IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 13, 2009
THOMAS MARTIN SUKUP, PLAINTIFF,
VICTORIA C. MINOR, ET AL., DEFENDANTS.
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On January 22, 2009, the magistrate judge filed findings and recommendations herein which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Plaintiff's claims against the clerks of this court and the Court of Appeals are not cognizable either under 42 U.S.C. § 1983 nor as a claim under Bivens v. Six Unknows Named Agents, 403 U.S. 388 (1971). Further, as the Magistrate Judge pointed out, this court in United States v. Sukup, No. 2:97-cr-0461 DFL KJM, found that plaintiff's filings were insufficient to constitute notice of appeal not just because they were untimely, but because they were not the functional equivalent of a notice of appeal from the judgment and sentence. Rather than conveying defendant's intent to appeal his sentence, the letters simply challenged the propriety of the pre-sentence report, and as such they were properly treated as simply objections to the pre-sentence report. The clerks' handling of plaintiff's filings thus had no adverse consequences on his ability to appeal. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed January 22, 2009, are adopted in full; and
2. This action is dismissed without prejudice. 28 U.S.C. § 1915A.
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