-SKO (PC) Hightower v. Schwarzenegger, et al, No. 1:2004cv06028 - Document 168 (E.D. Cal. 2011)

Court Description: ORDER Adopting 166 Findings and Recommendations to Deny Defendants' 151 Motion to Dismiss for Failure to Exhaust Administrative Remedies, signed by Judge Oliver W. Wanger on 8/18/11. 30 Day Deadline for Defendants Dr. Nyguen and Dr. Wu to Respond to Third Amended Complaint. (Gonzalez, R)

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-SKO (PC) Hightower v. Schwarzenegger, et al Doc. 168 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THOMAS HIGHTOWER, 10 CASE NO. 1:04-cv-06028-OWW-SKO PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 11 v. 12 ARNOLD SCHWARZENEGGER, et al., 13 Defendants. (Docs. 151 & 166) 14 30 DAY DEADLINE FOR DEFENDANTS DR. NYGUEN AND DR. WU TO RESPOND TO THIRD AMENDED COMPLAINT 15 16 / 17 Plaintiff Thomas Hightower is a state prisoner proceeding pro 18 se and in forma pauperis in this civil rights action pursuant to 42 19 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 21 Rule 302. 22 June 30, 2011, the Magistrate Judge filed a Findings and 23 Recommendations to deny Defendants’ motion to dismiss for 24 Plaintiff’s failure to exhaust his administrative remedies prior to 25 filing suit (Doc. 151) which was served on the parties and which 26 contained notice to the parties that any objections to the Findings 27 and Recommendations were to be filed within thirty days. (Doc. 28 1 Dockets.Justia.com 1 2 166.) Neither side filed objection(s). In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), 3 this Court has conducted a de novo review of this case. 4 carefully reviewed the entire file, the Court finds the Findings 5 and Recommendations to be supported by the record and by proper 6 analysis. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Having 9 10 the Findings and Recommendations, filed June 30, 2011 (Doc. 166), is adopted in full; 2. the motion to dismiss filed by Defendants Dr. Nyguen and 11 Dr. Wu for Plaintiff’s failure to exhaust available 12 administrative 13 Procedure 12(b), filed December 3, 2010 (Doc. 151) is 14 DENIED WITH PREJUDICE; and 15 3. remedies under Federal Rule of Civil Defendants Dr. K. Nyguen and Dr. S. Wu are ordered to 16 file a response to the Third Amended Complaint (Doc. 17 141) within thirty (30) days of the date of service of 18 this order. 19 IT IS SO ORDERED. 20 Dated: August 18, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 2

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