Roy Andres Montes v. Lockyer et al

Filing 58

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge William M. Wunderlich on 2/11/2009 recommending that the California Department of Corrections and Rehabilitation be DISMISSED. Referred to Judge Oliver W. Wanger, Objections to F&R due by 3/16/2009. (Lundstrom, T)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 Plaintiff, 11 v. 12 WILLIAM LOCKYER, et al., 13 Defendants. 14 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action 17 pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 16, 2006. On January 23, 18 2009, the Court issued an order finding that Plaintiff's complaint states cognizable claims against 19 Defendants Adams, Davis and Miranda for retaliation in violation of the First Amendment, 20 Defendants Allison, Alvarez, Alcantar, Garcia, Johnson, Martinez and Emerson for excessive force 21 in violation of the Eighth Amendment and Defendants Medina, Hense and Ostein for deliberate 22 indifference to Plaintiff's safety in violation of the Eighth Amendment. The Court found that the 23 complaint does not state a cognizable claim against the California Department of Corrections and 24 Rehabilitation. The Court ordered Plaintiff to either file an amended complaint or notify the Court 25 of his willingness to proceed only on the claims found to be cognizable. On February 6, 2009, 26 Plaintiff notified the Court that he does not wish to amend and is willing to proceed on the claims 27 found cognizable. Based on Plaintiff's notice, this Findings and Recommendations now issues. See 28 1 / FINDINGS AND RECOMMENDATIONS RAYMOND MONTEZELLO, aka ROY ANDRES MONTES, CASE NO. 1:06-cv-01651-OWW-WMW PC

UNITED STATES DISTRICT COURT

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Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to amend prior to dismissing for failure to state a claim). Accordingly, it is HEREBY RECOMMENDED that the California Department of Corrections and Rehabilitation be dismissed. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: February 11, 2009 mmkd34 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE

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