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Mitchell v. Branham

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 5, 2008

ROBERT MITCHELL, PLAINTIFF,
v.
BRANHAM AND GUTHRIE, RESPONDENT.

The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the review of the Report and Recommendation (#71) filed on June 13, 2008 by the United States Magistrate William McCurine, Jr.

BACKGROUND

On June 13, 2008, the United States Magistrate Judge issued a Report and Recommendation recommending that this Court enter summary judgment in favor of Defendants on Plaintiff's First Amendment retaliation claim and deny Plaintiff's motion for sanctions. The parties were ordered to file any objections to the Report and Recommendation on or before July 9, 2008. Plaintiff has filed objections to the Report and Recommendation.

RULING OF THE COURT

The duties of the district court in connection with the Report and Recommendation of a Magistrate Judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). The Court has reviewed de novo all aspects of the Report and Recommendation of the Magistrate Judge filed on June 13, 2008 and adopts the Report and Recommendation in its entirety.

The Magistrate Judge concluded that Defendants presented strong circumstantial evidence that the events which transpired in the prison law library on July 2, 2002 were motivated by a legitimate correctional purpose and that the Plaintiff cannot overcome the well established prison regulations limiting library time to two hours and restricting the manner in which legal documents can be mailed. The Magistrate Judge correctly concluded that Plaintiff has no evidence to support the fifth element necessary to establish a First Amendment retaliation claim in the prison context. All of the claims presented by Plaintiff in the operative First Amended Complaint has been resolved in favor of Defendants.

IT IS HEREBY ORDERED that the Court adopts all portions of the Report and Recommendation (Doc. # 71); Defendant's Motion for Summary Judgment (# 59) is granted as to the Plaintiff's First Amendment retaliation claim and negligence claim. Plaintiff's claim for equal protection was dismissed in a prior order (Doc. # 47). It is further ordered that Plaintiff's motion for sanctions is denied. The Clerk shall enter judgment against Plaintiff and in favor of Defendant.

WILLIAM Q. HAYES United States District Judge

20080805

© 1992-2008 VersusLaw Inc.



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