Opinion
2:19-cv-01479 MCE AC P
09-13-2021
ANDRES C. HERNANDEZ, Plaintiff, v. JOE LIZARRAGA, et al., Defendants.
ORDER
MORRISON C. ENGLAND, JR. SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 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 302.
On August 19, 2019, the magistrate judge issued findings and recommendations herein which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within fourteen days. See ECF No. 7. Plaintiff has filed objections to the findings and recommendations. ECF No. 10.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, for the reasons stated below, the court finds the findings and recommendations to be supported by the record and by proper analysis.
The findings order issued by the magistrate recommends that this action be dismissed for failure to exhaust administrative remedies prior to filing the instant action in federal court. See ECF No. 7 at 3-4. In plaintiffs objections to the order, he asserts that the court misunderstood him; that he did, in fact, exhaust his state administrative remedies prior to filing the instant action. See ECF No. 10 at 2-6. However, a review of the documents that plaintiff has filed in support of this assertion do not support his claim of exhaustion. On the contrary, the documents provided indicate that plaintiffs appeal was cancelled at the second level of review. See id. at 10 (California Department of Corrections Office of Appeal letter stating plaintiffs appeal was cancelled due to failure to correct and return a rejected appeal within thirty calendar days of rejection). According to the California Code of Regulations, “a cancellation or rejection decision does not exhaust administrative remedies.” Cal. Code Regs. tit. 15, § 3084.1(b). For these reasons, the magistrate's findings and recommendations will be adopted.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations issued August 19, 2019 (ECF No. 7), are ADOPTED in full, and
2. This action is SUMMARILY DISMISSED for lack of jurisdiction pursuant to 42 U.S.C. § 1997e(a), Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014), and Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012).
IT IS SO ORDERED.