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Al Gene Fisher v. T. Felker

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 16, 2010

AL GENE FISHER,
PLAINTIFF,
v.
T. FELKER, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: George Foley, Jr. United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

On March 31, 2009, the Court screened the First Amended Complaint (#13) and dismissed without prejudice Plaintiff's claims against Defendants Wong, Jackson, Grannis, Roche, Felker, Amero, Smith, Richardson and Chrones. (#20). The Court granted Plaintiff 30 days leave to amend the complaint if he believed he could correct the noted deficiencies. (Id.) In the order, the Court also notified Plaintiff that failure to timely amend would result in the Court's recommendation that the claims against Defendants Wong, Jackson, Grannis, Roche, Felker, Amero, Smith, Richardson and Chrones be dismissed with prejudice. (Id. at 8). Plaintiff initially indicated that he intended to amend the complaint (see #21), but later informed the Court (see #25) that he would proceed in this action based on the Eighth Amendment claims that survived the Court's screening of the First Amended Complaint.*fn1 Accordingly, . . . . . .

RECOMMENDATION

IT IS HEREBY RECOMMENDED that Plaintiff's claims against Defendants Wong, Jackson, Grannis, Roche, Felker, Amero, Smith, Richardson and Chrones be dismissed with prejudice for failure to state a claim upon which relief may be granted.

NOTICE

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). Any objection to this Finding and Recommendation must be in writing and filed with the Clerk of the Court within twenty (20) days. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).


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