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Fisher v. Cappel

United States District Court, Ninth Circuit

August 9, 2013

KEVIN FISHER, Plaintiff,
v.
R. CAPPEL, et al, Defendants.

ORDER & FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

By separate order the court has found plaintiff's complaint appropriate for service as to an Eighth Amendment claim against one defendant. However, for the reasons set forth in the order filed on June 9, 2013, the undersigned will now recommend dismissal of the remaining claims of the original complaint. Plaintiff's retaliation claims against all defendants and his Eighth Amendment claims against defendants Swarthout and Rosario were previously dismissed with leave to amend. ECF No. 9. Plaintiff did not file an amended complaint to cure the deficiencies previously identified.

Accordingly, IT IS ORDERED that the Clerk of the Court make a random assignment of a district judge to this case.

IT IS HEREBY RECOMMENDED that, for the reasons explained in the order filed on June 20. 2013 (ECF No. 9): (1) defendants Swarthout and Rosario be dismissed from this action; and (2) plaintiff's claims of retaliation be dismissed.

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. ยง 636(b)(l). Within fourteen 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 served and filed 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).


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