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Jackson v. Rallos

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


July 15, 2010

KEVIN JACKSON, PLAINTIFF,
v.
TESSIE RALLOS, M.D., ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding through counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. On June 25, 2010, defendants Rallos, Traquina, Rohrer and Mahon-Howe filed a motion to dismiss plaintiff's claim for professional medical negligence based on the grounds that plaintiff failed to plead compliance with the California Claims Act and to comply with the statute of limitations. Defendants' motion was noticed for hearing July 29, 2010.

On July 13, 2010, plaintiff filed a statement of non-opposition to defendants' motion. Plaintiff does not oppose the dismissal of the second count for professional (medical) negligence, and agrees to proceed solely on count one, alleged cruel and unusual punishment based on denial of medical care in violation of the Eighth Amendment. Id.

Good cause appearing, defendants' motion to dismiss will be granted. Fed. R. Civ. P. 41(a)(2). The July 29, 2010 hearing will be vacated.

On November 30, 2009, plaintiff consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). Defendants have not filed the form indicating consent or refusal to consent. Thus, the court will direct the Clerk of Court to assign a district judge to this case.

Accordingly, IT IS HEREBY ORDERED that:

1. The Clerk of the Court is directed to assign a district judge to this case; and

2. The July 29, 2010 hearing on defendants' motion to dismiss is vacated.

IT IS HEREBY RECOMMENDED that defendants' June 25, 2010 motion to dismiss be granted. This action shall proceed solely on count one. (Compl. at 7-8.)

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-one 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." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are 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).

20100715

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