Hooker v. Kimura-Yip et al

Filing 56

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/27/14 recommending that the second amended complaint 54 be dismissed; and the clerk of the court close this case. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD OLIVER HOOKER, 12 13 14 15 No. 2:11-cv-0899 TLN CKD P Plaintiff, v. FINDINGS AND RECOMMENDATIONS T. KIMURA-YIP, et al., Defendants. 16 17 18 19 20 21 22 23 Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On December 5, 2013, the district court ordered as follows: Plaintiff is granted thirty days from the date of this order in which to file a Second Amended Complaint raising only Eighth Amendment claims based on allegations of events that occurred on or after his transfer to California State Prison-Corcoran in February 2011 and naming individuals in place of the Doe defendant at California State Prison-Los Angeles County . . . [.] 24 (ECF No. 45 at 3-4) (emphasis added). The district court agreed with the magistrate judge’s 25 findings that “the allegations of the first amended complaint of events through 2011 do not state a 26 claim for violation of plaintiff’s Eighth Amendment rights based on deliberate indifference to his 27 serious medical needs,” and thus limited the scope of the Second Amended Complaint (SAC) as 28 1 1 2 set forth above. (Id. at 3; see also ECF No. 47 (denying leave to expand the SAC).) Before the court for screening is plaintiff’s SAC. (ECF No. 54.) As it does not comply 3 with the limits set forth above, and in light of plaintiff’s two previous opportunities to amend, the 4 undersigned will recommend that SAC be dismissed and this action closed. 5 Accordingly, IT IS HEREBY RECOMMENDED THAT: 6 1. The Second Amended Complaint (ECF No. 54) be dismissed. See Local Rule 110; 7 Fed. R. Civ. P. 41(b); and 8 2. The Clerk of Court close this case. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, plaintiff may file written objections 12 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 13 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 14 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 15 (9th Cir. 1991). 16 Dated: October 27, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 2 / hook0899.f&r 23 24 25 26 27 28 2

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