Johnson v. Figueroa et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATION for 40 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 5/20/14. (jw)

IN THE UNITED STATE DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DAVID JOHNSON,
Plaintiff,
v.
WARDEN FIGUEROA, et al.,
Defendant.

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CIV-12-1056-R

ORDER
Plaintiff, a California state prisoner appearing pro se, filed this action alleging
violation of his rights during his confinement. Pursuant to 28 U.S.C. § 636(b)(1)(B), the
matter was referred to United States Magistrate Judge Shon T. Erwin for preliminary review.
On April 28, 2014, Judge Erwin issued a Report and Recommendation wherein he
recommended that the action be dismissed without prejudice and without leave to amend.
He issued an addendum to the Report and Recommendation on April 29, 2014, extending
Plaintiff's time to object to May 16, 2014. The matter is currently before the Court on
Plaintiff's timely objection to the Report and Recommendation.
Judge Erwin's recommendation was based on Plaintiff's failure to exhaust his
administrative remedies via the procedure established by the California Department of
Corrections. Plaintiff does not contend Judge Erwin applied the incorrect law or that he drew
erroneous factual conclusions from the information presented by the parties. Rather, he
contends that "[a]t no time did the administration demonstrate a genuine willingness to
address Plaintiff's demand for compensation for his injuries although the administration was

fully aware that such relief was sought." He contends Department of Corrections officials
were more concerned with erecting barriers than addressing his complaints.
The Court concurs with Judge Erwin's recommendation that this action be dismissed
without prejudice, and further that leave to amend be denied. As noted by Judge Erwin, any
attempt by Plaintiff to reintroduce claims pursuant to 42 U.S.C. § 1983 would fail for the
same reason, that is because Plaintiff did not exhaust as required by 42 U.S.C. § 1997e(a).
For the reasons set forth herein, the Report and Recommendation is hereby
ADOPTED in its entirety and this action is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 20th day of May, 2014.

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