Wright v. Fields, et al

Filing 49

ORDER signed by District Judge Kimberly J. Mueller on 3/27/2017 ADOPTING IN FULL 45 Findings and Recommendations; GRANTING 20 Motion for Summary Judgment; DISMISSING the plaintiff's claims against the defendants, without prejudice, for failure to exhaust administrative remedies. CASE CLOSED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL WEBSTER WRIGHT,

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No. 2:15-cv-2291-KJM-EFB P

Plaintiff,

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v.

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D. FIELDS, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge in

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accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 10, 2017, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Plaintiff and defendant

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Darling have filed objections to the findings and recommendations and defendant Fields has filed

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a response to plaintiff’s objections.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the file, the court

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finds the findings and recommendations to be supported by the record and by proper analysis.

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Resolution of defendant Darling’s objection that dismissal of this action should be with prejudice
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is controlled by Lira v. Herrera, which requires dismissal of “a case without prejudice ‘when

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there is no presuit exhaustion,’. . . .” 427 F.3d 1164, 1170 (9th Cir. 2005) (quoting McKinney v.

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Carey, 311 F.3d 1198, 1200 (9th Cir. 2002)).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 10, 2017, are adopted in full; and

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2. Defendants’ motion for summary judgment (ECF No. 20) is granted and plaintiff’s

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claims against defendants are dismissed without prejudice for failure to exhaust administrative

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remedies.

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DATED: March 27, 2017

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UNITED STATES DISTRICT JUDGE

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