Bontemps v. Callison

Filing 41

ORDER signed by Magistrate Judge Allison Claire on 3/2/2015 ORDERING that plaintiff's 38 motion for an extension of time is DENIED; plaintiff's 39 motion to stay this action is DENIED; plaintiff's proposed First Amended Complaint 40 is DISREGARDED; and plaintiff's recent filings ECF Nos. 38-40, are construed as plaintiff's objections to the court's 2/12/2015 Findings and Recommendations. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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No. 2:13-cv-0360 KJM AC P

Plaintiff,

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v.

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C/O CALLISON,

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ORDER

Defendant.

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Plaintiff has filed three documents in response to the undersigned’s Findings and

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Recommendations filed February 12, 2015, which recommend dismissal of this action for failure

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to exhaust administrative remedies. See ECF No. 37. Plaintiff was accorded twenty-one days to

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file objections to the Findings and Recommendations. In response, plaintiff has filed a motion for

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a thirty-day extension of time to file and serve his objections, ECF No. 38; a motion to stay this

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action for thirty days, ECF No. 39; and a proposed First Amended Complaint (FAC), ECF No.

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40, which mirrors the operative complaint, ECF No. 1. Despite these multiple filings, plaintiff

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asserts that he requires additional time to file objections because he is in administrative

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segregation without access to legal materials for the next thirty days.

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The undersigned previously found that this action “is one of those rare cases in which

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dismissal for non-exhaustion is appropriate under Rule 12(b)(6),” based on plaintiff’s concession

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on the face of his complaint that he did not exhaust available administrative remedies. See ECF

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No. 37 at 4 (citing Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014)). The court rejected

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plaintiff’s contention that claims under the Americans with Disabilities Act (ADA) are exempt

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from the requirement of administrative exhaustion. Moreover, the court clarified that plaintiff’s

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claims were not grounded in the ADA but in the First and Eighth Amendments to the United

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States Constitution. ECF No. 37 at 4. Nevertheless, plaintiff again asserts in his proposed FAC

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that his claims are premised on the ADA and exempt from administrative exhaustion. Plaintiff’s

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argument demonstrates the futility of further amendment and/or further time to file objections to

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the court’s Findings and Recommendations. The undersigned finds that further briefing in this

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action would be futile, and therefore construes plaintiff’s current filings as his objections to the

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court’s Findings and Recommendations.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for an extension of time (ECF No. 38) is denied;

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2. Plaintiff’s motion to stay this action (ECF No. 39) is denied;

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3. Plaintiff’s proposed First Amended Complaint (ECF No. 40) is disregarded; and

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4. Plaintiff’s recent filings, ECF Nos. 38-40, are construed as plaintiff’s objections to the

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court’s Findings and Recommendations filed February 12, 2015.

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DATED: March 2, 2015

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