Opinion
1:18-cv-01565-DAD-JLT (PC)
06-08-2021
PEDRO RODRIGUEZ, Plaintiff, v. WARDEN FISHER, et al, Defendants.
FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES PRIOR TO FILING SUIT (DOC. 1)
14-DAY DEADLINE
JENNIFER L. THURSTON CHIEF UNITED STATES MAGISTRATE JUDGE
On September 3, 2020, this Court recommended that Plaintiff's Eighth Amendment medical indifference claim be dismissed for failure to exhaust administrative remedies. (Doc. 17.) The Court also recommended that Plaintiff be granted leave to amend his complain to assert a claim under the Americans with Disabilities Act. Id. Since then, instead of filing an amended complaint, Plaintiff has sought multiple extensions of time, which this Court has granted. In its most recent order, this Court stated that “ no further extensions will be granted absent evidence of extraordinary circumstances .” (Doc. 32.)
In response, Plaintiff filed an eleventh motion for a thirty-day extension of time, alleging that he is “in fear of being harmed, maimed, or killed now while having [his] prison sentence unlawfully extended.” (Doc. 33.) As support, Plaintiff asserts that he has been wrongfully charged with various rules violations in 2020 through April 2021, and he submits a petition filed in state court reflecting a challenge to the Defendants' disciplinary methods. (Id. at 5-92.) However, none of the documentary evidence submitted indicates extraordinary circumstances that have prevented Plaintiff from filing a timely amended complaint after over nine months.
Accordingly, it is RECOMMENDED that Plaintiff's complaint be DISMISSED for failure to exhaust administrative remedies before initiating this action.
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 14 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).
IT IS SO ORDERED.