Asberry v. Cate et al

Filing 58

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 08/07/12 recommending that defendant Cate and the retaliation claims against all defendants contained in the third amended complaint filed 06/11/12 (docketed as the "second amended complaint") be dismissed. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, 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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TONY ASBERRY,

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Plaintiff,

No. 2: 11-cv-2462 KJM KJN P

vs.

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MATTHEW CATE, et al.,

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Defendants.

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FINDINGS & RECOMMENDATIONS
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. On July 23, 2012, the undersigned issued an order screening the

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third amended complaint filed June 11, 2012 (docketed as the “second amended complaint”).

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(See Dkt. No. 49.) In this order, the undersigned found that plaintiff had not stated potentially

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cognizable claims against defendant Cate. The undersigned also found that plaintiff had not

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stated a potentially cognizable retaliation claim against any defendant. For the reasons stated in

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that order, the undersigned recommends that defendant Cate and plaintiff’s retaliation claim

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against all defendants be dismissed.

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Accordingly, IT IS HEREBY RECOMMENDED that defendant Cate and the

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retaliation claims against all defendants contained in the third amended complaint filed June 11,

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2012 (docketed as the “second amended complaint”) be dismissed.
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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 fourteen

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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 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 7, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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as2462.57

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