From Casetext: Smarter Legal Research

Holt v. Howerton

United States District Court, S.D. California
Oct 4, 2005
Civil No. 04-CV-1910-L(JFS) (S.D. Cal. Oct. 4, 2005)

Opinion

Civil No. 04-CV-1910-L(JFS).

October 4, 2005


ORDER ADOPTING REPORT AND RECOMMENDATION; DENYING MOTION TO DISMISS; and REQUIRING FILING OF ANSWER


On September 22, 2004, plaintiff, appearing pro se, filed the above-captioned case. On March 29, 2005, defendants filed a motion to dismiss the complaint [doc. #14] arguing that plaintiff had failed to exhaust all administrative remedies required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e prior to filing this action in the federal court. Plaintiff opposed the motion to dismiss contending that he attempted to exhaust his administrative remedies before filing suit but was obstructed from doing so by prison personnel. Defendants filed a reply. Although given the opportunity to file objections to the Report, none of the parties has done so.

The magistrate judge submitted a Report and Recommendation ("Report) to this Court pursuant to 28 U.S.C. § 636(b)(1), which recommended that respondents' motion to dismiss be denied. The district court's role in reviewing a magistrate judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 124 S.Ct. 238 (2003).

In the Report, the magistrate judge recommended that under the circumstances of this case, plaintiff should be found to have exhausted his administrative remedies. The Court concurs fully.

Based on the foregoing, IT IS ORDERED adopting the Report and Recommendation in its entirety. IT IS FURTHER ORDERED denying defendants' motion to dismiss [doc. #14]. IT IS FURTHER ORDERED that defendants shall file an Answer to plaintiff's Complaint within 10 days of the filing of this Order.

IT IS SO ORDERED.


Summaries of

Holt v. Howerton

United States District Court, S.D. California
Oct 4, 2005
Civil No. 04-CV-1910-L(JFS) (S.D. Cal. Oct. 4, 2005)
Case details for

Holt v. Howerton

Case Details

Full title:CALVIN DWAYNE HOLT, Plaintiff, v. CHRIS HOWERTON, et al., Defendants

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

Date published: Oct 4, 2005

Citations

Civil No. 04-CV-1910-L(JFS) (S.D. Cal. Oct. 4, 2005)

Citing Cases

Yocham v. McCurdy Daniels

Because said charge is upon the weight of evidence, and the fact of or the question of excess in the O'Connor…

Byrd v. Perry Maxwell

Examples of similar constructions are those with reference to instruments claimed to be absolute deeds,…