(PC) Love v. Macomber ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FELTON LOVE, JR., No. 2:23-cv-00790-DJC-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 JEFF MACOMBER, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 18 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 25, 2023, the Magistrate Judge filed findings and recommendations 21 herein which were served on Plaintiff and which contained notice to Plaintiff that any 22 objections to the findings and recommendations were to be filed within fourteen 23 days. Plaintiff has filed objections to the findings and recommendations.1 In his 24 objections, Plaintiff argues that the judgement that forms the basis for application of 25 res judicata has been appealed, and thus is not final. However, the “established rule 26 27 1 Plaintiff also filed an interlocutory appeal with the Ninth Circuit. ECF No. 21. The appellate court dismissed the appeal for lack of jurisdiction and issued its 28 mandate. ECF Nos. 24 & 25. 1 | inthe federal courts is that a final judgment retains all of its res judicata consequences 2 | pending decision of the appeal.” Tripati v. Henman, 857 F.2d 1366, 1367 (9th Cir. 3 | 1988) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 4A | § 4433, at 308 (1981).) And in any event, the Ninth Circuit has now dismissed that 5 | appeal for failure to prosecute. See Order, Love v. Hill, Case No. 23-15312 (9th Cir. 6 | June 14, 2023). 7 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 8 | 304, this Court has conducted a de novo review of this case. Having carefully 9 | reviewed the entire file, the Court finds the findings and recommendations to be 10 | supported by the record and by proper analysis. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The findings and recommendations filed May 25, 2023, are adopted in full; 13 2. Plaintiff's individual capacity claims against CDCR Secretary Jeff Macomber 14 | and Folsom State Prison Warden Tracy Johnson are dismissed for failure to state a 15 | claim, with leave to amend within 30 days from the date of this order;? and 16 3. All other claims are dismissed, with prejudice, as barred by res judicata. 17 18 IT IS SO ORDERED. 19 | Dated: _September 3, 2023 _ Bel Lbrat Hon. Daniel labretta 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 | oo ? Failure to file an amended complaint within the time provided may result in 28 | the dismissal of this action, with prejudice.