Opinion
Case No. CV 08-4180-DOC (OP)
01-25-2012
THOMAS CLINTON, Plaintiff, v. R. GREEN, et al., Defendants.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Third Amended Complaint, all the records and files herein, and the Final Report and Recommendation of the United States Magistrate Judge. The Court accepts the findings, conclusions, and recommendations of the Magistrate Judge,
IT IS HEREBY ORDERED that:
(1) accepting this Final Report and Recommendation;
(2) denying the motion to dismiss Plaintiff's First Amendment access to courts claim pursuant to Rule 12(b)(6) as to Defendant Marshall;
(3) denying the motion to dismiss Plaintiff's First Amendment retaliation claim pursuant to Rule 12(b)(6) as to Defendant Green;
(4) granting the motion to dismiss Plaintiff's First Amendment access to courts claim pursuant to Rule 12(b)(6) as to Defendant Green without leave to amend;
(5) granting the motion to dismiss Plaintiff's claim that Defendant Marshall interfered with Plaintiff's right of access to courts and deprived Plaintiff of his property without due process of law, as these claims relate to the loss of destruction of Plaintiff's legal materials, and dismissing those claims without leave to amend for failure to follow the Court's orders (see Fed. Rule Civ. P. 41(b); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding that district court may dismiss action for failure to comply with any order of the court));
(6) denying Defendants' motion to declare Plaintiff a vexatious litigant; and
(7) ordering Defendant Marshall to file an Answer to Plaintiff's access to courts claim and ordering Defendant Green to file an Answer to Plaintiff's retaliation claim within thirty days of the entry of the order accepting this Final Report and Recommendation.
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HONORABLE DAVID O. CARTER
United States District Judge
Prepared by: ________________________
HONORABLE OSWALD PARADA
United States Magistrate Judge