(PC) Asberry v. Cate et al, No. 2:2009cv01494 - Document 18 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/4/2011 RECOMMENDING that dfts Cate, Walker, Bauser, O'Brien, and Does 1-10, be dismissed from this action w/out prejudice. Referred to Judge Morrison C. England, Jr.; Objections due w/in 21 days. (Yin, K)
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(PC) Asberry v. Cate et al Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 TONY ASBERRY, 11 Plaintiff, 12 13 No. 2:09-cv-1494 MCE KJN P vs. MATHEW CATE, et al., 14 Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Pursuant to this court’s screening of plaintiff’s original complaint pursuant to 28 17 U.S.C. § 1915A(a), the court found that the complaint may state cognizable claims against 18 defendants Hernandez and Phelps, but did not state a claim against Cate, Walker, Bauser, 19 O’Brien, or Does 1-10. (See Dkt. Nos. 7, 12.) The court gave plaintiff the option of proceeding 20 on his original complaint or filing an amended complaint that added a cognizable claim against 21 defendants Cate, Walker, Bauser, O’Brien, or Does 1-10. (Dkt. Nos. 7, 12, 15.) Plaintiff has now 22 chosen to proceed on his original complaint against defendants Hernandez and Phelps, 23 effectively choosing to terminate this action against Cate, Walker, Bauser, O’Brien, and Does 1- 24 10. (Dkt. No. 17.) 25 //// 26 //// 1 Dockets.Justia.com 1 2 Accordingly, IT IS HEREBY RECOMMENDED that defendants Cate, Walker, Bauser, O’Brien, and Does 1-10, be dismissed from this action without prejudice. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 5 after being served with these findings and recommendations, plaintiff may file written objections 6 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 8 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 9 (9th Cir. 1991). 10 DATED: March 4, 2011 11 12 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 13 14 asbe1494.14option.fr.kjn 15 16 17 18 19 20 21 22 23 24 25 26 2
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