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Moreno v. Ervin

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 16, 2009

MARK ANTHONY MORENO, PLAINTIFF,
v.
ERVIN, ET AL., DEFENDANTS.

FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983.

On November 12, 2008, the court dismissed plaintiff's claims against defendants Simmerson, Cochran and the Chief Medical Officer of HDSP pursuant to 28 U.S.C. § 1915A, with leave to amend. The court informed plaintiff he could proceed against defendants Dr. David Medina, Dr. James, Dr. Rita Waterman and Officer Hitchcock by submitting materials for service within 20 days, but the court would construe his election so to proceed as consent to dismissal of his claims against defendants Simmerson, Cochran and the Chief Medical Officer of HDSP without leave to amend.

On December 22, 2008, plaintiff submitted materials for service of defendants Media, James, Waterman and Hitchcock. The court finds plaintiff has consented to dismissal of claims against defendants Simmerson and Cochran without leave to amend.

Accordingly, it is hereby recommended that claims against defendants Simmerson and Cochran be dismissed without prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20090316

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