Lay v. Marrow

Full title: RONALD LAY, JR., Plaintiff, v. R. MARROW, et al., Defendants

Court: United States District Court, E.D. California

Date published: Oct 22, 2008

No. CIV S-07-0711 JAM GGH P (E.D. Cal. Oct. 22, 2008)

Opinion

No. CIV S-07-0711 JAM GGH P.

October 22, 2008

ORDER

JOHN MENDEZ, District Judge

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 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On July 30, 2008, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.

In his puzzling objections to recommendations which inure to his benefit, plaintiff raises a concern as to not having been provided with documents in order to serve a defendant newly named in the proposed second amended complaint. However, as the granting of leave for plaintiff to file a second amended complaint was among the recommendations made, not yet adopted, his "objection" is premature. To the extent that plaintiff objects to defendants' non-enumerated 12(b) motion not having been converted to a summary judgment motion, pursuant to Fed.R.Civ.P. 56, plaintiff's argument is not well-founded nor would such an anomalous construction have been in any manner beneficial for him in this matter.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, 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.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed July 30, 2008, are adopted in full;

2. Defendants' motion to dismiss, filed on 2/14/08 (# 18) is denied;

3. Plaintiff's motion for leave to file a second amended complaint, filed on 4/23/08 (# 27) is granted; and

4. This matter shall also proceed as to plaintiff's claims of deliberate indifference to serious medical needs against defendant Williams from whom an answer must be filed within thirty days of adoption of these findings and recommendations.