UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 29, 2011
ROBERT JAMES DIXON,
JAMES A. YATES, ET AL., DEFENDANTS.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING DEFENDANT IGBINOSA'S MOTION TO DISMISS (DOC. 37)
Plaintiff Robert James Dixon ("Plaintiff") is a California state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Igbinoza and Diep for violation of the Eighth Amendment. On September 20, 2010, Defendant Igbinoza filed a motion to dismiss for Plaintiff's failure to exhaust administrative remedies. Doc. 24. 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 July 8, 2011, the Magistrate Judge filed a Findings and Recommendations which was served on the parties and which contained notice to the parties that any objection to the Findings and Recommendations was to be filed within twenty-one days. Doc. 37. Plaintiff filed an Objection to the Findings and Recommendations on July 29, 2011. Doc. 38. Defendant filed a response to the Objection on September 6, 2011. Doc. 40.
In accordance with the provisions of 28 U.S.C. § 636(b)(1), 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.
Plaintiff's objections are unavailing. Plaintiff contends that an inmate grievance concerning Defendant Igbinoza's actions was granted at the first level of review. However, Plaintiff failed to produce this grievance. Plaintiff's grievance No. PVSP-D-08-1325, which Defendant produced, does not concern Plaintiff's claims against Defendant Igbinoza in this action.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations, filed July 8, 2011, is adopted in full;
2. Defendant Igbinoza's motion to dismiss for Plaintiff's failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a), filed September 20, 2010, is GRANTED;
3. Plaintiff's claim against Defendant Igbinoza are dismissed without prejudice; and
4. Defendant Igbinoza is dismissed from this action.
IT IS SO ORDERED.
CHIEF UNITED STATES DISTRICT JUDGE
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