Opinion
Case No. CV 05-8534 DSF (JC)
11-30-2011
RICHARD JOSEPH CRANE, Plaintiff, v. M. YARBOROUGH, et al., Defendants.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, the Motions to Dismiss filed by defendants M. Yarborough, D.K. Downs and J. McGuinness ("defendants"), all of the documents filed by defendants and plaintiff in connection with the Motions to Dismiss, and all of records herein, including the Superseding Report and Recommendation of United States Magistrate Judge ("Superseding Report and Recommendation") and petitioner's Objections to the Superseding Report and Recommendation ("Objections"). The Court has further made a de novo determination of those portions of the Superseding Report and Recommendation to which objection is made. The Court concurs with and accepts the findings, conclusions, and recommendations of the United States Magistrate Judge.
To the extent petitioner raises new arguments for the first time in his Objections, the Court declines to consider them. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000), cert. denied, 534 U.S. 831 (2001).
IT IS HEREBY ORDERED: (1) the Motions to Dismiss are granted; (2) the First Amended Complaint is dismissed without leave to amend to the extent it raises claims against defendants in their official capacities; (3) the First Amended Complaint is dismissed with leave to amend to the extent it raises claims against defendants in their individual capacities; and (4) plaintiff shall file any second amended complaint within twenty (20) days of the filing of this Order if he can cure the deficiencies identified in the Superseding Report and Recommendation and still wishes to pursue this action. Plaintiff is advised that the failure timely to file a second amended complaint will subject this action to dismissal based upon plaintiff's failure to prosecute.
Any second amended complaint must: (1) be labeled: "Second Amended Complaint"; (2) be complete in and of itself and not refer in any manner to the original or First Amended Complaint; and (3) contain a "short and plain" statement of the claim or claims for relief. Fed. R. Civ. P. 8. Plaintiff may not change the nature of this suit by adding new, unrelated claims or defendants without leave of Court.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Report and Recommendation on plaintiff and on defendants' counsel.
IT IS SO ORDERED.
HONORABLE DALE S. FISCHER
UNITED STATES DISTRICT JUDGE