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Rider v. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 24, 2010

CHRISTOPHER S. RIDER, PLAINTIFF,
v.
JAMES YATES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder 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. On February 4, 2010, the court issued an order finding that Plaintiff's first amended complaint states cognizable claims against Defendants Huckabee, Deathridge and Rangel for violation of the First Amendment, but does not state any claims against the supervisory Defendants. The court granted Plaintiff leave to file a second amended complaint. Plaintiff was specifically advised that if he failed to do so, this action would proceed on the first amended complaint, and the court would recommend dismissal of the supervisory defendants. Plaintiff has not filed a second amended complaint. Therefore this Findings and Recommendation 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:

1. This action proceed on Plaintiff's first amended complaint, filed June 12, 2008, against Defendants Huckabee, Deathridge and Rangel for violation of the First Amendment;

2. Defendants Yates, Grannis, Shannon and Voss be DISMISSED based on Plaintiff's failure to state any claims against them.

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.

20100324

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