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Mullins v. Wenciker

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 5, 2009

EDWARD J. MULLINS, PLAINTIFF,
v.
R. WENCIKER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DISMISSING CERTAIN CLAIMS AND CERTAIN DEFENDANTS

(Doc. 89)

Plaintiff Edward Mullins, 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 Rule 72-302.

On, the Magistrate Judge filed a Findings and Recommendations herein which was served on the parties and which contained notice to the parties that any objections to the Findings and Recommendations were to be filed within twenty days. After obtaining an extension of time, Plaintiff filed an Objection on May 15, 2009. Defendant has not filed an objection.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. 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 April 23, 2009, is adopted in full;

2. This action shall proceed only against defendant Wenciker for retaliation in violation of the First Amendment for the destruction of Plaintiff's property;

3. Plaintiff's Fifth Amendment Takings Clause, and Fifth and Fourteenth Amendments Due Process claims are dismissed, with prejudice, for failure to state a claim upon which relief may be granted;

4. Plaintiff's request for declaratory relief is disregarded as unnecessary; 5. The remaining defendants are dismissed for Plaintiff's failure to state a claim against them;

6. The remainder of Plaintiff's claims are dismissed without prejudice for violation of Rule 18(a); and

7. Defendant Wenciker's responsive pleading is due within twenty (20) days of service of this order.

IT IS SO ORDERED.

20090605

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