Burgers v. Uribe, Jr. et al

Filing 32

ORDER (1) Adopting Report and Recommendation, (2) Granting in part and denying in part 15 Defendants' Motion to Dismiss and (3) Granting 27 Defendants' Motion for Partial Summary Judgment. This Court, having reviewed de novo the Magistr ate Judge's R&R, and there being no objections filed thereto, adopts the R&R in its entirety. Defendants' motion to dismiss is hereby granted in part and denied in part. Specifically, Defendants' motion to dismiss is granted with respe ct to Plaintiff's Fifth Amendment claim, Fourteenth Amendment equal protection claim and Fourteenth Amendment due process claim as it relates to the sixteen photographs and one catalog that were not confiscated. Defendants' motion is denied with respect to Plaintiff's retaliation claim and his Fourteenth Amendment due process claim relating to the four photographs and one catalog that were confiscated. The Court also grants Defendants' motion for partial summary judgment of n o exhaustion on Plaintiff's Fourteenth Amendment due process claim as it relates to the sixteen photographs and one catalog that were not confiscated. Pursuant to Federal Rule of Civil Procedure 12(a)(1)(C), Defendants shall file their Answer to the Complaint within 21 days of the filing of this Order. Signed by Judge Dana M. Sabraw on 9/15/2014. (All non-registered users served via U.S. Mail Service)(aef).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MICHAEL LYDELL BURGERS,

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Plaintiff,
vs.

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DOMINGO URIBE JR., et al.,
Defendants.

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CASE NO. 13cv1880 DMS (NLS)
ORDER (1) ADOPTING REPORT
AND RECOMMENDATION, (2)
GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION TO
DISMISS AND (3) GRANTING
DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT

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On August 12, 2013, Plaintiff Michael Lydell Burgers (“Plaintiff”), a state

18 prisoner proceeding pro se, filed a Complaint Under the Civil Rights Act 42 U.S.C. §
19 1983. Plaintiff alleges Defendants violated his First Amendment right to freedom of
20 speech, Fifth Amendment right to due process, Fourteenth Amendment rights to due
21 process and equal protection and retaliated against him for exercising his First
22 Amendment rights.
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On August 7, 2014, Magistrate Judge Nita L. Stormes issued a Report and

24 Recommendation (“R&R”), recommending that the Court grant in part and deny in part
25 Defendants’ motion to dismiss the Complaint due to Plaintiff’s failure to state a claim,
26 and grant Defendants’ motion for partial summary judgment. This Court, having
27 reviewed de novo the Magistrate Judge’s R&R, and there being no objections filed
28 thereto, adopts the R&R in its entirety. Defendants’ motion to dismiss is hereby granted
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13cv1880

1 in part and denied in part. Specifically, Defendants’ motion to dismiss is granted with
2 respect to Plaintiff’s Fifth Amendment claim, Fourteenth Amendment equal protection
3 claim and Fourteenth Amendment due process claim as it relates to the sixteen
4 photographs and one catalog that were not confiscated. Defendants’ motion is denied
5 with respect to Plaintiff’s retaliation claim and his Fourteenth Amendment due process
6 claim relating to the four photographs and one catalog that were confiscated. The Court
7 also grants Defendants’ motion for partial summary judgment of no exhaustion on
8 Plaintiff’s Fourteenth Amendment due process claim as it relates to the sixteen
9 photographs and one catalog that were not confiscated.
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Pursuant to Federal Rule of Civil Procedure 12(a)(1)(C), Defendants shall file

11 their Answer to the Complaint within 21 days of the filing of this Order.
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IT IS SO ORDERED.

13 DATED: September 15, 2014
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HON. DANA M. SABRAW
United States District Judge

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13cv1880