Mitchell v. Cate et al

Filing 50

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 5/29/2013 DIRECTING defendants J. Clark, Davey, Gower, McDonald, Sanders and Van Leer to file, within 21 days, their answer to the allegations of the complaint wit h the exception of the specific Eighth Amendment claim regarding exposure to the cold with inadequate clothing that has been previously dismissed as set forth in this order; and RECOMMENDING that defendant Miranda be dismissed with prejudice from this action. Referred to Judge John A. Mendez; Objections due within 21 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WESLEY MITCHELL,

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Plaintiff,

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No. 2:11-cv-1240 JAM AC P

vs.

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MATTHEW L. CATE, et,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
and ORDER
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Plaintiff, a state prisoner, is proceeding pro se with a civil rights action pursuant

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to 42 U.S.C. § 1983. By Order filed on April 15, 2013 (ECF No. 49), the Findings and

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Recommendations of the undersigned (ECF No. 48) were adopted. Defendant Miranda’s motion

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to dismiss under Rule 12(b)(6) was granted without prejudice to amendment, and plaintiff was

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granted twenty-eight days to file an amended complaint. Plaintiff has not filed an amended

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complaint and the time for doing so has now expired. Therefore, the court will now recommend

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dismissal of defendant Miranda with prejudice from this action.

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The court also granted in part the motion to dismiss brought by defendants [RN

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J.] Clark, Davey, Gower, McDonald, Sanders and Van Leer. That motion was granted insofar as

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it sought dismissal for failure to exhaust administrative remedies as to the claim that plaintiff’s
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Eighth Amendment rights were violated by exposure to extreme cold without adequate clothing

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and/or linens, but was denied as to all other claims. ECF No. 49. With respect to defendants J.

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Clark, Davey, Gower, McDonald, Sanders and Van Leer,1 this action now proceeds only on

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those claims other than the dismissed Eighth Amendment claim.

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Accordingly, IT IS RECOMMENDED that defendant Miranda be dismissed with
prejudice from this action.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days 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.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Courts order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS ORDERED that defendants J. Clark, Davey, Gower, McDonald, Sanders

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and Van Leer be directed to file, within twenty-one days, their answer to the allegations of the

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complaint with the exception of the specific Eighth Amendment claim regarding exposure to the

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cold with inadequate clothing that has been previously dismissed as set forth above.

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DATED: May 29, 2013

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:009/mitc1240.ofr

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Defendants Cate, Kernan, Chapman, Harkness and Dangler have previously been
dismissed from the complaint. See Order at ECF No. 17. Defendant D. Clark was also
dismissed previously. See Order at ECF No. 31.
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