(PC) Ford v. Fiori

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCEL D. FORD, No. 1:23-cv-00950-ADA-BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 FIORI, (ECF No. 12) 15 Defendant. ORDER DENYING PLAINTIFF’S MOTION 16 TO PROCEED AFTER EXHAUSTING ADMINISTRATIVE REMEDIES 17 (ECF No. 13) 18 19 Plaintiff Marcel D. Ford is a state prisoner proceeding pro se and in forma pauperis in this 20 civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was assigned to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). 22 On July 17, 2023, the Magistrate Judge issued an order requiring Plaintiff to show cause 23 why this action should not be dismissed for failure to exhaust administrative remedies. (ECF No. 24 9.) Plaintiff filed a response on July 27, 2023. (ECF No. 10.) 25 On July 31, 2023, the Magistrate Judge discharged the order to show cause and issued 26 findings and recommendations that recommended the Court dismiss this action, without 27 prejudice, for Plaintiff’s failure to exhaust administrative remedies. (ECF No. 12.) Instead of 28 filing objections to the findings and recommendations, Plaintiff filed a “Motion to Proceed in 1 Case 1:23-cv-00950-BAM (PC) after Plaintiff does Exhaust ‘All’ Administrative Remedies” on 2 August 11, 2023. (ECF No. 13.) In his motion, Plaintiff states that he agrees with the Magistrate 3 Judge that he filed his case prematurely without exhausting administrative remedies. He also 4 requests to proceed in this case once he has exhausted administrative remedies, within 30 to 90 5 days. Plaintiff states that his appeal/grievance has reached the Chief of Appeals in Sacramento 6 and that he will file again in the Eastern District once the appeals process is complete. 7 To the extent Plaintiff is requesting that this action remain open pending full exhaustion of 8 his administrative remedies, his request is denied. As the Magistrate Judge discussed in the 9 findings and recommendations, prisoners are required to exhaust available administrative 10 remedies prior to filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey, 311 11 F.3d 1198, 1199–1201 (9th Cir. 2002). Plaintiff has not done this, and the Court must, therefore 12 terminate this action. 13 The dismissal of Plaintiff’s action, however, is without prejudice. Once he has exhausted 14 his administrative remedies, Plaintiff may file a new action in the Eastern District. He does not 15 require this Court’s permission to do so. Once Plaintiff files a new action, the case will be 16 randomly assigned to a Magistrate Judge and given a new case number in accordance with the 17 Eastern District’s standard procedures. 18 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 19 de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s 20 motion, the Court concludes that the findings and recommendations are supported by the record 21 and proper analysis. 22 Accordingly, 23 1. Plaintiff’s motion to proceed in this case after exhausting his administrative 24 remedies, (ECF No. 13), is denied; 25 2. The findings and recommendations issued on July 31, 2023, (ECF No. 12), are 26 adopted in full; 27 3. This action is dismissed, without prejudice, due to Plaintiff’s failure to exhaust 28 administrative remedies prior to filing suit; and 1 4. The Clerk of Court is directed to close this case. 2 3 4 | ISSO ORDERED. 5 Dated: _ August 17, 2023 ‘ UNITED $TATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28