Opinion
No. 2:16-cv-0905 JAM CKD P
07-26-2016
JOSEPH GARY ORTA, Plaintiff, v. PAUL LUDLOW, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se pursuant to 42 U.S.C. § 1983. On May 9, 2016, the undersigned recommended that this action be dismissed for failure to exhaust administrative remedies because the inmate grievance process concerning the complained-of issue was not complete as of the filing of the complaint. (ECF No. 5.) On June 14, 2016, the undersigned partially vacated its findings and recommendations to grant plaintiff leave to amend to explain, if applicable, why the exhaustion requirement should be excused in this case. (ECF No. 10.) Leave to amend was also granted to state a cognizable claim under § 1983. (Id.) Plaintiff was advised that failure to amend within thirty days would result in a recommendation that this action be dismissed. (Id.)
The thirty day period has passed, and plaintiff has not filed an amended complaint. Rather, plaintiff has notified the court that the administrative grievance process for the medical issue that is the subject of the complaint was completed on June 16, 2016. (ECF Nos. 11 & 12.) However, as explained in the May 9, 2016 screening order, because plaintiff brought suit against defendants on April 29, 2016, he was required to have completed the administrative grievance process as to his claims by that date. See Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012) ("a prisoner does not comply with [the exhaustion] requirement by exhausting available remedies during the course of the litigation."). Thus this action should be dismissed without prejudice to re-filing a new action with exhausted claims.
Accordingly, IT IS HEREBY RECOMMENDED that this action is dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: July 26, 2016
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 2/orta0905.fta