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MUBARAK v. CALIFORNIA DEPARTMENT OF CORRECTIONS

March 25, 2004.

MUBARAK MUBARAK, Plaintiff;
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants



The opinion of the court was delivered by: DANA M. SABRAW, District Judge

ORDER: (1) ADOPTING — IN — PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; (2) GRANTING DEFENDANTS' MOTION TO DISMISS; AND (3) DISMISSING ACTION WITHOUT PREJUDICE
I.
INTRODUCTION
On March 6, 2003, Plaintiff Mubarak Mubarak, a state prisoner proceeding pro se and in forma pauper is, filed his Third Amended Complaint ("TAG") pursuant to 42 U.S.C. § 1983, alleging civil rights violations against Defendants. On August 19, 2003, Defendants responded with a Motion to Dismiss the TAC for Failure to Exhaust Administrative Remedies and to Strike the complaint and its prayer for punitive damages and non — monetary relief. Plaintiff did not file an Opposition. The motion was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Civ. L.R. 72.3, for a Report and Recommendation ("Report"). Page 2

In compliance with Wyatt v. Terhune, 315 F.3d 1108, 1120 n. 14 (9th Cir. 2003), the Honorable James F. Stiven, United States Magistrate Judge, issued an Order on September 30, 2003, giving Plaintiff notice of his possible failure to exhaust his third cause of action, and requiring Plaintiff to submit affidavits to that effect. [Doc. 29.] Originally, Plaintiff had until October 24, 2003, to respond to this Order. Plaintiff — after receiving two extensions on this deadline — responded on February 18, 2004.

  On February 23, 2004, Magistrate Judge Stiven issued his Report, recommending that the Court grant — in — part and deny — in — part Defendants' motion to dismiss and to strike. Judge Stiven recommended the Court dismiss the third cause of action in the TAC without prejudice for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act of 1997 ("PLRA"), as set forth in 42 U.S.C. § 1997e. Judge Stiven further recommended the Court deny the motion to dismiss claims One, Two, and Four, and deny the motion to strike Plaintiff's prayer for punitive damages and injunctive/declaratory relief. In addition, Judge Stiven recommended Plaintiff's request for transfer to federal custody and transfer closer to his home be stricken, and that judicial notice should be taken of the exhibits attached to Defendants' motion. Finally, as Plaintiff returned a signed affidavit verifying his Third Amended Complaint on February 18, 2004, Judge Stiven recommended the Motion to Strike the Complaint be denied as moot.

  Defendants Objected to the Report on March 12, 2004. Plaintiff Objected on March 15, 2004.

  Based on this Court's review of Judge Stiven's Report and Recommendation, the pleadings, and the relevant authorities, the Court ADOPTS Judge Stiven's recommendation regarding Plaintiff's failure to exhaust his administrative remedies. Because Plaintiff has not exhausted all his claims before bringing suit — as required by the PLRA — the Third Amended Complaint is DISMISSED without prejudice in its entirety. In light of this ruling, the Court declines to address the other issues raised by Defendants' motion to dismiss and to strike. Page 3

  II.

  FACTUAL SUMMARY

  Plaintiff's first two claims concern events that occurred on July 9, 2000, when Defendant Floras allegedly beat Plaintiff in his cell. After the alleged beating, Plaintiff avers Defendants Hewitt and Ketcham slammed his face into the floor when he refused to remove his pants in front of a female medical technician because of his Islamic faith. Plaintiff also complains Defendants Hewitt, Ketcham and Vogt all filed false reports to cover up these physical attacks,

  Plaintiff's third cause of action involves the events of September 22, 2000, when Defendant Sosa purportedly beat Plaintiff's arm while Defendant Aboytes watched. The fourth cause of action is essentially a reiteration of Plaintiff's first two claims, providing an overview of the alleged Constitutional violations.

  III.

  DISCUSSION

  The Court reviews a Magistrate Judge's Report and Recommendation, if objected to, de novo. See Hunt v. Pyler, 336 F.3d 839, 844 (9th Cir. 2003) (quoting McKeever v. Block. 932 F.2d 795, 798 (9th Cir. 1991)). As discussed below, the Court DISMISSES Plaintiff's action without prejudice for failing to completely exhaust his administrative remedies.

 A. Failure to Exhaust Third Claim

  The Court agrees with Judge Stiven's conclusion that Plaintiff has failed to exhaust his third cause of action, as required by 42 U.S.C. § 1997(e)(a). (Report at 5-7.) Nowhere in his TAC or his Objections to the Motion to Dismiss did Plaintiff submit any documentation or evidence that this claim had been considered by CDC officials at any level of administrative review. ...


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