Palmer v. Berkson, et al.

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 10/23/2012 recommending that certain claims and defendants be dismissed re 1 Prisoner Civil Rights Complaint. Referred to Judge Lawrence J O'Neill; Objections to F&R due by 11/9/2012. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILL MOSES PALMER, III,

CASE No.

1:11-cv-01882-LJO-MJS (PC)

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FINDINGS AND RECOMMENDATIONS
DISMISSING CERTAIN CLAIMS AND
DEFENDANTS

Plaintiff,
v.

(ECF No. 10)

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DR. RICHARD P. BERKSON, et al.,

OBJECTIONS DUE WITHIN FOURTEEN (14)
DAYS

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Defendants.

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/

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Plaintiff Will Moses Palmer, III is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action filed November 14, 2011 pursuant to 42 U.S.C. §

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1983. (ECF No. 1.)

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On May 24, 2012, the Court screened the Complaint and ordered that by not

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later than June 27, 2012, Plaintiff either file an amended complaint curing the
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deficiencies identified by the Court in its screening order, or notify the Court in writing

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that he does not wish to file an amended complaint and is willing to proceed only

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against Defendants Clement and Huang on his due process claim. (ECF No. 5.) On

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June 21, 2012, the Court issued an order granting Plaintiff’s first motion to extend time

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to August 23, 2012 in which to file a first amended complaint. (ECF No. 7.) The August

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23, 2012 deadline passed without Plaintiff having filed an amended complaint or a

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request for a further extension of time. On August 31, 2012, the Court issued an order

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that, by not later than September 18, 2012, Plaintiff show cause why the claims in his

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Complaint, other than the cognizable due process claim against Defendants Clement

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and Huang, should not be dismissed. (ECF No. 10.) The September 18, 2012 deadline

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passed without Plaintiff having responded to the Court’s August 31, 2012 order.
Plaintiff was advised that should he fail to respond, the Court would assume he

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wished to proceed only against Defendants Clement and Huang on his due process

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claim and dismiss the remaining claims and Defendants. (Id.)

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Accordingly, all claims asserted and all Defendants named in Plaintiff’s
Complaint except for his Fourteenth Amendment due process claim against Defendants

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Clement and Huang should now be dismissed.
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It is HEREBY RECOMMENDED that all claims in Plaintiff’s Complaint except for

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his Fourteenth Amendment due process claim against Defendants Clement and Huang

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and all Defendants named in this action except for Defendants Clement and Huang

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should now be dismissed with prejudice by the District Judge.

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These Findings and Recommendations are submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
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636(b)(1). Within fourteen (14) days of entry of this order, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any

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reply to the objections shall be served and filed within ten (10) days after service of the

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objections. The parties are advised that failure to file objections within the specified time

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may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153
(9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
12eob4

October 23, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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