Opinion
Case No. 1:05-cv-00119-MP-EMT.
June 20, 2006
ORDER
This matter is before the Court on Doc. 21, Report and Recommendation of the Magistrate Judge, recommending that this case be dismissed with prejudice for failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Magistrate Judge filed the Report and Recommendation on Friday, March 24, 2006. The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made.
Plaintiff has filed objections to the Magistrate's Report, Doc. 22. In his objections, the Plaintiff claims that the Defendants are solely responsible for his failure to timely file a motion to withdraw his plea since they would not notarize his motion without proper identification. As the Magistrate points out, however, unnotarized oaths are acceptable for post-conviction motions if they contain an oath stating that the facts provided in the motion are true. Additionally, it appears that Plaintiff made no effort to file anything with the court informing it of Plaintiff's dilemma. Since Plaintiff took no steps to at least notify the court of his difficulty in having the motion notarized, Plaintiff cannot show that Defendants' conduct was the sole cause of his failure to file a timely motion to withdraw his plea.
Finally, as the Magistrate correctly points out, Plaintiff can not show that his family law claim involved a "criminal appeal or post-conviction matter, or in a civil rights action under 42 U.S.C. § 1983 `to vindicate `basic constitutional rights.''" Doc. 21 at 3. Therefore, the Court agrees with the Magistrate that Plaintiff's "claims that Defendants denied him access to the courts to litigate his motion for contempt against his exwife should likewise be dismissed." Id. at 4. Therefore, having considered the Report and Recommendation and all objections thereto filed, I have determined that the Report and Recommendation should be ADOPTED. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Magistrate Judge's Report and Recommendation is adopted and incorporated by reference in this order.
2. This action is dismissed with prejudice.
DONE AND ORDERED.