Wafer v. Suesberry et al

Filing 62

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS Regarding Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies 60 , signed by District Judge Anthony W. Ishii on 3/13/14: This action is referred back to the Magistrate Judge for further proceedings consistent with this order. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY D. WAFER,

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Plaintiff,

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v.
W. SUESBERRY, et al.,

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Defendants.

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1:07-cv-00865-AWI-BAM (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
DEFENDANTS’ MOTION TO DISMISS
FOR FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES
(ECF No. 60)

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Plaintiff Anthony D. Wafer (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On January 15, 2014, the

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Magistrate Judge issued Findings and Recommendations that Defendants’ motion to dismiss for

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failure to exhaust administrative remedies be granted in part and denied in part. Specifically, the

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Magistrate Judge recommended that Plaintiff’s claim against Defendant Hasadsri be dismissed

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without prejudice for failure to exhaust administrative remedies and that this action proceed on

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Plaintiff’s claims against Defendants Reynolds and Suesberry for failure to provide medication

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in violation of the Eighth Amendment.1

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The Findings and Recommendations were served on the parties appearing in this action

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and contained notice that any objections were to be filed within thirty (30) days after service.

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More than thirty days have passed and no objections have been filed. On February 24, 2014,

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The Clerk of the Court entered default against Defendant Suesberry on November 21, 2013. Plaintiff filed
a motion for default judgment against Defendant Suesberry on January 9, 2014. (ECF No. 59.) The motion for
default judgment remains pending.
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Plaintiff filed a statement indicating that he concurred with the Findings and Recommendations

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and would not be filing any objections. (ECF No. 61.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted

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a de novo review of this case. Having carefully reviewed the entire file, the Court finds the

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Findings and Recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, issued on January 15, 2014, are adopted in

full; and
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Defendants’ motion to dismiss for failure to exhaust administrative remedies is

GRANTED IN PART and DENIED IN PART;
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Plaintiff’s claim against Defendant Hasadsri is DISMISSED without prejudice

for failure to exhaust administrative remedies;
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This action shall proceed on Plaintiff’s claims against Defendants Reynolds and

Suesberry for failure to provide medication in violation of the Eighth Amendment; and
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This action is referred back to the Magistrate Judge for further proceedings

consistent with this order.

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IT IS SO ORDERED.

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Dated: March 13, 2014

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SENIOR DISTRICT JUDGE

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