(PC) Gonzales v. Antwan

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TONY CHRISTOPHER GONZALES, No. 1:24-cv-00539 KES GSA (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 12 v. (ECF No. 14) 13 ANTWAN,

14 Defendant. 15 16 17 Plaintiff, a former state prisoner proceeding pro se, has filed this civil rights action 18 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States magistrate 19 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 10, 2024, the assigned magistrate judge issued findings and recommendations 21 recommending that this matter be summarily dismissed for failure to exhaust administrative 22 remedies. Doc. 14. Those findings and recommendations were served on plaintiff and contained 23 notice that any objections thereto were to be filed within fourteen days. Id. On September 3, 24 2024, plaintiff filed objections to the findings and recommendations.1 Doc. 15.

25 1 Plaintiff appears to indicate that he was delayed in filing his objections to the magistrate judge’s findings and recommendations because the response to his administrative appeal was sent to the 26 wrong facility. Plaintiff does not allege that the findings and recommendations were delayed in 27 reaching him. In any event, as addressed below, plaintiff’s objections and the attachments thereto confirm that plaintiff did not exhaust his administrative remedies prior to filing this action. 28 1 With his objections, plaintiff attaches an administrative decision from the California 2 Correctional Healthcare Services (Headquarters’ Level Response), dated August 14, 2024, 3 indicating that “[t]his decision exhausts [plaintiff’s] administrative remedies.” Id. at 6. The 4 decision appears to indicate that plaintiff exhausted his administrative remedies as of August 14, 5 2024. However, plaintiff filed the complaint on May 7, 2024. See Doc. 1. Therefore, the 6 requirement that “a prisoner must exhaust his administrative remedies for the claims contained 7 within his complaint before that complaint is tendered to the district court” remains unsatisfied. 8 Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010). Although “[a] plaintiff who was a 9 prisoner at the time of filing his suit but was not a prisoner at the time of his operative complaint 10 is not subject to a PLRA exhaustion defense,” Jackson v. Fong, 870 F.3d 928, 937 (9th Cir. 11 2017), that is not the situation here. In Jackson, the plaintiff was not a prisoner when he filed his 12 operative amended complaint. Id. In contrast, the operative complaint here was filed when 13 plaintiff was in custody.2 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de 15 novo review of this case. Having carefully reviewed the file, the Court concludes that the 16 findings and recommendations are supported by the record and proper analysis. 17 Accordingly: 18 1. The findings and recommendations issued July 10, 2024, Doc. 14, are adopted in 19 full. 20 2. This matter is dismissed without prejudice for failure to exhaust administrative 21 remedies. To the extent plaintiff later exhausted his administrative remedies in 22 August 2024, he may refile in a new case a complaint asserting his claim. 23 3. The Clerk of the Court shall update plaintiff’s address on the docket to the 24 following: 447 E. Rialto Ave., Apt. 10, San Bernardino, CA 92408. The Clerk 25 shall serve a copy of this Order on plaintiff at that address. 26 27 2 Plaintiff’s objections also noted that he “will be released out of custody on 9-8-2024.” Doc. 15 at 1. Plaintiff requested that mailings to him after that date be sent to his updated address: 447 E. 28 Rialto Ave., Apt. 10, San Bernardino, CA 92408. Id. at 1–2. 1 4. The Clerk of the Court is directed to close this case. 2 3 4 | ISSO ORDERED. _ 5 Dated: _ June 11, 2025 4h ‘ UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28