Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

HOLT v. HOWERTON

United States District Court, S.D. California


October 4, 2005.

CALVIN DWAYNE HOLT, Plaintiff,
v.
CHRIS HOWERTON, et al., Defendants.

The opinion of the court was delivered by: M. LORENZ, District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION; DENYING MOTION TO DISMISS; and REQUIRING FILING OF ANSWER
On September 22, 2004, plaintiff, appearing pro se, filed the above-captioned case. On March 29, 2005, defendants filed a motion to dismiss the complaint [doc. #14] arguing that plaintiff had failed to exhaust all administrative remedies required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e prior to filing this action in the federal court. Plaintiff opposed the motion to dismiss contending that he attempted to exhaust his administrative remedies before filing suit but was obstructed from doing so by prison personnel. Defendants filed a reply. Although given the opportunity to file objections to the Report, none of the parties has done so.

The magistrate judge submitted a Report and Recommendation ("Report) to this Court pursuant to 28 U.S.C. § 636(b)(1), which recommended that respondents' motion to dismiss be denied. The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003).

  In the Report, the magistrate judge recommended that under the circumstances of this case, plaintiff should be found to have exhausted his administrative remedies. The Court concurs fully.

  Based on the foregoing, IT IS ORDERED adopting the Report and Recommendation in its entirety. IT IS FURTHER ORDERED denying defendants' motion to dismiss [doc. #14]. IT IS FURTHER ORDERED that defendants shall file an Answer to plaintiff's Complaint within 10 days of the filing of this Order.

  IT IS SO ORDERED.

20051004

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.