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Claudell Earl Martin v. Loadholt

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 7, 2012

CLAUDELL EARL MARTIN,
PLAINTIFF,
v.
LOADHOLT,
DEFENDANT.

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

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT COUNTING DISMISSAL AS A STRIKE UNDER 28 U.S.C. § 1915(g) (ECF NO. 20)

Plaintiff Claudell Earl Martin is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed on February 1, 2010 pursuant 42 U.S.C. § 1983. (Compl., ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.

On March 30, 2012, Findings and Recommendations for Dismissal (Findings and Recommendations, ECF No. 20) were filed in which the Magistrate Judge recommended dismissal of the action for failure to state a claim. Plaintiff was notified that his Objection, any, was due within thirty (30) days.

Plaintiff filed an Objection on grounds his First Amended Complaint alleges a "chilling effect" sufficient to state a cognizable First Amendment retaliation claim notwithstanding the absence of any material harm caused by Defendant. (Obj. to Findings and Recommendations, ECF No. 21.)

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, and with regard to Plaintiff's Objection having determined that the First Amended Complaint does not allege a threat of punishment or regulatory action sufficient to claim a First Amendment chilling effect, 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 Court adopts the Findings and Recommendations filed March 30, 2012, in full,

2. This action is dismissed, with prejudice, for failure to state a claim,

3. The Clerk of the Court shall enter judgment against Plaintiff, and

4. This dismissal counts as a strike under 28 U.S.C. § 1915(g).

IT IS SO ORDERED.

20120507

© 1992-2012 VersusLaw Inc.



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