Byrd v. Lynn et al

Filing 61

ORDER signed by Judge Kimberly J. Mueller on 3/29/13 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 3/7/13 59 are ADOPTED in full; The Motion for Reconsideration of the Court's Order of 3/29/12 46 is DENIED; The Motion to Amend or Supplement Plaintiff's pleading 51 is DENIED. The Motion to Dismiss 55 is DENIED.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOSEA BYRD,
Plaintiff,

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ORDER

vs.

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No. 2:10-cv-0839 KJM DAD P

Defendant.

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A. LYNN,

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/

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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.

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On March 7, 2013, the magistrate judge filed findings and recommendations,

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

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recommendations were to be filed within fourteen days. Plaintiff has filed objections to the

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findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court finds the findings and recommendations to be supported by the record and by the

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proper analysis.
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On April 9, 2012, plaintiff filed a motion asking the court to reconsider its order

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of March 29, 2012, in which the court dismissed claims against defendants Lynn, Kelly, Hale,

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Martinez, Kahn, Statti and McDonald. See Order (Docket No. 44). Having carefully considered

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the motion to reconsider (ECF 46), the court finds it should be denied.

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Plaintiff asserts his classification in privilege group “C” imposes restrictions that

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constitute atypical and significant hardships relative to the ordinary incidents of prison life.

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(ECF 46 at 3.) Some of these restrictions not previously considered by the magistrate judge or

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the undersigned are denial of: curtained showers; in-cell television or radio; and opportunity to

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work or attend school. (Id. at 4.) But these restrictions do not constitute atypical and significant

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hardships relative to the ordinary incidents of prison life. See, e.g., Wyatt v. Swearingen, C 06-

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4228 RMW (PR), 2010 WL 135322, at *9 (N.D. Cal. Jan. 5, 2010) (no liberty or property

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interest in prison employment) (citing Hoptowit v. Ray, 682 F.2d 1237, 1254-55 (9th Cir. 1982)).

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Restrictions that have been found to constitute atypical and significant hardships include, by

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contrast, involuntary administration of psychotropic drugs, transfer to a medical hospital, and

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assignment to a supermax facility restricting all human contact and confinement to cells for

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twenty-three hours per day. Id. at *7-8.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed March 7, 2013, are adopted in full.

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2. The motion for reconsideration of the court’s order of March 29, 2012 (ECF

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No. 46) is denied.

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3. The motion to amend or supplement plaintiff’s pleading (ECF No. 51) is
denied.
4. The motion to dismiss (ECF No. 55) is denied.
DATED: March 29, 2013.

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UNITED STATES DISTRICT JUDGE

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