(PC) White-Soto v. Starr

Filing 66

ORDER ADOPTING Findings and Recommendations GRANTING Defendant's Motion for Summary Judgment regarding exhaustion, dismissing the action and directing the Clerk of Court to close this case 33 , 65 signed by District Judge Jennifer L. Thurston on 6/5/2024. CASE CLOSED. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 YASYN WHITE-SOTO, 12 Plaintiff, 13 v. 14 STARR, 15 Defendant. 16 17 Case No. 1:19-cv-0457 JLT BAM (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT REGARDING EXHAUSTION, DISMISSING THE ACTION, AND DIRECTING THE CLERK OF COURT TO CLOSE THIS CASE (Docs. 33, 65) Yasyn White-Soto seeks to hold Defendant Starr liable for excessive force in violation of 18 the Eighth Amendment and retaliation in violation of the First Amendment. (Docs. 1, 9.) 19 Defendant seeks summary judgment, asserting Plaintiff failed to exhaust his administrative 20 remedies prior to filing this action. (Doc. 33.) 21 The magistrate judge found Defendant carried his burden to show Plaintiff did not exhaust 22 his administrative remedies prior to filing this action, because Plaintiff filed his complaint “during 23 the exhaustion process.” (Doc. 65 at 9.) Specifically, the magistrate judge determined that “based 24 on the undisputed evidence before the Court, Plaintiff filed this lawsuit before receiving a final 25 decision on KVSP-0-18-02867/CCI-0-18-02442.” (Id.) In addition, the magistrate judge 26 observed that after this action was initiated, “Plaintiff successfully received a decision on the 27 merits of the original grievance for the claims raised in this action.” (Id. at 10.) Because it was 28 undisputed that Plaintiff failed to exhaust his administrative remedies prior to filing suit, the 1 1 2 magistrate judge recommended the motion for summary judgment be granted. The Court served the Findings and Recommendations on Plaintiff notified him that any 3 objections were due within 14 days of the date of service. (Doc. 65 at 11.) The Court also 4 advised Plaintiff that failure to file objections by the specified time may result in the waiver of 5 rights on appeal. (Id, citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) 6 Plaintiff did not file objections, and the time to do so has expired. 7 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 8 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 9 are supported by the record and proper analysis. Thus, the Court ORDERS: 10 1. 11 The Findings and Recommendations issued May 9, 2024 (Doc. 65) are ADOPTED in full. 12 2. Defendant’s motion for summary judgment (Doc. 33) is GRANTED. 13 3. The action is DISMISSED based upon Plaintiff’s failure to exhaust administrative 14 15 remedies. 4. The Clerk of Court is directed to close this case. 16 17 18 IT IS SO ORDERED. Dated: June 5, 2024 19 20 21 22 23 24 25 26 27 28 2

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