(PC) Klein v. Montoya, No. 1:2013cv01677 - Document 43 (E.D. Cal. 2015)

Court Description: ORDER Adopting 41 FINDINGS AND RECOMMENDATIONS, and DENYING 24 Motion for Summary Judgment, 27 Motion for Extension of Time, and 35 MOTION to STRIKE signed by District Judge Lawrence J. O'Neill on 11/17/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL KLEIN, Plaintiff, 11 v. 12 13 B. MONTOYA, et al., 14 Defendants. _____________________________________/ Case No. 1:13-cv-01677-LJO-SKO (PC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DENYING MOTION FOR SUMMARY JUDGMENT, MOTION FOR EXTENSION OF TIME, AND MOTION TO STRIKE (Docs. 24, 27, 35, and 42) 15 16 Plaintiff Michael Klein (“Plaintiff”), a former state prisoner proceeding pro se and in forma 17 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 17, 2013. This 18 action for damages is proceeding against Defendants Montoya and Galvez (“Defendants”) for 19 violating Plaintiff’s rights under the Eighth Amendment of the United States Constitution with 20 respect to a clothed body search that allegedly involved sexual abuse. 21 This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 22 636(b)(1)(B) and Local Rule 302. On October 28, 2015, the Magistrate Judge filed a Findings and 23 Recommendations recommending that Defendants’ Motion for Summary Judgment raising the 24 affirmative defense of exhaustion be denied, Plaintiff’s Motion for an Extension of Time be 25 denied as moot, and Defendants’ Motion to Strike be denied as moot. The parties did not file 26 Objections. Local Rule 304(b). 27 /// 28 /// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a 2 de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings 3 and Recommendations to be supported by the record and by proper analysis. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Findings and Recommendations, filed on October 28, 2015, is adopted in full; 6 2. Defendants’ Motion for Summary Judgment, filed on May 19, 2015, is DENIED; 7 3. Plaintiff’s Motion for an Extension of Time, filed on July 9, 2015, is DENIED as 8 9 moot; and 4. 10 Defendants’ Motion to Strike Plaintiff’s surreply, filed on July 28, 2015, is DENIED as moot. 11 12 13 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill November 17, 2015 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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