Dunn v. Swarthout et al

Filing 42

ORDER signed by Judge John A. Mendez on 10/23/2013. Upon reconsideration, the 8/29/2013 37 Order by Magistrate Judge Hollows is AFFIRMED. That opinion also included Findings and Recommendatios which recommended other claims be denied. (Marciel, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN DUNN, 12 Petitioner, 13 14 No. 2:11-cv-2731 JAM GGH P v. ORDER GARY SWARTHOUT, et al., 15 Respondents. 16 On September 16, 2013, respondents filed a request for reconsideration of the magistrate 17 18 judge’s order1 filed August 29, 2013, granting an evidentiary hearing in regard to the claim of due 19 process violation of petitioner’s right to call witnesses at his disciplinary hearing. Pursuant to 20 E.D. Local Rule 303(f), a magistrate judge’s orders shall be upheld unless “clearly erroneous or 21 contrary to law.” Id. Upon review of the entire file, the court finds that it does not appear that the 22 magistrate judge’s ruling was clearly erroneous or contrary to law. An evidentiary hearing is 23 warranted based on the superior court’s failure to consider and reject petitioner’s declaration 24 regarding his request for a witness at his disciplinary hearing. Therefore, IT IS HEREBY ORDERED that, upon reconsideration, the order of the 25 26 27 28 magistrate judge filed August 29, 2013, is affirmed. 1 That opinion also included findings and recommendations which recommended that other claims be denied. (ECF No. 37.) 1 1 2 3 DATED: October 23, 2013 /s/ John A. Mendez_______________________ UNITED STATES DISTRICT COURT JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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