McCullough v. Federal Bureau of Prisons, et al

Filing 117

ORDER ADOPTING 111 FINDINGS AND RECOMMENDATIONS Recommending Granting Defendant's 97 Motion to Dismiss, signed by Senior Judge Oliver W. Wanger on 9/16/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERRY ADRON MCCULOUGH,

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CASE NO. 1:06-cv-00563-OWW-GBC (PC)

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATION RECOMMENDING
GRANTING DEFENDANT’S MOTION TO
DISMISS

v.

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FEDERAL BUREAU OF PRISONS, et al.,
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(ECF No. 111)
Defendants.
/

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ORDER

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Plaintiff Perry Adron McCulough (“Plaintiff”) is a federal prisoner proceeding pro se

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and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named

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Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for

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violation of civil rights by federal actors. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 12, 2011, the Magistrate Judge filed a Findings and Recommendation
recommending that Defendant Federal Bureau of Prison’s Motion to Dismiss for failure to

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exhaust administrative remedies be granted. (ECF No. 111.) On September 13, 2011,

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Plaintiff filed his Objections to the Findings and Recommendation. (ECF No. 116.)

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In his Objection, Plaintiff again makes the futility argument, stating that because all

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of his requests were denied, any grievance he filed would have been denied too. The

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argument is not persuasive. As the Magistrate Judge explained in the Findings and

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Recommendation, futility is not an exception to the exhaustion requirement. Booth v.

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Churner, 532 U.S. 731, 741 n. 6 (2001) (“[W]e will not read futility or other exceptions into

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statutory exhaustion requirements where Congress has provided otherwise.”); see also

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Tatum v. Rosario, 2005 WL 2114190, *2 n. 4 (E.D. Cal. Sep. 1, 2005).

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 305,

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this Court has conducted a de novo review of this case. Having carefully reviewed the

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entire file, the Court finds the Findings and Recommendation to be supported by the record

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and by proper analysis. Thus, Defendant Federal Bureau of Prison’s Motion to Dismiss

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is granted. Defendant Federal Bureau of Prisons and all claims against it are dismissed

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from this action without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:
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1.

The Findings and Recommendation, filed August 12, 2011, is adopted in full;

2.

All claims against Defendant Federal Bureau of Prisons are DISMISSED

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WITHOUT PREJUDICE for failure to exhaust administrative remedies; and
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Defendant Federal Bureau of Prisons is DISMISSED from this action.IT IS
SO ORDERED.

Emm0d6Dated:

September 16, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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