-BAM (PC) Brown v. Kavavnaugh et al, No. 1:2008cv01764 - Document 42 (E.D. Cal. 2012)

Court Description: ORDER Adopting 39 Findings and Recommendations and Denying 31 Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies, signed by District Judge Lawrence J. O'Neill on 1/12/12. (Verduzco, M)

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-BAM (PC) Brown v. Kavavnaugh et al Doc. 42 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KAREEM BROWN, 10 11 12 CASE NO. 1:08-cv–01764-LJO-BAM PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES v. J. KAVANAUGH, et al., 13 Defendants. (ECF No. 39) / 14 15 Plaintiff Kareem Brown is a state prisoner proceeding pro se and in forma pauperis in this 16 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed a Complaint on November 18, 2008. 17 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 18 and Local Rule 302. 19 On December 15, 2011, the Magistrate Judge filed a Findings and Recommendations herein 20 which was served on the parties and which contained notice to the parties that any objections to the 21 Findings and Recommendations were to be filed within thirty days. 22 2011,Defendants filed an Objection stating that they had no objection to the Findings and 23 Recommendations, however requested clarification of the findings. On December 15, 24 Although the parties did not argue that Plaintiff’s appeal, dated September 27, 2008, 25 exhausted Plaintiff’s claims against Defendant Garcia, a review of the document shows that it 26 addressed his retaliation claim against both Defendants Garcia and Kavanaugh. Plaintiff included 27 a copy of this appeal, and complained that it had not been processed, in his October 23, 2008 28 grievance. Defendants presented no evidence to the Court to show that this appeal was addressed 1 Dockets.Justia.com 1 by prison officials. Based upon the finding that Defendants did not carry their burden of establishing 2 failure to exhaust administrative remedies, the Motion to Dismiss for Failure to Exhaust 3 Administrative Remedies is denied for both Defendants Garcia and Kavanaugh. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 5 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 6 and Recommendations to be supported by the record and by proper analysis. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The Findings and Recommendations, filed December 15, 2011, is adopted in full; 9 2. Defendants’ Motion to Dismiss for Failure to Exhaust Administrative Remedies, 10 filed July 6, 2011, is DENIED. 11 3. 12 IT IS SO ORDERED. 13 Dated: b9ed48 This matter is referred to the Magistrate Judge for further proceedings. January 12, 2012 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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