Smith v. Pierce County Jail et al

Filing 52

ORDER denying 51 Motion for Reconsideration by Judge Franklin D. Burgess.(SPH)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This matter comes before the Court on Plaintiff's motion for reconsideration of this Court's Order declining to adopt the Report and Recommendation of the Magistrate Judge and granting Defendants' motion to dismiss for failure to exhaust administrative remedies.
Court found that the evidence reflects that Plaintiff Smith filed this lawsuit prematurely

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CHRISTOPHER LEON SMITH, Plaintiff, No. 09-5269 FDB v. PIERCE COUNTY JAIL, et al., Defendants. ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION AND GRANTING MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

and had not yet fully exhausted his administrative remedies. The Court further found the Defendants had met their burden of proving plaintiff had failed to exhaust all available administrative remedies as required by 42 U.S.C. § 1997e(a). Claims that are not exhausted must be dismissed and this Court lacks discretion to resolve those claims on the merits. See e.g., McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002). ORDER - 1

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Pursuant to Local Rules W.D. Wash. CR 7(h)(1), motions for reconsideration are disfavored, and will ordinarily be denied unless there is a showing of (a) manifest error in the prior ruling, or (b) facts or legal authority which could not have been brought to the attention of the court earlier, through reasonable diligence. Plaintiff has not made the requisite showing as to either of the grounds for reconsideration under CR 7(h)(1). (1) Plaintiff's motion for reconsideration [Dkt. # 51] is DENIED. (2) The Clerk is directed to send copies of this Order to Plaintiff, and to the Hon. J. Richard Creatura. DATED this 4th day of December, 2009.

A

FRANKLIN D. BURGESS UNITED STATES DISTRICT JUDGE

ORDER - 2