Lopez v. Florez et al

Filing 73

ORDER signed by District Judge Lawrence J. O'Neill on 9/18/2012 adopting 69 FINDINGS AND RECOMMENDATIONS and denying 53 Motion to Dismiss. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW R. LOPEZ,

Case No. 1:08-cv-01975-LJO-JLT (PC)

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v.

Plaintiff, ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY
DEFENDANTS’ MOTION TO DISMISS

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FLOREZ, et al.,

(Doc. 69).

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Defendants.
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Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42

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U.S.C. § 1983. (Doc. 1). The matter was referred to the United States Magistrate Judge pursuant

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to 28 U.S.C. § 636(b)(1)(B) and Local Rules 302 and 303.

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On August 31, 2012, Magistrate Judge Thurston issued Findings and Recommendations to

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deny Defendants’ motion to dismiss. (Doc. 69). Defendants’ motion argued the following: 1)

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based upon the timing of the two grievances, Plaintiff failed to exhaust his administrative
remedies as to Defendant Florez and 2) Defendant Reed’s actions did not constitute deliberate

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indifference and therefore the federal and state claims should fail. (Doc. 53). With regard to

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Defendant Florez’ motion, the Findings and Recommendations cited several authorities which

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demonstrated that a single grievance was sufficient to alert prison officials of Plaintiff’s medical

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complaints. (Doc. 69 at 7). Based upon these authorities and the evidence presented, Magistrate

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Judge Thurston properly recommended that Defendant Florez’ motion to dismiss for failure to

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exhaust administrative remedies be denied. As for Defendant Reed, Magistrate Judge Thurston
found that Reed’s knowledge of Plaintiff’s surgery, the order for pain medication, and the fact

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that Plaintiff was in pain, along with the allegations of set forth in the Complaint, were sufficient

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to demonstrate deliberate indifference. (Doc. 69 at 7-8). As a result, Magistrate Judge Thurston

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recommended Defendant Reed’s motion be denied as well.

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The parties were advised in the August 31, 2012 Findings and Recommendations that they

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had 14 days to object.

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objections to the findings and recommendations.

(Doc. 69).

Despite the Court’s warning, neither party submitted

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Britt v. Simi Valley

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United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), the Court has conducted a de novo review

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of the case. Having carefully, reviewed the entire file, the Court finds that the Findings and

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Recommendations are 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 filed August 31, 2012 are ADOPTED IN

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FULL; and

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2. The Motion to Dismiss filed by Defendants Florez and Reed is DENIED.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

September 18, 2012

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

66h44d

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