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Victory v. Barber

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 23, 2009

MICHAEL ANTHONY VICTORY, PLAINTIFF,
v.
BARBER, ET AL., DEFENDANTS.

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

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND GRANTING IN PART AND DENYING IN PART DEFENDANT NEUBARTH'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and DENYING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

(Doc. 57)

Plaintiff Michael Anthony Victory, a state prisoner proceeding pro se and in forma pauperis, 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 Rule 72-302.

On February 26, 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 ten days. On March 9, 2009, defendants filed an Objection.

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 February 26, 2009, is adopted in full;

2. Defendant Neubarth's motion to dismiss for failure to state a claim, filed August 22, 2008, is GRANTED in part with regard to injunctive relief and DENIED in part with regard to Neubarth's qualified immunity;

3. Defendants Ortiz, Bresler, Smith, and Barber's motion to dismiss for failure to exhaust available administrative remedies, filed August 22, 2008, is DENIED;

4. Defendants Kushner, Salazar, and Sacks's motion to dismiss for failure to exhaust available administrative remedies, filed September 18, 2008, is DENIED; and

5. Defendants shall file an answer to Plaintiff's amended complaint within thirty (30) days of service of this order.

IT IS SO ORDERED.

20090323

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