No. CV 15-4925-JLS (PLA)
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
On December 15, 2016, the United States Magistrate Judge issued a Final Report and Recommendation in this action, recommending that defendant's Motion for Summary Judgment be granted and the action dismissed for failure to exhaust administrative remedies. Following an extension of time, plaintiff filed objections to the Report and Recommendation on January 17, 2017 (ECF No. 52), to which defendant filed a response on February 2, 2017 (ECF No. 53). Plaintiff then filed a Reply on February 13, 2017 (ECF No. 54). / / /
In his "Reply," plaintiff once again argues that "it was impossible to retrieve the necessary paperwork" to exhaust, and that he "did send letters to Chief of Appeals." (ECF No. 54 at 2). He also states that he has "no proof other than himself," but that his 602 form "clearly shows that plaintiff stated on his 602 [he] has problems." (Id. at 3, 6). As stated in the Final Report and Recommendation, "plaintiff's exhibits include a document with a date of February 3, 2015, in which plaintiff seeks to discover the current status of his Appeal, but this letter does not mention any problems that plaintiff was having in obtaining supporting documents." (ECF No. 46 at 10, citing ECF No. 37-2 at 11). Accordingly, plaintiff still has failed to point to any evidence that prison officials prevented him from obtaining the documents necessary to properly complete his grievance, or that he made any attempt to timely comply with the instructions on his rejected Appeal.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Third Amended Complaint, the other records on file herein, the Magistrate Judge's Final Report and Recommendation, plaintiff's Objections to the Final Report and Recommendation, defendant's response to plaintiff's Objections, and plaintiff's reply thereto. The Court has engaged in a de novo review of those portions of the Final Report and Recommendation to which objections have been made. The Court accepts the recommendations of the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Final Report and Recommendation is accepted.
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2. Defendant's Motion for Summary Judgment is granted.
3. Plaintiff's action is dismissed without leave to amend and without prejudice for failure to exhaust administrative remedies.
4. Judgment shall be entered consistent with this Order.
5. The clerk shall serve this Order and the Judgment on all counsel or parties of record.
DATED: April 25, 2017
HONORABLE JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE