-EFB (PC) Johnson, et al v. Runnel, et al, No. 2:2004cv00776 - Document 198 (E.D. Cal. 2011)
Court Description: ORDER ADOPTING 196 FINDINGS and RECOMMENDATIONS, in full, signed by Senior Judge Lawrence K. Karlton on 3/25/2011. Plaintiff's 192 195 Motions, construed as Motion for Partial Summary Judgment, are DENIED. (Marciel, M)
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-EFB (PC) Johnson, et al v. Runnel, et al Doc. 198 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 VANCE EDWARD JOHNSON, 11 12 13 14 Plaintiff, vs. D.L. RUNNELS, et al., Defendants. 15 16 No. CIV S-04-0776 LKK EFB P ORDER / Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 17 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 18 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On February 3, 2011, the magistrate judge filed findings and recommendations 20 herein which were served on all parties and which contained notice to all parties that any 21 objections to the findings and recommendations were to be filed within fourteen days from the 22 date the findings and recommendations were served. Plaintiff has filed objections to the findings 23 and recommendations. 24 In his objections, plaintiff indicates that he wishes to preserve his equal protection 25 claim and litigate it alongside his Eighth Amendment claim. In the order of August 30, 2010, the 26 magistrate judge dismissed plaintiff’s equal protection claim because plaintiff had not specified 1 Dockets.Justia.com 1 which defendants he believed violated the Equal Protection Clause or what actions he believed 2 constitute such violations. Dckt. No. 177 at 5. The court afforded plaintiff the opportunity to file 3 an amended complaint to cure those deficiencies. Plaintiff elected not to amend his complaint. 4 See Dckt. No. 192 at 1 (“The Plntf. has allowed the passing of (30) days and has declined to 5 Amend the Equal Protection Claim aspect of the 14th Amdt.”). Accordingly, the equal 6 protection claim has been dismissed from the case. On December 23, 2010, plaintiff filed a 7 “Motion for Correction of Amended Complaint,” in which he stated that he provided a corrected 8 amended complaint. Docket No. 193. In his Findings and Recommendations, the Magistrate 9 Judge noted that the corrected complaint had not been received by the court, and stated: “If 10 plaintiff wishes to file an amended complaint to make changes not already authorized by the 11 court, he must either obtain defendants’ consent or file a motion for leave to amend concurrently 12 with the corrected complaint, which should be designated the “Fourth Amended Complaint.” 13 Docket No. 196 4:12-15. The Magistrate denied plaintiff’s motion for Correction of Amended 14 Complaint. In his filed Objections to the Findings and Recommendations, Docket No. 197, 15 plaintiff did not specifically object to this order by the Magistrate, but did refer the Magistrates 16 earlier holding that the plaintiff’s equal protection claim had been erroneously screened out. The 17 court takes the opportunity now to clarify to the plaintiff that the Magistrate has left open the 18 possibility of plaintiff requesting leave to amend the complaint to include sufficient detail of his 19 equal protection claim. If plaintiff wishes to do so, he must file a request for leave to amend the 20 complaint, along with a copy of the proposed amended complaint. 21 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 22 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire 23 file, the court finds the findings and recommendations to be supported by the record and by 24 proper analysis. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The findings and recommendations filed February 3, 2011, are adopted in full; 2 1 2 2. Plaintiff’s motions at Docket Nos. 192 and 195, construed as motions for a partial judgment under Federal Rule of Civil Procedure 54(b), are denied. 3 So ordered. 4 DATED: March 25, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
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