Gregory Rodriguez v. Hopkins

Filing 24

ORDER ADOPTING 22 FINDINGS AND RECOMMENDATIONS, DENYING Defendant's 15 Motion to Dismiss for Failure to State a Claim and for Failure to Exhaust, and Requiring Defendant to File a Response to Plaintiff's Complaint Within Twenty Days, signed by Chief Judge Anthony W. Ishii on 12/23/2011. (Responses to Complaint Due Within Twenty (20) Days.) (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GREGORY RODRIGUEZ,

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CASE NO. 1:09-cv-02184-AWI-SKO PC

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING
DEFENDANT’S MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM AND FOR
FAILURE TO EXHAUST, AND REQUIRING
DEFENDANT TO FILE A RESPONSE TO
PLAINTIFF’S COMPLAINT WITHIN
TWENTY DAYS

v.
HOPKINS,
Defendant.

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(Docs. 15 and 22)
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Plaintiff Gregory Rodriguez, proceeding pro se and in forma pauperis, filed this civil rights
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action pursuant to 42 U.S.C. § 1983 on December 16, 2009. The matter was referred to a United
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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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This action is proceeding against Defendant Hopkins for use of excessive physical force, in
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violation of the Eighth Amendment. On June 6, 2011, Defendant filed a motion to dismiss
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Plaintiff’s due process claim for failure to state a claim and to dismiss the action for failure to
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exhaust. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). On August 12, 2011, the Magistrate Judge
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filed a Findings and Recommendations recommending that Defendant’s motion to dismiss be denied.
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The parties were given fifteen days within which to file objections, but no objections were filed.
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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 August 12, 2011, is adopted in full;

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Defendant’s motion to dismiss, filed June 6, 2011, is DENIED; and

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Defendant shall file a response to Plaintiff’s complaint within twenty (20) days from

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the date of service of this order.
IT IS SO ORDERED.

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Dated:
0m8i78

December 23, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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