The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (1) DENYING DEFENDANT'S MOTION TO DISMISS ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (2) DENYING PLAINTIFF'S MOTION NOT TO EXTEND TIME FOR DEFENDANT'S RESPONSIVE PLEADING (ECF Nos. 38, 43) CASE TO REMAIN OPEN
On February 1, 2010, Plaintiff Claudell Earl Martin, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On March 18, 2013, Findings and Recommendations (ECF No. 46) were filed in which the Magistrate Judge recommended that (1) Defendant's Motion to Dismiss on grounds of failure to exhaust administrative remedies filed January 18, 2013 (ECF No. 38), and (2) Plaintiff's Motion Not to Extend Time for Defendant's Rule 12(b) Responsive Pleading (ECF No. 43) be DENIED by the District Judge. The parties were notified that objection, if any, was due within fourteen days. (Id.)
Defendant filed Objections to the Findings and Recommendations on March 29, 2013. (ECF No. 47.) Plaintiff filed a Reply to the Objections on April 15, 2013. (ECF No. 48.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), 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.
A. Defendant's Objections
Defendant objects to that portion of the Findings and Recommendations denying his Motion to Dismiss on grounds (1) the Court of Appeals for the Ninth Circuit has not decided whether estoppel is a bar to failure to exhaust, (2) out of circuit case law supporting estoppel is distinguishable, (3) estoppel as a bar to failure to exhaust is a disincentive for prison officials to resolve grievances at the administrative level, (4) there was no exhaustion at the second level because Plaintiff was not granted complete relief on Appeal No. CSPC-9-08-16496 ("Appeal").
B. Plaintiff's Reply to Objections
Plaintiff asserts the Findings and Recommendations should be adopted. He asserts (1) Defendant merely reargues points previously considered by the Magistrate, (2) estopping Defendants from the exhaustion defense furthers the interests of justice for the reasons stated in the Findings and Recommendations, (3) the cases cited by the Magistrate in support of estoppel are on point, (4) Plaintiff delayed filing his appeal due to conduct of Dr. Ulit,*fn1 (5) Plaintiff received complete relief under the second level Appeal decision.
C. Objections Regarding Motion to Dismiss Lack Merit
1. Estoppel to Bar Exhaustion Defense
Estoppel to bar the exhaustion defense is not precluded by Ninth Circuit precedent and furthers the interests of justice on the facts of this case. Defendant does not suggest this application ...