were moved to a building that “housed 14 ‘only’ COVID-19 cases” despite testing negative for COVID-19. (ECF No. 64 at 4 15 16 (emphasis in original); R. & R. at 13). However, the March 1 Grievance also alleged 17 incidents on January 28, 2021, and February 12, 2021, in addition to the incident on 18 February 19, 2021, (ECF No. 64 at 11–13), which indicated that Plaintiff knew of the 19 adverse prison conditions on January 28, 2021, more than 30 days before he submitted the 20 grievance on March 1, 2021. (ECF No. 64 at 11–13). Therefore, Plaintiff’s objection that 21 the 30-day period was triggered by the final incident on February 19, 2021—an argument 22 Plaintiff also raised in his opposition to Defendant’s motion and which the R. & R. 23 rejected—was properly rejected by the R. & R.. 24 Plaintiff also objects to the R. & R.’s finding of failure to exhaust on the basis that 25 he exhausted the administrative remedies that were “effectively available to him” because 26 he was directed by prison officials not to resubmit his grievance. (ECF No. 64 at 5–7). 27 However, according to the record, this “direction” to not resubmit grievances appears to 28 have resulted from Plaintiff’s untimeliness, not because of some impediment that made the 1 process unavailable. See Woodford v. Ngo,

, 94–95 (2006) (rejecting 2 prisoner’s argument that administrative remedies were unavailable when the prisoner filed 3 untimely grievance, stating that “[t]he benefits of exhaustion can be realized only if the 4 prison grievance system is given a fair opportunity to consider the grievance” by 5 “compl[ying] with the system’s critical procedural rules”). The Court overrules Plaintiff’s 6 objection. 7 Finally, Plaintiff states that he “apologi[zes] to the Court” for not filing a “statement 8 of genuine dispute” because Plaintiff “thought that he ha[d] been genuinely disputing the 9 Defendant’s action throughout this whole process” and “ask[s] this Court not to assume 10 that the material facts are without controversy.” (ECF No. 64 at 7–8). However, Plaintiff 11 raises no specific objection to the R. & R.’s findings on this basis. Because of Plaintiff’s 12 failure to submit a Statement of Genuine Disputes, the Magistrate Judge “assume[d] that 13 the material facts as claimed and adequately supported by [Defendants were] admitted to 14 exist without controversy[.]” (R. & R. at 23). Notwithstanding, the Magistrate Judge 15 16 liberally construed Plaintiff’s opposition to the motion for summary judgment to determine 17 whether it raised a genuine issue of material fact, and reasonably found it did not. (Id. at 18 23–28). The Court agrees with that assessment. 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // | || Accordingly, each of Plaintiffs objections are overruled. For the foregoing reasons: 2 (1) The Report and Recommendation is accepted and adopted; 3 (2) Defendants’ motion for summary judgment, (ECF No. 48), is granted on the 4 grounds explained in the Report; and 5 (3) The First Amended Complaint is dismissed without prejudice for failure to 6 exhaust administrative remedies. 7 8 || IT IS SO ORDERED. 9 10 || DATED: March 20, 2024 11 ha 12 13 HON. SHERILYN PEACE GARNETT 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28