Herrera v. Rouch

Filing 111

ORDER ADOPTING 88 Findings and Recommendation to DENY Defendant's 32 Motion to Dismiss for Failure to State a Claim, signed by District Judge Lawrence J. O'Neill on 3/6/2015. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERTO HERRERA, 12 13 14 15 Plaintiff, v. Case No. 1:13-cv-00289-LJO-MJS (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATION TO DENY DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ROUCH, (ECF Nos. 32 & 88) Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendant Rouch on Plaintiff’s inadequate medical care claim. (ECF No. 18.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California. On September 16, 2014, the Magistrate Judge issued findings and a recommendation to deny Defendant’s motion to dismiss for failure to state a claim. (ECF No. 88.) The motion also sought to dismiss the action for failure to exhaust administrative remedies, but Defendant was permitted to withdraw that argument and to raise it in a motion for summary judgment in light of Albino v. Vaca, 747 F.3d 1162, 1 1166 (9th Cir. 2014). Defendant did, in fact, file a motion for summary judgment for 2 failure to exhaust administrative remedies, which presently is pending before the Court. 3 Plaintiff objected to the findings and recommendation on the ground the Magistrate 4 Judge did not also deny (and indeed did not address) the motion for summary 5 judgment. (ECF No. 95.) No other objections were filed. In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has 6 7 conducted a de novo review of this case. Having carefully reviewed the entire file, the 8 Court finds the September 16, 2014 findings and recommendation to be supported by 9 the record and by proper analysis. Plaintiff’s objections do not raise an issue of law or 10 fact. 11 Accordingly, it is HEREBY ORDERED that: 12 1. The Court adopts the findings and recommendation to deny Defendant’s 13 motion to dismiss for failure to state a claim (ECF No. 88), filed September 14 16, 2014, in full; and 2. Defendant’s motion to dismiss (ECF No. 32), filed December 26, 2013, is 15 16 17 18 DENIED. IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill March 6, 2015 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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