(PC) Bowell v. Diaz et al, No. 1:2011cv01350 - Document 16 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS for Dismissal of Certain Claims and Defendants 10 , 14 , signed by Magistrate Judge Michael J. Seng on 12/3/12. Referred to Judge Ishii. Objections Due Within Fourteen (14) Days. (Gonzalez, R)
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(PC) Bowell v. Diaz et al Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES EDWARD BOWELL, CASE No. 10 1:11-cv-01350-AWI-MJS (PC) FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS Plaintiff, 11 v. 12 (ECF Nos. 10, 14) 13 A. DIAZ, et al., OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS 14 Defendants. 15 / 16 17 Plaintiff James Edward Bowell is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action filed August 15, 2011 pursuant to 42 U.S.C. § 1983. 19 (Compl., ECF No. 1.) Plaintiff declined Magistrate Judge jurisdiction. (Decline 20 Magistrate, ECF No. 5.) 21 The Court screened Plaintiff’s Complaint and on September 28, 2012 issued its 22 order requiring that, by not later than November 1, 2012, Plaintiff either file an amended 23 pleading or notify the Court of his desire to proceed only on the cognizable Eighth 24 Amendment failure to protect claim against Defendants Diaz and Rodriguez. (Order 25 Directing Plaintiff to Amend or Notify, ECF No. 10.) 26 On November 20, 2012, the Court issued an order to show cause why this case 27 should not be dismissed for Plaintiff’s failure to comply with the Court’s September 28th 28 order to amend or notify. (OSC re Dismiss., ECF No. 13.) Plaintiff filed a response to the Dockets.Justia.com 1 order to show cause on November 30, 2012, notifying of his desire to proceed only on 2 the cognizable Eighth Amendment failure to protect claim against Defendants Diaz and 3 Rodriguez. (Opp’n to Order, ECF No. 14.) 4 Accordingly, it is RECOMMENDED that Plaintiff’s Complaint, except for his Eighth 5 Amendment failure to protect claim against Defendants Diaz and Rodriguez should now 6 be dismissed and that all Defendants named in this action except for Defendants Diaz 7 and Rodriguez should also now be dismissed without prejudice by the District Judge. 8 These Findings and Recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 10 Within fourteen (14) days after being served with these Findings and Recommendations, 11 any party may file written objections with the Court and serve a copy on all parties. Such 12 a document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” Any reply to the objections shall be served and filed within ten (10) 14 days after service of the objections. The parties are advised that failure to file objections 15 within the specified time may waive the right to appeal the District Court's order. 16 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 IT IS SO ORDERED. 20 Dated: ci4d6 21 December 3, 2012 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 -2-
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