Navarro v. Herdon et al

Filing 79

ORDER signed by Judge Kimberly J. Mueller on 9/30/2011 ORDERING 78 FINDINGS AND RECOMMENDATIONS are ADOPTED in part; 38 Motion to Dismiss is GRANTED in part and DENIED in part; this actional shall proceed on plaintiff's First, Eighth and Four teenth Amendment claims, as clarified by the magistrate judge, against defendants Kernan, Walker,Baxter, Baker, Sclafani, and Morrow; court DECLINES to adopt the findings and recommendations as to the FirstAmendment claim for denial of access to the courts against defendants Grannis and OBrian and refers consideration of this issue back to the magistrate judge;This action shall proceed on plaintiffs First Amendment retaliation claimagainst defendants Grannis and OBrian; and all other claims and defendants (specifically, defendants Nicholas, Griffin, Costa, Soliman, Frishman, Vasquez, Kelly, Shelton, and Johnson) are dismissed from this action. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO NAVARRO,
Plaintiff,

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vs.

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No. Civ. S-09-1878 KJM KJN P

DEBRA HERNDON, et al.,
Defendants.

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ORDER

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

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On August 24, 2011, the magistrate judge filed findings and recommendations,

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which were served on the parties and which contained notice that any objections to the findings

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and recommendations were to be filed within fourteen days. No party has filed objections to the

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findings and recommendations.
The court thus presumes that any findings of fact are correct. See Orand v.

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United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983).
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This court’s review of the complaint has identified an issue not explained in the

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findings and recommendations: how the involvement of O’Brian and Grannis in denying the

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grievances plaintiff identifies in his complaint, see ECF No. 1 at 21 ¶ 38, violated plaintiff’s

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right of access to the courts. Having carefully reviewed the file generally , the court finds the

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remainder of the findings and recommendations to be supported by the record and by the proper

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analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed August 24, 2011, are adopted in part;

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2. Defendants’ motion to dismiss (ECF No. 38) plaintiff’s First Amended

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Complaint is granted in part and denied in part;
3. This action shall proceed on plaintiff’s First, Eighth and Fourteenth

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Amendment claims, as clarified by the magistrate judge, against defendants Kernan, Walker,

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Baxter, Baker, Sclafani, and Morrow.

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4. The court declines to adopt the findings and recommendations as to the First

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Amendment claim for denial of access to the courts against defendants Grannis and O’Brian and

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refers consideration of this issue back to the magistrate judge;

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5. This action shall proceed on plaintiff’s First Amendment retaliation claim
against defendants Grannis and O’Brian; and
6 . All other claims and defendants (specifically, defendants Nicholas, Griffin,

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Costa, Soliman, Frishman, Vasquez, Kelly, Shelton, and Johnson) are dismissed from this action.

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DATED: September 30, 2011.

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UNITED STATES DISTRICT JUDGE

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