Asberry v. Cate et al

Filing 148

ORDER signed by Judge Kimberly J. Mueller on 3/11/2014 ADOPTING IN FULL 122 Findings and Recommendations; DENYING 121 Motion for Injunctive Relief. (Michel, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY ASBERRY,

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No. 2:11-cv-2462 KJM KJN P

Plaintiff,
v.

ORDER

MATTHEW CATE, et al.,
Defendants.

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

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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

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On October 10, 2013, the magistrate judge filed findings and recommendations, which

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

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findings and recommendations were to be filed within fourteen days. Neither party has filed

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objections to the findings and recommendations.

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The magistrate judge found that plaintiff was seeking an order directing officials at R.J.

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Donovan Correctional Facility (“RJDCF”) to return plaintiff’s confiscated wheelchair. On

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October 23, 2013, plaintiff filed a document stating that he did not object to the findings and

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recommendations. Plaintiff states that his wheelchair was not confiscated, but that prison

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officials threatened to take it.
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To the extent plaintiff seeks an order prohibiting officials at RJDCF from confiscating

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plaintiff’s wheelchair, the magistrate judge’s reasoning in the October 10, 2013 findings and

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recommendations is equally applicable.

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The court presumes that any findings of fact are correct. See Orand v. United States, 602

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F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully

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

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and by the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed October 10, 2013 are adopted in full; and

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2. Plaintiff’s motion for injunctive relief (ECF No. 121) is denied.

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DATED: March 11, 2014.

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UNITED STATES DISTRICT JUDGE

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