(PC) Davila v. Medina et al, No. 2:2009cv01747 - Document 29 (E.D. Cal. 2010)

Court Description: ORDER signed by Judge Frank C. Damrell, Jr on 3/30/10 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 2/12/10, 24 are ADOPTED in full; Plaintiff's Request to amend the Complaint 25 is DENIED; Defendants McDonald and Nepomuceno are DISMISSED; This Action proceeds against defendant Medina only. (Mena-Sanchez, L)

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(PC) Davila v. Medina et al Doc. 29 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN DAVILA, Plaintiff, 12 vs. 13 14 No. CIV S-09-1747-FCD-CMK-P ORDER D. MEDINA, Defendant. 15 / 16 17 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 Eastern District of California local rules. 20 On February 12, 2010, the Magistrate Judge filed findings and recommendations 21 herein which were served on the parties and which contained notice that the parties may file 22 objections within a specified time. Timely objections to the findings and recommendations have 23 been filed. 24 /// 25 /// 26 /// 1 Dockets.Justia.com In his objections, plaintiff challenges the Magistrate Judge’s conclusion that 1 2 supervisory defendants McDonald and Nepomuceno should be dismissed. In particular, plaintiff 3 states that “since the filing of the complaint the plaintiff has determined . . . the actions of 4 Nepomuceno . . . and McDonald.” Citing Forman v. Davis, 371 U.S. 178 (1962), plaintiff 5 asserts that this court must “grant leave freely to amend a complaint.” A review of the docket 6 reflects that plaintiff was provided an opportunity to amend and chose not to do so. On October 7 5, 2009, the Magistrate Judge issued an order outlining plaintiff’s factual allegations and 8 providing plaintiff an opportunity to file an amended complaint in order to set forth additional 9 allegations as to the two supervisory defendants. The court stated: 10 Because the complaint appears to otherwise state cognizable claims, if no amended complaint is filed within the time allowed therefor, the court will issue findings and recommendations that the claims identified herein is defective be dismissed, as well as such further orders as are necessary for service of process as to the cognizable claims. 11 12 13 14 Upon plaintiff’s failure to file any amended complaint within the time provided, the Magistrate 15 Judge properly construed such failure as plaintiff’s assent to dismissal of the supervisory 16 defendants in favor of proceeding directly against the remaining defendant. While plaintiff now 17 states that he can present factual allegations sufficient to state claims against the supervisory 18 defendants, he has not indicated why such allegations were not presented in an amended 19 complaint filed within the time allowed by the Magistrate Judge’s October 2009 order. 20 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 21 304(f), this court has conducted a de novo review of this case. Having carefully reviewed the 22 entire file, the court finds the findings and recommendations to be supported by the record and 23 by proper analysis. 24 /// 25 /// 26 /// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed February 12, 2010, are adopted 4 2. Plaintiff’s request to amend the complaint (Doc. 25) is denied; 5 3. Defendants McDonald and Nepomuceno are dismissed; and 6 4. This action proceeds against defendant Medina only. 3 7 in full; DATED: March 30, 2010. 8 9 10 _______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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