Opinion
No. CV 10-6136-DMG (PLA)
04-30-2015
WAYNE ELWIN CHICK, Petitioner, v. FRANK CHAVEZ, Warden, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, the Magistrate Judge's Second Report and Recommendation ("R&R"), and petitioner's Objections to the R&R. The Court has engaged in a de novo review of those portions of the R&R to which objections have been made, and concludes that no modifications to the R&R are necessary. In particular, the Court has reviewed petitioner's assertions in support of his claim that he suffered from severe mental impairments from October 2008 through August 2010. Nothing in petitioner's Objections leads the Court to conclude that the Magistrate Judge's recommendations should not be accepted. As explained in the R&R, although petitioner experienced anxiety and depression, the mental health records overall, including Dr. Saint Martin's evaluation, do not reflect that petitioner was continuously debilitated during the relevant time period. The R&R further explains, inter alia, that petitioner's ability to attend weekly classes during the one-year period and his role as representative for the Men's Advisory Counsel ("MAC") reflect that he actively participated in prison activities and was not, as he asserts, confined to his cell or incapacitated due to his mental condition. (See R&R at 12-13). For the reasons set forth in the R&R, the Court concurs with the Magistrate Judge's finding that petitioner's mental impairment was not severe enough to serve as an obstacle to timely filing the Petition during the entire period of October 2008 through August 2010, and that equitable tolling does not render the Petition timely. Additionally, the Court agrees that the record is amply developed with respect to the issue of petitioner's mental impairment such that no evidentiary hearing is necessary. (See R&R at 16 n.8.)
The Court agrees with the conclusion of the Magistrate Judge that the Petition is untimely, and accepts the recommendations of the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Second Report and Recommendation is accepted.
2. The Motion to Dismiss is granted.
3. Judgment shall be entered consistent with this order.
4. The clerk shall serve this order and the judgment on all counsel or parties of record. DATED: April 30, 2015
/s/_________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE