Simmons v. Hedgpeth

Filing 112

ORDER ADOPTING FINDINGS AND RECOMMENDATION and DENYING Defendant Keiley's Motion to Dismiss 93 , 104 , signed by District Judge Lawrence J. O'Neill on 2/9/15: Plaintiff's request for imposition of sanctions is DENIED. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER I. SIMMONS,

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Plaintiff,

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v.

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GRISSOM, et al.,

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Defendants.

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Case No.: 1:07-cv-01058-LJO-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATION AND DENYING
DEFENDANT KEILEY’S MOTION TO DISMISS
[ECF Nos. 93, 104]

Plaintiff Christopher I. Simmons is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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On December 22, 2014, the Magistrate Judge filed a Findings and Recommendation which was

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served on the parties and which contained notice to the parties that Objections to the Findings and

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Recommendation was to be filed within thirty days. Plaintiff filed an Objection on January 26, 2015.

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(ECF No. 109.) Defendant Keiley filed a response to Plaintiff’s objections on February 9, 2015.

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(ECF No. 111.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de

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novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and

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Recommendation to be supported by the record and by proper analysis.

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In his objections, Plaintiff requests the imposition of sanctions based on his claim that

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Defendant Keiley’s motion to dismiss was frivolous and filed to impose an improper burden on

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Plaintiff. Defendant Keiley opposes Plaintiff’s request for imposition of sanctions.

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Rule 11 sanctions is reserved “for the rare and exceptional case where the action is clearly

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frivolous, legally unreasonable or without legal foundation …” Operating Engineers Pension Trust v.

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A-C Co., 859 F.2d 1336, 1344 (9th Cir. 1988). Here, although the Findings and Recommendations,

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adopted in full herein, has resulted in the denial of Defendant Keiley’s motion to dismiss, this is not

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one of those rare instances in which it can be said the motion to dismiss was frivolous and/or legally

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unreasonable, and there is no basis to find that defense counsel was motivated by an intent to harass or

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cause harm to Plaintiff.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendation, filed on December 22, 2014, is adopted in full;

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Defendant Keiley’s motion to dismiss is DENIED; and

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3.

Plaintiff’s request for imposition of sanctions is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

February 9, 2015

UNITED STATES DISTRICT JUDGE

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