(PC) Howard v. Gradtillo et al, No. 1:2005cv00906 - Document 26 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's due Process Claims and Equal Protection Claims be Dismissed and Plaintiff's Eighth Amendment Claims against Defendants Calderon and Gradillo be Dismissed and Defendants Calderon and Gradillo be Dismissed from this 22 Action signed by Magistrate Judge Sheila K. Oberto on 4/15/2010. Referred to Judge Anthony W. Ishii. Objections to F&R due by 5/18/2010. (Sant Agata, S)

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(PC) Howard v. Gradtillo et al Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CLARENCE HOWARD, 10 Plaintiff, 11 12 CASE NO. 1:05-cv-00906-AWI-SKO PC FINDINGS AND RECOMMENDATIONS v. OBJECTIONS DUE WITHIN 30 DAYS GRADTILLO, et al., 13 Defendants. / 14 15 Plaintiff Clarence Howard (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 11, 2010, the Court 17 issued an order finding that Plaintiff’s first amended complaint stated some cognizable claims 18 against certain Defendants. (Doc. #23.) The Court noted that Plaintiff failed to state any other 19 claims against any other Defendants. The Court ordered Plaintiff either to file an amended complaint 20 or to notify the Court that he wished to proceed only on the claims found to be cognizable. On April 21 12, 2010, Plaintiff notified the Court that he does not wish to amend and is willing to proceed only 22 on the claims found to be cognizable. 23 Recommendations now issue. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (prisoner 24 must be given notice of deficiencies and opportunity to amend prior to dismissing for failure to state 25 a claim). 26 Based on Plaintiff’s notice, these Findings and Accordingly, it is HEREBY RECOMMENDED that: 27 /// 28 /// 1 Dockets.Justia.com 1 1. Plaintiff’s due process claims and equal protection claims be dismissed, and 2 Plaintiff’s Eighth Amendment Claims against Defendants Calderon and Gradillo be 3 dismissed; and 4 2. Defendants Calderon and Gradillo be dismissed from this action. 5 These Findings and Recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 7 days after being served with these Findings and Recommendations, any party may file written 8 objections with the Court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 shall be served and filed within ten (10) days after service of the objections. The parties are advised 11 that failure to file objections within the specified time may waive the right to appeal the District 12 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. 16 Dated: ie14hj April 15, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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