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Michael W. August v. John Dovey

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 21, 2011

MICHAEL W. AUGUST,
PLAINTIFF,
v.
JOHN DOVEY, ET AL., DEFENDANTS.

ORDER

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. The matter is again before the court following a judgment of the Ninth Circuit Court of Appeals.

On August 20, 2007, the court issued findings and recommendations that defendants' motion to dismiss be denied. Specifically, the court found that plaintiff had stated a cognizable claim based on violation of due process in the context of a prison disciplinary hearing and that defendants were not entitled to qualified immunity on that claim. The findings and recommendations were adopted in full on September 14, 2007, and defendants appealed. The Ninth Circuit Court of Appeals issued a memorandum disposition reversing the September 14, 2007, order on January 14, 2011, and the mandate issued on February 7, 2011.

In its memorandum disposition, the Ninth Circuit stated:

August doesn't allege any condition that enhanced his sentence in "such an unexpected manner as to give rise to protection by the Due Process Clause of its own force," or imposed an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Ghana v. Pearce, 159 F.3d 1206, 1209 (9th Cir. 1998) (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)). His due process claim therefore fails.

REVERSED.

Because the Ninth Circuit has concluded that plaintiff does not state a cognizable due process claim, defendants' motion to dismiss must be granted.

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants' motion to dismiss (Doc. 23) is granted;

2. Plaintiff's motion for sanctions (Doc. 30) is denied as moot;

3. This action is dismissed for failure to state a claim; and

4. The Clerk of the Court is directed to enter judgment and close this file.

20110321

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