Baker v. Yates

Filing 55

FINDINGS and RECOMMENDATIONS Recommending that Defendant's 53 Motion to Dismiss be Denied as Moot signed by Magistrate Judge Stanley A Boone on 04/09/2013. Referred to Judge O'Neill; Objections to F&R due by 5/13/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARVEY CURTIS BAKER,

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Plaintiff,

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v.

Case No. 1:12-cv-00126-LJO-SAB
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT DEFENDANT’S
MOTION TO DISMISS BE DENIED AS
MOOT

JAMES A. YATES,
ECF NO. 53

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Defendant.
OBJECTIONS DUE WITHIN THIRTY (30)
DAYS

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Plaintiff Harvey Curtis Baker (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action. On April 2, 2013, Defendant James A. Yates (“Defendant Yates”) filed a motion to

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dismiss. (ECF No. 53.) This matter was submitted to the undersigned magistrate judge pursuant

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to 28 U.S.C. § 636(b)(1) and Local Rule 303 for findings and recommendations to the District

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Court.

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Defendant Yates argues that Plaintiff’s claims against him should be dismissed because

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they fail to state a claim. However, shortly after Defendant Yates filed his motion to dismiss, the

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Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A(a) and dismissed Plaintiff’s

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claims against Yates for failure to state a claim. (ECF No. 54.) Accordingly, the arguments

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raised in Defendant Yates’ motion were rendered moot by the Court’s screening order.

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Based upon the foregoing, the Court HEREBY RECOMMENDS that Defendant Yates’

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motion to dismiss be DENIED as moot and without prejudice to Defendant Yates’ right to raise

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the same arguments in a motion to dismiss if Plaintiff opts to amend his claims against Defendant

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Yates.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30)

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days after being served with these Findings and Recommendations, 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 captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within ten (10) days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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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:
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April 9, 2013

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DEAC_Signature-END:

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_

UNITED STATES MAGISTRATE JUDGE
i1eed4

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