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Ralph Kelly Hawthorne, Jr v. Kathy Mendoza-Power

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 18, 2011

RALPH KELLY HAWTHORNE, JR.,
PLAINTIFF,
v.
KATHY MENDOZA-POWER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DOC. 89

FIRST AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

Plaintiff Ralph Kelly Hawthorne, Jr. ("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 on Plaintiff's complaint, filed July 30, 2007, against Defendants Kathy Mendoza-Power and K. Henry for denial of access to the courts. On March 12, 2009, Defendants filed a motion to dismiss pursuant to the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure, contending that Plaintiff failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a), and pursuant to Rule 12(b)(6), contending that Plaintiff failed to state a claim. Defs.' Mot. Dismiss, Doc. 37. 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 September 19, 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 fourteen days. Doc. 89. Neither party filed a timely Objection to the Findings and Recommendations.

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.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed September 19, 2011, is adopted in full;

2. Defendants' unenumerated 12(b) motion to dismiss for failure to exhaust administrative remedies, filed March 12, 2009, is DENIED;

3. Defendants' 12(b)(6) motion to dismiss for failure to state a claim, filed March 12, 2009, is GRANTED;

4. Plaintiff's complaint is dismissed for failure to state a claim upon which relief may be granted under 42 U.S.C. § 1983; and

4. Plaintiff is GRANTED leave to file a first amended complaint within thirty (30) days from the date of service of this order. Failure to timely comply or otherwise respond will result in dismissal of this action with prejudice for failure to obey a court order and failure to state a claim.

IT IS SO ORDERED.

20111018

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