Martin v. Adams et al

Filing 20

ORDER ADOPTING 13 FINDINGS AND RECOMMENDATIONS to Dismiss Certain Claims for Failure to State a Claim upon which Relief may be Granted signed by Chief Judge Anthony W. Ishii on 06/26/2012. (Flores, E)

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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 A. MARTIN,

Case No. 1:10-cv-01153 AWI-JLT (PC)

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v.
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Plaintiff, ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS
CERTAIN CLAIMS FOR FAILURE TO
STATE A CLAIM UPON WHICH
RELIEF MAY BE GRANTED

DERRAL G. ADAMS, et al.,
(Docs. 11,13, 19).

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Defendants.

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Plaintiff Steven Martin, a state prisoner proceeding pro se, filed this civil rights action

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pursuant to 42 U.S.C. § 1983. On April 12, 2012, the Court dismissed Plaintiff’s Complaint with

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leave to amend. (Doc. 9). When Plaintiff failed to timely file an amended complaint, the Court

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issued findings and recommendations to dismiss Plaintiff’s matter for failure to prosecute. (Doc.

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10). When Plaintiff filed his First Amended Complaint (“FAC”) on May 11, 2012, Magistrate

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Judge Thurston issued an order vacating the May 8, 2012 Findings and Recommendations and

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proceeded to screen Plaintiff’s FAC. (Doc. 11.)

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On May 25, 2012, Magistrate Judge Thurston issued Findings and Recommendations that

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certain claims in the FAC, related to the theft of Plaintiff’s CD player and Plaintiff’s Due Process

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and First Amendment claims relating to the failure of prison employees to return his original

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receipts for the CD player, be dismissed.1

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Plaintiff was to file any objections to the Magistrate Judge’s May 25, 2012

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recommendations by June 8, 2012. (Doc. 13). On June 18, 2012, Plaintiff filed untimely

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Objections to the Magistrate Judge’s Findings and Recommendations. (Doc. 19). Plaintiff’s

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Objections assert that by recommending dismissal of Plaintiff’s due process claims, the

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Magistrate Judge is essentially asserting a defense that defendants have “waived.” (Doc. 19 at 2).

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Plaintiff further alleges that he could be prejudiced if defendants argue that his state claim is

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untimely. (Id.) This Court has reviewed and considered Plaintiff’s objections and agrees with the

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analysis set forth in the Magistrate Judge’s Findings and Recommendations.

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Therefore, in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Britt v. Simi

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Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), the Court has conducted a de novo

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review of the case. Having carefully, reviewed the entire file, the Court finds that the findings

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and recommendations are supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations issued May 25, 2012 are ADOPTED IN FULL;

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2. Plaintiff’s Fourteenth Amendment Due Process claims related to the theft of his CD
player are DISMISSED;

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3. Plaintiff’s Fourteenth Amendment Due Process and First Amendment claims relating

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to the failure of prison employees to return his original receipts for the CD player are

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likewise DISMISSED.

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IT IS SO ORDERED.
Dated: June 26, 2012
CHIEF UNITED STATES DISTRICT JUDGE
DEAC_Sig nature-END:

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This Court recently issued an order directing service of the Complaint on Defendant J.
Nora (aka J. Mora) on the sole claim that Defendant retaliated against Plaintiff when he stole
Plaintiff’s CD player. Thus, these Findings and Recommendations only relate to Plaintiff’s Due
Process claims for theft of his CD player and his Due Process and First Amendment claims for
Defendant’s failure to return receipts showing ownership of the CD player.

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