HOLLEY v. SINKOVICH (E.D.Cal. 2005)

PATRICK RONALD HOLLEY, SR., Plaintiff, v. C.C.I.W. SINKOVICH, et al., Defendants.

No. CIV S-04-1842 FCD JFM P.United States District Court, E.D. California.
November 22, 2005

ORDER
FRANK DAMRELL JR., District Judge

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On October 12, 2005, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. On October 28, 2005, plaintiff filed a motion for voluntary dismissal or, in the alternative, a statement of non-opposition

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to the findings and recommendations.[1] Plaintiff seeks dismissal of this action without prejudice in order to exhaust available administrative remedies.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo
review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed October 12, 2005, are adopted in full;

2. Defendants’ April 11, 2005 motion to dismiss is granted; and

3. This action is dismissed for failure to exhaust administrative remedies prior to suit.

[1] Plaintiff seeks dismissal of this action without prejudice in order to exhaust available administrative remedies, and he specifically requests adoption of the findings and recommendations in the alternative if granting his motion for voluntary dismissal will prejudice his claims. Since plaintiff failed to exhaust administrative remedies prior to filing this action, the action must be dismissed without prejudice. See McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002). The dismissal of this action without prejudice operates as a determination that plaintiff’s claims have not been resolved on the merits herein. Nothing in this order should be construed as a finding concerning the timeliness of plaintiff’s claims should he return to federal court after exhausting said remedies.

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