Hill v. Swarthout et al
Filing
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ORDER signed by Chief District Judge Kimberly J. Mueller on 7/12/2021 ADOPTING in FULL 61 Findings and Recommendations.Plaintiff's due process claims against defendants Swarthout and Cappel for denying his disciplinary appeals are DISMISSED without leave to amend.(Reader, L)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Kenneth Hill,
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No. 2:15-cv-2012 KJM AC P
Plaintiff,
ORDER
v.
Gary Swarthout, et al.,
Defendants.
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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief
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under 42 U.S.C. § 1983. In the complaint, plaintiff alleges that defendants Swarthout, Cappel,
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and Sandy violated his rights under the Eighth and Fourteenth Amendments. See Compl. at 1–2,
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ECF No. 1. On September 30, 2015, plaintiff consented to magistrate judge jurisdiction. ECF
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No. 4. Defendants did not consent to proceed before the magistrate judge. See generally F&Rs,
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ECF No. 61. On January 31, 2017, the magistrate judge issued an order dismissing some of
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plaintiff’s due process claims without leave to amend. MJ Order (Jan. 31, 2017), ECF No. 9. On
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September 30, 2020, this court entered judgment in this case. ECF No. 55. The Ninth Circuit
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vacated the September 30, 2020 judgment in light of the magistrate judge’s dismissal of some
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claims with prejudice by order instead of by findings and recommendations. See ECF Nos. 60 &
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62. On June 21, 2021, the magistrate judge issued findings and recommendations vacating her
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previous order and recommending the dismissal of plaintiff’s claims with prejudice for the same
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reasons provided for in the January 31, 2017 screening order. See MJ Order at 5–6. The parties
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were advised that failure to file objections within fourteen days after being served with the
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findings and recommendations may waive the right to appeal the District Court’s order. Martinez
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v. Ylst, 951 F.2d 1153 (9th Cir. 1991). See generally F&Rs.
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The magistrate judge’s conclusions of law are reviewed de novo. See Robbins v. Carey,
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481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by the magistrate judge are
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reviewed de novo by both the district court and [the appellate] court . . . .”). Having reviewed the
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file, the court finds the findings and recommendations to be supported by the record and by the
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proper analysis. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979).
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Accordingly, IT IS HEREBY ORDERED that:
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1. The magistrate judge’s recommendations filed June 21, 2021 (ECF No. 61) are adopted
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in full; and
2. Plaintiff’s due process claims against defendants Swarthout and Cappel for denying his
disciplinary appeals are dismissed without leave to amend.
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This order resolves ECF Nos. 61 & 62.
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IT IS SO ORDERED.
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DATED: July 12, 2021.
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