-SKO (PC) Demerson v. Woodford et al, No. 1:2008cv00144 - Document 120 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING 116 FINDINGS AND RECOMMENDATIONS, DENYING Defendants' 100 Motion to Dismiss, and Requiring Defendants to File an Answer Within Thirty Days, signed by District Judge Lawrence J. O'Neill on 11/29/2011. (Marrujo, C)
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-SKO (PC) Demerson v. Woodford et al Doc. 120 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 EDWARD DEMERSON, 10 CASE NO. 1:08-cv-00144-LJO-SKO PC Plaintiff, 11 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING DEFENDANTS’ MOTION TO DISMISS, AND REQUIRING DEFENDANTS TO FILE AN ANSWER WITHIN THIRTY DAYS v. 12 JEANNE S. WOODFORD, et al., 13 Defendants. (Docs. 100 and 116) / 14 15 Plaintiff Edward Demerson, a state prisoner proceeding pro se, filed this civil rights action 16 pursuant to 42 U.S.C. § 1983 on January 29, 2008. This action is proceeding on Plaintiff’s second 17 amended complaint, filed June on 24, 2009, against Defendants Phillips, Campos, Amaro, Clausing, 18 Bardonnex, Munoz, and Cartagina for using excessive physical force against Plaintiff, and against 19 Defendants Munoz, Cartagina, Gregory, and Hillard for acting with deliberate indifference toward 20 Plaintiff’s resulting injuries. The matter was referred to a United States Magistrate Judge pursuant 21 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On July 15, 2011, Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Munoz, 23 Cartagina, and Hillard filed a motion to dismiss for failure to exhaust.1 42 U.S.C. § 1997e(a); Fed. 24 R. Civ. P. 12(b). Plaintiff filed an opposition, Defendant filed a reply, and the motion was deemed 25 submitted on October 3, 2011. Local Rule 230(l). On November 2, 2011, the Magistrate Judge 26 /// 27 1 28 Defendant Gregory did not make an appearance in the action and default was entered against Gregory by the Clerk of the Court on November 2, 2011. 1 Dockets.Justia.com 1 issued a Findings and Recommendations recommending denial of the motion. The twenty-day 2 objection period has expired and no objections were filed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de 4 novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and 5 Recommendations to be supported by the record and by proper analysis. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. 8 The Court adopts the Findings and Recommendations filed on November 2, 2011, in full; 9 2. 10 Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Munoz, Cartagina, and Hillard’s motion to dismiss for failure to exhaust is denied, without prejudice; and 11 3. Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Munoz, Cartagina, and 12 Hillard shall file an answer to Plaintiff’s second amended complaint within thirty 13 (30) days from the date of service of this order. 14 15 IT IS SO ORDERED. 16 Dated: b9ed48 November 29, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2