Meeks v. Peterman et al

Filing 33

ORDER Re: 29 REPORT AND RECOMMENDATION. The Courts ADOPTS AND ACCEPTS the 29 Report/Recommendation of the U.S. Magistrate Judge. Defendants, E. Peterman, Nancy Flores, James Bacca, and Bill Donat, motion to dismiss 11 is GRANTED. Signed by Judge Howard D. McKibben on 6/15/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANDREW L. MEEKS, II,

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Plaintiff,
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vs.
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E. PETERMAN, et al.,
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Defendants.
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3:10-cv-00474-HDM-VPC

ORDER

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The court has considered the report and recommendation of the
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United States Magistrate Judge (#29) filed on May 11, 2011, in
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which the magistrate judge recommends that this court enter an
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order granting defendants’ motion to dismiss (#11).

The court has

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also considered the plaintiff’s objections to the report and
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recommendation (#31) filed May 26, 2011 and the defendants’
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opposition to plaintiff’s objections (#32) filed June 6, 2011.
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The gravamen of plaintiff’s complaint is that he was denied
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his First Amendment right of access to the courts.

He alleges that

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while he was able to file a petition for rehearing en banc pursuant
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to Federal Rule of Appellate Procedure 35, he was unable to file a

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petition for a panel rehearing pursuant to Federal Rule of

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Appellate Procedure 40, he was unable to file a writ of certiorari

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to the United States Supreme Court, and he was unable to petition

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in “State/Federal District Court to show ‘actual innocence’” after

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the alleged destruction of his legal files.

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motion to dismiss plaintiff’s complaint for failure to state a

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claim upon which relief may be granted because the plaintiff was

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unable to show actual injury.

The defendants filed a

The report and recommendation states

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that plaintiff does not have a constitutional right of access to

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the courts to appeal the denial of his habeas petition, the Ninth

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Circuit did not grant plaintiff leave to file a second habeas

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petition, and the plaintiff has failed to allege an actual injury

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required to state an access to courts claim.

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The court has considered the pleadings and memoranda of the

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parties and other relevant matters of record and has made a review

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and determination in accordance with the requirements of 28 U.S.C.

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§ 636 and applicable case law, and good cause appearing, the court

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hereby ADOPTS AND ACCEPTS the report and recommendation of the

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United States Magistrate Judge (#29). Accordingly, the defendants’

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motion to dismiss (#11) is GRANTED.

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DATED: This 15th day of June, 2011.

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____________________________
UNITED STATES DISTRICT JUDGE

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