(PC) McMillion v. Doer et al, No. 1:2024cv01557 - Document 17 (E.D. Cal. 2025)

Court Description: ORDER VACATING 7 Findings and Recommendations, and DENYING 15 Motion for Extension of Time as Unnecessary, signed by Magistrate Judge Stanley A. Boone on 3/4/2025. (Deputy Clerk CRM)

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(PC) McMillion v. Doer et al Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SKYLER McMILLION, 12 Plaintiff, 13 v. 14 J. DOER, et al., No. 1:24-cv-01557-KES-SAB (PC) ORDER VACATING FINDINGS AND RECOMMENDATIONS, AND DENYING MOTION FOR EXTENSION OF TIME AS UNNECESSARY (ECF Nos. 7, 15) 15 Defendants. 16 17 Plaintiff is proceeding pro se and in forma pauperis in this civil rights complaint pursuant 18 19 to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). On December 20, 2024, the Court ordered Plaintiff to show cause why the action should 20 21 not be dismissed, without prejudice, for failure to exhaust the administrative remedies. (ECF No. 22 5.) Plaintiff did not file a response, and Findings and Recommendations recommending dismissal 23 of the action were issued on January 22, 2025. (ECF No. 7.) After receiving an extension of time, Plaintiff filed a response to the now-discharged order 24 25 to show cause, motion for 90-day extension of time for all pending deadlines, and motion to 26 create a class action.1 (ECF Nos. 14, 15, 16.) 27 /// 28 1 Plaintiff’s motion for class action is addressed by separate order. 1 Dockets.Justia.com 1 In response to the order to show cause as the exhaustion of the administrative remedies, 2 Plaintiff contends that the lack of exhaustion of the administrative remedies is not clear from the 3 face of the complaint because the “administrative remedies were unavailable.” (ECF No. 13 at 4 6.)2 Based on Plaintiff’s contentions in the current response to the order to show cause, the Court 5 will vacate the Findings and Recommendations recommending dismissal of the action for failure 6 to exhaust. (ECF No. 7.) However, because exhaustion of the administrative remedies is an 7 affirmative defense, the Court makes no ruling as to whether Plaintiff has, in fact, exhausted the 8 administrative remedies. Inasmuch as the Court will vacate the Findings and Recommendations 9 recommending dismissal for failure to exhaust, Plaintiff’s motion for an extension of time to 10 comply with all future deadlines is denied as unnecessary as there are currently no pending 11 deadlines in light of this order. (ECF No. 15.) Plaintiff is advised the Court will screen his 12 complaint pursuant to 28 U.S.C. § 1915A in due course. 13 Accordingly, it is HEREBY ORDERED that: 14 1. 15 The Findings and Recommendations issued on January 22, 2025 (ECF No. 7), are VACATED; and 16 2. 17 Plaintiff’s motion for an extension of time filed on March 3, 2025 (ECF No. 15) is DENIED as unnecessary. 18 19 20 21 IT IS SO ORDERED. Dated: March 4, 2025 STANLEY A. BOONE United States Magistrate Judge 22 23 24 25 26 27 2 28 Plaintiff also submits that there is a delay of 30 to 60 days in receipt of the mail at the United States Penitentiary in Atwater. (ECF No. 15.) 2

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