(PC) Demetrious A. Moore v. United States Of America et al
Filing
19
ORDER ADOPTING 17 Findings and Recommendations and dismissing action signed by District Judge Dale A. Drozd on 10/14/2020. CASE CLOSED.(Lundstrom, T)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
DEMETRIOUS A. MOORE,
12
13
Plaintiff,
v.
14
UNITED STATES OF AMERICA, et.al.,
15
Defendants.
16
)
)
)
)
)
)
)
)
)
)
Case No.: 1:20-cv-00451-NONE-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, AND DISMISSING
ACTION
(Doc. No. 17)
17
18
Plaintiff Demetrious A. Moore is appearing pro se and in forma pauperis in this civil rights
19
action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
20
(1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff brings a claim
21
for denial of access to the courts in violation of his rights under the First Amendment. (Doc. No. 1.)
22
He contends that certain prison officials failed to obtain and provide him with access to, a second
23
presentence report (“PSR”) prepared for his 2011 resentencing after his direct appeal. (Id. at 5.)
24
Plaintiff avers that the prison officials’ failure hindered his access to the courts as he prepared a
25
petition under 28 U.S.C. § 2255. (Id.) The matter was referred to a United States Magistrate Judge
26
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
27
On June 17, 2020, findings and recommendations were entered, recommending that this case be
28
dismissed in light of the decision in Ziglar v. Abbasi, ___U.S.___, 137 S. Ct. 1843, 1857 (2017) (noting
1
1
2
3
that “expanding the Bivens remedy is now a disfavored judicial activity”). (Doc. No. 17.) The findings
and recommendations were served on plaintiff and contained notice that objections were due within
twenty-one days. (Id.) Plaintiff filed objections on July 20, 2020. (Doc. No. 18.)
4
In his objections, plaintiff contends that what the magistrate judge characterized as “alternative
5
remedies” in plaintiff’s case were, in fact, “mandatory precursors” to fulfill exhaustion requirements in
6
7
8
9
10
11
12
13
14
15
16
17
18
order to reach the district court and request relief under Bivens. (Doc. No. 18 at 1–2.) Plaintiff further
avers that he suffered actual injury because he discovered a § 2255 claim after gaining access to his
2011 PSR but his discovery came too late to receive a decision on the merits of that claim from the
court. (Id. at 2, 3–4.) Plaintiff also argues that this is exactly the type of injury Bivens was intended to
remedy. (Id. at 2–3, 4–5.)
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this court
has conducted a de novo review of this case. Having carefully reviewed the entire file, including
plaintiff’s objections, the court finds the findings and recommendations to be supported by the record
and proper analysis. Under the Supreme Court’s decision in Abbasi and the Ninth Circuit’s decision
in Vega v. United States, 881 F.3d 1146 (9th Cir. 2018), the court concludes that plaintiff has failed to
allege a cognizable Bivens claim.
Accordingly:
1.
19
20
21
The findings and recommendations issued on June 17, 2020 (Doc. No. 17), are adopted
in full;
2.
This action is dismissed; and
3.
The Clerk of Court is directed to close this case.
22
23
24
25
IT IS SO ORDERED.
Dated:
October 14, 2020
UNITED STATES DISTRICT JUDGE
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?