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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN FISHER, 12 No. 2:13-cv-0642 AC P Plaintiff, 13 v. 14 R. CAPPEL, et al, 15 ORDER & FINDINGS AND RECOMMENDATIONS Defendants. 16 17 By separate order the court has found plaintiff’s complaint appropriate for service as to an 18 Eighth Amendment claim against one defendant. However, for the reasons set forth in the order 19 filed on June 9, 2013, the undersigned will now recommend dismissal of the remaining claims of 20 the original complaint. Plaintiff’s retaliation claims against all defendants and his Eighth 21 Amendment claims against defendants Swarthout and Rosario were previously dismissed with 22 leave to amend. ECF No. 9. Plaintiff did not file an amended complaint to cure the deficiencies 23 previously identified. 24 25 26 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 27 June 20. 2013 (ECF No. 9): (1) defendants Swarthout and Rosario be dismissed from this action; 28 and (2) plaintiff’s claims of retaliation be dismissed. 1 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 3 after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 6 objections shall be served and filed within fourteen days after service of the objections. The 7 parties are advised that failure to file objections within the specified time may waive the right to 8 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 DATED: August 9, 2013 10 11 12 13 14 15 AC:009 fish0642.ofr 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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