Colbert v. Leininger, et al.

Filing 15

ORDER signed by Judge Kimberly J. Mueller on 9/10/2013 FINDINGS AND RECOMMENDATIONS 9 as to plaintiff's motion for preliminary injunction are ADOPTED in FULL; and plaintiff's 8 motion for preliminary injunctive relief is DENIED. (Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE K. COLBERT, 12 13 14 15 No. 13-cv-0382-KJM-KJN-P Plaintiff, v. ORDER D. LEININGER, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 9, 2013, the magistrate judge filed findings and recommendations, which were 21 served on plaintiff and which contained notice to plaintiff that any objections to the findings and 22 recommendations were to be filed within fourteen days. Plaintiff has not filed objections to the 23 findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully 27 reviewed the file, the court finds the findings and recommendations to be supported overall by the 28 record and by the proper analysis. 1 1 However, one passage in the magistrate judge’s order gives this court pause, 2 insofar as the passage may have informed the magistrate judge’s findings and recommendations 3 on plaintiff’s motion for a preliminary injunction. The magistrate judge noted that plaintiff did 4 not attach proof of exhaustion of administrative remedies vis-à-vis defendant Leininger’s alleged 5 sexual harassment and assault or any other threats or deprivations Leininger or any other 6 correctional staff caused plaintiff. (ECF 9 at 4.) The court notes of course that absence of 7 exhaustion is an affirmative defense not a pleading requirement; as such, the burden of raising 8 and proving it is on defendants, not plaintiff. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 9 2003). 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The findings and recommendations as to plaintiff’s motion for a preliminary injunction 12 13 14 filed July 9, 2013, are adopted; and 2. Plaintiff’s motion for preliminary injunctive relief (ECF No. 8) is denied. DATED: September 10, 2013. 15 16 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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