Barrett v. Cate et al

Filing 45

FINDINGS and RECOMMENDATIONS recommending that all claims as to Defendant McGinnis be DISMISSED and Defendant McGinnis is terminated from this action; re 17 Amended Prisoner Civil Rights Complaint filed by Robert E Barrett; referred to Judge O'Neill,signed by Magistrate Judge Jennifer L. Thurston on 10/05/2011. Objections to F&R due by 10/24/2011 (Martin-Gill, S)

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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 ROBERT E. BARRETT, 12 13 14 15 16 Case No. 1:09-cv-01741 LJO JLT (PC) Plaintiff, FINDINGS AND RECOMMENDATION DISMISSING PLAINTIFF’S CLAIMS AS TO DEFENDANT MCGINNIS vs. MATTHEW CATE, et al., Defendants. / 17 On September 23, 2011 the Court ordered Plaintiff to show cause why Defendant McGinnis 18 should not be dismissed from the action. (Doc. 42). As noted in the Court’s order, Defendant McGinnis 19 was unserved, had not been located, and it appeared that Plaintiff had misidentified this defendant. Id. 20 On October 3, 2011 Plaintiff responded to the Court’s order and indicated that he had erroneously named 21 Defendant McGinnis in his complaint and that any “allegations made against “McGinnis” [were] to be 22 construed as allegations against Defendant McGuinness.” (Doc. 43). 23 24 Accordingly, it is HEREBY RECOMMENDED that all claims as to Defendant McGinnis be DISMISSED and Defendant McGinnis is terminated from this action. 25 These findings and recommendations are submitted to the United States District Judge assigned 26 to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within fourteen (14) days after 27 being served with these findings and recommendations, any party may file written objections with the 28 Court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 1 1 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed within 2 seven (7) days after service of the objections. The parties are forewarned that the Court does not 3 anticipate granting extensions of time for this purpose. In addition, the parties are advised that failure 4 to file objections within the specified time may waive the right to appeal the District Court’s order. See 5 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED. 8 Dated: October 5, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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