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James Armstead v. Tim v. Virga

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


November 29, 2012

JAMES ARMSTEAD, PLAINTIFF,
v.
TIM V. VIRGA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: John A. Mendez United States District Court Judge

ORDER

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 Rule 302.

On July 3, 2012, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days.

On July 19, 2012, the magistrate judge granted plaintiff thirty days to file objections to the findings and recommendations. The magistrate judge also denied plaintiff's motion for law library access. On August 3, 2012, plaintiff filed a motion for reconsideration of the July 19, 2012 order denying his motion for law library access. On September 11, 2012, the undersigned denied the motion for reconsideration and granted plaintiff thirty days to file his objections. Because plaintiff raised issues regarding law library access not previously presented to the magistrate judge, the undersigned ordered that plaintiff could file a renewed motion for law library access.

On October 15, 2012, plaintiff filed a motion for an extension of time to file his renewed motion for law library access. On October 19, 2012, the magistrate judge granted plaintiff fourteen days to file his renewed motion. Fourteen days passed and plaintiff did not file a renewed motion for law library access. Plaintiff also failed to file objections to the July 3, 2012 findings and recommendations. However, plaintiff did file objections to the October 18, 2012 findings and recommendations recommending that his October 11, 2012 motion for a temporary restraining order be denied.

Despite apparent law library access, as demonstrated by plaintiff's recent filings, plaintiff has failed to file objections to the July 3, 2012 findings and recommendations. Defendants have also not filed objections to the July 3, 2012 findings and recommendations.

The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis. Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed July 3, 2012 are adopted in full; 2. Defendants' motion to dismiss (Dkt. No. 29) is granted as to the following claims: 1) adequate law library access; 2) violation of right to due process in connection with the processing of administrative appeals; 3) claims concerning defendants Daly and Cannedy;

3. Defendants' motion to dismiss (Dkt. No. 29) is denied as to the following claims: 1) racially-based lockdown in violation of the Equal Protection Clause; 2) denial of access to telephone; 3) denial of access to cleaning supplies; and 4) claims against defendants Virga and Mini;

4. Plaintiff is granted fourteen days to file an amended complaint in accordance with the July 3, 2012 findings and recommendations; if plaintiff does not file an amended complaint, this action will proceed on the following claims: 1) racially-based lockdowns in violation of the Equal Protection Clause; 2) denial of access to telephone; 3) denial of access to cleaning supplies; and 4) claims against defendants Virga and Mini.

20121129

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