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Andreas v. Cate

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


June 26, 2009

NICOLAS DAVID ANDREAS, PLAINTIFF,
v.
MATTHEW CATE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. The court has separately issued an order addressing the complaint filed May 4, 2009. In this order, the court found colorable the Eighth Amendment and state law claims contained in claims 1 and 4 against defendants Johnson, Martinez, McCarthy, Bond and Thompson.

The court also found that plaintiff's claim that he was required to stand in 100 degree heat as a result of inadequate training was not colorable. The court found that pursuant to George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) the remaining claims should be raised in different actions. For the reasons stated in the separately issued order, the court recommends that these claims be dismissed.

Accordingly, IT IS HEREBY RECOMMENDED that all claims contained in the May 4, 2009, complaint but for the Eighth Amendment and state law claims contained in claims 1 and 4 against defendants Johnson, Martinez, McCarthy, Bond and Thompson 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 twenty 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).

20090626

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