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Scholes v. Higman

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 2, 2009

MICHAEL A. SCHOLES, PLAINTIFF,
v.
ROD HIGMAN, 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 FOR FAILURE TO EXHAUST (Doc. 27)

Plaintiff Michael A. Scholes, a former 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 Rule 72-302.

On February 18, 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. On March 20, 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. It is the Plaintiff's status at the time he files suit that determines whether § 1997e's exhaustion provision applies. Cofield v. Bowser, 247 Fed.Appx. 413, 414 (4th Cir. 2007); Norton v. City of Marietta, 432 F.3d 1145, 1150 (10th Cir. 2005); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004); Cox v. Mayer, 332 F.3d 422, 424-25 (6th Cir. 2003); Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003); Ahmed v. Dragovich,297 F.3d 201, 210 (3d Cir. 2002); Harris v. Garner, 216 F.3d 970, 979-80 (11th Cir. 2000); Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); see Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139 (9th Cir. 2006) ("In Page, we held that the 'natural reading' of 'prisoner' required that 'the individual in question must be currently detained as a result of accusation, conviction, or sentence for a criminal offense.'" (emphasis added))); see also Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir. 2000).

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed February 18, 2009, is adopted in full; and

2. Defendants' motion to dismiss or failure to exhaust, filed October 9, 2008 is denied.

IT IS SO ORDERED.

20090502

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