Opinion
2:21-01417 SSS (ADS)
07-15-2022
JOE NAVARRO, Plaintiff, v. R.C. JOHNSON, et al., Defendants.
ORDER ACCEPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
THE HONORABLESUNSHINE S. SYKES, United States District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Civil Rights Complaint and the Report and Recommendation of United States Magistrate Judge. No objections were filed, and the time to do so has passed. The Court accepts the findings and recommendations of the Magistrate Judge. // // //
Accordingly, IT IS HEREBY ORDERED:
1. The Report and Recommendation is accepted, (Dkt. No. 28);
2. This action is dismissed without prejudice for failure to exhaust administrative remedies as required under the Prison Litigation Reform Act; and
The Report and Recommendation's introduction contains a typographical error where it states the recommendation is a dismissal with prejudice. (Dkt. No. 28 at 2.) There is no reference or analysis in the Report and Recommendation suggesting the dismissal is with prejudice. Dismissal for failure to exhaust administrative remedies under the Prison Litigation Reform Act must be without prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“[A] district court must dismiss a case without prejudice ‘when there is no presuit exhaustion,' even if there is exhaustion while suit is pending.” (quoting McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002))).
3. Judgment is to be entered accordingly.