(HC) Taylor v. Yates, No. 1:2009cv01876 - Document 9 (E.D. Cal. 2010)

Court Description: ORDER ADOPTING 8 FINDINGS AND RECOMMENDATIONS to Dismiss State Law Claims and To Require a Response with Respect to Petitioner's Due Process Claim; Thematter IS REFERRED back to the Magistrate to order Respondent to file a response, signed by Judge Oliver W. Wanger on 9/2/2010. (Marrujo, C)
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(HC) Taylor v. Yates Doc. 9 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARK JAMES TAYLOR, 11 Petitioner, 12 13 14 15 v. JAMES A. YATES, Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—01876-OWW-SKO-HC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS STATE LAW CLAIMS AND TO REQUIRE A RESPONSE WITH RESPECT TO PETITIONER’S DUE PROCESS CLAIM (DOCS. 1, 8) 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. The matter has been referred to the 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. 22 On July 13, 2010, the Magistrate Judge filed findings and 23 recommendations that 1) Petitioner’s claims concerning the 24 interpretation of the offense of failure to comply with count 25 procedures, its status as a serious rules violation or as a 26 lesser included offense of the originally charged violation, the 27 extent of discretion entrusted in prison officials under Cal. 28 1 Dockets.Justia.com 1 Code. Regs. tit. 15, § 3017, and any violation of due process of 2 law premised solely on the state constitution be dismissed 3 because they are not cognizable in a proceeding pursuant to 28 4 U.S.C. § 2254; and 2) with respect to Petitioner’s claim that his 5 right to due process of law was violated because of the absence 6 of some evidence to support a finding of a violation of the 7 pertinent disciplinary rules, the Respondent should be ordered to 8 file a response to the petition. 9 The findings and recommendations advised that any objections 10 to the findings and recommendations were due within thirty days 11 of service. 12 parties on July 13, 2010. 13 filing of objections has passed, no objections have been filed. 14 The findings and recommendations were served on all Although the thirty-day period for the In accordance with the provisions of 28 U.S.C. § 636 15 (b)(1)(C), this Court has conducted a de novo review of the case. 16 Having carefully reviewed the entire file, the Court finds that 17 the report and recommendations are supported by the record and 18 proper analysis. 19 Accordingly, it is ORDERED that: 20 1. The Findings and Recommendations filed on July 13, 2010, 21 22 ARE ADOPTED IN FULL; and 2. Petitioner’s claims concerning the interpretation of the 23 offense of failure to comply with count procedures, its status as 24 a serious rules violation or as a lesser included offense of the 25 originally charged violation, the extent of discretion entrusted 26 in prison officials under Cal. Code. Regs. tit. 15, § 3017, and 27 any violation of due process of law premised solely on the state 28 constitution ARE DISMISSED as not cognizable pursuant to 28 2 1 U.S.C. § 2254; and 2 3) With respect to Petitioner’s claim of a violation of due process of law because of the absence of some evidence to support a finding of a violation of the pertinent disciplinary rules, the matter IS REFERRED back to the Magistrate to order Respondent to file a response.IT IS SO ORDERED. 3 4 5 Dated: September 2, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3