Opinion
2:16-CV-00312-TC
02-06-2017
DAMEION EDWARD ROBINSON, Plaintiff, v. JAMES TAYLOR, et al., Defendants.
ORDER
BROWN, Judge.
Magistrate Judge Thomas M. Coffin issued Findings and Recommendation (#27) on December 27, 2016, in which he recommended the Court grant Defendants' Motion (#16) for Summary Judgment and dismiss this matter with prejudice on the grounds that Plaintiff failed to exhaust his administrative remedies and Plaintiff's state-law claim is barred by Eleventh Amendment immunity.
Because no objections to the Magistrate Judge's Findings and Recommendation were filed, this Court is relieved of its obligation to review the record de novo. See Dawson v. Marshall, 561 F.3d 930, 932 (9 Cir. 2009). See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9 Cir. 2003)(en banc). Having reviewed the legal principles de novo, the Court modifies the Findings and Recommendation as follows:
As noted, the Magistrate Judge recommends the Court dismiss this matter with prejudice on the grounds that Plaintiff failed to exhaust his administrative remedies and Plaintiff's state-law claim is barred by Eleventh Amendment immunity. The Ninth Circuit, however, has held dismissals for failure to exhaust administrative remedies should be without prejudice. See, e.g., Terrell v. Brewer, 935 F.2d 1015, 1019 (9 Cir. 1991)("Dismissal for failure to exhaust administrative remedies is not . . . jurisdictional[, therefore,] . . . [t]he proper remedy is dismissal without prejudice."); Armstrong v. Scribner, 350 F. App'x 186, 186 (9 Cir. 2009)("The district court properly determined that Armstrong failed to exhaust administrative remedies as to his claim concerning access to a computer . . . . However, we vacate the judgment with respect to this claim and remand for dismissal without prejudice.").
The Ninth Circuit has also held dismissals on the ground of Eleventh Amendment immunity should be without prejudice. See, e.g., Genevier v. United States Citizenship and Immigration Svcs, 144 F. App'x 586, 587 (9 Cir. 2005)("The district court properly dismissed Genevier's claims against CDSS because, as an arm of the state, it is entitled to Eleventh Amendment immunity. . . . The claims against CDSS should have been dismissed without prejudice, however.").
Accordingly, the Court dismisses this matter without prejudice.
CONCLUSION
The Court ADOPTS as modified Magistrate Judge Coffin's Findings and Recommendation (#27). Accordingly, the Court DISMISSES this matter without prejudice.
IT IS SO ORDERED.
DATED this 6 day of February, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge