Filed: May 29, 2013
Latest Update: May 29, 2013
Summary: FINDINGS AND RECOMMENDATIONS and ORDER ALLISON CLAIRE, Magistrate Judge. Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. 1983. By Order filed on April 15, 2013 (ECF No. 49), the Findings and Recommendations of the undersigned (ECF No. 48) were adopted. Defendant Miranda's motion to dismiss under Rule 12(b)(6) was granted without prejudice to amendment, and plaintiff was granted twenty-eight days to file an amended complaint. Plaintiff has no
Summary: FINDINGS AND RECOMMENDATIONS and ORDER ALLISON CLAIRE, Magistrate Judge. Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. 1983. By Order filed on April 15, 2013 (ECF No. 49), the Findings and Recommendations of the undersigned (ECF No. 48) were adopted. Defendant Miranda's motion to dismiss under Rule 12(b)(6) was granted without prejudice to amendment, and plaintiff was granted twenty-eight days to file an amended complaint. Plaintiff has not..
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FINDINGS AND RECOMMENDATIONS and ORDER
ALLISON CLAIRE, Magistrate Judge.
Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. By Order filed on April 15, 2013 (ECF No. 49), the Findings and Recommendations of the undersigned (ECF No. 48) were adopted. Defendant Miranda's motion to dismiss under Rule 12(b)(6) was granted without prejudice to amendment, and plaintiff was granted twenty-eight days to file an amended complaint. Plaintiff has not filed an amended complaint and the time for doing so has now expired. Therefore, the court will now recommend dismissal of defendant Miranda with prejudice from this action.
The court also granted in part the motion to dismiss brought by defendants [RN J.] Clark, Davey, Gower, McDonald, Sanders and Van Leer. That motion was granted insofar as it sought dismissal for failure to exhaust administrative remedies as to the claim that plaintiff's Eighth Amendment rights were violated by exposure to extreme cold without adequate clothing and/or linens, but was denied as to all other claims. ECF No. 49. With respect to defendants J. Clark, Davey, Gower, McDonald, Sanders and Van Leer,1 this action now proceeds only on those claims other than the dismissed Eighth Amendment claim.
Accordingly, IT IS RECOMMENDED that defendant Miranda be dismissed with prejudice from this action.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Courts order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS ORDERED that defendants J. Clark, Davey, Gower, McDonald, Sanders and Van Leer be directed to file, within twenty-one days, their answer to the allegations of the complaint with the exception of the specific Eighth Amendment claim regarding exposure to the cold with inadequate clothing that has been previously dismissed as set forth above.
