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Gerald Taylor v. Ken Clark

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 21, 2010

GERALD TAYLOR,
PLAINTIFF,
v.
KEN CLARK, ET AL.,
DEFENDANTS.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DENYING DEFENDANT WOFFORD'S MOTION FOR JUDGMENT ON THE PLEADINGS (Docs. 85 and 100)

Plaintiff Gerald Taylor filed this civil rights action seeking relief under 42 U.S.C. § 1983 and California tort law on January 8, 2007. Plaintiff filed an amended complaint on June 20, 2007. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On August 4, 2010, the Magistrate Judge issued a Findings and Recommendations recommending that Defendant Wofford's Motion for Judgment on the Pleadings be denied. Fed. R. Civ. P. 12(c). Defendant Wofford filed an Objection on August 31, 2010, and Plaintiff filed a Response on September 14, 2010. Local Rule 304(b),(d).

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the final disposition of the Findings and Recommendations to be supported by the record and by proper analysis. The Court finds that Defendant Wofford filed a timely unenumerated Rule 12(b) motion to dismiss based on exhaustion under 42 U.S.C. § 1997e(a). See Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Villegas v. Buckley, No. 2:02-cv-01613, 2007 WL 3034449, at *1, *2-3 (E.D. Cal. Oct. 15, 2007). However, the motion must be denied because Plaintiff exhausted his administrative remedies.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed August 4, 2010, is adopted in part; and

2. Defendant Wofford's Motion for Judgment on the Pleadings, filed April 29, 2010, is denied.

IT IS SO ORDERED.

0m8i78

CHIEF UNITED STATES DISTRICT JUDGE

20101221

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