Smith v. Hutchinson et al

Filing 53

FINDINGS and RECOMMENDATIONS to Grant Plaintiff's 52 Motion to Dismiss Defendant J. Acebedo; FINDINGS and RECOMMENDATIONS to Deny 39 Defendant J. Acebedo's Motion for Summary Judgment as Moot, signed by Magistrate Judge Jeremy D. Peterson on 11/20/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 TOY TERRELL SMITH, Plaintiff, 10 11 12 Case No. 1:16-cv-01924-LJO-JDP FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFF’S MOTION TO DISMISS DEFENDANT J. ACEBEDO v. J. TORRES, et al., ECF No. 52 Defendants. 13 FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANT J. ACEBEDO’S MOTION FOR SUMMARY JUDGMENT AS MOOT 14 15 ECF No. 39 16 14-DAY DEADLINE 17 18 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in this 19 civil rights action brought under 42 U.S.C. § 1983. On July 20, 2018, defendant J. Acebedo 20 moved for summary judgment. ECF No. 39. On November 5, 2018, plaintiff filed a motion to 21 withdraw claims against defendant J. Acebedo. ECF No. 52. Plaintiff indicates that he does 22 not intend to file an opposition to the pending motion for summary judgment on the issue of 23 exhaustion of administrative remedies because J. Acebedo’s arguments are “well founded and 24 true.” Id. 25 Where a motion for summary judgment has been served and a stipulation of dismissal 26 has not been filed, plaintiff may request dismissal by court order. See Fed. R. Civ. P. 41(a). 27 The court may issue a dismissal order on terms it considers proper. See Fed. R. Civ. P. 28 41(a)(2). Here, plaintiff requests dismissal of claims against J. Acebedo because he failed to 1 1 properly exhaust his claims against J. Acebedo. See ECF No. 52. When a plaintiff has failed to 2 exhaust as required by 42 U.S.C. § 1997e(a), the proper remedy is dismissal without prejudice. 3 See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005). Accordingly, we will recommend 4 that the claims against defendant J. Acebedo be dismissed from this case without prejudice. If 5 this recommendation is adopted, the pending motion for summary judgment filed solely by J. 6 Acebedo should be denied as moot. 7 Accordingly, it is recommended that: 8 1. Plaintiff’s motion to dismiss claims against J. Acebedo be granted. ECF No. 52. 9 2. The claims against defendant J. Acebedo be dismissed without prejudice. 10 3. Defendant J. Acebedo’s motion for summary judgment be denied as moot. ECF No. 39. 11 These findings and recommendations are submitted to the U.S. district judge presiding 12 13 over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 14 days of the 14 service of the findings and recommendations, the parties may file written objections to the 15 findings and recommendations with the court and serve a copy on all parties. That document 16 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 17 presiding district judge will then review the findings and recommendations under 28 U.S.C. 18 § 636(b)(1)(C). The parties’ failure to file objections within the specified time may waive their 19 rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 20 21 IT IS SO ORDERED. 22 Dated: November 20, 2018 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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