1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW JANKOWICZ, Case No. 1:23-cv-01385-KES-BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS REGARDING

13 v. DISMISSAL OF ACTION FOR FAILURE TO

EXHAUST ADMINISTRATIVE REMEDIES

14 CALIFORNIA SUBSTANCE ABUSE TREATMENT FACILITY, et al., 15 Doc. 9 Defendants. 16 17 Plaintiff Matthew Jankowicz is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 19 magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 The assigned magistrate judge screened plaintiff’s complaint pursuant to 28 U.S.C. 21 § 1915A(a). On September 27, 2023, the magistrate judge issued findings and recommendations 22 recommending that this action be dismissed, without prejudice, for plaintiff’s failure to exhaust 23 his administrative remedies prior to filing this action. Doc. 9. Specifically, the magistrate judge 24 noted that plaintiff wrote “pending” on his complaint under the section entitled “Administrative 25 Remedies.” Id. at 2. The findings and recommendations were served on plaintiff and contained 26 notice that any objections thereto were to be filed within fourteen (14) days after service. Id. at 3. 27 Plaintiff timely filed objections on October 18, 2023. Doc. 11. On April 3, 2024, plaintiff filed 28 an additional declaration regarding the findings and recommendations. Doc. 15. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de 2 novo review of the case. Having carefully reviewed the file, the Court concludes that the findings 3 and recommendations are supported by the record and by proper analysis. 4 In plaintiff’s objections, plaintiff notes “I did not know I had to exhaust administrative 5 remedies prior to filing suit, which I have never done in order to submit[] in court, so I ‘pray’ you 6 can forgive me and move on in this lawsuit with merits.” Doc. 11 at 1. He further states that he 7 filed a grievance on September 10, 2023, and that there had been “no reply” as of October 12, 8 2023. Id. at 2. In his April 3, 2024 declaration, plaintiff indicates that his grievance still had not 9 been processed. Doc. 15 (“I still not got back my grievance . . ..”). He further states that he is “at 10 the very highest level [of] administrative relief, and is waiting to get [a] reply.” Id. 11 Plaintiff’s arguments appear to be that he did not know that he needed to exhaust all 12 administrative remedies before bringing suit, that he has filed a grievance and is in the process of 13 exhausting his administrative remedies, and that the prison officials have failed to process the 14 filed grievance in a timely manner. See Docs. 11, 15. Alhough plaintiff appears to be in the 15 process of exhausting his administrative remedies, “exhausting available remedies during the 16 course of litigation [does] not comply” with the exhaustion requirement; rather, “a plaintiff must 17 exhaust his administrative remedies prior to filing an action.” See Andres v. Marshall, 867 F.3d 18 1076, 1078 (9th Cir. 2017) (emphasis added). “Plaintiff's lack of legal knowledge that he was 19 required to exhaust through all levels of administrative review before filing suit in federal court 20 [is not] an exception” to the requirement that he do so. Anderson v. Beregovskaya, Case No. 21 1:21-cv-01451-SAB (PC), 2021 WL 4479163, at *2 (E.D. Cal. Sept. 30, 2021) (citing Gurley v. 22 Clark, 620 F. App’x 671, 673 (10 Cir. 2015). 23 Administrative exhaustion is measured “at the time the action is filed.” Id. at 1079. Here, 24 plaintiff alleges he filed his grievance on September 10, 2023. Doc. 11 at 2. He filed this case 25 only twelve days later, on September 22, 2023 (Doc. 1), before exhausting his administrative 26 remedies. Therefore, plaintiff’s complaint must be dismissed without prejudice. Plaintiff may 27 bring his claim again in federal court after exhausting his administrative remedies. 28 1 Accordingly, IT IS HEREBY ORDERED: 2 1. The findings and recommendations issued on September 27, 2023, Doc. 9, are adopted in 3 full; 4 2. This action is dismissed, without prejudice, for plaintiff's failure to exhaust administrative 5 remedies prior to filing suit; and 6 3. The Clerk of the Court is directed to close this case. 4 8 g | SO ORDERED. _ 10 Dated: _ December 2, 2024 4h

UNITED STATES DISTRICT JUDGE

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