UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
August 15, 2011
MAURICE P. OLIVIER, PLAINTIFF,
GLORIA MOLINA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: John F. Walter United States District Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which the parties have objected. The Court accepts the findings and recommendation of the Magistrate Judge.
The Report recommended dismissal without prejudice of Claim Two for failure to exhaust the cell infestation grievance other than lice. (Report at 13.) Defendant objects because although Plaintiff started the exhaustion process, he did not complete it. (Defendant Objections at 6.) However, Plaintiff was not required to further exhaust the lice portion of his grievance because according to Deputy Kelley, the Custodian of Records for the Men's Central Jail Legal Unit, Plaintiff was seen and treated, his cell was inspected, and no lice were found. (Dkt. No. 39, Kevin Kelley Decl. ¶¶ 1, 13 & n.1.); see Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) ("a prisoner need not press on to exhaust further levels of review once he has . . . received all 'available' remedies at an intermediate level of review").
Defendant's other objections and Petitioner's objections are without merit. IT IS ORDERED that (1) the Report and Recommendation is adopted; (2) Defendant's unenumerated Rule 12(b) motion based on failure to exhaust remedies is granted in part and denied in part; (3) Defendant's Rule 12(b)(6) motion to dismiss for failure to state a claim is granted in part and denied in part; (4) Claim Two with respect to cell infestation other than lice is dismissed without prejudice; (5) Defendant Baca in his individual capacity in Claim Two is dismissed with prejudice; (6) both claims based on the Fifth Amendment are dismissed with prejudice; (7) both claims based on the Standard Minimum Rules for the Treatment of Prisoners are dismissed with prejudice; and (8) the failure to train claim with respect to Claim Two is dismissed with prejudice.
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