Robinson v. Taylor et al
ORDER: Granting Motion for Summary Judgment 16 ; Adopting as Modified Findings and Recommendation 27 . This matter is dismissed without prejudice. Signed on 2/6/2017 by Judge Anna J. Brown. (plb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAMEION EDWARD ROBINSON,
JAMES TAYLOR, et al.,
Magistrate Judge Thomas M. Coffin issued Findings and
Recommendation (#27) on December 27, 2016, in which he
recommended the Court grant Defendants’ Motion (#16) for Summary
Judgment and dismiss this matter with prejudice on the grounds
that Plaintiff failed to exhaust his administrative remedies and
Plaintiff’s state-law claim is barred by Eleventh Amendment
Because no objections to the Magistrate Judge's Findings and
Recommendation were filed, this Court is relieved of its
obligation to review the record de novo.
1 - ORDER
See Dawson v. Marshall,
561 F.3d 930, 932 (9th Cir. 2009).
See also United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc).
Having reviewed the legal principles de novo, the Court modifies
the Findings and Recommendation as follows:
As noted, the Magistrate Judge recommends the Court dismiss
this matter with prejudice on the grounds that Plaintiff failed
to exhaust his administrative remedies and Plaintiff’s state-law
claim is barred by Eleventh Amendment immunity.
Circuit, however, has held dismissals for failure to exhaust
administrative remedies should be without prejudice.
Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991)(“Dismissal
for failure to exhaust administrative remedies is not . . .
jurisdictional[, therefore,] . . . [t]he proper remedy is
dismissal without prejudice.”); Armstrong v. Scribner, 350 F.
App’x 186, 186 (9th Cir. 2009)(“The district court properly
determined that Armstrong failed to exhaust administrative
remedies as to his claim concerning access to a computer . . . .
However, we vacate the judgment with respect to this claim and
remand for dismissal without prejudice.”).
The Ninth Circuit has also held dismissals on the ground of
Eleventh Amendment immunity should be without prejudice.
e.g., Genevier v. United States Citizenship and Immigration Svcs,
144 F. App’x 586, 587 (9th Cir. 2005)(“The district court
properly dismissed Genevier's claims against CDSS because, as an
2 - ORDER
arm of the state, it is entitled to Eleventh Amendment immunity.
. . .
The claims against CDSS should have been dismissed without
Accordingly, the Court dismisses this matter without
The Court ADOPTS as modified Magistrate Judge Coffin’s
Findings and Recommendation (#27).
Accordingly, the Court
DISMISSES this matter without prejudice.
IT IS SO ORDERED.
DATED this 6th day of February, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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