Daniels v. Monroe/Lienberger Detention Centers et al

Filing 28

ORDER signed by District Judge Kimberly J. Mueller on 2/3/16 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 12/8/15 26 are ADOPTED in full; This Action is DISMISSED as to Defendants Fristole, Y. Yakimtsev, Miguel Castaneda and Lilly Chan. Pla intiff may proceed on the original complaint against defendants Torres, Garcia, Galey and Gall; and The Clerk is directed to serve a copy of these Findings and Recommendations on Plaintiff at his address of record and at California Medical Facility in Vacaville, California. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANDRY DANIELS,

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No. 2:14-cv-2176 KJM CKD P

Plaintiff,
v.

ORDER

MONROE/LIENBERGER DETENTION
CENTERS, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On December 8, 2015, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the file, the court

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finds the findings and recommendations to be supported by the record and by proper analysis.

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The court writes separately to address plaintiff’s objections.
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The magistrate judge recommends dismissal of defendants Castaneda, Yakimtsev,

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Fristole, and Chan from this action. ECF No. 26. By order of this court filed April 8, 2015,

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plaintiff was granted thirty days to amend his complaint to cure defects in his allegations against

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these four defendants. ECF No. 11. Since that time, plaintiff has been granted three extensions

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of time, two of sixty days and one of thirty days, in which to file an amended complaint but has

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failed to do so. See ECF Nos. 19, 22, 25. In his objections, plaintiff states that he was transferred

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back to California Medical Facility (CMF) on September 29, 2015, with no access to legal

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resources or his legal property and that he would not be able to retrieve his property or complete

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an amended complaint for ninety days. ECF No. 27. Plaintiff has not filed a notice of change of

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address, cf. Local Rule 183(b), and he did receive a copy of the findings and recommendations

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which were served on him at his address of record.1 Ninety additional days would make it over a

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year since plaintiff was granted leave to amend. The record in this action does not support further

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delay. This action must now proceed on the cognizable claims in the original complaint.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed December 8, 2015, are adopted in full;

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2. This action is dismissed as to defendants Castaneda, Yakimtsev, Fristole and Chan.

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See Local Rule 110; Fed. R. Civ. P. 41(b);

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3. Plaintiff may proceed on the original complaint against defendants Torres, Garcia,
Galey and Gall; and

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4. The Clerk of the Court is directed to serve a copy of these findings and

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recommendations on plaintiff at his address of record and at California Medical Facility in

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Vacaville, California.

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DATED: February 3, 2016

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UNITED STATES DISTRICT JUDGE

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According to the California Department of Corrections and Rehabilitation’s Inmate Locator,
plaintiff is currently house at CMF.
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