The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL, AND DENYING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST (Docs. 34 and 44) ORDER REQUIRING DEFENDANTS TO FILE ANSWER WITHIN THIRTY DAYS
Plaintiff Efrem Stutson ("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 December 8, 2008, the Magistrate Judge filed a Findings and Recommendations that recommended that Defendants' motion to dismiss on that ground that Plaintiff did not exhaust his administrative remedies prior to filing this action be denied. These Findings and Recommendations were served on the parties and 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 December 23, 2008, and after obtaining an extension of time, Plaintiff filed a Response on February 24, 2009.
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. In the objections, Defendants contend that Plaintiff's evidence showing he did timely file an administrative grievance is not admissible because Plaintiff had not filed a declaration under penalty of perjury. In his response to Defendants' objections, Plaintiff filed such a declaration. While normally the court will not consider evidence submitted for the first time in objections to Findings and Recommendations, Plaintiff's declaration is consistent with the allegations made in his opposition and the Magistrate Judge's Findings and Recommendations. In the interests of justice the court will consider this late declaration. Accordingly, the court agrees with the Magistrate Judge that there is a disputed issue of fact on the issue of exhaustion, and an evidentiary hearing is necessary.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed December 8, 2008, is adopted in full;
2. Defendants' motion to dismiss for failure to exhaust, filed August 1, 2008, is DENIED with leave for Defendants to file a request for an evidentiary hearing on exhaustion; and
3. Defendants shall file an answer within thirty (30) days from the date of service of this order.
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