United States District Court, S.D. California
October 4, 2005.
CALVIN DWAYNE HOLT, Plaintiff,
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.
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