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Spencer v. Hernandez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 12, 2009

NATHAN SPENCER, PLAINTIFF,
v.
HERNANDEZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION RE: GRANTING MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

On February 9, 2008, Magistrate Judge Jan M. Adler entered a Report and Recommendation ("R & R") to grant Defendants unenumerated Rule 12(b) motion to dismiss for failure to exhaust administrative remedies and to grant Defendants' Rule 12(b)(6) motion to dismiss. Plaintiff has filed Objections to the R & R and Defendants a response to the Objections.

The Objections raised by Plaintiff have been fully addressed in the R & R. The R & R identified applicable legal authorities and identified substantial evidence to show that Plaintiff failed to exhaust available administrative procedures. Even though Plaintiff may have felt intimidated to pursue an administrative grievance before the correctional officer accused of alleged wrongdoing, the court notes that Plaintiff still had available administrative remedies. The informal step in the grievance procedure is waived where the inmate alleges misconduct by a departmental peace officer. Cal.Code Regs. Tit. 15 §3084.5(a). "As a result, Plaintiff should have submitted his 602 form to the appeals coordinator, rather than to Roberts." R & R at p.8:19-20. Rather than respond to the same arguments a second time, the court adopts the R & R in its entirety and dismisses the complaint without prejudice and without leave to amend.

In sum, the court adopts the R & R in its entirety and dismiss the complaint for failure to exhaust administrative remedies. The Clerk of Court is instructed to close the file.

IT IS SO ORDERED.

20090312

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