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Montezello v. Lockyer

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 11, 2009

RAYMOND MONTEZELLO, AKA ROY ANDRES MONTES, PLAINTIFF,
v.
WILLIAM LOCKYER, ET AL., DEFENDANTS.

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

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 16, 2006. On January 23, 2009, the Court issued an order finding that Plaintiff's complaint states cognizable claims against Defendants Adams, Davis and Miranda for retaliation in violation of the First Amendment, Defendants Allison, Alvarez, Alcantar, Garcia, Johnson, Martinez and Emerson for excessive force in violation of the Eighth Amendment and Defendants Medina, Hense and Ostein for deliberate indifference to Plaintiff's safety in violation of the Eighth Amendment. The Court found that the complaint does not state a cognizable claim against the California Department of Corrections and Rehabilitation. 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 February 6, 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. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to amend prior to dismissing for failure to state a claim).

Accordingly, it is HEREBY RECOMMENDED that the California Department of Corrections and Rehabilitation 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.

20090211

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