Manago v. Knowles

Full title: STEWART MANAGO, Plaintiff, v. M. KNOWLES, et al., Defendants

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

Date published: Aug 16, 2007

No. CIV S-04-1712 FCD DAD P (E.D. Cal. Aug. 16, 2007)

Opinion

No. CIV S-04-1712 FCD DAD P.

August 16, 2007

ORDER

FRANK DAMRELL JR., 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 June 13, 2007, the magistrate judge filed findings and recommendations which were served on all parties and 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 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. The court finds that in his objections to the findings and recommendations, plaintiff advances a new argument that was not raised in his opposition to defendants' motion to dismiss. Specifically, plaintiff now contends that he has exhausted his administrative remedies with respect to his third cause of action alleging that the defendants were deliberately indifferent to his serious medical needs. In support of this new argument plaintiff has attached copies of an inmate appeal form and director's level decision in response.

This third cause of action in plaintiff's second amended complaint alleging inadequate medical care is vague and is not well pled. Nonetheless, it was not addressed in defendants' motion to dismiss. Therefore, the court will adopt the findings and recommendations with respect to plaintiff's first and second causes of action as they are supported by the record and by proper analysis. The case will proceed solely on plaintiff's third cause of action.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed June 13, 2007, are adopted in part;

2. Defendants' January 17, 2007 motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, is granted as to plaintiff's first and second causes of action;

3. Plaintiff's first and second causes of action are dismissed; and

4. The matter is referred to the assigned Magistrate Judge for further proceedings only as to plaintiff's third cause of action.