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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE K. COLBERT,

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No. 13-cv-0382-KJM-KJN-P

Plaintiff,
v.

ORDER

D. LEININGER, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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

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On July 9, 2013, the magistrate judge filed findings and recommendations, which were

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served on plaintiff and which contained notice to plaintiff that any objections to the findings and

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recommendations were to be filed within fourteen days. Plaintiff has not filed objections to the

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findings and recommendations.

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The court presumes that any findings of fact are correct. See Orand v. United States, 602

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F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully

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reviewed the file, the court finds the findings and recommendations to be supported overall by the

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record and by the proper analysis.
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However, one passage in the magistrate judge’s order gives this court pause,

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insofar as the passage may have informed the magistrate judge’s findings and recommendations

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on plaintiff’s motion for a preliminary injunction. The magistrate judge noted that plaintiff did

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not attach proof of exhaustion of administrative remedies vis-à-vis defendant Leininger’s alleged

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sexual harassment and assault or any other threats or deprivations Leininger or any other

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correctional staff caused plaintiff. (ECF 9 at 4.) The court notes of course that absence of

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exhaustion is an affirmative defense not a pleading requirement; as such, the burden of raising

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and proving it is on defendants, not plaintiff. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.

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2003).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations as to plaintiff’s motion for a preliminary injunction

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filed July 9, 2013, are adopted; and
2. Plaintiff’s motion for preliminary injunctive relief (ECF No. 8) is denied.
DATED: September 10, 2013.

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UNITED STATES DISTRICT JUDGE

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