Holmboe v. Falgout et al

Filing 11

ORDER Vacating 8 FINDINGS AND RECOMMENDATIONS, signed by Magistrate Judge Stanley A. Boone on 2/13/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSHUA HOLMBOE,

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Plaintiff,

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v.
FALGOUT, et al.,
Defendants.

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Case No. 1:17-cv-01575-LJO-SAB (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS ISSUED JANUARY 11,
2018
[ECF No. 8]

Plaintiff Joshua Holmboe is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Plaintiff filed the instant action on November 27, 2017. On January 11, 2018, the undersigned

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issued Findings and Recommendations recommending that the instant action be dismissed for failure

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to state a cognizable claim for relief. (ECF No. 8.) The Court specifically found that because the

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action was filed under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

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388 (1971), based on the analysis set forth in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), Plaintiff’s

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retaliation was not cognizable. (Id.)

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On February 12, 2018, Plaintiff filed objections to the Findings and Recommendations. In his

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objections, Plaintiff submits that the complaint involved actions by state actors while he was in state

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custody. Upon further review of the complaint, Plaintiff is correct as the allegations pertain to actions

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which took place while he was incarcerated at Taft Modified Community Correctional Facility
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(MCC), which is under contract with the California Department of Corrections and Rehabilitation.

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The Court inadvertently found that Plaintiff’s allegations involved federal actors while he was in

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federal custody at the Taft Correctional Institution. Therefore, the Findings and Recommendations

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will be vacated, and the Court and will re-screen Plaintiff’s complaint pursuant to 42 U.S.C. § 1915A

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in due course.
Based on the foregoing, it is HEREBY ORDERED that the Findings and Recommendations

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issued January 11, 2018, are VACATED.

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IT IS SO ORDERED.
Dated:

February 13, 2018
UNITED STATES MAGISTRATE JUDGE

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