(PS) Durham v. Reagan et al, No. 2:2009cv00331 - Document 19 (E.D. Cal. 2010)

Court Description: ORDER signed by Judge Morrison C. England, Jr. on 9/24/2010 FINDINGS AND RECOMMENDATIONS 16 are ADOPTED in FULL; Defendant State of CA (Solano State Prison) is DISMISSED without leave to amend. Pltf's 13 complaint, is DISMISSED with leave to amend. Pltf is GRANTED 30 days from the date of this order to file a second amended complaint. Pltf's 17 , 18 motions for extensions of time are DENIED as MOOT. (Reader, L)
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(PS) Durham v. Reagan et al Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY DURHAM, 11 12 13 14 Plaintiff, No. 2:09-cv-00331 MCE EFB PS vs. STATE OF CALIFORNIA (SOLANO STATE PRISON); WARDEN JOHN W. HAVELAND; P. REAGAN; and J. DELGADILLO, ORDER 15 16 Defendants. __________________________________/ 17 On July 21, 2010, the magistrate judge filed findings and recommendations herein 18 which were served on the parties and which contained notice that any objections to the findings 19 and recommendations were to be filed within fourteen days. No objections were filed.1 20 21 22 23 24 25 26 1 On July 30, 2010, plaintiff filed a motion for an extension of time in which he states that he has “no objections to [the] findings and recommendations” but that he would like “60 days to address this order of the second amended complaint and 28 days to address the second order of ‘objections to magistrate’s findings and recommendations.’” Dckt. No. 17. Then, on September 18, 2010, plaintiff filed a motion for a 30 day extension of time to file a second amended complaint. Dckt. No. 18. However, the July 21 findings and recommendations recommended that plaintiff “be granted thirty days from the date of any order adopting these findings and recommendations to file a second amended complaint.” Dckt. No. 16 (emphasis added). Because more than 28 days have passed since plaintiff’s July 30, 2010 request and because plaintiff’s time to file an amended complaint does not begin running until this order issues, plaintiff’s motion for extensions will be denied as moot. 1 Dockets.Justia.com 1 Accordingly, the court presumes any findings of fact are correct. See Orland v. 2 United States, 602 F.2d 207, 208 (9th Cir. 1999). The magistrate judge’s conclusions of law are 3 reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 4 1983). 5 6 The court has reviewed the applicable legal standards and, good cause appearing, concludes that it is appropriate to adopt the proposed Findings and Recommendations in full. 7 Accordingly, IT IS ORDERED that: 8 1. The proposed Findings and Recommendations filed July 21, 2010, are 9 ADOPTED. 10 11 2. Defendant State of California (Solano State Prison) is dismissed without leave to amend. 12 3. Plaintiff’s amended complaint, Dckt. No. 13, is dismissed with leave to amend. 13 4. Plaintiff is granted thirty days from the date of this order to file a second 14 amended complaint. 15 16 5. Plaintiff is directed that the second amended complaint must bear the docket number assigned to this case and must be labeled “Second Amended Complaint.” 17 18 6. Plaintiff is cautioned that failure to timely file a second amended complaint will result in a recommendation by the magistrate judge that this action be dismissed. 19 20 21 7. Plaintiff’s motions for extensions of time, Dckt. Nos. 17, 18, are denied as moot. Dated: September 24, 2010 22 23 24 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 25 26 2