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Vance Edward Johnson v. D.L. Runnels


March 25, 2011



Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On February 3, 2011, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days from the date the findings and recommendations were served. Plaintiff has filed objections to the findings and recommendations.

In his objections, plaintiff indicates that he wishes to preserve his equal protection claim and litigate it alongside his Eighth Amendment claim. In the order of August 30, 2010, the magistrate judge dismissed plaintiff's equal protection claim because plaintiff had not specified which defendants he believed violated the Equal Protection Clause or what actions he believed constitute such violations. Dckt. No. 177 at 5. The court afforded plaintiff the opportunity to file an amended complaint to cure those deficiencies. Plaintiff elected not to amend his complaint. See Dckt. No. 192 at 1 ("The Plntf. has allowed the passing of (30) days and has declined to Amend the Equal Protection Claim aspect of the 14th Amdt."). Accordingly, the equal protection claim has been dismissed from the case. On December 23, 2010, plaintiff filed a "Motion for Correction of Amended Complaint," in which he stated that he provided a corrected amended complaint. Docket No. 193. In his Findings and Recommendations, the Magistrate Judge noted that the corrected complaint had not been received by the court, and stated: "If plaintiff wishes to file an amended complaint to make changes not already authorized by the court, he must either obtain defendants' consent or file a motion for leave to amend concurrently with the corrected complaint, which should be designated the "Fourth Amended Complaint." Docket No. 196 4:12-15. The Magistrate denied plaintiff's motion for Correction of Amended Complaint. In his filed Objections to the Findings and Recommendations, Docket No. 197, plaintiff did not specifically object to this order by the Magistrate, but did refer the Magistrates earlier holding that the plaintiff's equal protection claim had been erroneously screened out. The court takes the opportunity now to clarify to the plaintiff that the Magistrate has left open the possibility of plaintiff requesting leave to amend the complaint to include sufficient detail of his equal protection claim. If plaintiff wishes to do so, he must file a request for leave to amend the complaint, along with a copy of the proposed amended complaint.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed February 3, 2011, are adopted in full;

2. Plaintiff's motions at Docket Nos. 192 and 195, construed as motions for a partial judgment under Federal Rule of Civil Procedure 54(b), are denied.

So ordered.


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