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