Brown v. Kavavnaugh et al
Filing
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ORDER Adopting 39 Findings and Recommendations and Denying 31 Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies, signed by District Judge Lawrence J. O'Neill on 1/12/12. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KAREEM BROWN,
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CASE NO. 1:08-cv–01764-LJO-BAM PC
Plaintiff,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
DEFENDANTS’ MOTION TO DISMISS FOR
FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES
v.
J. KAVANAUGH, et al.,
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Defendants.
(ECF No. 39)
/
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Plaintiff Kareem Brown is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed a Complaint on November 18, 2008.
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The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
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and Local Rule 302.
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On December 15, 2011, the Magistrate Judge filed a Findings and Recommendations herein
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which was served on the parties and which contained notice to the parties that any objections to the
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Findings and Recommendations were to be filed within thirty days.
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2011,Defendants filed an Objection stating that they had no objection to the Findings and
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Recommendations, however requested clarification of the findings.
On December 15,
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Although the parties did not argue that Plaintiff’s appeal, dated September 27, 2008,
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exhausted Plaintiff’s claims against Defendant Garcia, a review of the document shows that it
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addressed his retaliation claim against both Defendants Garcia and Kavanaugh. Plaintiff included
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a copy of this appeal, and complained that it had not been processed, in his October 23, 2008
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grievance. Defendants presented no evidence to the Court to show that this appeal was addressed
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by prison officials. Based upon the finding that Defendants did not carry their burden of establishing
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failure to exhaust administrative remedies, the Motion to Dismiss for Failure to Exhaust
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Administrative Remedies is denied for both Defendants Garcia and Kavanaugh.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings
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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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The Findings and Recommendations, filed December 15, 2011, is adopted in full;
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2.
Defendants’ Motion to Dismiss for Failure to Exhaust Administrative Remedies,
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filed July 6, 2011, is DENIED.
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3.
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IT IS SO ORDERED.
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Dated:
b9ed48
This matter is referred to the Magistrate Judge for further proceedings.
January 12, 2012
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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