Franks v. Kelso et al

Filing 79

ORDER ADOPTING 64 Findings and Recommendations in full signed by Chief District Judge Kimberly J. Mueller on 09/29/20 as follows: defendant's 35 50 Motion for Summary Judgment is DENIED as to Claim II in plaintiff's complaint and is GRANTED as to Claim III. Plaintiff's 70 03/13/20 Objections are STRICKEN. This matter is REFERRED back to the assigned magistrate judge for further proceedings. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TOM MARK FRANKS,

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No. 2:17-cv-1056 KJM CKD P

Plaintiff,

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v.

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ORDER

J. CLARK KELSO, et al.,

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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.
On February 18, 2020, 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. Plaintiff and defendant

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Giddings have filed objections to the findings and recommendations. Plaintiff submitted timely

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objections on February 25, 2020 (ECF No. 67), to which defendant Giddings responded (ECF No.

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69); plaintiff then filed a second set on March 13, 2020 (ECF No. 70). Because plaintiff never

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sought leave to file a second set of objections, and because the second set is not timely,1 the

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Documents submitted by prisoners are deemed filed in court on the day submitted to prison
officials for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988).
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second set will be stricken. Plaintiff and Giddings each made additional unauthorized filings

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(ECF Nos. 75, 76), which the court disregards.

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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 reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The objections submitted to the court by plaintiff on March 13, 2020 (ECF No. 70) are

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stricken.
2. The findings and recommendations filed February 18, 2020, are adopted in full.
3. Defendant’s motion for summary judgment (ECF Nos. 35 & 50) is denied as to Claim
II in plaintiff’s complaint and is granted as to Claim III.
4. This matter is referred back to the assigned magistrate judge for further proceedings.
DATED: September 29, 2020.

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