Villacres v. California Department of Corrections et al

Filing 24

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 06/27/17 recommending that all claims in the complaint be dismissed with prejudice. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CHARLES D. VILLACRES,

12
13
14
15
16

No. 2:16-cv-0305 JAM AC P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

17
18

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

19

U.S.C. § 1983. By order and findings and recommendations filed February 8, 2017, the

20

undersigned screened the complaint and dismissed plaintiff’s deliberate indifference claim (Claim

21

Four) with leave to amend, while recommending his other claims be dismissed without leave to

22

amend. ECF No. 15. The District Judge assigned to this action adopted the findings and

23

recommendations in full; the claims against defendants Schafer, Touche, Voong, Labahn, Garner,

24

Anderson, and Fasnatch were dismissed without leave to amend and plaintiff was given thirty

25

days to file an amended complaint with respect to Count Four. ECF No. 18. Plaintiff filed

26

untimely objections to the findings and recommendations which were construed as a motion for

27

reconsideration of the District Judge’s order, and as such the motion was denied. ECF Nos. 19,

28

20. Plaintiff was given an additional thirty days to file an amended complaint. ECF No. 21.
1

1

Plaintiff has once again filed objections, this time making clear that he does not intend to amend

2

the complaint and is instead standing by his original complaint. ECF No. 23.

3

Plaintiff’s decision to stand by his original complaint and not amend is well within his

4

rights. Edwards v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004). When a plaintiff

5

notifies the court in writing that he does not intend to file an amended complaint and is instead

6

standing by his original complaint, the district court is to “take[] the election not to amend at face

7

value, enter[] a final judgment dismissing all claims with prejudice, and allow[] the case to come

8

to [the Ninth Circuit] on appeal in that posture.” Id. at 1064.

9
10

Accordingly, IT IS HEREBY RECOMMENDED that all claims in the complaint be
dismissed with prejudice.

11

These findings and recommendations are submitted to the United States District Judge

12

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

13

after being served with these findings and recommendations, plaintiff may file written objections

14

with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

15

and Recommendations.” Plaintiff is advised that failure to file objections within the specified

16

time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

17

(9th Cir. 1991).

18

DATED: June 27, 2017

19
20
21
22
23
24
25
26
27
28
2