Fisher v. Cappel et al

Filing 14

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 08/09/13 ORDERING the clerk of the court make a random assignment of a district judge to this case. U.S. District Judge Garland E. Burrell randomly assigned to this action. Also, RECOMMENDING that that for the reasons explained in the order filed on 06/20/13 9 : 1) defendants Swarthout and Rosario be dismissed from this action and 2) plaintiff's claims of retaliation be dismissed. Referred to Judge Garland E. Burrell. 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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KEVIN FISHER,

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No. 2:13-cv-0642 AC P
Plaintiff,

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v.

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R. CAPPEL, et al,

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ORDER &
FINDINGS AND RECOMMENDATIONS
Defendants.

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By separate order the court has found plaintiff’s complaint appropriate for service as to an

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Eighth Amendment claim against one defendant. However, for the reasons set forth in the order

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filed on June 9, 2013, the undersigned will now recommend dismissal of the remaining claims of

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the original complaint. Plaintiff’s retaliation claims against all defendants and his Eighth

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Amendment claims against defendants Swarthout and Rosario were previously dismissed with

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leave to amend. ECF No. 9. Plaintiff did not file an amended complaint to cure the deficiencies

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previously identified.

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Accordingly, IT IS ORDERED that the Clerk of the Court make a random assignment of a
district judge to this case.
IT IS HEREBY RECOMMENDED that, for the reasons explained in the order filed on

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June 20. 2013 (ECF No. 9): (1) defendants Swarthout and Rosario be dismissed from this action;

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and (2) plaintiff’s claims of retaliation be dismissed.
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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.” Any response to the

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

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

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

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DATED: August 9, 2013

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AC:009
fish0642.ofr

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