Opinion
2:21-cv-02275-DAD-DMC (PC)
08-18-2023
FRANKIE WEISNER, Plaintiff, v. RICH HILL, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING DEFENDANTS' MOTION TO DISMISS
(DOC. NOS. 31, 44)
Plaintiff Frankie Weisner is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 14, 2023, the assigned magistrate judge issued findings and recommendations recommending that defendants' motion to dismiss (Doc. No. 31) be granted. (Doc. No. 44.) Specifically, the magistrate judge thoroughly reviewed and considered the claims presented in plaintiff's operative first amended complaint (“FAC”) as well as defendants' arguments for dismissal and concluded that: (1) plaintiff's Fourteenth Amendment due process violation and any property-related claims should be dismissed without further leave to amend because amendment would be futile; (2) plaintiff's Eighth Amendment claim relating to the service of his SHU term and his claim of retaliation in violation of his rights under the First Amendment should be dismissed with leave to amend based upon the possibility, as explained therein, that plaintiff could allege facts stating cognizable claims; and (3) plaintiff's request for injunctive relief be dismissed as having been rendered moot as a result of his transfer to a different prison. (Id. at 514.)
The pending findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 14.) On June 29, 2023, the court received plaintiff's timely objection to the findings and recommendations. (Doc. No. 45.) No response to the objections has been filed.
In his one-page objection, plaintiff states merely that he “disagrees with all of the magistrates [sic] arguments.” (Id. at 1.) Plaintiff's objection therefore does not meaningfully call into question the thorough analysis set forth in the pending findings and recommendations and provides no basis upon which they should be rejected.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court concludes that the findings and recommendations are supported by the record and proper analysis.
Accordingly,
1. The findings and recommendations issued on June 14, 2023 (Doc. No. 44) are adopted in full;
2. Defendants' motion to dismiss (Doc. No. 31) is granted;
3. Plaintiff's due process claim based on his alleged retention in administrative segregation is dismissed with prejudice;
4. Plaintiff's claim arising from any alleged loss of property is dismissed with prejudice;
5. Plaintiff's request for injunctive relief is dismissed with prejudice as having been rendered moot by his subsequent transfer to a different prison;
6. Plaintiff's FAC is dismissed with leave to amend as to his remaining claims. Any second amended complaint that plaintiff may elect to file must be filed within twenty-one (21) days of the service of this order and plaintiff's failure to do so will result in the dismissal of this action; and
7. This action is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.