-EFB (PC) Holley v. Swarthout et al, No. 2:2010cv00615 - Document 51 (E.D. Cal. 2011)

Court Description: ORDER signed by Judge Morrison C. England, Jr on 9/28/2011 ORDERING that 48 FINDINGS AND RECOMMENDATIONS are ADOPTED in full; and Defendant's 18 Motion to Dismiss is DENIED without prejudice. (Waggoner, D)

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-EFB (PC) Holley v. Swarthout et al Doc. 51 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOEL HOLLEY, 11 Plaintiff, 12 13 No. CIV S-10-0615 MCE EFB P vs. GARY SWARTHOUT, et al., 14 Defendants. 15 ORDER / 16 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 17 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 18 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On September 1, 2011, the magistrate judge filed findings and recommendations 20 herein which were served on all parties and which contained notice to all parties that any 21 objections to the findings and recommendations were to be filed within fourteen days from the 22 date the findings and recommendations were served. Defendants have filed objections to the 23 findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 25 304, this Court has conducted a de novo review of this case. 26 //// 1 Dockets.Justia.com 1 Having carefully reviewed the entire file, the Court finds the findings and recommendations to be 2 supported by the record and by proper analysis. 3 The Court notes for the record that, while Defendants appear, via their objections 4 to the magistrate judge’s findings and recommendations, to have attempted to rectify their failure 5 to address whether Plaintiff’s first appeal was sufficient to exhaust his administrative remedies as 6 to all of his claims, the Court declines to address those belated arguments until they have been 7 properly briefed before the magistrate judge in the first instance. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed September 1, 2011 (ECF No. 48), are 10 11 12 ADOPTED in full; and 2. Defendants’ January 24, 2011 motion to dismiss is DENIED without prejudice. Dated: September 28, 2011 13 14 15 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 2

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