Xavier v. Roche et al

Filing 81

ORDER signed by Judge Lawrence K. Karlton on 7/22/14 ORDERING that the findings and recommendations filed June 5, 2014, are adopted; and Defendant Debbie Holland is dismissed from this action. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY R. XAVIER,

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No. 2:09-cv-0783 LKK CKD P

Plaintiff,
v.

ORDER

M. FRENCH, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On June 5, 2014, the magistrate judge filed findings and recommendations herein which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Neither party has filed

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objections to the findings and recommendations. However, on July 18, 2014, plaintiff filed a

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motion for clarification (ECF No. 80) which may bear on the matter at bar.

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The court has reviewed the file and, except as discussed below, finds the findings and
recommendations to be supported by the record and by the magistrate judge’s analysis.
The magistrate judge recommends that defendant Debbie Holland be dismissed from this
action with prejudice. In his motion for clarification, plaintiff seeks information about whether
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this action will proceed against two other defendants named in the fourth amended complaint, one

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of whom is identified by plaintiff as R. Holland. R. Holland is identified in the fourth amended

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complaint as a physical therapist; D. Holland is identified in the third amended complaint as a

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physical therapist; and both pleadings include allegations that plaintiff was seen by a physical

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therapist with the last name Holland in, inter alia, March 2007, albeit on different dates. Compare

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Third Amended Complaint, filed September 1, 2011 (ECF No. 28) at 3 with Fourth Amended

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Complaint, filed May 19, 2014 (ECF No. 74) at 4-5. Assuming that these are two separate

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individuals, the magistrate judge’s finding that Debbie Holland is not named as a defendant in the

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Fourth Amended Complaint is correct and the recommendation that Debbie Holland be dismissed

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from the action will be adopted. The dismissal will be without prejudice pending the magistrate

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judge’s resolution of plaintiff’s motion for clarification.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed June 5, 2014, are adopted; and

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2. Defendant Debbie Holland is dismissed from this action.

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DATED: July 22, 2014.

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