Stratmon v. Tucker et al

Filing 62

ORDER REGARDING 61 Notice of Exhaustion of Administrative Remedy signed by Magistrate Judge Stanley A. Boone on 4/26/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID L. STRATMON, JR.,

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Plaintiff,
v.
ANGELA MORRIS,
Defendant.

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Case No.: 1:12-cv-01837-DAD-SAB (PC)
ORDER REGARDING NOTICE OF
EXHAUSTION OF ADMINISTRATIVE REMEDY
[ECF No. 61]

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Plaintiff David L. Stratmon, Jr. is a federal prisoner proceeding pro se in this civil rights action

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pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

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(1971). This matter proceeds on Plaintiff’s claim that Defendant Morris interfered with his receipt of

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incoming mail and failed to notify him that his mail was being withheld. This matter was referred to

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the undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.

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On April 24, 2017, Plaintiff filed a “motion exhaustion of administrative remedy,” dated April

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16, 2017. (ECF No. 61.) Plaintiff asserts in the motion that, per policy and procedure, he exhausted his

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administrative remedy regarding his claim against Defendant Morris in this case. The Court construes

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Plaintiff’s motion as a notice of exhaustion of administrative remedies.

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When exhaustion of administrative remedies is not jurisdictional, it is an affirmative defense

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that a defendant has the burden of raising and proving. Jones v. Bock, 549 U.S. 199, 216 (2007). On

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May 18, 2015, Defendant filed a motion for partial summary judgment pursuant to Federal Rule of

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Civil Procedure 56, based on Plaintiff’s alleged failure to properly exhaust his administrative remedies

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prior to filing suit. (ECF No. 26.) Plaintiff’s exhaustion of the available administrative remedies with
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respect to the claims this matter proceeds upon were addressed in that motion. (See ECF No. 46, pp. 8-

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9.) On January 4, 2017, the District Judge granted Defendant’s motion in part, and referred this matter

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to the undersigned for further proceedings on the above-described claim. Thus, the issue of whether

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Plaintiff has exhausted administrative remedies for the claim that this matter proceeds upon has been

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resolved.
Accordingly, no further action need be taken regarding Plaintiff’s notice.

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IT IS SO ORDERED.

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Dated:

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April 26, 2017
UNITED STATES MAGISTRATE JUDGE

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