(PC) Rogers v. Scribner, No. 1:2005cv00569 - Document 12 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's Eighth Amendment 1 Claim and Claim for Violation of the California Penal Code be Dismissed signed by Magistrate Judge Gary S. Austin on 7/28/2009. Referred to Judge Anthony W. Ishii. Objections to F&R due by 8/31/2009. (Sant Agata, S)
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(PC) Rogers v. Scribner Doc. 12 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROBERT ROGERS, 10 CASE NO. 1:05-cv-00569-AWI-YNP-GSA (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS 11 12 13 v. A. K. SCRIBNER, et al., Defendants. 14 / 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action 17 pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 3, 2008. On June 16, 2009, the 18 Court issued an order finding that Plaintiff’s complaint states cognizable claims against Defendants 19 Walker, Miller, Montgomery, Alvarez, Scribner, Stockman, Ortiz, Bravo, Yamamoto, Vella and 20 Villareal for violation of the Fourteenth Amendment, but does not state a cognizable Eighth 21 Amendment claim and does not state a claim for a violation of the California Penal Code. The 22 Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness to 23 proceed only on the claims found to be cognizable. On July 20, 2009, Plaintiff notified the Court 24 that he does not wish to amend and is willing to proceed on the claims found cognizable. Based on 25 Plaintiff’s notice, this Findings and Recommendations now issues. See Noll v. Carlson, 809 F. 2d 26 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to amend 27 prior to dismissing for failure to state a claim). 28 Accordingly, it is HEREBY RECOMMENDED that Plaintiff’s Eighth Amendment claim 1 Dockets.Justia.com 1 and claim for violation of the California Penal Code be dismissed. 2 These Findings and Recommendations will be submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 4 days after being served with these Findings and Recommendations, plaintiff may file written 5 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 7 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 8 1153 (9th Cir. 1991). 9 10 11 IT IS SO ORDERED. 12 Dated: 6i0kij July 28, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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