Burnett v. Lima et al

Filing 22

ORDER adopting 20 FINDINGS AND RECOMMENDATIONS and dismissing certain of Plaintiff's claims signed by District Judge Dale A. Drozd on 11/29/2017. Defendants, M. Lefler (Correctional Officer); L. Lima (Law Librarian); Heather Ayon (Correctional Officer) and R. D. Cranston Correctional Officer) dismissed from action. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS BURNETT, 12 No. 1:16-cv-01671-DAD-SAB Plaintiff, 13 v. 14 L. LIMA, et al., 15 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN OF PLAINTIFF’S CLAIMS Defendants. (Doc. Nos. 18, 20, 21) 16 Plaintiff Carlos Burnett is a state prisoner proceeding pro se and in forma pauperis in this 17 18 civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. On September 5, 2017, plaintiff filed his first amended complaint. (Doc. No. 18.) On 20 21 September 15, 2017, the assigned magistrate judge issued findings and recommendations, 22 recommending that plaintiff’s access to courts claim against defendants Lima, Ayon, and Cranton 23 be dismissed, and that the action proceed on plaintiff’s claims of excessive force and failure to 24 protect against defendant Constello, Urban, and Jones. (Doc. No. 20.) The parties were provided 25 fourteen days during which to file objections to those findings and recommendations. (Id.) 26 Plaintiff did so on September 28, 2017. (Doc. No. 21.) 27 ///// 28 ///// 1 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 2 de novo review of this case. Having carefully reviewed the entire file, the court finds the findings 3 and recommendations to be supported by the record and by proper analysis. The court has reviewed plaintiff’s objections and finds them to lack merit. As noted in the 4 5 findings and recommendations, a plaintiff proceeding on an access to courts claim must allege 6 facts demonstrating that plaintiff suffered actual injury, that is, “actual prejudice to contemplated 7 or existing litigation.” (Doc. No. 20 at 2–3) (quoting Nev. Dep’t of Corr. v. Greene, 648 F.3d 8 1014, 1018 (9th Cir. 2011)). Moreover, a plaintiff must allege facts demonstrating that the legal 9 claim plaintiff sought to pursue was “nonfrivolous.” Lewis v. Casey, 518 U.S. 343, 353 (2006). 10 In both his first amended complaint and his objections, plaintiff contends that the 11 constitutional violation is itself the injury. (See Doc. No. 18 at 5; Doc. No. 21 at 1.) This 12 argument is contrary to the Ninth Circuit’s decision in Greene in which the court held that “actual 13 injury is a jurisdictional requirement that flows from the standing doctrine and may not be 14 waived.” Id. (quoting Lewis, 518 U.S. at 348). Plaintiff has stated no facts that would allow the 15 court to conclude that his inability to access the prison law library frustrated his ability to 16 prosecute his claim. Moreover, plaintiff has not alleged any facts which, if true, would enable the 17 court to conclude that the legal claim he sought to pursue was non-frivolous. Instead, plaintiff 18 has merely provided the court with conclusory statements that the claim he sought to pursue “had 19 merit” and “was nonfrivolous.” (Doc. No. 21 at 2.) 20 For these reasons, 21 1. 22 The findings and recommendations dated September 15, 2017 (Doc. No. 20) are adopted in full; 23 2. 24 Plaintiff’s access to the courts claim against defendants Lima, Ayon, and Cranton is dismissed for failure to state a cognizable claim for relief; 25 3. 26 This action shall proceed on plaintiff’s excessive force and failure to protect claims against defendants Constello, Urban, and Jones; and 27 ///// 28 ///// 2 1 4. 2 3 4 This action is referred back to the assigned magistrate judge for initiation of service of process and further proceedings. IT IS SO ORDERED. Dated: November 29, 2017 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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