Opinion
1:05-cv-01287-LJO-SMS-P.
April 6, 2007
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 17) ORDER DISMISSING ENTIRE ACTION ORDER DENYING ALL PENDING MOTIONS AS MOOT (Docs. 23, 24-1-3.)
Jerry A. Burton ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On December 21, 2006, the Magistrate Judge issued Findings and Recommendations herein which were served on the parties and which contained notice to the parties that any objections to the Findings and Recommendations were to be filed within thirty (30) days. On January 8, 2007, Plaintiff filed a motion to extend time. On February 15, 2007, the court granted Plaintiff an additional thirty (30) days within which to respond. On March 19, 2007, Plaintiff filed Objectiloneillons to the Magistrate Judge's Findings and Recommendations, a Motion for leave to file an Amended Complaint, Motion to Appoint Counsel and Motions for Preliminary or Injunctive Relief.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis. Although Plaintiff seeks to Amend his Complaint to add names of several Defendants, he has not demonstrated that he exhausted his administrative remedies prior to initiating this action. As indicated in the Findings and Recommendations, the documentation submitted by Plaintiff and his explanation all demonstrate that Plaintiff did not exhaust his administrative remedies prior to initiating this action. Exhaustion must occur prior to filing suit and a plaintiff may not exhaust while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed December 21, 2006, are ADOPTED IN FULL;
2. This action is DISMISSED in its entirety; and
3. All pending Motions are DENIED as moot.
IT IS SO ORDERED.