McGee v. Unknown

Filing 5

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/4/2013 ORDERING that plaintiff's 4 motion to stay this action is DENIED; and the Clerk is directed to appoint a district judge to this action; and RECOMMENDING that this action be dismissed without prejudice. Assigned and Referred to Judge John A. Mendez; Objections due within 14 days.(Yin, K)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

JAMES H. McGEE,

11
12
13
14
15
16

Plaintiff,

No. 2:13-cv-0173 KJN P

vs.
UNKNOWN,

ORDER and
Defendant.

FINDINGS AND RECOMMENDATIONS
/

By order filed February 6, 2013, this court directed plaintiff to file a cognizable

17

complaint or a request that this action be closed, because the court’s review of plaintiff’s initially

18

filed “letter” indicated that plaintiff failed to exhaust his administrative remedies. (See Dkt. No.

19

3.) In response, plaintiff plainly states that he has not exhausted his administrative remedies, and

20

requests that the court stay this action pending such exhaustion. (Dkt. No. 4.)

21

The Prison Litigation Reform Act requires that a prisoner exhaust his available

22

administrative remedies before bringing a federal civil rights action. See 42 U.S.C. § 1997e(a);

23

Brown v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005); Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th

24

Cir. 2009). The district court must dismiss an action where it is clear from the face of the

25

complaint that plaintiff failed to exhaust his administrative remedies prior to filing suit. 42

26

U.S.C. § 1997e(a); McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir. 2002) (per curiam);
1

1

Wyatt v. Terhune, 315 F.3d 1108, 1120 (“A prisoner’s concession to nonexhaustion is a valid

2

grounds for dismissal. . . .”); see also Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

3

For these reasons, the court must dismiss the instant action. This result does not,

4

however, preclude plaintiff from filing a new action after he has exhausted his administrative

5

remedies.

6

Accordingly, IT IS HEREBY ORDERED that:

7

1. Plaintiff’s motion to stay this action (Dkt. No. 4), is denied; and

8

2. The Clerk of Court is directed to appoint a district judge to this action.

9

In addition, IT IS HEREBY RECOMMENDED that this action be dismissed

10

without prejudice.

11

These findings and recommendations are submitted to the United States District

12

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

13

after being served with these findings and recommendations, plaintiff may file written objections

14

with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

15

and Recommendations.” Plaintiff is advised that failure to file objections within the specified

16

time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

17

(9th Cir. 1991).

18

DATED: March 4, 2013

19
20

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

21
22

mcge0173.scrn.fail.exh

23
24
25
26
2