The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 KENYON DARRELL BROWN, No. 1:21-cv-01186-JLT-SKO (PC)
12 Plaintiff, ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
13 v. ACTION FOR FAILURE TO EXHAUST
14 CDCR Director, et al., (Doc. No. 19)
15 Defendants.
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17 Plaintiff Kenyon Darrell Brown is a state prisoner proceeding pro se and in forma
18 pauperis in this civil rights action brought under 42 U.S.C. § 1983. This matter was referred to a
19 United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
20 The assigned magistrate judge issued findings and recommendations, recommending that
21 this action be dismissed for Plaintiff’s failure to exhaust administrative remedies prior to filing
22 suit as required by the Prison Litigation Reform Act. (Doc. No. 19.) Plaintiff filed objections
23 thereto.
24 In his objections, Plaintiff does not dispute that he failed to exhaust his claim that a
25 prison-wide modified program violates the Eighth Amendment, which he raised in his first
26 amended complaint. (See generally Doc. No. 20.) Instead, he requests that the first amended
27 complaint be dismissed, and that he be allowed to proceed on his original complaint. (Id. at 1.)
However, in his original complaint, Plaintiff contends that prison officials unlawfully denied him
1 | parole consideration under California Proposition 57. (See Doc. No. 1.) This is the same claim
2 | raised in a separate, still-pending case, Brown v. North Kern State Prison, et al., No. 1:20-cv-
3 | 01396 (Doc. No. 1; see also Doc. No. 32.) Thus, if the Court were to grant Plaintiffs request to
4 | dismiss the first amended complaint and to proceed with the original complaint, this action should
5 | still be dismissed as duplicative. See Cato v. United States, 70 F.3d 1103, 1105 (9th Cir. 1995).
6 | In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de
7 | novo review of this case. Having carefully reviewed the entire file, including Plaintiffs
8 || objections, the Court finds the findings and recommendations to be supported by the record and
9 | proper analysis. Accordingly, the Court ORDERS:
10 1. The findings and recommendations issued on December 1, 2021 (Doc. No. 19) are
11 ADOPTED in full;
12 2. This action is DISMISSED for failure to exhaust administrative remedies; and,
13 3. The Clerk of the Court is DIRECTED to terminate all pending motions and to
14 close this case.
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16 IT IS SO ORDERED.
Dated: _ January 18, 2022 Charis [Tourn
TED STATES DISTRICT JUDGE
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