(PC) Cole v. Munoz et al, No. 1:2009cv00476 - Document 30 (E.D. Cal. 2011)
Court Description: ORDER signed by Judge Oliver W. Wanger on 2/8/2011 adopting 28 FINDINGS AND RECOMMENDATIONS; denying 22 Motion to Dismiss and REFERRING CASE back to Magistrate Judge for further proceedings. (Lundstrom, T)
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(PC) Cole v. Munoz et al Doc. 30 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES COLE, 10 CASE NO. 1:09-cv-00476-OWW-GBC PC Plaintiff, 11 v. 12 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES MUNOZ, et al., 13 Defendants. (ECF Nos. 22, 28, 29) / 14 15 Plaintiff James Cole (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 16 in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s 17 complaint, filed March 13, 2009, against Defendants Munoz, Dicks, Rocha, and Blasdell for 18 retaliation in violation of the First Amendment and excessive force in violation of the Eighth 19 Amendment. (ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant 20 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On December 22, 2010, the Magistrate Judge issued findings and recommendations 22 recommending Defendant’s motion to dismiss be denied. (ECF No. 28.) The parties were given 23 thirty days within which to file objections, and Plaintiff filed an objection on January 4, 2011. (ECF 24 No. 29.) Plaintiff’s objections have been considered. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 26 conducted a de novo review of this case. Having carefully reviewed the entire file, the undersigned 27 finds the findings and recommendations to be supported by the record and by proper analysis. 28 /// 1 Dockets.Justia.com 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations, filed December 22, 2010, are adopted in full; 3 2. Defendant’s motion to dismiss, filed August 9, 2010, is DENIED; and 4 3. This matter is referred back to the Magistrate Judge for further proceedings. 5 6 IT IS SO ORDERED. 7 Dated: February 8, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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