Opinion
Case No. C10-5417BHS.
June 22, 2011
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation ("R R") of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 17), Plaintiff Rodney Garrott's ("Garrott") motion for an extension of time (Dkt. 19), and Garrott's motion for reconsideration (Dkt. 22). The Court has considered the R R, Garrott's motions, and the remainder of the file and hereby adopts the R R and dismisses this action.
I. PROCEDURAL HISTORY
On July 9, 2010, Garrott filed a Civil Rights Complaint against Defendants Earl Wright, Roy Gonzalez, Ron Van Boening, Randy Johnson, and Shane Maitland ("Defendants"). Dkt. 6.
On March 24, 2011, Defendants filed a Motion For Summary Judgment. Dkt. 15. The motion was noted for April 22, 2011, which required Garrott to mail his response on April 15, 2011, and file it no later than April 18, 2011.
On April 12, 2011, Garrott was sent to the infirmary and then placed in the Special Management Unit (SMU) due to receiving an infraction for fighting and resisting arrest. Dkt. 19. On May 6, 2011 Garrott mailed his motion for an extension of time, which was received by the Court on May 11, 2011. See id.
On May 12, 2011, Judge Creatura issued the R R finding no constitutional violation and recommending that the action be dismissed with prejudice. Dkt. 17.
On May 19, 2011, prior to this Court's ruling on his motion for extension of time, Garrott filed a document entitled "Brief in Opposition to Defendants' Motion for Summary Judgment" (Dkts. 20, 20-1, 20-2), and a Motion for Reconsideration (Dkt. 22).
On May 20, 2011, Defendants responded to Garrott's motion for an extension of time. Dkt. 23. On May 24, 2011, Defendants responded to Garrott's brief in opposition to the summary judgment motion and included a motion to strike. Dkt. 23.
II. DISCUSSION
In the interest of judicial economy, the Court will grant Garrott's motion for extension of time and consider all the documents on file.
First, Garrott concedes that his claims regarding alleged missing magazines should be dismissed for failure to exhaust administrative remedies. See Dkt. 20-1, p. 2-3. Garrott also concedes that his claims against Defendants Wright, Gonzalez, Van Boening and Johnson should be dismissed for failing to allege personal participation. Id. at 3.
With regard to the remaining claim against Defendant Maitland, Garrott has failed to show that (1) the state does not provide a meaningful post-deprivation remedy ( Hudson v. Palmer, 468 U.S. 517, 533) or (2) personal participation by Defendant Maitland in causing the deprivation ( Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981)). Therefore, Garrott's claim is without merit.
III. ORDER
The Court having considered the R R, Garrott's motion for reconsideration, and the remaining record, does hereby find and order as follows:(1) Garrott's motion for relief (Dkt. 19) is GRANTED;
(2) The R R (Dkt. 17) is ADOPTED;
(3) Garrott's motion for reconsideration (Dkt. 19) is DENIED; and
(4) This action is DISMISSED with prejudice.