Sutton v. Giessner, et al.

Filing 50

ORDER signed by Chief District Judge Kimberly J. Mueller on 4/1/2021 ADOPTING 40 The Findings and Recommendations in full; GRANTING 28 Defendants' Motion for Summary Judgment and DISMISSING Plaintiff's claim against them without prejudice for failure to exhaust administrative remedies; and The clerk of the court shall close this case. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KARIMI SUTTON,

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No. 2:16-cv-2369-KJM-EFB P

Plaintiff,
v.

ORDER

G. GEISSNER, et al.,
Defendants.

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

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

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

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On May 13, 2020, the magistrate judge filed findings and recommendations, which were

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

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and recommendations were to be filed within fourteen days. After extensions of time, plaintiff

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has filed objections to the findings and recommendations and defendants have responded to those

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objections. ECF Nos. 44, 49.

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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 reviewed the file, the court finds the

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

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court writes separately here to address plaintiff’s objection that he did exhaust the claims in
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grievance number HDSP-D-15-01267. See generally Objections, ECF No. 44. That grievance

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bypassed the first level of review and was granted in part and denied in part at the second level.

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See id. (citing Opp’n Ex. D, ECF No. 37). Plaintiff’s third-level appeal was cancelled for

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exceeding time limits, and he did not appeal the cancellation. See Spaich Decl. Ex. C, ECF

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No. 28-5. The magistrate judge therefore correctly found that plaintiff had not exhausted his

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administrative remedies, as required by the Prison Litigation Reform Act. See, e.g., Vaughn v.

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Hood, No. 14-2235, 2015 WL 5020691, at *8–9 (E.D. Cal. Aug. 21, 2015), aff’d, 670 F. App’x

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962 (9th Cir. 2016) (unpublished); see also Woodford v. Ngo, 548 U.S. 81, 90 (2006). Plaintiff

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argues in objection to the magistrate judge’s findings and recommendations that correctional staff

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prevented him from filing a timely appeal. He could have raised that claim in an appeal of the

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cancellation decision, but he did not do so.

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Given the court’s resolution of plaintiff’s objection, defendant’s request for a hearing is
moot.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed May 13, 2020, are adopted in full;

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2. Defendants’ motion for summary judgment (ECF No. 28) is GRANTED and plaintiff’s

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claim against them are DISMISSED without prejudice for failure to exhaust administrative

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remedies; and

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3. The clerk of the court shall close this case.
DATED: April 1, 2021.

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