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Smith v. Davis

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 15, 2008

MICHAEL LENOIR SMITH, PLAINTIFF,
v.
SGT. DAVIS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DENYING DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE TO RENEWAL WITHIN THIRTY DAYS (Docs. 35 and 41)

Plaintiff Michael Lenoir Smith ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 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 Rule 72-302.

On October 8, 2008, the Magistrate Judge filed a Findings and Recommendations recommending that Defendants' motion to dismiss be denied. The parties were notified that any objections were to be filed within thirty days. Plaintiff filed an Objection on November 17, 2008.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), 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 October 8, 2008, is adopted in full;

2. Defendants' motion to dismiss for failure to exhaust is DENIED, without prejudice to renewal within thirty days; and

3. Defendants' motion to dismiss Plaintiff's state law tort claim is DENIED on the ground that this action is not proceeding on any state law claims.

IT IS SO ORDERED.

20081215

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