United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
DISMISSING ACTION, WITHOUT PREJUDICE (ECF NOS. 18, 19,
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
Javar L. Blueford is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
§ 1983. This matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302.
October 7, 2019, the assigned Magistrate Judge issued
Findings and Recommendations that, based upon the dates of
the events in this action, the date of filing the complaint,
and Plaintiff's own allegations, there is no indication
that Plaintiff pursued his appeal beyond the first level and
therefore, failed to exhaust administrative remedies. (ECF
No. 18.) The Findings and Recommendations were served on the
parties and contained notice that any objections thereto were
to be filed within fourteen (14) days after service.
(Id. at 4.) On October 18 and on October 21, 2019,
Plaintiff timely filed objections to the Findings and
Recommendations. (ECF Nos. 19 and 20.) No other objections
objections, Plaintiff does not argue that he completed the
exhaustion requirement. He acknowledges that he started the
exhaustion of administrative remedies process, and was
granted partial relief. (ECF No. 19, p. 2.) He does not argue
that he further appealed after being granting partial relief.
Instead, Plaintiff argues that his case is an exceptional
case where the administrative remedy is inadequate and any
delay would cause irreparable injury and injustice. (ECF No.
20.) Plaintiff argues that while he was going through the
administrative process, he was taken to the hospital for
treatment for the medical condition which forms the basis of
his claims, and while at the hospital, he was beaten in the
head and choked in his hospital bed on June 16 because of
this case and has been denied proper medical care by the
objections are overruled. Plaintiff admits he did not exhaust
his administrative remedies. Plaintiff does not argue that
his administrative remedies effectively were unavailable to
him. Rather, Plaintiff argues that while he was confined in
his hospital bed on June 16, he was beat up. He does not
allege it was defendant who injured him on June 16 or
attribute any June 16 wrongful conduct to defendant. He does
not state how such injury on June 16 caused Plaintiff any
inability to comply with Plaintiff's exhaustion
requirement. The court notes that Plaintiff's complaint
involves events in January 2019 through May 2019, and the
complaint was filed on May 8, 2019. Plaintiff does not say
how or why the June 16 injury made his administrative
remedies effectively unavailable.
main argument is that an injustice will result if he is
required to exhaust. The Court, however, is bound to follow
the law and the law is that a prisoner's available
administrative remedies must be exhausted before a court can
decide the merits of a prisoner's complaint brought
pursuant to § 1983. 42 U.S.C. § 1997e(a); see
also Booth v. Churner, 532 U.S. 731, 738 (2001)
(“The available remedy must be exhausted before a
complaint under § 1983 may be entertained.”
(internal quotation marks removed)); Morris v.
Moghaddam, No. 2:13-cv-0805 KJM KJN P, 2015 WL 136033,
at *10 n.3 (E.D. Cal. Jan. 9, 2015).
argues that an injustice would occur if he were forced to
exhaust his administrative remedies because he is not getting
adequate treatment. As the U.S. Supreme Court recently
explained in Ross v. Blake, 136 S.Ct. 1850, 1857,
1859 (2016), regarding the Prison Litigation Reform Act of
1995 exhaustion requirement, the exceptions are extremely
[T]hat language is “mandatory”: An inmate
“shall” bring “no action” (or said
more conversationally, may not bring any action) absent
exhaustion of available administrative remedies.... [T]hat
edict contains one significant qualifier: the remedies must
indeed be “available” to the prisoner. But aside
from that exception, the PLRA's text suggests no limits
on an inmate's obligation to exhaust- irrespective of any
Id. (internal citations omitted). Thus, arguments of
any perceived injustice which would result from failing to
exhaust is not an exception to the exhaustion requirement.
Plaintiff must exhaust his administrative remedies before
filing suit. Therefore, his objections are overruled.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the Court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, including Plaintiff's objections, the Court finds
that the Magistrate Judge's Findings and Recommendations
are supported by the record and by proper analysis.
IT IS HEREBY ORDERED that:
Findings and Recommendations issued on October 7, 2019, (ECF
No. 18), are adopted in full;
instant action is dismissed, without prejudice, for failure