Espritt v. Saesee et al

Filing 68

ORDER Adopting 67 FINDINGS AND RECOMMENDATION; ORDER DENYINGDefendants' 56 Motion to Dismiss; ORDER for Defendants to File Motion or Answer within Thirty Days signed by District Judge Anthony W. Ishii on 11/15/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN ESPRITT,

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1:11-cv-00519-AWI-GSA-PC

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATION
(Doc. 67.)

vs.

ORDER DENYING DEFENDANTS’
MOTION TO DISMISS
(Doc. 56.)

A. SAESEE, et al.,

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Defendants.

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ORDER FOR DEFENDANTS TO FILE
MOTION OR ANSWER WITHIN THIRTY
DAYS

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Brian Espritt (APlaintiff@) is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. The matter was referred to a United States Magistrate Judge

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

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On September 15, 2014, findings and recommendations were entered, recommending

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that Defendants’ motion to dismiss be denied. (Doc. 67.) The parties were granted thirty days

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in which to file objections to the findings and recommendations. To date, no objections have

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been filed.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this

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

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the Court finds the findings and recommendations to be supported by the record and proper

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analysis.

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Accordingly, THE COURT HEREBY ORDERS that:

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1.

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The Findings and Recommendations issued by the Magistrate Judge on
September 15, 2014, are ADOPTED IN FULL; and

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2.

Defendants’ motion to dismiss, filed on May 7, 2014, is DENIED;

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3.

Within thirty days from the date of service of this order, Defendants shall either

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file an answer to the Second Amended Complaint, or file a motion for summary

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judgment pursuant to Albino v. Baca;1 and

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4.

This case is referred back to the Magistrate Judge for further proceedings.

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IT IS SO ORDERED.
Dated: November 15, 2014
SENIOR DISTRICT JUDGE

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1

In Albino v. Baca, the Ninth Circuit held that a motion for summary judgment is the appropriate
procedural device for pretrial determination of whether administrative remedies have been exhausted under the
PLRA. Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014).
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