IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 10, 2008
MANUEL LARA, PLAINTIFF,
DR. V. DUC, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On November 7, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.
In his objections, plaintiff alleges Dr. Duc was aware of plaintiff's need for surgery, and states he will include these allegations and provide evidence in an amended complaint as required by the undersigned.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed November 7, 2008, are adopted in full;
2. Defendants' July 28, 2008 motion to dismiss this action as unexhausted (docket no. 15) is denied;
3. Defendants July 28, 2008 motion to dismiss plaintiff's claims against defendant Duc is granted;
4. The November 26, 2007 complaint is dismissed with leave to amend; and
5. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Amendment and submit the following documents to the court:
a. The completed Notice of Amendment; and
b. An original and one copy of the Amended Complaint.
NOTICE OF AMENDMENT
Plaintiff hereby submits the following document in compliance with the court's order filed
______________ Amended Complaint OR ______________ Plaintiff opts to proceed on the original complaint
As to defendant Lampkin.
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