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Sanchez v. Stancliff

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 25, 2009

ANTHONY JOSEPH SANCHEZ, PLAINTIFF,
v.
STANCLIFF, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL, AND DENYING DEFENDANTS' MOTION TO DISMISS, WITHOUT PREJUDICE TO RENEWAL WITHIN THIRTY DAYS (Docs. 51 and 62)

Plaintiff Anthony Joseph Sanchez ("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 January 23, 2009, the Magistrate Judge filed a Findings and Recommendations herein which was served on the parties and which contained notice to the parties that any objections to the Findings and Recommendations were to be filed within thirty days. Defendants filed an Objection on February 9, 2009, and Plaintiff filed a Response on February 23, 2009.

The Magistrate Judge recommended denial of the motion without prejudice, and in their Objection, Defendants request that if their motion is denied, the denial be without prejudice. The Court will adopting the recommendation in full. However, Defendants are cautioned to carefully review Plaintiff's Response, which includes a letter from the Kern County Sheriff's Department, dated March 31, 2006, informing Plaintiff that his complaint was fully investigated and sustained. If Defendants choose to file another motion to dismiss, the failure to address that issue and make a showing in the motion why that letter does not demonstrate exhaustion will result in the imposition of sanctions.

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 January 23, 2009, is adopted in full; and

2. Defendants' motion to dismiss for failure to exhaust, filed October 15, 2008, is DENIED, without prejudice to renewal within thirty days from the date of service of this order.

IT IS SO ORDERED.

20090225

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