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Theodore Britton Yates v. C. King

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 7, 2010

THEODORE BRITTON YATES, PLAINTIFF,
v.
C. KING, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING CERTAIN CLAIMS

Plaintiff Theodore Britton Yates ("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 November 12, 2010, the Court issued an order finding that Plaintiff's complaint stated a cognizable claim against Defendant C. King for deliberate indifference toward a serious threat to Plaintiff's safety in violation of the Eighth Amendment. The Court noted that Plaintiff failed to state a claim against Defendant Gonzales. The Court ordered Plaintiff either to file an amended complaint or to notify the Court that he wished to proceed only on the claims found to be cognizable. On December 3, 2010, Plaintiff notified the Court that he does not wish to amend and is willing to proceed only on the claims found to be cognizable. Based on Plaintiff's notice, these Findings and Recommendations now issue. 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 ORDERED that Plaintiff's claim against Defendant Gonzales is DISMISSED and this action proceeds on Plaintiff's Eighth Amendment claim against Defendant C. King.

IT IS SO ORDERED.

20101207

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