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Perry Adron Mcculough v. Federal Bureau of Prisons

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 16, 2011

PERRY ADRON MCCULOUGH,
PLAINTIFF,
v.
FEDERAL BUREAU OF PRISONS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND ECOMMENDATION RECOMMENDING GRANTING DEFENDANT'S MOTION TO DISMISS (ECF No. 111)

ORDER

Plaintiff Perry Adron McCulough ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On August 12, 2011, the Magistrate Judge filed a Findings and Recommendation recommending that Defendant Federal Bureau of Prison's Motion to Dismiss for failure to exhaust administrative remedies be granted. (ECF No. 111.) On September 13, 2011, Plaintiff filed his Objections to the Findings and Recommendation. (ECF No. 116.)

In his Objection, Plaintiff again makes the futility argument, stating that because all of his requests were denied, any grievance he filed would have been denied too. The argument is not persuasive. As the Magistrate Judge explained in the Findings and Recommendation, futility is not an exception to the exhaustion requirement. Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001) ("[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise."); see also Tatum v. Rosario, 2005 WL 2114190, *2 n. 4 (E.D. Cal. Sep. 1, 2005).

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendation to be supported by the record and by proper analysis. Thus, Defendant Federal Bureau of Prison's Motion to Dismiss is granted. Defendant Federal Bureau of Prisons and all claims against it are dismissed from this action without prejudice.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendation, filed August 12, 2011, is adopted in full;

2. All claims against Defendant Federal Bureau of Prisons are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies; and

3. Defendant Federal Bureau of Prisons is DISMISSED from this action.

IT IS SO ORDERED.

20110916

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