United States District Court, E.D. California
September 5, 2014
DEXTER BROWN, Plaintiff,
PURUSHOTTAMA SAGIREDDY, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATION
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner who is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
By order filed August 21, 2014, the court determined that plaintiff had stated a colorable Eighth Amendment claim against defendants Sagireddy, Naseer and Foronda. ECF No. 10. The court also dismissed with leave to amend plaintiff's Eighth Amendment claim against defendant Brown. In the August 21, 2014 order, the court advised plaintiff that, if he chose not to amend his complaint, the action would proceed only on plaintiff's Eighth Amendment claims against defendants Sagireddy, Naseer, and Foronda. Plaintiff was further advised that if he elected to submit the service of process forms for defendants Sagireddy, Naseer, and Foronda, the court would construe plaintiff's election as consent to dismissal of all claims against defendant Brown without prejudice. On August 28, 2014 plaintiff returned the service of process forms for defendants Sagireddy, Naser, and Foronda and indicated in his notice of submission that he consented to the dismissal of defendant Brown without prejudice. ECF No. 13.
IT IS HEREBY ORDERED that the Clerk randomly assign a district court judge to this case.
Accordingly, IT IS HEREBY RECOMMENDED that defendant Brown be dismissed from this action without prejudice. See Local Rule 110; Fed.R.Civ.P. 41(b).
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). Within twenty-one 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 filed and served 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).