Penton v. Hubard et al

Filing 40

ORDER signed by Judge Garland E. Burrell, Jr on 9/12/12 ORDERED the findings and recommendations filed 7/5/12, are adopted in full; Defendants' 2/27/12 motion to dismiss is denied in part and granted in part as follows: Denied as to plaintiff& #039;s alleged failure to exhaust administrative remedies; Granted as to plaintiff's access to the courts claim; Granted as to plaintiff's claims for declaratory relief and monetary damages against defendants in their official capacities ; Although plaintiff stated a cognizable claim under the First Amendment based on the withholding of plaintiff's incoming mail for over eight months, defendants' motion to dismiss is granted based on plaintiff's failure to attribute t hese actions to a named defendant, and thus failure to state a claim as to any particular defendant in this case; Plaintiff's amended complaint is dismissed with leave to amend as set forth above; and Within sixty days, plaintiff shall file a second amended complaint that complies with the instant findings and recommendations. Failure to file a second amended complaint in accordance with this order may result in the dismissal of this action. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY PENTON,

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Plaintiff,

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vs.
K. DICKINSON, et al.,
Defendants.

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No. 2:11-cv-0518 GEB KJN P

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 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On July 5, 2012, the magistrate judge filed findings and recommendations herein

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

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the findings and recommendations were to be filed within twenty-one days. Plaintiff filed

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objections to the 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 entire

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

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proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed July 5, 2012, are adopted in full;

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2. Defendants’ February 27, 2012 motion to dismiss is denied in part and granted

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in part as follows:

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A. Denied as to plaintiff’s alleged failure to exhaust administrative
remedies;

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B. Granted as to plaintiff’s access to the courts claim;

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C. Granted as to plaintiff’s claims for declaratory relief and monetary

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damages against defendants in their official capacities;

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D. Although plaintiff stated a cognizable claim under the First

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Amendment based on the withholding of plaintiff’s incoming mail for over eight months,

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defendants’ motion to dismiss is granted based on plaintiff’s failure to attribute these actions to a

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named defendant, and thus failure to state a claim as to any particular defendant in this case;

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E. Plaintiff’s amended complaint is dismissed with leave to amend as set
forth above; and
F. Within sixty days from the date of this order, plaintiff shall file a

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second amended complaint that complies with the instant findings and recommendations, the

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requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules

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of Practice. The second amended complaint must also bear the docket number assigned to this

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case and must be labeled “Second Amended Complaint.” Failure to file a second amended

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complaint in accordance with this order may result in the dismissal of this action.

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Dated: September 12, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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