Martin v. Pfzifer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE R. MARTIN, Case No. 1:20-cv-00605-NONE-SAB 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; DENYING 13 v. PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES; AND 14 C. PFZIFER, et al., DISMISSING ACTION AS FRIVOLOUS 15 Defendants. (Doc. No. 5) 16 17 Lance R. Martin (“Plaintiff”) is appearing pro se in this civil rights action pursuant to 42 18 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 4, 2020, the assigned magistrate judge filed a findings and recommendations 21 recommending that the complaint be dismissed without leave to amend as frivolous and that 22 plaintiff’s application to proceed in forma pauperis without prepayment of fees be denied. (Doc. 23 No. 5.) The findings and recommendations were served on plaintiff and contained notice that 24 any objections were to be filed within thirty days. Plaintiff did not file formal objections. 25 Instead, on May 20, 2020, plaintiff filed a notice of appeal that was processed to the U.S. Court 26 of Appeals for the Ninth Circuit. (Doc. No. 6.) 27 In accordance with 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and WOOD 1.40 UV VU YAR PVVULTICEII Lorey rPaywt evre 1 | recommendations to be supported by the record and by proper analysis. Plaintiff, who is no 2 | longer in custody, alleges that defendants—all of whom are employees at state prisons where he 3 | once was incarcerated—are using electronic devices to control citizens around plaintiff in 4 | various ways, including by causing those citizens to adulterate plaintiff's food, drink, and water. 5 | (See generally Doc. No. 1.) The findings and recommendations reasonably concluded that 6 | plaintiffs’ claims were not cognizable or grounded in reality and should be dismissed. 7 To the extent plaintiff's May 20, 2020 notice of appeal was intended by plaintiff to 8 | constitute objections to the pending findings and recommendations, the notice of appeal contains 9 | no information or argument that would justify departure from those recommendations.! 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The findings and recommendations, filed May 4, 2020 (Doc. No. 5), are 12 ADOPTED IN FULL; 13 2. Plaintiffs application to proceed without prepayment of fees is DENIED; 14 3. The complaint in this matter is DISMISSED WITHOUT LEAVE to amend as 15 frivolous; 16 4. The Clerk of the Court is DIRECTED to assign this matter to a United States 17 district judge for the purposes of closing this case and to CLOSE THIS CASE 18 | lr IS SO ORDERED. □ 19 [1 @ 6 Dated: _ June 17, 2020 Hen | aoe 20 UNITED STATES DISTRICT JUDGE 21 22 |, oe . . . . . ; Plaintiffs notice of appeal was filed before the undersigned reviewed the magistrate judge’s 23 | findings and recommendations. Generally, “the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal.” Stein v. Wood, 127 24 | F.3d 1187, 1189 (9th Cir. 1997). However, there is an exception to the general rule when the appeal is frivolous. Marks v. Clarke, 102 F.3d 1012, 1017 n. 8 (9th Cir. 1996) (citations 25 omitted). Here, plaintiff did not appeal from an appealable final order, so his appeal is frivolous. 26 See 28 U.S.C. § 1291; see also Guymon v. Nasset, No. CV 16-68-M-DLC-JCL, 2016 WL 5475971, at *1 (D. Mont. Sept. 29, 2016) (finding an appeal from a magistrate judge’s findings 27 | and recommendations noticed to the Ninth Circuit before the findings and recommendations were addressed by the district judge to be frivolous). This order will also serve as certification 28 | that plaintiffs appeal is frivolous.