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Gornick v. California Dep't of Corrections

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


March 24, 2010

PAUL A. GORNICK, SR., PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, J. PAYNE, CANTO, BRANDON, SGT. K.A. DICKS, DEFENDANTS.

The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

The Court has before it a Report and Recommendation filed by a United States Magistrate Judge. (Docket No. 64.) The time period for filing objections to the Report has passed without either party filing an objection.

The United States Magistrate Judge recommends granting Defendants' Motion for Summary Dismissal based on the record presented. Having reviewed the Report and Recommendation and having independently reviewed the record in this case, the Court finds that the Report and Recommendation reflects an appropriate application of the law to the facts of this case. Because Plaintiff did not properly exhaust his administrative remedies before filing his lawsuit, his Complaint is subject to dismissal without prejudice. Therefore, the Court adopts the Report and Recommendation in full.

Plaintiff has not served two additional Defendants. However, the Court will dismiss the entire action without prejudice because the record clearly reflects that Plaintiff exhausted his claims against no Defendant.

ORDER

NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation (Docket No. 64) is ADOPTED in full.

IT IS FURTHER HEREBY ORDERED that Defendants' Motion to Dismiss (Docket No. 47) is GRANTED. This entire action, including Plaintiff's Second Amended Complaint (Docket No. 12), is DISMISSED without prejudice.

20100324

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