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Brooks v. Felker

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


June 25, 2009

STEVEN D. BROOKS, PLAINTIFF,
v.
T. FELKER, 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 June 9, 2009, the court screened plaintiff's complaint, found that it did not state a cognizable claim that prison overcrowding violated the Eighth Amendment, and explained to plaintiff that he either could proceed with his action on his separate claim against defendant T. Felker, or file an amended complaint in an attempt to cure the defects in his claim based on overcrowding. The order stated that submitting documents for service of process on Felker would be construed as consent to dismissal of his defective claim. On June 17, 2009, plaintiff submitted the documents necessary for service on defendant Felker.

The court construes plaintiff's election to proceed on his claim against defendant Felker as consent to dismissal of his defective claim that prison overcrowding violates the Eighth Amendment.

Accordingly, it is hereby RECOMMENDED that plaintiff's claim that prison overcrowding violates the Eighth Amendment be dismissed.

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 fifteen 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).

20090625

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