(PC) Lipsey v. Davey, et al., No. 1:2017cv01706 - Document 40 (E.D. Cal. 2019)
Court Description: ORDER ADOPTING 32 FINDINGS AND RECOMMENDATIONS signed by District Judge Dale A. Drozd on 04/04/2019. Twenty-Day Deadline. (Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., 12 Plaintiff, 13 14 No. 1:17-cv-01706-DAD-SAB v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND RANDOLPH, (Doc. Nos. 28, 32) 15 Defendant. 16 Plaintiff Christopher Lipsey, Jr. is a state prisoner proceeding pro se and in forma 17 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On November 28, 2018, the assigned magistrate judge issued findings and 21 recommendations, recommending that defendant’s motion to dismiss plaintiff’s state law claim 22 under the Bane Act be granted for failure to comply with the California Government Claims Act. 23 (Doc. No. 32.) The findings and recommendations were served on the parties and contained 24 notice that any objections were due within twenty-one days after service. (Id. at 8.) On 25 ///// 26 ///// 27 ///// 28 ///// 1 1 December 17, 2018, plaintiff filed objections, and defendant filed a response on December 28, 2 2018. (Doc. Nos. 33, 34.)1 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 5 including plaintiff’s objections, the court finds the findings and recommendations to be supported 6 by the record and proper analysis. 7 In his objections, plaintiff makes the following four arguments regarding why this court 8 should decline to adopt the findings and recommendations: (1) the court should exercise its 9 discretion to permit plaintiff to file a late claim; (2) plaintiff’s six-month window in which to file 10 a claim did not begin to run until he had exhausted his administrative remedies; (3) plaintiff has 11 substantially complied with the statutory requirements, which is sufficient; and (4) plaintiff’s 12 amended claim, filed on September 11, 2018, renders his claim timely. However, as pointed out 13 in defendant’s response to plaintiff’s objections, the findings and recommendations expressly 14 considered and rejected each of these arguments. The court finds no error in the magistrate 15 judge’s analysis. 16 Accordingly, 17 1. 18 adopted in full; 19 2. 20 Defendant’s motion to dismiss plaintiff’s California Bane Act claim for failure to comply with the California Government Claims Act (Doc. No. 28) is granted; and 21 3. 22 23 The finding and recommendations issued on November 28, 2018 (Doc. No. 32) are Defendant shall file an answer to the complaint within twenty (20) days from the date of service of this order. IT IS SO ORDERED. 24 Dated: April 4, 2019 UNITED STATES DISTRICT JUDGE 25 26 27 28 Subsequently, plaintiff has filed a “request for judicial notice before judgment” (Doc. No. 35), as well as two additional filing styled as replies. (Doc. Nos. 37, 38.) 2 1
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