UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 8, 2013
TORDSEN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: United States Magistrate Judge Michael J. Seng
FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF CERTAIN OF PLAINTIFF'S CLAIMS AND DEFENDANTS (ECF Nos. 28 & 29)
Plaintiff Lanard Kitchens ("Plaintiff") is a former state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983.
On February 28, 2013, after reviewing Plaintiff's First Amended Complaint, the Court ordered Plaintiff to either file another amended complaint or notify the Court of his willingness to proceed only on his First Amendment retaliation claim against Defendant Tordsen and his Fourteenth Amendment due process claim against Defendants Tordsen, Coker, Leach, and Day. (ECF No. 28.) On March 18, 2013, Plaintiff notified the Court of his willingness to forgo an amended complaint and proceed with his cognizable claims under the First and Fourteenth Amendments. (ECF No. 29.)
Accordingly, all claims in Plaintiffs First Amended Complaint except for his First Amendment retaliation claim against Defendant Tordsen and his Fourteenth Amendment due process claim against Defendants Tordsen, Coker, Leach, and Day should now be dismissed.
The Court hereby RECOMMENDS the following:
1. Plaintiff's First Amendment retaliation claim against Defendants Coker, Leach, and Day be DISMISSED with prejudice;
2. Plaintiff's claims that Defendants Marryanne Tordsen and Costa violated his rights under Cal. Code of Regulations §§ 3370(c), 3450 as well as Cal. Department Operations Manual § 54046.8 be DISMISSED with prejudice;
3. Plaintiff's claims that Defendant Marryanne Tordsen violated Cal. Code of Regulations §§ 3361(a), 3354.2(c)(1) be DISMISSED with prejudice;
4. Plaintiff's claim that Defendant Marryanne Tordsen violated Cal. Civ. Code 56.10 be DISMISSED with prejudice;
5. Plaintiff's claim for declaratory relief be DISMISSED; and
6. Defendants Marryanne Tordsen and Costa be dismissed from this action. These Findings and Recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) 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." 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. Y1 st, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
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