Dukes v. California Department of Corrections and Rehabilitation

Filing 15

ORDER Overruling Plaintiff's Untimely 14 Objections to Findings and Recommendation, signed by Chief Judge Lawrence J. O'Neill on 8/7/19. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARNELL DUKES,

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Plaintiff,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

Case No. 1:18-cv-00288-LJO-BAM (PC)
ORDER OVERRULING PLAINTIFF’S
UNTIMELY OBJECTIONS TO
MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION
(ECF No. 14)

Defendant.

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Plaintiff Darnell Dukes is a state prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983.

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On April 3, 2019, the assigned Magistrate Judge issued an order requiring Plaintiff to show

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cause, within twenty-one days, why this action should not be dismissed, without prejudice, for

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failure to exhaust administrative remedies prior to filing suit. (ECF No. 10.) On May 29, 2019,

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after Plaintiff failed to file a response to the order to show cause, the assigned Magistrate Judge

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issued Findings and Recommendation recommending dismissal of this action, without prejudice,

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due to Plaintiff’s failure to exhaust his administrative remedies prior to filing suit. (ECF No. 11.)

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The Findings and Recommendation were served on Plaintiff and contained notice that any

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objections thereto were to be filed within fourteen (14) days after service. (Id. at 4.)

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On June 28, 2019, after Plaintiff failed to file objections during the allotted time period, the
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undersigned issued an order adopting the May 29, 2019 Findings and Recommendation in full and

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dismissing this action, without prejudice, due to Plaintiff’s failure to exhaust administrative

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remedies prior to filing suit. (ECF No. 12.)

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On July 1, 2019, Plaintiff filed untimely objections to the Magistrate Judge’s Findings and

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Recommendation. (ECF No. 14.) Though Plaintiff’s objections were untimely filed, out of an

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abundance of caution and in consideration of Plaintiff’s pro se status, the undersigned has reviewed

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the objections.

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Plaintiff’s objections assert that, after Plaintiff received the order to show cause on April 8,

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2019, Corcoran State Prison officials failed to give him sufficient access to the law library, he has

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a pending inmate appeal “regarding everything stated,” and he is in fear of his safety from prison

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staff and correctional officers. (Id.) Nevertheless, Plaintiff has failed to provide the Court with

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any evidence demonstrating that he exhausted his available administrative remedies prior to filing

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this suit. Therefore, Plaintiff’s objections do not warrant a different result or vacation of the Court’s

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June 28, 2019 order adopting the Findings and Recommendation and dismissing this action, without

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prejudice, due to Plaintiff’s failure to exhaust prior to filing suit.

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Accordingly, Plaintiff’s objections to the Magistrate Judge’s May 29, 2019 findings and
recommendations, (ECF No. 14), are HEREBY OVERRULED. This case remains closed.
IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

August 7, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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