Holley v. Swarthout et al
Filing
51
ORDER signed by Judge Morrison C. England, Jr on 9/28/2011 ORDERING that 48 FINDINGS AND RECOMMENDATIONS are ADOPTED in full; and Defendant's 18 Motion to Dismiss is DENIED without prejudice. (Waggoner, D)
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
JOEL HOLLEY,
11
Plaintiff,
12
13
No. CIV S-10-0615 MCE EFB P
vs.
GARY SWARTHOUT, et al.,
14
Defendants.
15
ORDER
/
16
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action
17
seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate
18
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
19
On September 1, 2011, the magistrate judge filed findings and recommendations
20
herein which were served on all parties and which contained notice to all parties that any
21
objections to the findings and recommendations were to be filed within fourteen days from the
22
date the findings and recommendations were served. Defendants have filed objections to the
23
findings and recommendations.
24
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule
25
304, this Court has conducted a de novo review of this case.
26
////
1
1
Having carefully reviewed the entire file, the Court finds the findings and recommendations to be
2
supported by the record and by proper analysis.
3
The Court notes for the record that, while Defendants appear, via their objections
4
to the magistrate judge’s findings and recommendations, to have attempted to rectify their failure
5
to address whether Plaintiff’s first appeal was sufficient to exhaust his administrative remedies as
6
to all of his claims, the Court declines to address those belated arguments until they have been
7
properly briefed before the magistrate judge in the first instance.
8
Accordingly, IT IS HEREBY ORDERED that:
9
1. The findings and recommendations filed September 1, 2011 (ECF No. 48), are
10
11
12
ADOPTED in full; and
2. Defendants’ January 24, 2011 motion to dismiss is DENIED without prejudice.
Dated: September 28, 2011
13
14
15
________________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
16
17
18
19
20
21
22
23
24
25
26
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?