Barrett v. Cate et al

Filing 53

ORDER WITHDRAWING 47 FINDINGS AND RECOMMENDATIONS; ORDER Directing Defendants to File Additional Documents, signed by Magistrate Judge Jennifer L. Thurston on 12/6/2011. Within 14 days, the Court ORDERS Defendants to file all grievances, responses, and appeals related to Plaintiffs claim of excessive force occurring on or about June 22, 2007. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT E. BARRETT,

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Case No. 1:09-cv-01741 LJO JLT (PC)

Plaintiff,

ORDER WITHDRAWING FINDINGS AND
RECOMMENDATIONS

vs.
(Doc. 47)

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MATTHEW CATE, et al.,

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Defendants.

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ORDER DIRECTING DEFENDANTS TO
FILE ADDITIONAL DOCUMENTS
/

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On May 10, 2011, Defendants filed their motion to dismiss related to their position that

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Plaintiff has failed to exhaust his administrative remedies.. (Doc. 32) On October 27, 2011, the Court

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issued its findings and recommendations recommending that the motion to dismiss be granted. (Doc.

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47.) On November 16, 2011, Plaintiff filed objections to the findings and recommendations. (Doc.

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51.) On November 18, 2011, Defendants filed their reply to Plaintiff’s objections. (Doc. 52.)

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Having reviewed Plaintiff’s objections, the Court finds that Plaintiff may have raised a valid

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objection as to his assertion that he exhausted his claim of excessive force against Defendant

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Delanda through an earlier grievance and appeal. It appears that Plaintiff does not rely upon the

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Rules Violation report as a grievance but on the reference made in the report to an earlier grievance

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and appeal related to the actions at issue in the rules violation proceeding. (Doc. 36 at 21) Plaintiff’s

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argument that a rehearing took place as a result of a “Second Level Appeal decision” implies that he
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may have exhausted this grievance but, without the grievance documents, the Court cannot make this

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determination.

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Therefore, the Court ORDERS:

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1.

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The Findings and Recommendations issued on October 27, 2011 (Doc. 47) be
WITHDRAWN;

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Within 14 days of the date of this order the Court ORDERS Defendants to file all

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grievances, responses, and appeals related to Plaintiff’s claim of excessive force

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occurring on or about June 22, 2007, which is alleged to have occurred while Plaintiff

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was housed in the SHU at California State Prison, Corcoran. (Doc. 17 at 5-6)

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IT IS SO ORDERED.

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Dated: December 6, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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