Walker v. Mohadjer et al

Filing 127

ORDER signed by Magistrate Judge Allison Claire on 9/26/16 ORDERING that plaintiff's request for extension of time, ECF No. 126 , is construed as an objection to the magistrate judges recommendation that this action be dismissed without prejudice, ECF No. 125 , and to any and all findings and fact and conclusions of law on which that recommendation is based. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY E. WALKER,

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Plaintiff,

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No. 2:13-cv-1193 WBS AC P

v.

ORDER

MOHADJER, et al.,

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Defendants.

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On September 2, 2016, the undersigned issued Findings and Recommendations

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recommending that defendants’ motion for summary judgment be granted on the ground that

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plaintiff failed to exhaust administrative remedies prior to filing suit. ECF No. 125. Plaintiff has

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filed a request for extension of time to respond to the court’s Findings and Recommendations.

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ECF No. 126. In his request, plaintiff asserts that he will be able to prove exhaustion once he

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receives a copy of the “appeals filed Dec 2012 to Nov 2013 in the possession of the Deputy

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Attorney General.”1 Id. at 1. Plaintiff asserts that in his objections, he intends to address the fact

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that a claim is deemed exhausted where there is “no remedy left to resolve,” and that “staff can’t

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pick and [choose] what are staff complaints.” Id.

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Plaintiff explains that he had copies of the requested appeals, but lost them when he was
released from jail and transferred to “a hospital setting.” See ECF No. 1 at 1.

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Plaintiff is advised that detailed legal arguments are not necessary in order for plaintiff to

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object to the Findings and Recommendations. Moreover, review of the September 2, 2016

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Findings and Recommendations in this case (ECF No. 125) demonstrates that the undersigned’s

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recommendation this action be dismissed without prejudice is mandated by applicable legal

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principles based on undisputed facts. There are no foreseeable grounds upon which plaintiff can

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reasonably refute the pertinent facts or dispute the binding legal authority. To the extent plaintiff

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asserts that his claims are exhausted because there was “no remedy left” and staff inappropriately

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designated his appeals as staff complaints, plaintiff already raised these arguments in his

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opposition to defendants’ motion for summary judgment. See ECF No. 123 at 2-4. Moreover,

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with respect to exhaustion, the problem with plaintiff’s appeals is that the relevant appeals were

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filed too late, i.e. after plaintiff initiated this civil rights action. See ECF No. 125 at 11-13. There

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is no reason to believe plaintiff will be able to refute this conclusion if he is provided with

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additional copies of his appeals.

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Nonetheless, in order to protect plaintiff’s rights, secure independent review by the

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assigned district judge, and preserve issues for appeal, the court will construe plaintiff’s request

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for an extension of time as an objection to the recommendation that this action be dismissed

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without prejudice, and to any and all findings and fact and conclusions of law on which that

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recommendation is based. Plaintiff need take no further action in order for his objections to be

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considered. The district court will consider the arguments that plaintiff has previously made

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regarding exhaustion of administrative remedies, and will review the issue de novo.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for extension of time, ECF No. 126, is construed as an objection to

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the magistrate judge’s recommendation that this action be dismissed without prejudice, ECF No.

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125, and to any and all findings and fact and conclusions of law on which that recommendation is

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based.

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DATED: September 26, 2016

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