Opinion
21 CV 50191
09-14-2022
Raul Ybarra, Plaintiff, v. Miller, et al., Defendants.
ORDER
Iain D. Johnston United States District Judge
Before the Court is a Report and Recommendation [55] from Judge Jensen that the defendants' request to dismiss the plaintiff's amended complaint failure to exhaust be denied. After conducting an evidentiary hearing, Judge Jensen addressed the two arguments the defendants offered in support of dismissal. First, she rejected their argument that the plaintiff did not complete his appeal to the Administrative Review Board because his response to its request for additional documentation was missing one of the documents it needed. Judge Jensen found credible the plaintiff's testimony that he never received the missing document the ARB requested and so would not have known to, and could not have, submitted it. Second, Judge Jensen rejected defendant Spencer's argument that the plaintiff did not exhaust as to her because his grievance did not name her. Judge Jensen concluded that the grievance sufficiently described her as the nurse who came to see him following an incident on January 31, 2020, but who failed to provide him medical care. Judge Jensen gave the parties to 8/30/2022 to file any objection, but none was filed. In light of Judge Jensen's well-reasoned decision, the Court accepts her Report and Recommendation [55] and denies the defendants' request for dismissal for failure to exhaust.