Briones v. Pleasant Valley State Prison et al

Filing 49

ORDER DISMISSING CASE WITHOUT PREJUDICE signed by Chief Judge Lawrence J. O'Neill on 10/11/2016. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:14-cv-00750-LJO-EPG (PC)

JOHNNY G. BRIONES,
Plaintiff,

ORDER DISMISSING CASE WITHOUT
PREJUDICE
(ECF NO. 45)

v.
PLEASANT VALLEY STATE PRISON, et
al.,
Defendants.

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Johnny Briones (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983.

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Amended Complaint (ECF No. 31). On May 9, 2016, Magistrate Judge Erica P. Grosjean

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issued Findings and Recommendations, finding some cognizable claims against some of the

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defendants (ECF No. 40). On June 8, 2016, District Judge Lawrence J. O’Niell entered an

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order adopting the Findings and Recommendations in full (ECF No. 42), and the United States

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Marshal Service was directed to serve the Second Amended Complaint on the remaining

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defendants (ECF No. 43).

On February 13, 2015, Plaintiff filed the Second

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On August 19, 2016, defendants C. Cole, C. Hendricks, and R. Hand (“Defendants”)

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filed a motion to dismiss the Second Amended Complaint on the ground that Plaintiff failed to

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exhaust his administrative remedies prior to filing suit. ECF No. 45. On September 6, 2016,

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Plaintiff filed a statement of non-opposition to the motion to dismiss, asking the Court to

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dismiss the Second Amended Complaint without prejudice until such time as Plaintiff can show

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that he satisfied the exhaustion requirement. (ECF No. 48).
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When a plaintiff in a § 1983 action fails to exhaust his administrative remedies before

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filing suit, his or her case must be dismissed without prejudice. McKinney v. Carey, 311 F.3d

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1198.

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Because Defendants have asserted that Plaintiff has failed to exhaust his administrative

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remedies, and because Plaintiff does not oppose Defendants’ motion to dismiss on this ground,

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IT IS ORDERED that this case is DISMISSED WITHOUT PREJUDICE.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

October 11, 2016

UNITED STATES CHIEF DISTRICT JUDGE

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