Xavier v. Roche et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GARY R. XAVIER,
No. 2:09-cv-0783 LKK CKD P
M. FRENCH, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 5, 2014, the magistrate judge filed findings and recommendations herein which
were served on all parties and which contained notice to all parties that any objections to the
findings and recommendations were to be filed within fourteen days. Neither party has filed
objections to the findings and recommendations. However, on July 18, 2014, plaintiff filed a
motion for clarification (ECF No. 80) which may bear on the matter at bar.
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
this action will proceed against two other defendants named in the fourth amended complaint, one
of whom is identified by plaintiff as R. Holland. R. Holland is identified in the fourth amended
complaint as a physical therapist; D. Holland is identified in the third amended complaint as a
physical therapist; and both pleadings include allegations that plaintiff was seen by a physical
therapist with the last name Holland in, inter alia, March 2007, albeit on different dates. Compare
Third Amended Complaint, filed September 1, 2011 (ECF No. 28) at 3 with Fourth Amended
Complaint, filed May 19, 2014 (ECF No. 74) at 4-5. Assuming that these are two separate
individuals, the magistrate judge’s finding that Debbie Holland is not named as a defendant in the
Fourth Amended Complaint is correct and the recommendation that Debbie Holland be dismissed
from the action will be adopted. The dismissal will be without prejudice pending the magistrate
judge’s resolution of plaintiff’s motion for clarification.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed June 5, 2014, are adopted; and
2. Defendant Debbie Holland is dismissed from this action.
DATED: July 22, 2014.
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