Opinion
Case No. C10-5238BHS.
March 30, 2011
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation ("R R") of the Honorable Richard J. Creatura, United States Magistrate Judge (Dkt. 30) and Plaintiff's ("Mahoney") objections to the R R (Dkt. 34).
Magistrate Judge Creatura's R R recommends dismissing this case without prejudice because Mahoney failed to exhaust his remedies before proceeding on his 42 U.S.C. § 1983 claim in this Court. Dkt. 30. Prior to the magistrate judge issuing the R R, Mahoney had not disputed the fact that he had not exhausted his remedies before filing this action. See Dkt. 30 at 2. Although Mahoney now argues that he did exhaust, his argument is merely a recital and is contradicted by his own statements. See e.g., Dkt. 34 at 3 (stating what Mahoney believed would happen if he completed the grievance process). Mahoney has still not established that he has exhausted the grievance process, and therefore his current action is not properly before this Court. See 32 U.S.C. § 1997e(a) (requiring administrative remedies to be exhausted prior to filing suit under § 1983). The Court declines to address any other issue that has been presented in this case, and the action will be dismissed without prejudice.
The Court having considered the R R, Plaintiff's objections, and the remaining record, does hereby find and order as follows:
(1) The R R (Dkt. 30) is ADOPTED;
(2) This action is DISMISSED without prejudice; and
(3) All other pending motions are DENIED as moot.