Opinion
CV 20-10093-JWH (AGR)
09-27-2022
OMAR AGEEL, Plaintiff, v. R.C. JOHNSON, et al., Defendants.
ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOHN W. HOLCOMB, UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the complaint, records on file, and the Report and Recommendation (“Report”) of the United States Magistrate Judge. No objections to the Report have been filed. The Court accepts the findings and recommendation of the Magistrate Judge.
Plaintiff has filed a document indicating that, after the Report was issued, he submitted a grievance to the prison on February 27, 2022. On March 8, 2022, the prison issued a decision that exhausted Plaintiff's administrative remedies. (Dkt. No. 38.)
Dismissal without prejudice is appropriate when a civil rights plaintiff files suit before exhaustion of remedies. Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006).
IT IS ORDERED that Defendants' motion for summary judgment is GRANTED without prejudice to Plaintiff's ability to file a fully exhausted First Amended Complaint within 30 days after entry of this order or a new action. See Saddozai v. Davis, 2022 U.S. App. LEXIS13820 (9th Cir. May 23, 2022) (Rule 15 permits filing of operative amended or supplemented complaint to cure exhaustion). All pending motions are DENIED.
The Ninth Circuit issued its decision in Saddozai after the Report was issued.
If Plaintiff chooses to file a First Amended Complaint, it must be filed within 30 days after entry of this order, bear the docket number assigned to this case, be labeled “First Amended Complaint,” and be complete in and of itself without reference to previous complaints, attachments, pleadings or other documents. The Clerk is DIRECTED to provide Plaintiff with a blank California Central District of California prisoner civil rights complaint form.