Opinion
Case No. 1:12-cv-00126-LJO-SAB
03-04-2013
HARVEY CURTIS BAKER, Plaintiff, v. JAMES A. YATES, Defendant.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
ECF NO. 41, 42
Plaintiff Harvey Curtis Baker ("Plaintiff") is a state prisoner proceedings pro se in this civil rights action against Defendant James A. Yates ("Defendant"). On March 19, 2012, Defendant filed a motion to dismiss. (ECF No. 8.) On February 6, 2013, the magistrate judge issued an Amended Findings and Recommendations recommending that Defendant's motion to dismiss be denied. (ECF No. 42.)
The magistrate judge issued an Amended Findings and Recommendations on February 6, 2013 because the original Findings and Recommendations issued on February 5, 2013 (ECF No. 41) inadvertently omitted instructions regarding the filing of objections to the Findings and Recommendations. The Amended Findings and Recommendations are otherwise identical to the original.
The Amended Findings and Recommendations were served on all parties and contained notice that any objections were to be filed within thirty (30) days. Neither party has filed objections to the Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the Amended Findings and Recommendations are supported by the record and by proper analysis. In this case, Plaintiff's failure to exhaust his administrative remedies was excused because prison officials mistakenly informed Plaintiff that he was attempting to appeal a non-appealable issue. The other grounds raised in Defendant's motion to dismiss cannot be properly adjudicated at this time due to confusion regarding the operative pleading in this action. Accordingly, Defendant's motion to dismiss on the grounds of failure to state a claim and failure to comply with the California Tort Claims Act will be denied without prejudice to Defendant's right to reassert those defenses after Plaintiff re-files his complaint in this matter.
Accordingly, it is HEREBY ORDERED that:
1. The Findings and Recommendations and Amended Findings and Recommendations dated February 5, 2013 and February 6, 2013 are ADOPTED IN FULL (ECF Nos. 41, 42);IT IS SO ORDERED.
2. Defendant's motion to dismiss on the grounds of failure to exhaust administrative remedies is DENIED;
3. Defendant's motion to dismiss on the grounds of failure to state a claim and failure to comply with the California Tort Claims Act is DENIED WITHOUT PREJUDICE;
4. Plaintiff is ORDERED to re-file his complaint. In the alternative, Plaintiff is granted leave to file an amended complaint to address any deficiencies identified in Defendant's motion to dismiss which can be cured via amendment. Plaintiff is ordered to file his complaint or amended complaint within thirty (30) days.
Plaintiff is forewarned that failure to file within thirty (30) days may result in the imposition of sanctions, including dismissal of this action.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE