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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHARLES EDWARD TURNER, Plaintiff,
vs.
R. HICKMAN, et al., Defendants.
No. CIV S-99-1869 FCD KJM P
342 F. Supp. 2d 887
September 29, 2004,
Decided
September 30, 2004, Filed
ORDER
Plaintiff, a state prisoner proceeding with counsel, has filed
this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was
referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local General Order No. 262.
On August 4, 2004, the magistrate judge filed findings and
recommendations herein, which were served on all parties and which contained
notice to all parties that any objections to the findings and recommendations
were to be filed within twenty days. Defendants have filed objections to the
findings and recommendations. n1
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C)
and Local Rule 72-304, this court has conducted a de novo review of this case.
Having carefully reviewed the entire file, the court finds the findings and
recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed August 4, 2004 are
adopted in full;
2. Plaintiffs March 5, 2004 motion for summary judgment is
granted;
3.
Defendants Perez, Van Court, Baker, Guaderrama, their superiors, agents,
co-employees and successors to state office are enjoined from considering
plaintiff's refusal to participate in Narcotics Anonymous at any point in time
as a basis for denying plaintiff parole;
4.
Defendant Hickman, and his successors, are ordered to expunge all references to
plaintiff's failure to attend Narcotics Anonymous from any file maintained by
the California Department of Corrections; and
5. This case is closed. n2
DATED: September 29, 2004
UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 With their objections, defendants submit
the declaration of Marvin E. Speed II. While a district court judge may receive
additional evidence under 28 U.S.C. § 636(b)(1)(C)'when determining whether to
accept or reject a magistrate judge's findings and recommendations, the court
exercises its discretion and declines to consider the Speed declaration as
counsel for defendants has not provided any reason why the declaration was not
submitted during the approximately five month period defendants' and
plaintiff's motions for summary judgment were pending before the magistrate
judge issued her findings and recommendations. U.S. v. Howell, 231 F.3d 615,
622-23 (9th Cir. 2000), cert, denied, 534 U.S. 831, 151 L. Ed. 2d 40, 122 S.
Ct. 76 (2001) (district court judge has discretion to reject evidence submitted
after findings and recommendations have issued).
n2 In her findings and
recommendations, the magistrate judge recommended that plaintiff's counsel be
awarded attorneys fees and costs under 42 U.S.C. § 1988. If plaintiff seeks
fees and / or costs under § 1988, or any other applicable statute or rule,
plaintiff shall file a motion in accordance with the applicable rules.
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