(PC) Thompson v. Allison et al, No. 1:2021cv00001 - Document 16 (E.D. Cal. 2021)

Court Description: ORDER ADOPTING 11 Findings and Recommendations and Dismissing Action Without Prejudice For Failure to Exhaust, signed by District Judge Anthony W. Ishii on 04/21/2021. CASE CLOSED. (Maldonado, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS RAY THOMPSON, 12 13 Plaintiff, v. 14 KATHLEEN ALLISON, et al., 15 Defendants. Case No. 1:21-cv-00001-AWI-JLT (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST (Doc. No. 11) 16 17 Plaintiff Travis Ray Thompson is a state prisoner proceeding pro se in this civil rights 18 action brought under 42 U.S.C. § 1983. This matter was referred to a United States magistrate 19 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 12, 2021, the assigned magistrate judge filed findings and recommendations, 21 recommending that this action be dismissed for failure to exhaust administrative remedies. Doc. 22 No. 11. The magistrate judge found that it is clear on the face of his complaint that Plaintiff failed 23 to exhaust administrative remedies prior to initiating this action, as required by the Prison 24 Litigation Reform Act (“PLRA”). Id. at 2. The magistrate judge provided plaintiff 14 days to file 25 objections to the findings and recommendations. Id. at 5. After receiving an extension of time 26 (Doc. No. 13), Plaintiff filed objections on April 9, 2021. Doc. No. 15. 27 28 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the file, including Plaintiff’s objections, 1 the Court finds the findings and recommendations to be supported by the record and proper 2 analysis. Plaintiff admits that he failed to exhaust administrative remedies. See Doc. No. 1 at 18- 3 19. Nevertheless, in his objections, he contends that he qualifies for an “imminent-danger” 4 exception to the PLRA’s exhaustion requirement. Doc. No. 15 at 2-. However, as explained by 5 the magistrate judge, it is unclear whether such an exception exists within the Ninth Circuit, and 6 even if one did, Plaintiff would not qualify for it because he does not allege facts in his complaint 7 showing that he is in danger of imminent, future harm. Doc. No. 11 at 3-4. The Court agrees with 8 the magistrate judge’s findings and analysis. 9 Accordingly, the Court ORDERS: 10 1. The findings and recommendations issued on February 12, 2021 (Doc. No. 11) are 11 ADOPTED in full; 12 2. This action is DISMISSED without prejudice for failure to exhaust administrative 13 remedies prior to filings suit; and, 14 3. The Clerk of the Court is directed to terminate all pending motions and to close this 15 case. 16 17 18 IT IS SO ORDERED. Dated: April 21, 2021 SENIOR DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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