Armstead v. Virga et al

Filing 65

ORDER signed by Judge John A. Mendez on 11/29/2012 FINDINGS AND RECOMMENDATIONS 51 are ADOPTED in FULL; Defendant's 29 motion to dismiss is GRANTED in PART and DENIED in PART; plaintiff is GRANTED 14 days to file an amended complaint in accordance with the 7/3/2012 F & R's.(Reader, 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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JAMES ARMSTEAD,

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Plaintiff,

No. 2: 11-cv-1054 JAM KJN P

vs.
TIM V. VIRGA, et al.,
Defendants.

ORDER
/

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 3, 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 days.

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On July 19, 2012, the magistrate judge granted plaintiff thirty days to file

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objections to the findings and recommendations. The magistrate judge also denied plaintiff’s

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motion for law library access. On August 3, 2012, plaintiff filed a motion for reconsideration of

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the July 19, 2012 order denying his motion for law library access. On September 11, 2012, the

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undersigned denied the motion for reconsideration and granted plaintiff thirty days to file his
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objections. Because plaintiff raised issues regarding law library access not previously presented

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to the magistrate judge, the undersigned ordered that plaintiff could file a renewed motion for

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law library access.

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On October 15, 2012, plaintiff filed a motion for an extension of time to file his

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renewed motion for law library access. On October 19, 2012, the magistrate judge granted

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plaintiff fourteen days to file his renewed motion. Fourteen days passed and plaintiff did not file

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a renewed motion for law library access. Plaintiff also failed to file objections to the July 3, 2012

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findings and recommendations. However, plaintiff did file objections to the October 18, 2012

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findings and recommendations recommending that his October 11, 2012 motion for a temporary

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restraining order be denied.
Despite apparent law library access, as demonstrated by plaintiff’s recent filings,

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plaintiff has failed to file objections to the July 3, 2012 findings and recommendations.

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Defendants have also not filed objections to the July 3, 2012 findings and recommendations.

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The court has reviewed the file and finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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1. The findings and recommendations filed July 3, 2012 are adopted in full;

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2. Defendants’ motion to dismiss (Dkt. No. 29) is granted as to the following

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claims: 1) adequate law library access; 2) violation of right to due process in connection with the

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processing of administrative appeals; 3) claims concerning defendants Daly and Cannedy;

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3. Defendants’ motion to dismiss (Dkt. No. 29) is denied as to the following

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claims: 1) racially-based lockdown in violation of the Equal Protection Clause; 2) denial of

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access to telephone; 3) denial of access to cleaning supplies; and 4) claims against defendants

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Virga and Mini;

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4. Plaintiff is granted fourteen days to file an amended complaint in accordance
with the July 3, 2012 findings and recommendations; if plaintiff does not file an amended
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complaint, this action will proceed on the following claims: 1) racially-based lockdowns in

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violation of the Equal Protection Clause; 2) denial of access to telephone; 3) denial of access to

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cleaning supplies; and 4) claims against defendants Virga and Mini.

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DATED: November 29, 2012

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/s/ John A. Mendez

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UNITED STATES DISTRICT COURT JUDGE

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