-JLT (PC) Barrett v. Cate et al, No. 1:2009cv01741 - Document 53 (E.D. Cal. 2011)

Court Description: ORDER WITHDRAWING 47 FINDINGS AND RECOMMENDATIONS; ORDER Directing Defendants to File Additional Documents, signed by Magistrate Judge Jennifer L. Thurston on 12/6/2011. Within 14 days, the Court ORDERS Defendants to file all grievances, responses, and appeals related to Plaintiffs claim of excessive force occurring on or about June 22, 2007. (Marrujo, C)
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-JLT (PC) Barrett v. Cate et al Doc. 53 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT E. BARRETT, 12 13 Case No. 1:09-cv-01741 LJO JLT (PC) Plaintiff, ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS vs. (Doc. 47) 14 MATTHEW CATE, et al., 15 Defendants. 16 ORDER DIRECTING DEFENDANTS TO FILE ADDITIONAL DOCUMENTS / 17 18 On May 10, 2011, Defendants filed their motion to dismiss related to their position that 19 Plaintiff has failed to exhaust his administrative remedies.. (Doc. 32) On October 27, 2011, the Court 20 issued its findings and recommendations recommending that the motion to dismiss be granted. (Doc. 21 47.) On November 16, 2011, Plaintiff filed objections to the findings and recommendations. (Doc. 22 51.) On November 18, 2011, Defendants filed their reply to Plaintiff’s objections. (Doc. 52.) 23 Having reviewed Plaintiff’s objections, the Court finds that Plaintiff may have raised a valid 24 objection as to his assertion that he exhausted his claim of excessive force against Defendant 25 Delanda through an earlier grievance and appeal. It appears that Plaintiff does not rely upon the 26 Rules Violation report as a grievance but on the reference made in the report to an earlier grievance 27 and appeal related to the actions at issue in the rules violation proceeding. (Doc. 36 at 21) Plaintiff’s 28 argument that a rehearing took place as a result of a “Second Level Appeal decision” implies that he 1 Dockets.Justia.com 1 may have exhausted this grievance but, without the grievance documents, the Court cannot make this 2 determination. 3 Therefore, the Court ORDERS: 4 1. 5 6 The Findings and Recommendations issued on October 27, 2011 (Doc. 47) be WITHDRAWN; 2. Within 14 days of the date of this order the Court ORDERS Defendants to file all 7 grievances, responses, and appeals related to Plaintiff’s claim of excessive force 8 occurring on or about June 22, 2007, which is alleged to have occurred while Plaintiff 9 was housed in the SHU at California State Prison, Corcoran. (Doc. 17 at 5-6) 10 IT IS SO ORDERED. 11 Dated: December 6, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2