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Madero Pouncil v. M. Martel

April 1, 2013

MADERO POUNCIL,
PLAINTIFF,
v.
M. MARTEL, ET AL., DEFENDANTS.



ORDER

Plaintiff, a prisoner proceeding pro se, brings this civil rights action 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 February 21, 2013, the Magistrate Judge issued findings and recommendations (ECF No. 39), recommending that plaintiff's ex parte motion for injunctive relief (ECF No. 12) be denied.

The findings and recommendations were served on all parties and contained notice that the parties could file objections within fourteen days. None were filed.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court declines to adopt the findings and recommendations in this case for the reasons provided below.

The gravamen of plaintiff's complaint is that prison officials, by denying him conjugal visits with his wife, are unlawfully violating a core tenet of his Islamic faith.

On March 31, 2010, the court issued an order finding, inter alia, that the applicable statute of limitations began to run on the date in 2008 when his request for a conjugal visit with his second wife was denied, and therefore, plaintiff's claims were not time-barred. (ECF No. 27.) Plaintiffs had urged the adoption of an earlier accrual date in 2002, when prison officials had denied plaintiff's request for conjugal visits with his first wife. On appeal, the Ninth Circuit affirmed the court's ruling. Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012).

As a result of the appeal, this action was stayed from September 15, 2010 to February 21, 2013. (ECF Nos. 35, 38.)

The instant findings and recommendations concern an earlier ex parte motion, filed in June 2009, seeking an order compelling the return of confiscated religious materials. (ECF No. 12.) It reads, in pertinent part:

Today, under special authority from Correctional Sergeant Green, at Mule Creek State Prison, Correctional Officer Baker was sent around to all [M]uslim inmates with instructions to take photographs of their bodies and to confiscate all of their religious materials; including the holy Qur'ans.

Not only is this an inconvenience, but a great disrespect to all practicing

[M]uslims, and a direct violation of the RLUIP Act*fn1 , and our basic fundamental rights under this Act. This hurts me in every way, and the case I have before the court, because "All Religious Materials" also means my research and facts that I once had to rely on to litigate my case in this action. Those other [M]uslims that have helped me can no longer help me search and find written documentation that can soundly factualize [sic] my case because their literature has been confiscated also. So no longer am I being afforded an equal and fair chance to present and defend my claims, but basically I have been blinded. (Id.)

Attached to the motion is a document entitled "STANDARD CELL SEARCH." Under the heading "CONFISCATED CONTRABAND" appears the statement, "ALL RELIGIOUS MATERIAL BELONGING TO [illegible] POUNCIL." This document appears to be signed by a correctional officer. (Id.)

Also pending in this matter are the following:

* Defendants' request for clarification regarding the court's prior order and request for leave to file a ...


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