Opinion
No. CV F 02 5397 OWW SMS P.
August 1, 2006
FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND CERTAIN DEFENDANTS FROM ACTION (Doc. 27, 49).
Christopher Lee Jenkins ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff filed the instant action on April 16, 2002. On August 12, 2002, Plaintiff filed an Amended Complaint. Plaintiff moved to submit Second Amended Complaint and lodged the complaint on January 9, 2003. The Court granted Plaintiff's request and the Second Amended Complaint was filed on April 2, 2003. Also on April 2, 2003, the Court dismissed the Second Amended Complaint with leave to amend. A Third Amended Complaint was filed by Plaintiff on June 27, 2003. Plaintiff moved to amend the Third Amended Complaint on September 2, 2003. The request was granted on November 7, 2003, Plaintiff filed a Fourth Amended Complaint.
On March 9, 2005, the Court dismissed the Fourth Amended Complaint with leave to amend and informed Plaintiff that he could file a Fifth Amended Complaint curing the defects outlined by the Court, or inform the Court that he wished to proceed on the claims found cognizable and dismiss those not cognizable.
On June 6, 2005, Plaintiff filed a Fifth Amended Complaint. Plaintiff filed a pleading titled "Motion to Dismiss on June 20, 2005, that informed the Court that he did not wish to file a Sixth Amended Complaint.
On July 27, 2006, Plaintiff filed a Motion informing the Court that he wished to proceed on the retaliation claim against Defendant Baumler which the Court found cognizable in the Fourth Amended Complaint. Plaintiff also stated that he wished to dismiss all claims against all other Defendants and also wished the Court to dismiss the Fifth Amended Complaint altogether.
By separate Order, the Court granted Plaintiff's request and dismissed the Fifth Amended Complaint. Accordingly, in light of Plaintiff's request to dismiss all claims and Defendants from the action except the retaliation claim against Defendant Baumler, the Court HEREBY RECOMMENDS that all claims against Defendants Zinani, Elliot, Fields, Cuevas, Harthung, and Acala and these Defendants be DISMISSED from the action at Plaintiff's request. The Court further RECOMMENDS that the action proceed only on the retaliation claim against Defendant D. Baumler as alleged in the Fourth Amended Complaint (Doc. 27.)
The Court HEREBY ORDERS that these Findings and Recommendations be submitted to the United States District Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within THIRTY (30) days after being served with a copy of 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." Replies to the Objections shall be served and filed within TEN (10) court days (plus three days if served by mail) after service of the Objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file Objections within the specified time may waive the right to appeal the Order of the District Court.Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.