(PC) Foust v. Ali et al, No. 2:2019cv02579 - Document 91 (E.D. Cal. 2021)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 12/8/2021 RECOMMENDING this action proceed on 68 Second Amended Prisoner Civil Rights Complaint Claim II against Defendant Ali for retaliation and all other claims and defendants be dismissed for failure to state a claim. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, 12 13 14 No. 2:19-CV-2579-JAM-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS ALI, et al., 15 Defendants. 16 17 18 19 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On October 26, 2021, the Court issued an order addressing Plaintiff’s second 20 amended complaint. See ECF No. 82. The Court determined that Plaintiff’s Claim II against 21 Defendant Ali for retaliation is the only cognizable claim. See id. at 3. The Court provided 22 Plaintiff an opportunity to file a third amended complaint within 30 days to cure the defects 23 identified in the October 26, 2021, order as to all other claims/defendants. See id. at 7. Plaintiff 24 was cautioned that, if he elected not to file a third amended complaint within the time provided, 25 the action would proceed on the second amended complaint and the defective claims/defendants 26 would be dismissed. See id. To date, Plaintiff has elected not to file a third amended complaint. 27 The Court, therefore, for the reasons outlined in the October 26, 2021, order will recommend 28 dismissal of all claims/defendant except Plaintiff’s Claim II against Defendant Ali for retaliation. 1 1 Based on the foregoing, the undersigned recommends that: 2 1. 3 This action proceed on the second amended complaint on Plaintiff’s Claim II against Defendant Ali for retaliation; and 4 2. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 7 after being served with these findings and recommendations, any party may file written objections 8 with the Court. Responses to objections shall be filed within 14 days after service of objections. 9 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 10 All other claims and defendants be dismissed for failure to state a claima. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 12 Dated: December 8, 2021 ____________________________________ DENNIS M. COTA 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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