-DAD (PS) Kimes v. US Department of Veterans Affairs, No. 2:2009cv00853 - Document 37 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING 32 FINDINGS AND RECOMMENDATIONS signed by District Judge Kimberly J. Mueller on 07/20/2011 DENYING 27 Motion to Dismiss. (Michel, G)

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-DAD (PS) Kimes v. US Department of Veterans Affairs Doc. 37 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CURTIS R. KIMES, Plaintiff, 11 v. 12 13 No. CIV S-09-0853 KJM DAD PS ERIK K. SHINSEKI, Secretary, U.S. Department of Veteran Affairs, 14 Defendant. Plaintiff is proceeding pro se with the above-entitled action. The matter was 16 17 ORDER / 15 referred to a United States Magistrate Judge as provided by Local Rule 302(c)(21). 18 On March 10, 2011, the magistrate judge filed findings and recommendations 19 recommending denial of defendant’s motion to dismiss, which were served on all parties and 20 which contained notice to the parties that any objections to the findings and recommendations 21 were to be filed within twenty-one days after service of the findings and recommendations. The 22 twenty-one-day period has expired, and no party has filed objections to the findings and 23 ///// 24 ///// 25 ///// 26 ///// 1 Dockets.Justia.com 1 recommendations. In fact, on April 5, 2011, defendant filed an answer to plaintiff’s amended 2 complaint.1 Accordingly, the court presumes any findings of fact are correct. See Orand v. 3 4 United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are 5 reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 6 1983). The court has reviewed the file and finds the findings and recommendations to be 7 supported by the record and by the magistrate judge’s analysis. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed March 10, 2011 (Doc. No. 32) are 10 adopted in full; and 11 12 2. Defendant’s June 3, 2010 motion to dismiss (Doc. No. 27) is denied. DATED: July 20, 2011. 13 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 /kimes0853.jo 24 25 1 26 The court notes the parties have not consented to magistrate judge jurisdiction, although that option is available to them if they wish. See Docket No. 3. 2

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