McGovern v. Smith et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 5 in full. Claims 1,2, and 3 are DISMISSED, as are Defendants Smith, Green, Koddlin, Zackmann, Tew, Bartle, and Berman/Thompson. Signed by Judge Richard F. Cebull on 3/7/2011. Mailed to McGovern. (TAG, )

IN THE UNITED STATES DlSTlUCT cotrR:T ~ , J /;)i1 r":C;) ,.... -~.l ;l;ij I t<":l 7 r, ['u FOR THE DISTRICT OF M(}N,r,AJ'I~ ~
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THOMAS MCGOVERN, Plaintiff,

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) Cause No. CV-IO-157-BLG-RFC-CSO
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v.
PATRICK SMITH, et al. Defendant.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

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United States Magistrate Judge Carolyn Ostby has entered Findings and Recommendation (Doc, 5) with respect to the 28 U.S.c. § 1915 and 28 U.S.c.

§ 1915A prescreening of McGovem's § 1983 Complaint (Doc. 2). Magistrate
Judge Ostby recommends dismissal of Counts 1,2, and 3, as well as Defendants Smith, Green, Noddlin, Zackmann, Tew, Bartle, and Berman/Thompson. Upon service of a magistrate judge's findings and recommendation, a party has 14 days to file written objections. 28 U.S.C. § 636(b)(1). McGovern filed timely objections on February 14, 2011. Doc. 7. Accordingly" the Court must make a de novo determination of those portions of the Findings and Recommendations to which objection is made. 28 U.S.c. § 636(b)(1). Forthe

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following reasons, McGovern's objections are overruled. McGovern first objects to Magistrate Judge Ostby's conclusion that the prohibition on candles (I) did not substantially burdened the practice of his religion when electric candles are available, and (2) is rationally related to building safety. Regardless, Magistrate Ostby correctly held that candles raise tire safety concerns and are therefore properly restricted. Rouser v. White, 630 F.Supp.2d 1165, 1190 (E.D.Cal. 2009). Although the Findings and Recommendation did not address the issue and it does not appear counsel has been formally requested, McGovern also objects to Magistrate Judge Ostby'S failure to appoint counsel for him. b any event, while courts may appoint counsel under section 1915(d), they may o:3ly do so under "'exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A fInding of exceptional circumstances requires an evaluation of both the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity ofthe legal issues involved." ld. (internal quotations omitted). This is not an exceptional circumstance. McGovern has sufficient ability to articulate his remaining claim. After a de novo review, the Court determines the Findings and Recommendation of Magistrate Judge Ostby are well grounded in law and fact and
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adopts them in their entirety. Accordingly, IT IS HEREBY ORDERED that Claims 1,2, and 3 are
DISMISSED, as are Defendants Smith, Green, Koddlin, Zackmann, Tew, Bartle,

and Berman/Thompson. DATED this

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~ of March, 2011.

United States District Judge

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