(PC) Ivory v. C.D.C.R. et al, No. 2:2020cv01819 - Document 10 (E.D. Cal. 2020)

Court Description: ORDER signed by District Judge Troy L. Nunley on 12/7/2020 ADOPTING the Findings and Recommendations filed 10/20/2020 (ECF No. 8 ), in full; DISMISSING this action without prejudice; and the Clerk is directed to close this case. CASE CLOSED(Becknal, R)

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(PC) Ivory v. C.D.C.R. et al Doc. 10 Case 2:20-cv-01819-TLN-KJN Document 10 Filed 12/08/20 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONAT DEON IVORY, 12 13 14 15 No. 2:20-cv-01819-TLN-KJN Plaintiff, ORDER v. CDCR R. BURTON, et al., Defendants. 16 17 Plaintiff Donat Deon Ivory (“Plaintiff”), a state prisoner proceeding pro se, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 20, 2020, the magistrate judge filed findings and recommendations herein 21 which were served on Plaintiff and which contained notice to Plaintiff that any objections to the 22 findings and recommendations were to be filed within fourteen days. (ECF No. 8.) On October 23 30, 2020, Plaintiff filed Objections to the Findings and Recommendations. (ECF No. 9.) 24 The Court reviews de novo those portions of the proposed findings of fact to which 25 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 26 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 27 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 28 findings of fact to which no objection has been made, the Court assumes its correctness and 1 Dockets.Justia.com Case 2:20-cv-01819-TLN-KJN Document 10 Filed 12/08/20 Page 2 of 3 1 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 2 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 3 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 4 Having carefully reviewed the entire file under the applicable legal standards, the Court 5 finds the Findings and Recommendations to be supported by the record and by the magistrate 6 judge’s analysis. 7 In his Objections, Plaintiff concedes he failed to exhaust his administrative remedies prior 8 to filing this action. (ECF No. 9 at 3.) Indeed, it was not until October 21, 2020, that Plaintiff 9 mailed his appeal to CDCR headquarters for the final appeal decision, “to attempt to fully exhaust 10 administrative remedies.” (Id.) Plaintiff alleges he did not exhaust his appeals before bringing 11 this action because he believed COVID-19 posed an imminent danger such that continuing the 12 administrative appeals process would be futile and the six months required to exhaust 13 administrative remedies was unreasonable under the circumstances. (See id. at 1–2.) While the 14 Court is not unsympathetic to Plaintiff’s situation, courts may not excuse an inmate’s failure to 15 exhaust administrative remedies prior to bringing suit, even to consider “special circumstances.” 16 Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). Moreover, as the magistrate judge correctly 17 explained, Plaintiff may not obtain release from prison through a civil rights action brought 18 pursuant to 42 U.S.C. § 1983. (ECF No. 8 at 3 (citing Muhammad v. Close, 540 U.S. 749, 750 19 (2004) (per curiam))); see also Heck v. Humphrey, 512 U.S. 477 (1994). As such, Plaintiff’s 20 Objections are overruled. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. The Findings and Recommendations filed October 20, 2020 (ECF No. 8), are adopted 23 in full; 24 2. This action is DISMISSED without prejudice; and 25 3. The Clerk of the Court is directed to close this case. 26 /// 27 /// 28 /// 2 Case 2:20-cv-01819-TLN-KJN Document 10 Filed 12/08/20 Page 3 of 3 1 IT IS SO ORDERED. 2 DATED: December 7, 2020 3 4 5 Troy L. Nunley United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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