Blamey v. Allen et al

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/31/11 RECOMMENDING that plaintiffs Eighth Amendment claim against defendant Allen and all of plaintiffs claims against defendant Swarthout be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD DENNIS BLAMEY,
Plaintiff,

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vs.

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No. CIV S-10-3470 GEB EFB P

A. ALLEN, et al.,

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Defendants.

FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. By order filed March 18, 2011, the court found that plaintiff had stated a

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cognizable claim against defendant Allen for denial of access to the courts, and informed

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plaintiff he could proceed against defendant Allen only on that claim or file an amended

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complaint to attempt to state additional cognizable claims against defendant Allen and defendant

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Swarthout. The court also informed plaintiff that it would consider plaintiff’s decision to

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proceed only as to defendant Allen on the access to courts claim as consent to the dismissal of

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his claim against defendant Allen for violation of the Eighth Amendment and all of his claims

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against defendant Swarthout. On March 18 and May 17, 2011, plaintiff returned documents for

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service against defendant Allen, electing not to file an amended complaint to attempt to state a

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cognizable Eighth Amendment claim against defendant Allen or cognizable claims against
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defendant Swarthout.
Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s Eighth Amendment

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claim against defendant Allen and all of plaintiff’s claims against defendant Swarthout be

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dismissed without prejudice.

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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 28 U.S.C. § 636(b)(l). Within fourteen days

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 31, 2011.

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