(PC) McMillion v. Doer et al

Filing 17

ORDER VACATING 7 Findings and Recommendations, and DENYING 15 Motion for Extension of Time as Unnecessary, signed by Magistrate Judge Stanley A. Boone on 3/4/2025. (Deputy Clerk CRM)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SKYLER McMILLION,

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Plaintiff,

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v.

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J. DOER, et al.,

No. 1:24-cv-01557-KES-SAB (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS, AND DENYING
MOTION FOR EXTENSION OF TIME AS
UNNECESSARY
(ECF Nos. 7, 15)

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Defendants.

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Plaintiff is proceeding pro se and in forma pauperis in this civil rights complaint pursuant

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to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

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On December 20, 2024, the Court ordered Plaintiff to show cause why the action should

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not be dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No.

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5.) Plaintiff did not file a response, and Findings and Recommendations recommending dismissal

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of the action were issued on January 22, 2025. (ECF No. 7.)
After receiving an extension of time, Plaintiff filed a response to the now-discharged order

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to show cause, motion for 90-day extension of time for all pending deadlines, and motion to

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create a class action.1 (ECF Nos. 14, 15, 16.)

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Plaintiff’s motion for class action is addressed by separate order.

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In response to the order to show cause as the exhaustion of the administrative remedies,

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Plaintiff contends that the lack of exhaustion of the administrative remedies is not clear from the

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face of the complaint because the “administrative remedies were unavailable.” (ECF No. 13 at

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6.)2 Based on Plaintiff’s contentions in the current response to the order to show cause, the Court

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will vacate the Findings and Recommendations recommending dismissal of the action for failure

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to exhaust. (ECF No. 7.) However, because exhaustion of the administrative remedies is an

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affirmative defense, the Court makes no ruling as to whether Plaintiff has, in fact, exhausted the

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administrative remedies. Inasmuch as the Court will vacate the Findings and Recommendations

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recommending dismissal for failure to exhaust, Plaintiff’s motion for an extension of time to

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comply with all future deadlines is denied as unnecessary as there are currently no pending

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deadlines in light of this order. (ECF No. 15.) Plaintiff is advised the Court will screen his

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complaint pursuant to 28 U.S.C. § 1915A in due course.

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Accordingly, it is HEREBY ORDERED that:

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The Findings and Recommendations issued on January 22, 2025 (ECF No. 7), are
VACATED; and

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2.

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Plaintiff’s motion for an extension of time filed on March 3, 2025 (ECF No. 15) is
DENIED as unnecessary.

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IT IS SO ORDERED.
Dated:

March 4, 2025
STANLEY A. BOONE
United States Magistrate Judge

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Plaintiff also submits that there is a delay of 30 to 60 days in receipt of the mail at the United States Penitentiary in
Atwater. (ECF No. 15.)

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