(PC) Fisher v. Felker, et al, No. 2:2007cv02271 - Document 59 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by District Judge Jeremy Fogel on 12/16/10 RECOMMENDING that Plaintiff's claims against Defendants Wong, Jackson, Grannis, Roche, Felker, Amero, Smith, Richardson and Chrones be dismissed with prejudice for failure to state a claim upon which relief may be granted. Referred to Judge Philip M. Pro; Objections due within 20 days after being served with these findings and recommendations. (Becknal, R)
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(PC) Fisher v. Felker, et al Doc. 59 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 AL GENE FISHER, ) ) Plaintiff, ) ) vs. ) ) T. FELKER, et al., ) ) Defendants. ) __________________________________________) Case No. 2:07-cv-02271-PMP-GWF FINDINGS AND RECOMMENDATIONS 13 14 On March 31, 2009, the Court screened the First Amended Complaint (#13) and dismissed 15 without prejudice Plaintiff’s claims against Defendants Wong, Jackson, Grannis, Roche, Felker, Amero, 16 Smith, Richardson and Chrones. (#20). The Court granted Plaintiff 30 days leave to amend the 17 complaint if he believed he could correct the noted deficiencies. (Id.) In the order, the Court also 18 notified Plaintiff that failure to timely amend would result in the Court’s recommendation that the 19 claims against Defendants Wong, Jackson, Grannis, Roche, Felker, Amero, Smith, Richardson and 20 Chrones be dismissed with prejudice. (Id. at 8). Plaintiff initially indicated that he intended to amend 21 the complaint (see #21), but later informed the Court (see #25) that he would proceed in this action 22 based on the Eighth Amendment claims that survived the Court’s screening of the First Amended 23 Complaint.1 Accordingly, 24 ... 25 ... 26 ... 27 28 1 The Court ordered that Plaintiff could proceed in this action with the viable Eighth Amendment claims against Defendants Shelton, Robertson, Savage, Plainer and Hanks. Dockets.Justia.com 1 2 3 RECOMMENDATION IT IS HEREBY RECOMMENDED that Plaintiff’s claims against Defendants Wong, Jackson, 4 Grannis, Roche, Felker, Amero, Smith, Richardson and Chrones be dismissed with prejudice for 5 failure to state a claim upon which relief may be granted. 6 NOTICE 7 These findings and recommendations are submitted to the United States District Judge assigned 8 to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Any objection to this Finding and 9 Recommendation must be in writing and filed with the Clerk of the Court within twenty (20) days. The 10 Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to 11 the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This 12 circuit has also held that (1) failure to file objections within the specified time and (2) failure to 13 properly address and brief the objectionable issues waives the right to appeal the District Court’s order 14 and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 15 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 16 DATED this 16th day of December, 2010. 17 18 19 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 20 21 22 23 24 25 26 27 28 2