Johnson v. Sherman

Full title: GEORGE JOHNSON, Plaintiff, v. JOSEPH SHERMAN, et al., Defendants

Court: United States District Court, E.D. California

Date published: Feb 15, 2008

No. CIV S-04-2255 LKK EFB P (E.D. Cal. Feb. 15, 2008)

Opinion

No. CIV S-04-2255 LKK EFB P.

February 15, 2008

ORDER

LAWRENCE KARLTON, Senior 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 General Order No. 262.

On September 24, 2007, the magistrate judge filed findings and recommendations herein that were served on all parties and that contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. With one exception, it finds the findings and recommendations to be supported by the record and by proper analysis.

Among its findings, the magistrate court concluded that the petitioner did not file in a timely manner his petition for second-level review when attempting to exhaust his administrative remedies. See Findings and Recommendations, September 24, 2007, at 7. Under 15 CCR § 3084.6(c), an inmate has fifteen days in which to submit an appeal from an administrative decision. The record here shows that the first-level decision was issued on May 21, 2004 and the petitioner filed his appeal on June 4, 2004. This appeal was timely filed, as it was filed within fifteen days of the issuance of the decision at the Director's Level. Therefore, the court declines to adopt those findings that indicate that the second-level appeal was not timely filed. See Findings and Recommendations, September 24, 2007, at 7:12-7:17.

Nonetheless, the court adopts the all other findings and recommendations issued by the Magistrate Judge on September 24, 2007. Even if the petitioner did timely file his second-level appeal, there is no evidence that he exhausted his administrative remedies prior to the filing of his complaint in this court.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed September 24, 2007, are adopted to the extent described above;

2. Defendants' April 19, 2007, motion for summary judgment is granted;

3. Plaintiff's March 1, 2007 motion to amend the complaint is denied; and

4. The Clerk is directed to close the case.