Opinion
Motion filed on January 22, 2007.
ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
DEAN D. PREGERSON United States District Judge.
This matter comes before the Court on Defendants' motion for judgment on the pleadings. After reviewing the papers submitted by the parties and considering the arguments therein, the Court grants the motion.
I. BACKGROUND
Pro se Plaintiff Anthony Jimenez brings this Eighth Amendment action pursuant to 42 U.S.C. § 1983 against Defendants Frank Carhunagan and El LaFon. Plaintiff first alleges that, on May 20, 1997, while incarcerated at the California Rehabilitation Center ("CRC"), correctional officers escorted him to the medical clinic because they noticed a fresh tattoo on his abdomen. (Compl.. ¶ 8.) Defendant/Medical Technician Carhunagan ordered Plaintiff to remove all his clothes so that he could inspect for infection, but Plaintiff would remove only his shirt because female, non-medical staff were present. Plaintiff alleges that Defendant Carhunagan became aggressive toward Plaintiff, attempting to forcibly remove Plaintiff's pants and pushing his head into the wall, thereby causing head injuries. (Compl. ¶¶ 10-12.)
Plaintiff further alleges that on July 12, 1997, he returned to his assigned dormitory after work detail and because the showers in his assigned dormitory were broken, correctional staff escorted him to an alternate dormitory under the guard of Defendant/Correctional Officer LaFon. Plaintiff maintains that LaFon turned off the water in the showers less than two minutes after he began showering and that this caused Plaintiff to make his way to the sinks in order to rinse soap from his eyes. At that time, LaFon allegedly struck Plaintiff with a baton and continued attacking Plaintiff while he crawled to the dormitory's main room. (Compl.. ¶¶ 22-25.)
In April 1999, several state prison inmates, including Plaintiff, brought a civil rights action in federal court against various defendants. In January 2003, it was stipulated that the 1999 action be dismissed to allow the plaintiffs to pursue and exhaust administrative remedies with the California Department of Corrections ("CDC"), as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997(e). (Stipulation of Dismissal of Claims in First Amended Complaint Against Defendants LaFon and Carhungan.)
In February 2003, after the action was dismissed without prejudice, Plaintiff pursued administrative remedies with the CDC for complaints against both Defendants Carhunagan and LaFon. Plaintiff's appeals, however, were rejected by the CDC as untimely. According to the Inmate/Parolee Appeal Screening Form for Plaintiff's grievances, Plaintiff's appeals were rejected because there had been "too great a time laspe between when the action or decision occurred and when you filed your appeal, with no explanation of why you did not, or could not file in a timely manner." The screening form states that the "screening decision may not be appealed unless you allege the above reason is inaccurate: In such case please return this form to the Appeals Coordinator with the necessary information." (Pl.'s Inmate / Parolee Appeals Screening Form, Defs.' Mot. Tab A and Pl.'s Addendum to Opp'n Tab A.) In seeking a second-level review and third-level review of the denial of his appeals, Plaintiff alleged that he was unable to file in a timely manner "due to injuries resulting from the incident." (Id.) The CDC denied Plaintiff's appeals at both the second-level and third-level reviews on the same ground of untimeliness.
The CDC has an administrative grievance system for prisoner complaints. Cal. Code Regs., tit. 15 § 3084, et seq. Four levels of appeal are involved, including the informal level, first formal level, second formal level, and third formal level. (Cal. Code Regs., tit. 15 § 3084.5 (2005); see also Decl. Of N. Grannis 13.)
The California Code of Regulations provides: "An appellant must submit the appeal within 15 working days of the event or decision being appealed, or of receiving an unacceptable lower level appeal decision. (Cal. Code Regs., tit. 15 § 3084.6(c).)
In July 2003, Plaintiff again brought a 42 U.S.C. § 1983 action. This action was assigned to the Honorable Nora M. Manella. The Complaint alleged that Plaintiff had fully exhausted administrative remedies. (Compl. ¶ 7.) Defendants moved to dismiss the lawsuit on the grounds that Plaintiff failed to exhaust administrative remedies with the CDC. Defendants argued that the CDCs rejection of Plaintiff's claims as time-barred rendered the claims unexhausted. Defendants argued that because the PLRA requires state prisoners' claims to be exhausted in the state prison system before those same claims may be brought in federal court, Plaintiff's claims were barred from federal court and the action should be dismissed. (See Defs.' Mot. to Dismiss.)
In July 2004, Judge Manella entered an order vacating the hearing on Defendants' motion to dismiss pending the outcome of Natividad v. McGrath, 139 Fed. Appx. 883 (9th Cir. 2005). In February 2005, Natividad was withdrawn and deferred pending the outcome of Woodford v. Ngo, 403 F.3d 620 (9th Cir. 2005). Woodford addressed whether the PLRA's exhaustion requirement was satisfied by the filing an administrative appeal that was ultimately rejected as untimely. A panel for the Ninth Circuit held that the exhaustion requirement was satisfied even if the administrative appeal was rejected as untimely. Although the Ninth Circuit denied rehearing en banc, the United States Supreme Court granted a petition for certiorari on November 14, 2005. Woodford v. Ngo, 546 U.S. 1015, 126 S.Ct. 647, 163 L.Ed.2d 525 (2005).
On April 20, 2006, the case was transferred from Judge Manella to this Court. On June 22, 2006, in Woodford v. Ngo, 546 U.S., 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), the Supreme Court reversed the Ninth Circuit, holding that a prisoner does not exhaust their remedies under the PLRA if their administrative appeal is properly rejected as untimely.
Accordingly, Defendants now move for judgment on the pleadings on the ground that Plaintiff failed to exhaust his administrative remedies. An inmate in the California prison system must complete four steps: (1) attempted informal resolution, (2) first formal level appeal, (3) second formal level appeal, and (4) third or director's level appeal. Cal. Code Regs., tit. 15 § 3084.5. Under this scheme, the administrative process is exhausted only after the inmate receives a decision from the Director. Cal. Dep't of Corrections Operations Manual, § 54100.11.
II. DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). Judgment on the pleadings is appropriate when "the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990) . A motion for judgment on the pleadings is therefore similar to a motion to dismiss. Id.
Under the PLRA, an inmate's failure to exhaust administrative remedies is an affirmative defense, and defendants have the burden of proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) . The Ninth Circuit has held that "the failure to exhaust nonjudicial remedies that are not jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated 12(b) motion rather than a motion for summary judgment." Id. In deciding a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the pleadings and decide disputed issues of fact. Id. at 1119-20. The same standard is appropriate when considering a motion for judgment on the pleadings based upon the failure to exhaust administrative remedies. See id.
B. Analysis
1. "Proper Exhaustion"
The Prison Litigation Reform Act of 1995 states that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 5343 U.S. 516 (2002). Prisoners must complete the prison's administrative process, regardless of the relief sought by the prisoner and regardless of the relief offered by the process, as long as the administrative process can provide some sort of relief on the complaint stated. Booth v. Churner, 532 U.S. 731, 741 (2001) (holding that administrative remedies must be exhausted even when plaintiff seeks only monetary relief and the inmate grievance procedure offers no such relief). Exhaustion must occur prior to filing suit, not while suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002).
The Supreme Court in Woodford v. Nero, 126 S.Ct. 2378 (2006), held that " [p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 2386. The Supreme Court found that "proper exhaustion means ... a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." Id.
Defendants rely on the Supreme Court's decision in Woodford to argue that Plaintiff did not exhaust administrative remedies under the PLRA by filing an untimely administrative grievance. Defendants argue that the Supreme Court's decision in Woodford forecloses Plaintiff's claims, characterizing Woodford as "holding that an inmate's failure to exhaust within the established time constraints forever bars the inmate from bringing suit because of his or her inability to exhaust administrative remedies." (Def.'s Mot. 4.)
Plaintiff does not dispute that Woodford requires proper exhaustion, but argues that Woodford does not stand for the broad proposition that every untimely grievance must be dismissed for a failure to exhaust remedies. Essentially, Plaintiff contends that an inmate may still be deemed to have exhausted administrative remedies, in spite of an untimely attempt at pursuing administrative remedies, when an inmate had good reason for the untimely grievance. Plaintiff argues that he had a good reason--his inability to file within the 15 day time limit was a consequence of Defendants' conduct, that caused him severe injuries. Plaintiff concludes that he should be deemed to have exhausted under the applicable legal standards and procedural rules. (PL's Opp'n 10-11.)
The Court in Woodford explained that exhaustion respects the authority of the administrative agency and promotes efficiency. The Court stressed that the "benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance." Woodford, 126 S.Ct. at 2388. Alternatively, if prisoners in noncompliance with administrative filing deadlines were then allowed to bring claims in federal court, this would defeat the purposes of exhaustion as "a prisoner wishing to bypass the available administrative remedies could simply file a late grievance without providing any reason for failing to file on time." Id. at 2388. Thus, the Court in Woodford was concerned to promote the purposes of exhaustion by adopting a rule that would both enable the prison grievance system to hear administrative appeals and prevent prisoners from bypassing administrative remedies. See id. at 2385-88.
However, the Court did not articulate a per se rule that all untimely grievances fail to exhaust administrative remedies. In Woodford, the prisoner was placed in administrative segregation and upon release was prohibited from participation in prison religious programs. After six months, the prisoner initiated a grievance, but the grievance was denied as untimely. Id. at 2383-84. As noted in Woodford, under the California Code of Regulations, an appeal may be rejected as untimely when "[t]ime limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints." Cal. Code Regs., tit. 15 § 3084.3(c)(6). Because there was no dispute that the prisoner had the opportunity to file his grievance within the time limits, the Court did not address circumstances where a prisoner's grievance was untimely, but the prisoner had no opportunity to file in a timely fashion. See Woodford, 126 S.Ct. at 2383-84.
Also, the Court in Woodford, noted that its facts did not allow it to rule on a situation where prisons "create procedural requirements for the purpose of tripping up all but the most skillful prisoners." Woodford, 126 S.Ct. at 2392-93.
In Jones v. Bock, 127 S.Ct. 910 (2007), the Supreme Court further explained that Woodford "held that to properly exhaust administrative remedies prisoners must 'complete the administrative review process in accordance with the applicable procedural rules'--rules defined not by the PLRA, but by the prison grievance system itself." Id. at 922 (quoting Woodford, 126 S.Ct. at 2384) (citations omitted). The Court noted that a prisoner's compliance with grievance procedures "will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Id.
Accordingly, Woodford did not hold that all untimely grievances fail to exhaust administrative remedies. Rather, a court must look to the applicable procedural rules of the state's grievance procedures. See Jones v. Bock, 127 S.Ct. at 922. Here, as in Woodford, Plaintiff is an inmate of the California Department of Corrections. The California Code of Regulations provide that an inmate's administrative appeal may be rejected as untimely when "[t]ime limits for submitting the appeal are exceeded and the appellant had the opportunity to file within the prescribed time constraints." Cal. Code Regs., tit. 15 § 3084.3(c)(6) (emphasis added).
As indicated by Defendants, the CDCs Department Operations Manual ("DOM") provides guidelines for administrative review. The DOM provides that "[t]he acceptance of an appeal request beyond the 15-day policy is at the discretion of the appeals coordinator." DOM § 54100.4. An appeals coordinator or staff member may screen-out appeals prior to review, and are instructed that such decisions "should not be construed in any manner that would place unreasonable restraints on the inmate/parolee's right to appeal." DOM § 54100.8. The DOM lists several reasons that warrant rejection of an appeal, including that
There has been too great a time laspe between when the action or decision occurred and when the appeal was submitted. The appeals coordinator shall . . . ensure that the inmate or parolee had, in fact, the opportunity to file in a timely manner.
DOM § 54100.8.1.
The California Code of Regulations and the DOM are clear that rejection of a prisoner's grievance requires the CDC to determine whether the prisoner had an opportunity to file within the prescribed time limits; a finding of untimeliness does not by itself merit denial of an inmate's claim. Although the DOM does not provide additional guidance on this requirement, it is implicit that a prisoner who for good reason did not have the opportunity to file within the time limits, must be provided some means to pursue administrative remedies or be excused from further exhaustion. Otherwise, a prisoner has no "available" remedy within the administrative system. See 42 U.S.C. § 1997e(a); Booth, 532 U.S. at 738.
Because the California Code of Regulations require that an inmate have the opportunity to file a grievance within the time limits, the Court does not consider whether a state prison system that categorically rejected untimely grievances without exception would be permissible under due process, the PLRA, principles of administrative law, or otherwise. See Woodford, 126 S.Ct. at 2392 (Breyer J. concurring) (recognizing that administrative law "contains well established exceptions to exhaustion"); Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (holding "a prisoner need not press on to exhaust further levels of review once he has either received all 'available' remedies [as required by the PLRA] at an intermediate level of review or been reliably informed by an administrator that no remedies are available."). The Court further notes that several district court cases since Woodford have held that prisoners may bring a claim in federal court when they did not have the opportunity to file a grievance within the time limit. See Holcomb v. Terhune, No. C-03-02765, 2006 U.S. Dist. LEXIS 85683, *17-19 (N.D. Cal. Nov. 14, 2006) (holding that a prisoner prevented from making a timely appeal because he suffered physical injuries caused by defendants had exhausted all administrative remedies when the late grievance was due to "circumstances outside his control"); Brookins v. Vocrel, No. 1: 05-CV-0413, 2006 WL 3437482, at *3 (E.D. Cal. Nov. 28, 2006) (finding that a prisoner who filed a grievance, but was informed it was never received and therefore untimely, exhausted all administrative remedies because the prison did not respond to the grievance); Flory v. Claussen, No. C06-1046, 2006 WL 3404779, at *3-4 (W.D. Wash. Nov. 21, 2006) (holding that a prisoner had exhausted all administrative remedies when he followed a prison officials' recommendation to file an appeal with the wrong agency, rather than filing a timely administrative grievance).
Accordingly, the Court holds that a prisoner exhausts administrative remedies if the prisoner files a grievance, that grievance is untimely for a good reason, and the prison grievance system fails to reach any determination regarding the prisoner's opportunity to file within the prescribed time limits. A prisoner does not exhaust administrative remedies if the prisoner had an opportunity to file within the time limits, the prisoner did not have a good reason for failing to file within time limits, or the prisoner simply failed to provide a reason.
2. Application
In this case, Defendants maintain that until 2003, Plaintiff never filed administrative appeals for the May 20, 1997 incident with Defendant Carhunagan or for the July 12, 1997 incident with Defendant LaFon. Defendants offer a declaration of the CDCs Chief of the Inmate Appeals Branch, who is responsible for the third-level review of inmate appeals. According to the declaration, the Inmate Appeals Branch maintains a database that "tracks all properly filed appeals received since 1993 that are accepted by the Inmate Appeals Branch for Director's level adjudication." (Decl. of N. Grannis ¶ 4-5.)
Director's level adjudication is the third-level review. (Decl. Of N. Grannis 14-5.)
The declaration states that a search of appeals records shows that Plaintiff never exhausted administrative remedies for claims arising from the May 20, 1997 or July 12, 1997 incidents. Plaintiff was found only to have exhausted a separate claim challenging disciplinary action taken against him for a February 26, 1997 violation of prison regulations related to manufacturing alcohol. (Decl. Of N. Grannis 18(a).) Further, Plaintiff's 2003 appeal was "screened-out . . . because [Plaintiff] failed to comply with the requirements set forth in California Code of Regulations, Title 15, section 3084, et seq." (Id. ¶ 8(a).) N. Grannis addressed a June 17, 2003 letter to Plaintiff explaining the reason that his appeal was being returned to him. The letter stated that Plaintiff's appeal was being returned because "[a]n appellant must submit the appeal within 15 working days of the event or decision being appealed, or a lower level decision in accordance with CCR 3084.6(c)." (Letter of N. Grannis to Anthony Jimenez, Def.'s Ex. B.)
Although Defendants do not offer evidence disproving that Plaintiff initially filed grievances with respect to the two 1997 incidents, the N. Grannis declaration is evidence that Plaintiff did not complete the third-level review within the 15-day deadline, and that it was not until 2003 that Plaintiff brought appeals to the third-level review for the 1997 incidents. (Decl. Of N. Grannis ¶ 8.) On this basis, Defendants argue that Plaintiff's administrative grievances were untimely.
Defendants further argue that there is no evidence showing that Plaintiff lacked the opportunity to file a timely grievance, and in fact, that allegations in Plaintiff's original complaint raising the claims in this case show that he was able to pursue administrative remedies, but chose not to do so. Specifically, in that complaint, Plaintiff alleged that he did not pursue administrative remedies because it was a "trivial" process and out of fear of reprisal. (See Defs.' Supp'l. Br. 6, citing PI.'s First Amended Complaint, Jimenez v. Reno, CV99-3455.) Thus, Defendants conclude that Plaintiff failed to exhaust administrative remedies.
Plaintiff does not provide any records of his alleged 1997 grievances with respect to the incidents. Rather, Plaintiff asserts that his grievances were untimely due to physical injuries and that he lacked the opportunity to file timely grievances. As to the May 20, 1997 incident, Plaintiff contends that Defendant Carhunagan's conduct caused him injury by aggravating a head wound and that Plaintiff filed a June 1997 grievance with the CDC against Defendant Carhunagan. As to the July 12, 1997 incident, Plaintiff asserts that he was unable to complete the necessary grievance forms because the incident with Defendant LaFon injured his right wrist, which is Plaintiff's writing hand. After regaining the ability to write, Plaintiff maintains that he filed a grievance with the CDC in August 1997, which the CDC later rejected. (PI. Opp. 10-11.) Plaintiff states that he informed prison officials when making these grievances that physical injuries prevented his timely filing. (Pl.'s Opp'n 18.)
At least with respect to the claim against Defendant LaFon, Plaintiff likens his situation to the facts in the Fifth Circuit case Days v. Johnson, 322 F.3d 863 (5th Cir. 2003). In that case, the inmate filed an untimely grievance because of injuries to his writing hand suffered during the incident that was the subject of his grievance. Id. at 867. The Fifth Circuit held that "administrative remedies are deemed unavailable when (1) an inmate's untimely filing of a grievance is because of a physical injury and (2) the grievance system rejects the inmate's subsequent attempt to exhaust his remedies based on the untimely filing of the grievance." Id. at 868.
Plaintiff further explains that CDC staff informed him that his 1997 grievance, insofar as it sought discipline of a CDC employee, "was beyond the appeals process due to the confidential nature of staff complaints." (Pl.'s Opp'n 18-19.) He then asserts that he spoke with an internal affairs investigator who informed Plaintiff that his appeal had been partially granted. On that basis, Plaintiff states that he did not seek third-level review, believing that there were no longer any administrative remedies available to him. (PI. Opp. 18-19.)
In response to Defendants' citation of the original complaint in the .Reno action, Plaintiff explains that his description of administrative remedies as "trivial" was reasonable because Ninth Circuit law from that time had held a prisoner need not exhaust administrative remedies when pursuing monetary damages, since damages are unavailable through the administrative process. (Pl.'s Suppl. Br. 6, citing Rumbles v. Hill, 182 F.3d 1064, 1069 (9th Cir. 1999).) Defendant further argues that he did not raise fear of reprisal in his 2003 grievances based upon a belief that physical injuries provided a sufficient explanation for the untimely grievances. (Id. at 4-5.)
The Court notes initially that the untimeliness of Plaintiff's grievances is undisputed. The issue is whether Plaintiff had an opportunity to file within the prescribed 15-day time limit. An appeals coordinator is required to ensure that a prisoner had an opportunity to file within the time constraints when deciding whether their grievance is timely. See Cal. Code Regs., tit. 15 § 3084.3(c)(6); DOM § 54100.8.1. This obligation arises only if a prisoner in fact files a grievance and appeal.
There is no record that Plaintiff filed grievances in 1997 related to the claims in this case. The only record before the Court are the grievances filed in 2003. Those grievances were rejected through third-level review. (See Pl.'s Inmate/Parolee Appeal Form, Defs.' Mot. Tab A and Tab B; Pl.'s Addendum to Opp'n Tab A.) Absent from Defendants' evidence, however, is a showing that the appeals coordinator made any determinations with respect to the Plaintiff's opportunity to file within the time limits due to physical injuries, even though Plaintiff asserted physical injuries as the reason for his untimely grievances. This indicates that the CDC failed to comply with the California Code of Regulations when considering Plaintiff's grievances in this case.
Neither the letter rejecting Plaintiff's appeals nor the Inmate/Parolee Appeal Form contain such a finding. Notably, the only reason provided in the letter rejecting Plaintiff's appeals was that "[a]n appellant must submit the appeal within 15 working days of the event or decision being appealed, or a lower level decision in accordance with CCR 3084.6(c)." (Letter of N. Grannis to Anthony Jimenez, Def.'s Ex. B.)
Notwithstanding the absence of a determination in this regard, Defendants' evidence is sufficient to shift the burden of producing evidence. Other than Plaintiff's assertions, there is no evidence showing that physical injuries prevented Plaintiff from filing his grievances or that Plaintiff notified an appeals coordinator of physical injuries preventing his timely filing of grievances. What's more, the evidence on record shows that Plaintiff did not raise physical injuries as a reason for untimely grievances until 2003, and that Plaintiff previously alleged fear of reprisal and the unavailability of monetary damages as reasons. The assertion of different reasons at different times in the litigation undercuts Plaintiff's current position that he failed to file timely grievances due to physical injuries. Therefore, the Court does not find Plaintiff to have shown that he lacked an opportunity to file within the time constraints due to physical injuries.
Although Plaintiff submits evidence of injuries to his lower back and lower leg, including medical reports, (Pl.'s Exhibits, Tab F), there is no indication that these injuries prevented filing of a grievance within the time constraints.
While plaintiffs need not plead exhaustion in the complaint, see Wyatt, 315 F.3d at 1120, the reasons presented by the Plaintiff in his complaint with respect to not pursuing administrative remedies are relevant to his argument that physical injuries prevented timely grievances.
There is a similar lack of evidence verifying whether Plaintiff was informed that his grievances were unappealable staff complaints or had been partially granted. The Court, therefore, does not consider Plaintiff to have established that he was not required to exhaust administrative remedies through a third-level review. Contra Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) . Also, while Plaintiff is correct that exhaustion was not required for claims seeking monetary damages when his original complaint was first filed, the Supreme Court has since held that prisoners must exhaust when seeking monetary damages, and Defendants are entitled to raise non-exhaustion here. See Booth, 532 U.S. at 734; see also Panaro v. City of N. Las Vegas, 432 F.3d 949, 952 (9th Cir. 2005) .
Accordingly, the Court finds that Plaintiff did not exhaust his administrative remedies.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants' Motion for Judgment on the Pleadings, and dismisses this action.
IT IS SO ORDERED.