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Chester Ray Wiseman v. Matthew Cate

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 23, 2013

CHESTER RAY WISEMAN,
PLAINTIFF,
v.
MATTHEW CATE, ET AL.,
DEFENDANTS.

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

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL AND DENYING FIRST MOTION TO DISMISS, WITHOUT PREJUDICE (Docs. 22 and 25) ORDER REQUIRING PLAINTIFF TO FILE RESPONSE TO SECOND MOTION TO DISMISS WITHIN THIRTY DAYS (Doc. 26)

Plaintiff Chester Ray Wiseman, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 6, 2010. This action is proceeding against Defendant Romero for violation of the Eighth Amendment of the United States Constitution. 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 March 13, 2013, the Magistrate Judge filed findings and recommendations recommending that Defendant's motion to dismiss for failure to exhaust be denied, without prejudice. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). No objections were filed, but on April 12, 2013, Defendant filed a second motion to dismiss for failure to exhaust or in the alternative for sanctions.

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 Findings and Recommendations, filed March 13, 2013, is adopted in full;

2. Defendant's first motion to dismiss, filed on September 12, 2012, is denied, without prejudice;

3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an opposition or a statement on non-opposition to Defendant's second motion to dismiss, filed on April 12, 2013; and

4. If Plaintiff fails to file an opposition or a statement of non-opposition to Defendant's motion in compliance with this order, this action will be dismissed, with prejudice, for failure to prosecute.

IT IS SO ORDERED.

20130423

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