Steve J.Noble v. Gonzalez

Filing 33

ORDER ADOPTING IN PART 29 Findings and Recommendations; ORDER DISMISSING Due Process Claim, for Failure to State Claim, Without Leave to Amend; ORDER DENYING Defendant's 24 Motion for Summary Judgment AS MOOT; ORDER REFERRING CASE BACK TO MAGISTRATE JUDGE for Further Proceedings, Including Screening the Amended Complaint, signed by District Judge Lawrence J. O'Neill on 03/08/2012. (Martin-Gill, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN JOSEPH NOBLE IV,

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Plaintiff,
vs.
LT. V. J. GONZALEZ,

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1:07-cv-01111-LJO-GSA-PC
ORDER ADOPTING IN PART FINDINGS
AND RECOMMENDATIONS
(Doc. 29.)
ORDER DISMISSING DUE PROCESS CLAIM,
FOR FAILURE TO STATE A CLAIM, WITHOUT
LEAVE TO AMEND

Defendant.
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ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT AS MOOT
(Doc. 24.)

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ORDER REFERRING CASE BACK TO
MAGISTRATE JUDGE FOR FURTHER
PROCEEDINGS, INCLUDING SCREENING
THE AMENDED COMPLAINT
(Doc. 15.)

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_____________________________/
Steven Joseph Noble IV (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.

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On January 10, 2012, findings and recommendations were entered, recommending that this

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action be dismissed for failure to state a claim. (Doc. 29.) On March 5, 2012, Plaintiff filed

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objections to the findings and recommendations. (Doc. 32.)

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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this

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Court has conducted a de novo review of this case. The Court has carefully reviewed the entire file,

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including Plaintiff's objections, and finds the findings and recommendations to be supported by the

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record and proper analysis with respect to Plaintiff's due process claim. The Magistrate Judge found

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that because Plaintiff did not know, at the time he filed this action on July 31, 2007, whether his

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disciplinary conviction and sentence from the September 6, 2006 hearing would be upheld at the

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rehearing which had not yet occurred, he is unable to show in this action that a protected interest was

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improperly taken from him at the September 6, 2006 hearing. Plaintiff has not demonstrated in his

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objections that the Magistrate Judge committed error, or presented the Court with new information to

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induce the Court to refrain from adopting this finding. Therefore, the Court shall adopt the finding

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that Plaintiff's due process claim should be dismissed from this action without leave to amend. As a

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result of this ruling, Defendant's motion for summary judgment on Plaintiff's due process claim shall

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be denied as moot.

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The Magistrate Judge recommends that Plaintiff's First Amended Complaint be dismissed in

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its entirety, based on the finding that Plaintiff's sole claim, for violation of due process, should be

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dismissed. However, Plaintiff now argues in his objections that he also brought a retaliation claim in

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the First Amended Complaint which was not acknowledged by the Court. Plaintiff asserts that he

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"alleged facts [in the First Amended Complaint] that he was beaten by prison guards for filing

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grievances, and that stifling the investigation into the alleged guard brutality was a motivating factor

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in the Defendant's affirmative acts or omissions." (Objections, Doc. 32 at 4:20-23.) The Court has

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reviewed the First Amended Complaint and finds that while Plaintiff brought only one claim, for

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violation of due process, he did allege that the due process claim "stems from ... retaliatory actions

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taken by prison officials against [him]" for litigating inmate appeals. (ACP, Doc. 15 at 2 ¶C.) Under

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these facts, Plaintiff may be able to state a cognizable claim for retaliation. Accordingly, this case

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shall be referred back to the Magistrate Judge for further proceedings, including the screening of the

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First Amended Complaint to determine if Plaintiff states a viable claim for retaliation.

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///

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Based on the foregoing, THE COURT HEREBY ORDERS that:

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1.

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The Findings and Recommendations issued by the Magistrate Judge on January 10,
2012, are ADOPTED IN PART;

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Plaintiff's due process claim is DISMISSED from this action for Plaintiff's failure to
state a claim, without leave to amend;

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Defendant's motion for summary judgment, filed on March 18, 2011, is DENIED as
moot; and

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This case is REFERRED BACK to the Magistrate Judge for further proceedings,
including the screening of the First Amended Complaint to determine if Plaintiff

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states a viable claim for retaliation.

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IT IS SO ORDERED.

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Dated:
b9ed48

March 8, 2012

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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