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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD OLIVER HOOKER,

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No. 2:11-cv-0899 TLN CKD P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

T. KIMURA-YIP, et al.,
Defendants.

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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 . . . [.]

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(ECF No. 45 at 3-4) (emphasis added). The district court agreed with the magistrate judge’s

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findings that “the allegations of the first amended complaint of events through 2011 do not state a

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claim for violation of plaintiff’s Eighth Amendment rights based on deliberate indifference to his

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serious medical needs,” and thus limited the scope of the Second Amended Complaint (SAC) as

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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

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with the limits set forth above, and in light of plaintiff’s two previous opportunities to amend, the

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undersigned will recommend that SAC be dismissed and this action closed.

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Accordingly, IT IS HEREBY RECOMMENDED THAT:

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1. The Second Amended Complaint (ECF No. 54) be dismissed. See Local Rule 110;

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Fed. R. Civ. P. 41(b); and

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2. The Clerk of Court close this case.

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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, plaintiff may file written objections

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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: October 27, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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