ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN FULL AND REFERRING BACK TO MAGISTRATE JUDGE FOR EVIDENTIARY HEARING
(Doc. Nos. 43, 55)
Plaintiff is a state prisoner proceeding in forma pauperis in this civil rights action brought pursuant to 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 Rule 302.
Plaintiff was previously proceeding pro se as well, but is currently represented by counsel. (Doc. No. 64.) --------
On December 21, 2016, the assigned magistrate judge issued findings and recommendations recommending defendants' motion for summary judgment on the ground that plaintiff had failed to exhaust his administrative remedies prior to filing suit be denied, and that the matter be referred back to him for an evidentiary hearing in order to resolve relevant disputed factual issues surrounding the issue of exhaustion. (Doc. No. 55.) These findings and recommendations were served on all parties and contained notice that any objections were to be filed within fourteen days, and any replies to such objections were to be filed within fourteen days thereafter. Plaintiff initially sought an extension of time to file objections to the findings and recommendations, which was granted. (Doc. Nos. 57, 58.) On February 2, 2017, however, plaintiff notified the court he would not be filing objections to the findings and recommendations. (Doc. No. 61.) Defendants filed no objections and the time in which to do so has passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of this case. Having carefully reviewed the entire case, the undersigned concludes the findings and recommendations are supported by the record and by proper analysis. Defendants are entitled to have disputed factual questions relating to exhaustion resolved through a preliminary proceeding. Albino v. Baca, 747 F.3d 1162, 1169-71 (9th Cir. 2014). Therefore, the case will be referred back to the assigned magistrate judge for an evidentiary hearing and further proceedings as deemed necessary and appropriate.
For these reasons:
1. The undersigned adopts the findings and recommendations filed on December 21, 2016 (Doc. No. 55) in full;
2. Defendants' motion for summary judgment (Doc. No. 43), filed July 11, 2016, is denied; and
3. The undersigned refers the matter back to the magistrate judge for an evidentiary hearing on the issue of exhaustion and further proceedings as deemed necessary and appropriate. IT IS SO ORDERED.
Dated: March 16 , 2017
UNITED STATES DISTRICT JUDGE