Baker v. Macomber et al

Filing 40

ORDER signed by District Judge Garland E. Burrell, Jr on 6/15/16 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 5/3/16 33 are ADOPTED in full, with the exception that the Court now finds that Defendant complied with the safe harbor/mandatory notice procedures set forth in Rule 11, FRCP. Defendant's Motion for terminating sactions 29 is DENIED. And this case is referred back to the assigned Magistrate Judge for all further pretrial proceedings.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY RAY BAKER,

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Plaintiff,

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No. 2:15-cv-0248 GEB AC P

v.

ORDER

J. MACOMBER, 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 pursuant to

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

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On May 3, 2016, the magistrate judge filed findings and recommendations herein 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. Defendant has 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 304, this

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

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

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analysis.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed May 3, 2016, are adopted in full, with the

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exception that the court now finds that defendant complied with the safe harbor/mandatory notice

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procedures set forth in Rule 11, Federal Rules of Civil Procedure.

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2. Defendant’s motion for terminating sanctions, ECF No. 29, is denied; and

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3. This case is referred back to the assigned magistrate judge for all further pretrial

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proceedings.

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Dated: June 15, 2016

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However, this court sustains defendant’s objection to the magistrate judge’s finding that
defendant failed to comply with the safe harbor/mandatory notice procedures of Rule 11, Federal
Rules of Civil Procedure. Defendant’s motion to dismiss does aver, albeit in passing, that
defendant complied those procedures. See ECF No. 29-1 at 15-6. Nevertheless, such compliance
notwithstanding, the magistrate judge appropriately found that plaintiff’s inclusion of the
contested Form 7219 as an exhibit to his complaint, together with the other circumstances
asserted by defendant, fail to demonstrate objective bad faith by plaintiff warranting the dismissal
of this action.
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