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McCallister v. Gunja

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 10, 2009

JOHN MCCALLISTER, PLAINTIFF,
v.
J. E. GUNJA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF EQUAL PROTECTION CLAIM AND DEFENDANT (Doc. 1)

Findings and Recommendations Following Screening of Complaint

I. Procedural History

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff filed this action on January 26, 2006. On January 13, 2009, the Court issued an order finding that Plaintiff's complaint states cognizable claims against Defendants Schultz for a violation of the Eighth Amendment and Defendants McCarty, Gordon, Boister and Brown for First Amendment retaliation, but does not state a cognizable claim agains the remaining defendants. The Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. On January 29, 2009, Plaintiff notified the Court that he does not wish to amend and is willing to proceed on the claims found cognizable. Based on Plaintiff's notice, this Findings and Recommendations now issues.

Accordingly, it is HEREBY RECOMMENDED that:

1. Plaintiff's Equal Protection/Due Process claims be dismissed.

2. Defendants Gunja, Booth, Gant, Jusino, Smith and U.S. Bureau of Prisons be dismissed.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

20090210

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