Opinion
Case No. 1:13-cv-00289-LJO-MJS (PC)
03-06-2015
ROBERTO HERRERA, Plaintiff, v. ROUCH, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
(ECF Nos. 32 & 88)
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendant Rouch on Plaintiff's inadequate medical care claim. (ECF No. 18.) 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 September 16, 2014, the Magistrate Judge issued findings and a recommendation to deny Defendant's motion to dismiss for failure to state a claim. (ECF No. 88.) The motion also sought to dismiss the action for failure to exhaust administrative remedies, but Defendant was permitted to withdraw that argument and to raise it in a motion for summary judgment in light of Albino v. Vaca, 747 F.3d 1162, 1166 (9th Cir. 2014). Defendant did, in fact, file a motion for summary judgment for failure to exhaust administrative remedies, which presently is pending before the Court. Plaintiff objected to the findings and recommendation on the ground the Magistrate Judge did not also deny (and indeed did not address) the motion for summary judgment. (ECF No. 95.) No other objections were filed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the September 16, 2014 findings and recommendation to be supported by the record and by proper analysis. Plaintiff's objections do not raise an issue of law or fact.
Accordingly, it is HEREBY ORDERED that:
1. The Court adopts the findings and recommendation to deny Defendant's motion to dismiss for failure to state a claim (ECF No. 88), filed September 16, 2014, in full; andIT IS SO ORDERED.
2. Defendant's motion to dismiss (ECF No. 32), filed December 26, 2013, is DENIED.
Dated: March 6 , 2015
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE