The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED Doc. Nos. 60 and 65
Plaintiff, a state prisoner proceeding pro se, filed a lawsuit under 42 U.S.C. § 1983 on July 26, 2006. The court granted in part and denied in part Defendant's motion to dismiss the First Amended Complaint on August 19, 2008. (Doc. No. 58.) Pursuant to the order of dismissal, Plaintiff submitted a Second Amended Complaint ("SAC," Doc. No. 59). Remaining defendant Stone now moves to dismiss Plaintiff's SAC. ("Motion," Doc. No. 60.) Plaintiff opposes the motion (Doc. No. 61) and Defendant filed a reply (Doc. No. 64).
On November 10, 2008, Magistrate Judge Cathy Ann Bencivengo issued a Report and Recommendation ("R&R," Doc. No. 65) recommending this court grant Defendants' motion and dismiss all claims with prejudice and without leave to amend. (R&R at 10.) Plaintiff filed objections to the R&R on January 7, 2009. (Doc. No. 68.)
For the reasons set forth below, the court hereby ADOPTS the R&R AS MODIFIED herein.
Plaintiff's § 1983 action arises out of events that occurred during his incarceration at Calipatria.*fn1 On February 22, 2004 and May 5, 2004, Plaintiff submitted two Inmate Appeals regarding prison law library access and missing books. (SAC at ¶ 8.) Defendant Stone, an administrator of the law library, urged Plaintiff to withdraw the complaints which he refused to do. (SAC at ¶ 8.) Plaintiff's Claims One-Four allege Defendant violated his First Amendment rights by retaliating against him for the administrative complaints. The alleged retaliation took place on June 23, 2004 and July 13, 2004 when she ordered him to remove legal materials of inmates Martinez and McKnight (Claim One), and when she denied him access to the Calipatria's library on May 3, 2005 (Claim Two), May 11, 2005 (Claim Three), and July 20, 2005 (Claim Four). In Claim Five, Plaintiff alleges Defendant violated his Fourteenth Amendment right of access to the courts by denying him entry to the law library on May 3, 2005, May 11, 2005, and July 20, 2005. Plaintiff seeks compensatory and punitive damages.
The R&R recommends the court grant the motion to dismiss with prejudice. Specifically, the R&R concludes: (1) Claims One and Four fail to state a First Amendment retaliation claim; (2) Claims Two and Three are waived by Plaintiff for failure to re-allege them in his SAC; and (3) Claim Five fails to state a Fourteenth Amendment claim for denial of access to the courts.
The R&R provides a thorough and clear statement of the facts (see R&R at 2-3) and the court hereby incorporates that statement by reference in this order.
Plaintiff objects to the R&R's recommendations. He generally does not, however, seek to distinguish the authorities cited in the R&R or otherwise inform the court of a reasoned basis to decline to adopt the R&R. To the extent Plaintiff repeats his earlier arguments, the court need not review them again. To the extent he raises new objections, they are addressed in the following discussion.
The court reviews a magistrate judge's R&R according to the standards set forth in Federal Rules of Civil Procedure ("FRCP") Rule 72(b) and 28 U.S.C. § 636. The court "shall make a de novo determination of those portions of the report . . . to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); U.S. v. Raddatz, 447 U.S. 667, 673-74 (1980). //
Having considered the R&R, the objections, and the applicable authorities, the court hereby adopts the R&R's analysis and recommendations ...