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Kyle Avery v. Marc Elia

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 26, 2013

KYLE AVERY, PLAINTIFF,
v.
MARC ELIA, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On December 28, 2012, the magistrate judge filed findings and recommendations, which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within twenty-eight days. Plaintiff has not filed objections to the findings and recommendations.

The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed December 28, 2012 are adopted in full;

2. Defendants' March 9, 2012 motion to dismiss (ECF No. 17) is granted in part;

3. Plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies; and

4. Plaintiff's March 12, 2012 motion for preliminary injunctive relief (ECF No. 18) is denied.

20130326

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