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Edward Demerson v. Jeanne S. Woodford

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 29, 2011

EDWARD DEMERSON,
PLAINTIFF,
v.
JEANNE S. WOODFORD, ET AL.,
DEFENDANTS.

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

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING DEFENDANTS' MOTION TO DISMISS, AND REQUIRING DEFENDANTS TO FILE AN ANSWER WITHIN THIRTY DAYS (Docs. 100 and 116)

Plaintiff Edward Demerson, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 29, 2008. This action is proceeding on Plaintiff's second amended complaint, filed June on 24, 2009, against Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Munoz, and Cartagina for using excessive physical force against Plaintiff, and against Defendants Munoz, Cartagina, Gregory, and Hillard for acting with deliberate indifference toward Plaintiff's resulting injuries. 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 15, 2011, Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Munoz, Cartagina, and Hillard filed a motion to dismiss for failure to exhaust.*fn1 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed an opposition, Defendant filed a reply, and the motion was deemed submitted on October 3, 2011. Local Rule 230(l). On November 2, 2011, the Magistrate Judge issued a Findings and Recommendations recommending denial of the motion. The twenty-day objection period has expired and no objections were filed.

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 Findings and Recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Court adopts the Findings and Recommendations filed on November 2, 2011, in full;

2. Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Munoz, Cartagina, and Hillard's motion to dismiss for failure to exhaust is denied, without prejudice; and

3. Defendants Phillips, Campos, Amaro, Clausing, Bardonnex, Munoz, Cartagina, and Hillard shall file an answer to Plaintiff's second amended complaint within thirty (30) days from the date of service of this order.

IT IS SO ORDERED.


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