1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 RICKY DILLINGHAM, Case No. CV 24-02966-JGB (AS) 11 Plaintiff, ORDER ACCEPTING IN PART AND 12 v. REJECTING IN PART FINDINGS, 13 K. MILLS, et, al., CONCLUSIONS AND RECOMMNEDATIONS OF 14 Defendants. UNITED STATES MAGISTRATE JUDGE 15 16 Pursuant to

, the Court has reviewed the 17 Complaint, all of the records herein, and the Report and 18 Recommendation of a United States Magistrate Judge (“R&R”). After 19 having made a de novo determination of the portions of the Report 20 and Recommendation to which Objections were directed, the Court 21 concurs with and accepts, in part, and rejects, in part, the 22 findings and conclusions of the Magistrate Judge. 23 24 The Magistrate Judge recommends that Defendants’ Motion to 25 Dismiss be granted and the Complaint be dismissed without leave to 26 amend, on the grounds that Plaintiff failed to state a claim for 27 violation of due process and failed to exhaust available 28 administrative remedies with respect to his Eighth Amendment claim 1 against Defendants Mills, Williams, Solario, and Anderson. (See 2 R&R at 7-23). As to the latter claim, the Magistrate Judge 3 reasonably concluded that Plaintiff’s failure to exhaust was 4 evident on the face of the Complaint, given that Plaintiff had 5 referenced only one relevant first-level grievance, dated September 6 28, 2023, and it did not give legally sufficient notice of the 7 issue underlying his Eighth Amendment claim. (R&R at 17-22; see 8 Compl. at 7-8, 10-11, 30-31; Opposition at 9-10). 9 10 However, in his Objections, Plaintiff now states that he 11 exhausted his Eighth Amendment claim in a different administrative 12 grievance, dated September 30, 2023, which allegedly never received 13 a response from the grievance office despite a follow-up inquiry 14 from Plaintiff three months later. (Objections at 4-5). A copy of 15 this grievance is attached to the Objections; it asserts an Eighth 16 Amendment violation by Defendants Mills and Anderson. (Objections 17 Ex. A). 18 19 It is unclear why Plaintiff did not previously mention this 20 grievance, either in his Complaint or his Opposition to Defendants’ 21 Motion. Nonetheless, it is within this Court’s discretion to accept 22 new evidence or argument submitted with objections. Jones v. 23 Blanas,

(9th Cir. 2004); United States v. Howell, 24

(9th Cir. 2000); see also

(b)(1) 25 (district court judge “may also receive further evidence”). Because 26 Plaintiff’s new evidence plausibly demonstrates that he exhausted 27 his Eighth Amendment claim against Defendants Mills and Anderson 28 (but not the other two Defendants) – and thus undermines the 1 Magistrate Judge’s conclusion that such claim warrants dismissal 2 on its face – the Court finds it appropriate to consider it. 3 4 Defendants argue that if the Court considers the new evidence, 5 the Complaint’s Eighth Amendment claim against Mills and Anderson 6 still warrants dismissal, albeit with leave to amend, apparently 7 because the Complaint itself failed to reference this other 8 grievance. (See Docket No. 32 at 1-2, 6-7). However, Plaintiff is 9 not required to affirmatively plead or demonstrate exhaustion. See 10 Nunez v. Duncan,

(9th Cir. 2010). Thus, 11 while Plaintiff’s silence regarding this other grievance, both in 12 his Complaint and his Opposition to the Motion, misled the 13 Magistrate Judge to conclude - mistakenly, as to Mills and Anderson 14 – that a failure to exhaust was clear on the face of the Complaint, 15 the Complaint’s Eighth Amendment claim itself is not deficient, at 16 least as to Mills and Anderson. On the other hand, as it remains 17 clear that Plaintiff did not exhaust his claim as to Defendants 18 Williams and Solorio, dismissal remains appropriate on that basis. 19 20 The Court therefore declines to accept the Magistrate Judge’s 21 recommendation to dismiss Plaintiff’s Eighth Amendment claim 22 against Defendants Mills and Anderson, but otherwise concurs with 23 and accepts the findings and conclusions of the Magistrate Judge. 24 Plaintiff’s other objections regarding such findings and 25 conclusions do not merit discussion and are overruled. 26 27 IT IS ORDERED that (1) Defendants’ Motion to Dismiss is 28 GRANTED, IN PART, AND DENIED, IN PART, as follows: (a) the Motion 1 |} is GRANTED to the extent that Plaintiff's due process claim is 2 || dismissed without leave to amend as to all Defendants; and his 3 || Eighth Amendment claim is dismissed without leave to amend, but 4 || without prejudice, as to Defendants Williams and Solorio;! and (b) 5 |} the Motion is otherwise DENIED. 6 7 Defendants Mills and Anderson are ORDERED to file an Answer 8 || to the Complaint’s Eighth Amendment claim no later than thirty (30) 9 || days from the date of this Order. 10 11 IT IS FURTHER ORDERED that the Clerk serve copies of this 12 || Order and the Magistrate Judge’s Report and Recommendation on 13 |} Plaintiff and counsel for Defendants. 14 DATED: March 5, 2025 15 16 ' Z, 17 a aa SUS G. BERNAL 18 UNITEDPSSTATES DISTRICT JUDGE 19 20 21 22 23 24 1 See Vaden v. Summerhill,

(9th Cir. 2006) 25 (dismissal for failure to exhaust administrative remedies is without prejudice); McKinney v. Carey,

(9th 26 || Cir. 2002) (per curiam) (prisoner’s failure to exhaust administrative remedies prior to presenting a claim to a federal 27 || court requires dismissal without prejudice under 42 U.S.C. § 1997e(a)). 28