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Thomas Hightower v. Arnold Schwarzenegger

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 18, 2011

THOMAS HIGHTOWER,
PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (Docs. 151 & 166) 30 DAY DEADLINE FOR DEFENDANTS

DR. NYGUEN AND DR. WU TO RESPOND TO THIRD AMENDED COMPLAINT

Plaintiff Thomas Hightower 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 302.

June 30, 2011, the Magistrate Judge filed a Findings and Recommendations to deny Defendants' motion to dismiss for Plaintiff's failure to exhaust his administrative remedies prior to filing suit (Doc. 151) 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. (Doc. 166.) Neither side filed objection(s).

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 June 30, 2011 (Doc. 166), is adopted in full;

2. the motion to dismiss filed by Defendants Dr. Nyguen and Dr. Wu for Plaintiff's failure to exhaust available administrative remedies under Federal Rule of Civil Procedure 12(b), filed December 3, 2010 (Doc. 151) is DENIED WITH PREJUDICE; and

3. Defendants Dr. K. Nyguen and Dr. S. Wu are ordered to file a response to the Third Amended Complaint (Doc. 141) within thirty (30) days of the date of service of this order.

IT IS SO ORDERED.

20110818

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